SUPREME COURT.-Friday. SITTING IN BANCO. [Before his Honor Mr. Justice J. 5. Moore J FREDERICK WHITAKER V. HOLLAND AND OTHERS. IMPORTANT CASE.

Daily Southern Cross, Volume XXII, Issue 2822, 11 August 1866, Page 5

SUPREME COURT. -Friday. SITTING IN BANCO. [Before his Honor Mr. Justice J. 5. Moore J FREDERICK WHITAKER Y. HOLLAND AND OTHERS. IMPORTANT CASE.

In this case Frederick Whitaker, as Superintendent of the'province of Auckland, was plaintiff, and Henry Holland, Johu Beaton, and George Woldship were defendants. It came before the Court for argument on demurrer of defendants to the declaration. Mr. Gillies appeared for the plaintiff. Messrs. Brookfield aud Wynn appeared for Beaton, and Mr. MacCormick for Holdship. The other defendant (Holland) was not represented by counsel. Mr. Gillies said that only one counsel could be heard for the demurring parties, especially as the demurrer was on the same grounds. In support of his statement he referred to the case of Wilson v. Carey, reported in vol. 10, Meeson and Wolsby's Reports. Mr. Wynn said his learned friend should wait until a second counsel asked to be heard. Mr. Gillies said he merely made the objection at that time in order that counsel for defendants might not be taken by surprise. Mr, Brookfield said that, in the case quoted, the rule was not an inflexible one. He cited the case of the Attorney-General v. Trueman, from the 11th vol. of Meesou and Welsby's Reports, in which two couniel were heard on the same side. It had been the practice in that Court to hear more than one counsel. Two counsel had been heard on demurrer in the case of Holmes v. Bach. Mr. Gillies said it was irregular, and ought not to be permitted. Only one counsel could be heard for the demurring parties. Mr. Wynn said that, according to the 149 th rule of the Court, where there were several defendants, although they relied on the same grounds, yet each defendant by his counsel may examine the witnesses. In England that could not be so. That was a question of importance, and it was for the Court to say whether it should not have all the assistance that could be given by counsel. His Honor said, without wishing to make a precedent, his opinion was that he should not object to hear the counsel, as there were a large number of cases dependent upon that case. Mr. Wynn said, in the case'of the Attorney-Gene-ral v. Trueman, there were two counsel on the sune aide ; one opened the case and the other replied. He presumed it was a matter for the discretion of the Court. His Honor said, without determining anything as to the question of right, he should like to have all the assistance he could in the matter. Mr. Brookfield said the action was brought by the present Superintendent of the province against the three defendants on a bond. The action professed to be between Frederick Whitaker and Henry Holland, John Beaton, and George Holdship. The declaration states— That on or about the 7th day of March, 1862, the defendants duly executed a bond, of which the following is a copy : — Know all men by these presents that we, Henry Holland, of Auckland, bricklayer; John Beaton, of Auckland, bricklayer; and George Holdship, of Newton, carpenter, &c , are held and firmly bound unto his Honor the Superintendent of the proviuce of Auckland in the sum of £120, for which payment well and truly to be made to the said Superintendent we do and each of us doth bind ourselves, and each of us, and the heirs, executors, and administrators of us and each of us, jointly and severally, by these presents. Whfefeas the said Henry Holland hath undertaken to defray the cost of the passage of his wife Lavinia Holland, and ten children, seven of them under twelve ytais.. of age (care of Robert Holland, of 18, Bamber-street, Bolton-le-Moor, in the county of Lancaster) : Now the condition of the above-written bond is such that if the above bounden shall well and truly pay unto the said Superintendent the sum of £60 within twelve calendar months after the said Lavinia Holland and family shall have been brought out, and the further sum of £60 within twenty-four oalendar mouths after, they shall be void and of noneffect, but otherwise shall remain in full force. (L.S.) Henry Holland, (L.S.) John Beaton, (L.S.) G. Holdship. Signed and sealed by the above-named Henry Holland, John Beaton, and George Holdship, in the presence of R, B. Lusk, Immigration Agent. Dated at Auckland this seventh day of March. 1862. J 2. That Lavinia Holland and family, in the said I bond mentioned, were brought out and arrived in Auckland on the 21st day of October, 1862. 3. That the defendants have not paid the said sum of £60 and £60 within twelve calendar months and twenty-four calendar months respectively after the said Ist day of October, 1862. Wherefore the plaintiff claims to recover from the defendants the sum of £120. The defendant George Holdship states that the declaration is bad in substance. The grounds of demurrer are — 1. That it is not stated in the declaration that the plaintiff was Superintendent of the province of Auckland at the time the said bond was signed and executed. 2. That it is not stated in what manner the said bond came into the possession of the plaintiff. 3. That it is not alleged that the said bond is properly belonging to the province. 