OTAGO SUPREME COURT.

Lyttelton Times, Volume XXIII, Issue 1407, 1 June 1865, Page 5

OTAGO SUPREME COURT.

| The Judges—Mr. Justice Richmond and Mr. Justice Chapman—sat in banco on the 25th ult., to hear counsel in the case of Eccles v. Taylor. "We take the following extract from the report of the case in the Otago Daily Times .— AFFAIRS OF SOUTHLAND. —THE PROVINCIAL LAW SUITS ACT. Eccles v. Taylor (Superintendent of Southland). —Mr. Barton resumed his argument in showing cause against a rule absolute to set aside a writ of fi. fa. herein. The learned counsel first referred to the decision of the Chief Justice in M'Caul v. Williamson. This case was distinguishable from the present one on many grounds. The point of that case was that the Superintendent of Auckland, being sued for a debt contracted by him as trustee for the city of Auckland, the creditor seized in execution the property of the province in that trustee's possession. It was, therefore, as if an executor's own goods were seized for a debt of his testator ; or as if a trustee for two charities, being sued as a trustee for one, had a levy made upon the property of the other. Upon these grounds, the judgment of the Chief Justice was, undoubtedly, right; and in that important respect the case differed from the present one, for here the writ issued against the right property. As to the dictum of the case, he ventured to differ from the learned Chief Justice, who, however, carefully left the general question open. The Chief Justice said " Upon the general question, therefore, affecting the liability of Superintendents of provinces to be sued in respect of property which they may hold as bare trustees (with no power to deal with such property otherwise than as their Provincial Councils may by Act direct), under the provisions of the Provincial Law Suits Act, the miud of the Court is left open to consider each case on its merits, as they arise. But the judgment of this Court must not be conl* mitted to any proposition more general than the case before it demands. All that is now required in this branch of the subject, is to decide whether the levy under this execution in M'Caul v. Williamson, was legal or not." The Chief Justice also said— " The 4th section of the Provincial Law Suits Act provides means whereby any judgment or decree obtained under that Act may be made fruitful, viz., out of money appropriated, or to be appropriated for the purpose by the Provincial Council. If nothing further appeared, it would at least be consistent with the principles of legal construction, to hold that, in expressing certain definite methods by which a plaintiff, in any suit commenced under that Act, might obtain the fruits of his judgment, the General Assembly meant to exclude all other methods. For how does a plaintiff stand under the 4th section? If the judgment be that lie recover a specific chattel or piece of land, he may obtain the same in the terms of such judgment; so if there be a decree made in his favour ior uny other specific pinpose of relief. If the judgment be that he recover a certain sum of money, it would become the dut) ot the Superintendent to pay and satisfy the same out of any money appropriated by the Provincial Council, and applicable to that purpose." The Chief Justice then relied upon the 25th section of the Constitution Act, to show that it was unlawful for the Superintendent to pay money, except as provided by that section; and he said— " But this 4th section of the Provincial Law Suits Act cannot be disconnected from the 25th section of the New Zealand Constitution Act itself."

It did not follow that the Superintendent would or could perform his alleged duty, nor did it follow that the plaintiff, by issuing execution, demanded that the defendant should disregard that duty and pay without an appropriation — non constat, but that there had been an actual appropriation. In Mackenzie's case, money was actually appropriated, but it had been misapplied. If money was appropriated and misapplied, was the Court to be unable to enforce its suitor's judgment ? If an appropriation had already been made, could the Provincial Council again appropriate for the same purpose ? Surely a second appropriation, or a third, or a tenth, by the Provincial Council, for the same purpose, would be quite as unconstitutional an event, in the eyes of flie court, as would be a sale by the creditor of the very property purchased with the very moneys first appropriated to pay the debt. The learned Chief Justice was wrong in arguing that because an execution was

levied, therefore there had been no appropriation to pay the debt; but even if he was right, that the debt could only lawfully be paid by the Superintendent out of the appropriated fund, then the English cases upon the borough fund under the Municipal Corporations Act, showed that, notwithstanding such an appropriation, the other property of the corporation might be seized and extended, even though the borough fund waa the only one that could tic resorted to or charged by the corporation itself. All this was independent of the argument that the 4th section of the Provincial Law Suits Act was only a direction to the .Superintendent himself and in no way bound the creditor, and was also independent of the other saving clauses, that showed an evident intention on the part of the Legislature to prevent only particular writs of execution from being issued.

