SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXX, Issue 4585, 30 November 1875, Page 3

SUPREME COURT.—IN BANCO.

Monday, November, 29. (Before Mr. Justice Williams.) The Court sat at 10 a.m. BAUCKE V. VOGEL. Argument on demurrer. Plaintiffs declaration was filed on 16th July, 1575, and set out that defendant was a member of the Executive Council of New Zealand, and was sued as Treasurer of the colony, and that the Executive Government of the colony had placed itself under a certain responsibility to plaintiff to recover a sum of £3OO, purchase money with interest of property purchased by Archibald Watson Shand, an officer of the Government. The money was recovered by the Government and deposited in the Colonial Treasury under the hand and in possession of defendant, acting as Colonial Treasurer, who refused to pay it over to plaintiff. The declaration then went on to allege that plaintiff, expecting the sum of ‘£300,, had entered into negotiations for the purchase of a farm for £llsO. He had paid £4OO, but owing to the default of the defendant he had been unable to fulfil the terms of his bargain, and had forfeited the £4OO. He had besides been pat to great loss of time, and ..expense, and inconvenience, and had otherwise been seriously injured in his estate, credit, &.C., wherefore he claimed ‘from defendant the £3OO and interest thereon from the 6th October, 1869, to the Ist September, 1875, in all £ll7, and in addition to this he claimed the further sum of £5768 in special damage, as set out in particulars of demand. To this declaration defendant demurred on three grounds, the first being that the action was brought against the defendant in his individual capacity, whereas the claim made in the declaration was a claim ■ against the defendant as Colonial Treasurer. ■ , Air. Gordon Allan appeared, on behalf of defendant, to support the demurrer; and plaintiff in person argued contra. After considerable discu-sion, Mr; Justice Williams gave judgment, saying : I shall dispose of this demurrer on the first ground, that the action is brought against the. defendant in his individual capacity, whereas the claim is made against him as Colonial Treasurer. There is no doubt that notwithstanding anything in the declaration to the contrary, the action is brought against the defendant as an individual. If a judgment were obtained, no doubt it would be against the defendant personally, and his private property would he alone liable to be seized under execution. The question as to whether defendant is liable as a private person for claims made against him in his official capacity is therefore fairly raised by the first ground of demurrer. But the declaration charges that the Executive Government of the colony, of which defendant is a member, entered into certain obligations and received certain monies for the plaintiff. The Executive Government are advisers of the Crown, and an averment that acts were done by the Executive Government would mean that such acts were done by them in their public character. It is quite clear that an action will not lie against any member of the Executive Government or against the Colonial Treasurer in respect of expressed or implied obligations contracted in his official capacity. The demurrer, therefore, must be dismissed with costs. The Court then rose.