4. That the said bond is void, as being made to an uncertain person. The plaintiff says that the declaration is good in substance. In the course of the argument it may be advisable to take the last ground first, as it would go to the root of the whole action, and a great many other actions. He believed that no principle of law was clearer than that a bond must be made to a certain person who could be identified at the time. The bond was made to his Honor the Superintendent of the province of Auckland alone. There was nothing to show that it was even a transferable document. It is not made to assigns or executors, but simply to his Honor the Superintendent. The condition of the bond was that payment was to be made to the Superintendent, and they would have to consider who was the Superintendent. It was quite clear that the present plaintiff could not have been the Superintendent at that time. It was not alleged, but on referring to the date of the bond it was seen that a longer time had elapsed than any Superintendent under the Constitution A ct could hold office. Under that Act the Superintendent held office for only four years. The bond was made in 1862, and the action was commenced in the present month,or at ill events in July. The learned counsel on theotherside tvould perhaps argue that the Superintendent might be re-elected ; but his term of office expired by fluxion of time. As far as the bond was concerned, they would be two different persons ; but, even supposing that the Superintendent was the same person, lie (Mr. B.) submitted that the bond would be bad, an the authority of the case of Storm v. Sterling, reported in 3, Ellis and Blackburne, p. 532 That was a- case in which a promissory note had been riven to the secretary for the time being of an insurance society; and it was decided by Lord Campbell, who delivered the judgment of the Court, that bhe promissory note was bad as being made to an uncertain person. He submitted that in the present jase the, bend came within that judgment— that the Superintendent was an uncertain person, seeing he must be removed every four year*. True, he xn*y be re-elected, but for the purpose of a promissory note or. bond be was a different person as Superintendent to whom the bond was given. It may be urged that the Superintendent for the purpose of the action was a corporation sole, and may me. No doubt, the action was baiedupon the Proviacial Law Suits Act, 1858, but was the bond the property of the province at all ? All the grounds of the demurrer run into each other, so that it was difficult to speak of them separately. He submitted that the bond also was not payable, inasmuch as there had been a change of Superintendents since the bond was given. He referred the Court to the sth clause of the Mercantile Law Amendment Act, 1860, to show that no promise made to a. firm could Ibe binding on the person making such a promise if a change had taken place in the firm, unless the intention to be binding should appear by express stipulation. The Superintendent was * single person who might be changed from time to time, and any promise made to him would be bad. The bond was made to his Honor the Superintendent, and that must mean the then Superintendent. There was nothing to show that the money had been advanced by the Superintendent out of the provincial fund; and on that ground he submitted that the fourth ground of objection must be sustained. As to the first ground of demurrer, the declaration ought to state that plaintiff was Superintendent of the province. The 41st rule of the Court required that that should be stated ; it ought to have been stated that the present Superintendent was Superintendent of the province of Auckland at that time. It was necessary that the declaration should show how the bond came into the possession of the plaintiff, and also that it was provincial property. The bond could only be assignable by deed, and the

deed or the material part of it must be tot out ; but nothing of the kind had been done. Then, even if assigned, in whose name could the Superintendent sue ? Not in bis own name, as it was made payable to the Superintendent at the time, and not payable to assigns. A deed would require a power of attorney, authorising the Superintendent to sue in the name of assignor. It must be alleged to be provincial property. It may be said that the Provincial Law Suits Act cuied that. That brought him to the third ground of demurrer. The declaration did not state that the Superintendent was suing in his capacity as Superintendent. The heading to the declaration was unnecessary, according to the rule of the Court. The writ stated that Frederick Whitaker, a3 Superintendent, sued. It could not be taken that the bond was provincial property unless it was alleged. That would come within those matters which were material necessary to constitute the plaintiff's right of action ; and he submitted on that ground also that the declaration was bad. Mr. Wynn said there was one point to which he would direct the attention of the Court. It was quite clear that the action did not isurvive from the person described as Superintendent, unless a corporation sole. No action could be brought in the name of the obligee. Supposing the action was brought by the Superintendent, aad not Frederick Whitaker, would the action be sustainable ? Simply putting Frederick Whitaker in the declaration, and not in the bond, could not cure that. It must be admitted that the plaintiff and the Superintendent could not be one and the same person. The re-olection of Superintendent could not cure that, as the Superintendent could only be in office four years. There was no priority of contract between the maker of the bodd and Frederick Whitaker. No action could lie unless there be a coiporation, in which the action could go by succession. The plaintiff must show some privity of contract between him and the person he sues. The heading of the declaration did not give him