Mr. Justice Richmond: The real question is, Does this Act degrade a provincial legislature to the mere status of a corporation; or was it intended still to leave to it its rights as a legislature ? The public creditor, in the former case, would have a remedy by execution, as against a private person; in the other case, he would be remitted simply to public .faith. No doubt Sydney Smith would have been very glad to have had judgment against the State of Pennsylvania, instead of being reduced to writ ng wit'y letters against the authorities of that State. He stood, however, :is a public creditor does, on public faith—on just the same security that there is for the payment of dividends on stock. Is your client put any higher? In using the word "degraded," I speak strictly as a lawyer; for, in a lawyer's sense, it is degrading for a legislature to" be made a corporation — for that property over which it has a disposing power to be vested in it as a body politic ; f.-r the moment that is done, the result follows that the property is subject to an execution. Repudiation wouid be a great disgrace, not only to the- province, but to the colony. I say that the safety of the public creditor is in the horror and dread that the British public have of the very word " repudiation;" and not to satisfy a judgment that appears to have been duly obtained is repudiation. It may he that there is a remedy beyond the judgment. At the time the statute was passed, the legislature, perhaps, never contemplated such a state of things. Ido not suppose that anybody contemplated such a state things as has arisen since the augmentation of the wealth and population of the colony. I want to be satisfied «n that point—Has the legislature been degraded ?

Mr. Barton : If your Honors come to the decision indicated, it would be setting up an imperium in imperio.

Mr. Justice Richmond : Clearly the Provincial Legislatures were something more than corporations under the Constitution Act. If there is a change, it is under this Law Suits Act. ' Mr. Barton : But that is going too far behind, when once we have a judgment, which the other side do not attempt to imp ach.

Mr. Prendergast, in support of the rule absolute, submitted that there was nothing whatever in the Act which could be construed as vesting any property in the Superintendent. Taken in their natural meaning, the words of the Ist section amounted only to this—That for the purpose of any proceeding in a Court of Justice, with reference to any particular property—and for no other purpose—that particular property should be deemed to be vested in the Superintendent. It had been said on the other side, that this, taken in'connection with the fact that the Superintendent was to sue and be sued, entitled a judgment creditor to have his judgment- satisfied nut of the property which was to be deemed to be in the Superintendent. He submitted that all that was intended was—as questions would frequently arise respecting property or lands—that there should be some one in whose name, or against whom, an action should he brought. It was nowhere in the Act said that the property should be in the Superintendent and his successors—the Superintendent was in no way created a Corporation.

Mr. Justice Chapman : There is the great case of Davis v. the Duke of Marlborough, and there are many others, in which the question lias been involved ; but it was never argued that becsuse Parliament had appropriated money to the Duke of Marlborough, or to others, it was altogether protected, on the ground that to invade it would be to defeat the object of the Legislature.

Mr. Prendergast: It would be different here ; not only were the uses of the money provided for, but the uses of the goods in which the money was laid out were also provided for. Great stress had been laid upon the principleof law,that where a statute provided a general remedy, all things necessary to make hat remedy effectual were applied. But the whole of this Act must be taken together; and, sotaken.it did not give a general right to a remedy. Here, the vesting was limited. It was true the Superintendent was to sue and be sued; but the provision was only similar to that made in Turnpike Acts, and in other cases in which a fluctuating body was concerned, and in which it was provided that the cl'-rk should be the person to sue and be sued. There was no property in the clerk, and the Courts, recognising the difficulty, had said that, probably, a judgment iu such a case might be satisfied by mandamus or by a bill in equity. Kendall and others v. Iving (25 L.J. C.P. 132; 17, C.B. 403), was an authority showing that where such a person as a clerk was made sueable, there might be an action, although there was no possibility of an execution. Mr. Justice Chapman: Because no property of any kind can possibly be vested in them. Applying that case to this involves a petitio principi. Is there no property that can possibly be vested in a Superintendent ?

Mr. Prendergast submitted that there was not. He did not say that this decision settled that a fi.Ja. might not issue ; he only held that because there was a right of action, it did not follow that the fruits of a judgment were to be obtained by execution. .. Mr. Justice Chapman: It follows that all remedies applicable to the case may be pursued ; although a dead-lock may be come to somewhere, and a wise man would stop short of it. The Court took time to consider judgment.