any status in the Court ; he might not have been in existence at the time the bond was made. There was no mention that the money was advanced by the Superintendent as property of the province, or that the money was paid by Frederick Whitaker. The proper person to sue would be the then Snperintendent, if there was any person to sue. Mr. MacCormick said the first objection to the declaration was that it did not show any connection between the plaintiff and defendants. Presuming that the plaintiff alleged himself as suing as Superintendent, the question was— Could he allege himself to sue as Superintendent? He (Mr. M.) submitted that he could not, because the Provincial Law Suits Act laid down the form in which Superintendents were to sue. The Superintendent was to sue in his own proper name as Frederick Whitaker. If it was intended that he was to sue in his representative character, it would be so alleged. Could the plaintiff so allege himself to be suing ? Even if he did allege himself to sue in that way, there was no mention in the declaration that he was suing in a representative character. The declaration in itself must disclose the cause of action, and that the person is suing in a representative character must be shown. That was clearly laid down in Bullen and Leake's Precedents of Pleadings. They might infer that the plaintiff meant to make his statement as Superintendent, but it could not be presumed in the last part of the declaration. One of the rules of the Court* stated that nothing of that kind could be inferred. Everything must be expressly stated in the declaration that was necessary. The concluding portion of the declaration stated :— " Wherefore the plaintiff claims to recover from the defendants the sum of £120." It could not be presumed that he was there claiming in a representative character, simply because the title to the action was that of Frederick Whitaker, Superintendent of the province of Auckland. He might be suing in a private capacity. If it could be assumed that he was claiming in a representative character, so it would be in every case where a man claimed in » representative character. The inference drawn by the word "wherefore" would not assist the plaintiff, for what had gone before would not warrant that inference. It could not be argued, simply because the plaintiff says " wherefore he claims to recover, " that he had made out a case to recover in a representative character, when the declaration did not in any way warrant that inference. It did not show that the bond was made to the plaintiff, nor that the plaintiff was Superintendent at the time the bond was made, nor did it allege that the plaintiff was Superintendent at the present time. All it appeared to show was what they might call the title of the action, and surely no argument need be required to show that mere description was not all that was required in the action. Nor did it appear that the right and interest on that bond ever devolved on the plaintiff. If the Provincial Law Suits Act was made use of to assist the plaintiff, there was another objection arising from that Act, which was that the plaintiff, as Superintendent of the province, could not have sued on that bond until the passing of that Act. He could not have sued at common law ; the statute was necessary to enable him to sue, and he must show that he was proceeding under that statute. The principle was that matters of law are not to be pleaded, and that applied to statute law as well as common law. It was for the plaintiff to show that he was proceeding under that statute, in the same way as where an officer of a public company is authorised to sue by public statute, he must state the statute. It was only the statute that enabled him to sue, aud in all cases the plaintiff was bound to show that he was proceeding under the statute. Counsel mentioned some of the forms from Bullen and Leake's Precedents of Pleadings. At, the present time, all statutes were public statutes, so far as courts of law are to take notice of them. He (Mr. M.) submitted in that case, and every case where a plaintiff is suing as Superintendent of the province, he must cite the Provincial Law Suits Act as his authority, It was bis authority to sue ; and he must do it in accordance with another well-known principle 'of pleading. The title must always be pleaded, and that Aot was plaintiff's title to sue. If it were not so, and A.B. brought an action as Superintendent, the defendant might plead a set-off of some debt due to him by A.B. in a private capacity. He would be entitled to do so, unless it appeared on the record that plaintiff was suing inarepresentative character. That would be another objection to plaintiff's declaration. Then, again, it did not appear by the declaration that the bond was the property of the province, so as to enable the plaintiff to sue upon it. Counsel read the interpretation clause of the Act, to the effect that a deed or contract must be entered into by the Superintendent or any other person on behalf of the public, as an officer of the province. Where did it appear in the declaration that the contract was entered into by the plaintiff, Frederick Whitaker, on behalf of the province or as a public officer? It did not even appear from the bond itself that it was done by the Superintendent on behalf of the province. Even if it did appear that the bond was entered into by that Superintendent of the province, there was no connection between the plaintiff and that Superintendent. He next came to the second point of objection — the bond being made to an uncertain pertou. He cited the case of Manning v. Grainger, from Byles on Bills of Exchange, in which the issue was takan whether or not the plaintiff was the manager of the bank at the time the promissory note was given. The point was not there raised whether the promissory note was made to "an uncertain person." He also quoted the case of Cowey t. Sterling, in Ellis and Blackburue's Reports ; and that of Yates r. Nasb, in Common Bench,' New Series. The last-mentioned, a case in which a bill of exchange was held to be paid, was made to an uncertain person. Those eases went to show that the person to whom a contract was made must be a person made certain at the time — must be a person named or designated. A bond made to the Superintendent could not be good unless the Superintendent was a corporate body. If the bond was good, the bond made to the messenger of the Supreme Court would be good. The question was fully argued in the case of Storm y. Sterling. Were it not for those cases and the opinion of Mr. Justice Byles, he should hare said that bond was clearly void on the ground that they would require to show who the person was certain, in the same way as a bond made to A.B, No one else but the person who filled the office at the time being could put that person in the suit ; as the bond was made to the Superintendent of Auckland, no one else but the person who then filled the office of Superintendent could sue upon it. A condition in the bond was that " payment is to be made to the said Superintendent"— the Superintendent to whom the bond was made. If evidence would be admissible to show who that person was who was designated in the bond as Superintendent of the province of Auckland, and that he could be allowed to sue upon it because of the delivery to him, it could only be that person, for the boud was altogether made to that one person. The obligors were bound to him, and the condition was that they should pay to him, the said Superintendent of the provinoe of Auckland, to whom the bond was made. There was no such person known to the law as the Superintendent of the provinoe of Auckland.

llis Tlonor : Tint is the loldest asseition you have mad** yefc Mr. MacUormick : It would be incumbent on tlie plaintiff to show that. Jf there was 110 such person as the Superintendent of Auckland, it nii<*ht be argued that the bond itself might be good°; but unless it was shown that the Superintendent was a coiporate body, he (Mr. M.) submitted that the bond was void. in Stephen's Commentaries the distinct.on was shown between a corporation Bole and a corporation aggregate. The Superintendent, if he is a corporation, is a corporation sole ; and it would only be the executors of the Superintendent, and not successors, who could sue upon the bond. Mr. Gillies said he was glad that that question, which was one of very considerable importance, not merely to the parties sued in the declaration, but to a very large number of persons in the province who were in a similar position in relation to the provincial authorities, who held a very large value of immigration bonds— he was glad that ttie case had nad tne benefit of the arguments on behalf of the parties of his three learned friends, although it was somewhat unfortunate in one respect, as their arguments sometimes tended to answer each other. The argument sometimes had been urged that the bond should have been given to the Superintendent for the time being, in order that it might inure to his successor. Then another argument was that, if the bond was made to the Superintendent, it would be made to au uncertain person. Those arguments were self- destructive. He should follow the course adopted by his friend Mr. Brookfield, and treat the last ground of demurrer first. There were two grounds, one of which went to the root of the action — to the right of recovery on those bonds. Re would go to the root of the allegation that the bond was void because made to an uncertain person Now he admitted at once that a bond, just as a promissory note, in order to b» good must be made to a person certain, but he contended that it did not need to be a person by name— to a person or persons by description wa9 as good as by name. He thought he should be able to satisfy the Court by recent authorities on that point. In the first place he would say, in the case of bills and promissory notes, there he apprehended the principle was very clearly settled indeed that where a bill or promissory note was given to the manager of a bank, or to the secretary of a society, it may be by description and not by name. If it was given to the manager of a bank the law interpreted that to mean the manager of the bank at the time the bill or note was given; but if the bill or note was given to the manager of the bank for th 9 time being, then the person was uncertain to whom it was intended to be paid, and then it was bad. The case of Storm v. Sterling was the only one quoted on the question of uncertainty. In that case the instrument was a promise to pay nine months after the date of it to the secretary for the time being. From the judgment given by Lord Campbell, it was clear that he was satisfied that the payment was to be made to the individual who should fill the situation of secretary to the company when it fell due. If the words of the bond had been to his Honor the Superintendent for the time being, or his successors and assigns, then it would have been to an uncertain person. He thought the principle which was embodied in the judgment of Lord Campbell, and that affirmed in Byles on Bills, was that a promissory note given to a manager of s a* bauk passed in law to the person who was acting when the bill had become payable. His learned friend (Mr. MacCormick) went further when he said that no sach person was known to the law with the title, his Honor the Superintendent of the province of Auckland. He (Mr. 6.) submitted that it was unnecessary that the Superintendent should be known to the law so long as he could be identified by evidence ; but he was known to the law. The Constitution Act provided that there should be a Superintendent for each of the provinces in New Zealand : it provided the mode of election, and the machinery whereby the Superintendent virtually never dies ; provision was made for the office being constantly filled by some person or other. The Superintendent of the province of Auckland was a description of a person known to the law. There was one point not raised which he expected would hare been brought forward, namely, whether there might be a difference in law respecting mercantile instrument?, where looseness of description might be admissible, but would not be admitted in cases of special deeds under seal. There were cases to show that the most solemn deeds were in precisely the same position as bills of exchange. In the case of Muller v. Lambert, in 2, Campbells Reports, p. 548, which was an action on bottomry bond executed in Mexico, it was held that' a bond given to 'Widow Muller and Son.mighfc be put in suit by the plaintiff who carried on business under that name at the time of the execution of the bond, and a verdict was given accordingly. There was also a very recent case — Maugham v. Sharpe and another, reported in 17, Common Bench, New Series, p. 443 — in which the Court held that a mortgage given to the City Investment Compauy iuured to A, B, and C, upon proof that they carried on business under that style at the time of its execution. On those reasons and cases it waa abundantly clear the bond sued upon must inure to the person who filled the office of Superintendent at the time of its execution The bond was made to his Honor the Superintendent of Auckland, and the designation was such as to identify the person. It was not uncertain, but came within the maxim, "Id cerbcm est quod certum leddi potest," and evidence might be given to show who the person referred to in the instrument really was. Another objection was that, had it not been for the Provincial Law Suits Act, the plaintiff would probably have been obliged to sue in the name of ths then Superintendent of Auckland, supposing he was different from the present. They have no right to assume that the person is a different person, because it did not appear on the pleadings. Even if .they admitted what was really the point, that he was a different person — that the bond was given to a different person from the present plaintiff— they were enabled to do that by the Provincial Law Suits Act. That brought him to the question of pleading. There could be no doubt that the bond on the face of it was, so far as it went, good — that it was to a certain .'person ; but as to the right of the present plaintiff to sue upon, it raised the other ground of demurrer. They did not claim to sue as a corporation. They did not confess to be a corparation sole ; but they did confess that the Superintendent, for the time being, in his proper name had certain powers analogous to those conferred on a corporation by the statute. There were certain powers conferred upon the plaintiff by the statute, and he professed to bring himself within the statute. The first clause of the Act, so far as was material to their present purpose, might be read as follows :—": — " All property belonging to any province shall, for all purposes of proceedings in any Court, be deemed to be the property of the Superintendent thereof for the time being in his proper name, and such Superintendent is hereby authorised to bring an action touching the property aforesaid." That Act had been so much dwelt upon by his learned friends on the other side, probably because it was a very dark subject;- as those found it to be who had handled it. fhe question as to how property could belong to a province bad been very severely remarked upon by Mr. Justice Richmond in the case of Eccles v. Taylor. He stated that the Act did not define n any way what was property belonging to a province. Mr. Justice Chapman said there was an ambiguity about the term property belonging to a province. Counsel quoted a portion of their remarks on the subject. They were to the effect, that the expression property belonging to a province was not technically correct— that a province was not a body having a legal existence, but merely a geographical term ; and it would be just as sensible to speak of the Superintendent entering into a bond as a public officer of the Southern Ocean. The judicial interpretation of the term was that, whatever public property in each province was subject to the power of appropriation, that must be accepted as the legal meaning of the Act. In the popular sense in which the Act had been interpreted, the term property would include right, title, interest, claim, and demand whatsoever. Nothing could be wider. "It shall include possession, right, aud title, in respect of act, deed, contract, matter, or thing heretofore or after done or entered into by any Superintendent, or any person for or on behalf of the Superintendent, the public officer of such province." The first clause authorised the Superintendent to bring any proceeding in reference to any such property which had accrued to him for or on behalf of the pro\ince as public officer. If it appeared upon the face of the declaration thac the bond had been entered into with the Superintendent as a public officer of the province, then that Superintendent for the time being would be entitled to sue in his proper name in respect of deed or contract made under any prior Superintendent, for that was what the 6th and Ist clauses of the Act provided. It was urged that the plaintiff did not show that he was within those provisos. He would recur to the argument made by a learned gentleman on the other side — that there was nothing on the bond to show that it was transferable to executors or assigns — that there had been a change of Superintendents since the bond was given, and that, there* fore, the bond was not existing ia the Superintendent. His (Mr. G.s) answer to all that argument,

was the Provincial Law .Suits Ac', which «ay? «» m.cc j ssion under such instruments, which they woifM not have had without that Act;. They aKo s,iy that the pl.-dntiff was suing as SifpSiintemient — that it was was not in the declaration. The plaintiff feaid that that might be, but it was no matter, lie (Mr. G.) would take the third objection raised — that it was not alleged that the money was payable to the Supeiintendent as provincial officer, and that there was nothing in the declaration alleging that the Superintendent was suing. It was a a clear principle that, if a writ be issued in the name of an individual in a special right, then he could only declare in accordance with his writ. If a plaintiff were to issue a writ in which he was described as John Smith, as executor to the will of So-and-so, he could not declare in his declaration for a contract of his own for a private matter. He could not join anything private, nor could he, if he sued in his own individual name, and did not in his declaration state that he was suing as executor on account of any claim as executor. The principle was laid down in Chitty's Archibald's Practice of Court of Queen's Bench. If a writ was issued in a special capacity, then the claim in a person's own right could not be declared upon. It was argued that nothing appeared in the declaration to show that the bond might not have been given for a claim in the person's own right. The bond made it distinct that it was given to his Honoj>the Superintendent. The writ was issued in the plaintiffs name as Superintendent, and therefore the Court would presume that there was no variance between the writ and declaration ; and therefore it must be assumed that the action was brought in the right in that capacity as Superintendent by the plaintiff. It had been said that, although the bond appeared to be given to the Superintendent in hie official capacity, succession had given the Superintendent no right of action by the Provincial Law Suits Act— that it did not appear that the bond was given to plaintiff as a public officer of the, province. There were one or two cases which settled that point. Storey on Agency, sec. 395, laid down the principle that when interpretation was made of the person named in the instrument the law would act upon it. There was another principle which had not been averred — that in the case of a public officer there was a stronger difference made than in the case of ordinary agents. Public agents were not ordinarily liable for contracts made by them in an official capacity for Government, and as not ordinarily suable they could not be sued thereon, le submitted that the bond being made to his Honor the Superintendent showed, on the face of it, that it was intended to be on account of the province — that it was intended that that right should be part of the property of the province subject to appropriation by the Provincial Council of the province, and not a bond made to the person holding the office of Superintendent then. That being the case there could be no further question that the Provincial Law Suits Act gave the succession to right of action. It did not make the Superintendent a corporation sole, but simply conferred a power of continued right upon a continued holder of the office for the time being. The Act provided for abatement. He was not aware that he had omitted to answer any arguments brought forward. He would, in * few words, summarise his argument. In the first place the bond was given to * certain person, who was not a changeable individual, and given to a person who at the time existed as Superintendent. If there t had been no Act they would have been obliged to have sued in that person's name ; but by that Act power was given to a succeeding Superintendent to sue in his own name upon such matters, if those matters were the property of the province. He submitted that the bond was the property of the province, upon the face of it, having been made to a known public officer, and one recognised by the Constitution Act ; and therefore that the right of action accrued to the existing Superintendent. He submitted that the existing Superintendent having sued in his own name, and in his writ declaring the right m which he sued, was sufficient without averring in the declaration that he was the existing Superintendent of the province of Auckland. Mr. VVynn replied to the arguments of counsel for plaintiff. His learned friend had taunted them that their arguments did not agree with each other. It could not be expected that three gentlemen would express exactly the same views ; but he would endeavour to show that the arguments of counsel for plaintiff were contradictory of each other. It was not alleged that the plaintiff was Superintendent of the province, and they could not deny that which was not stated. It might be in the writ, but they did not answer a writ but a declaration. It would be essential on trial to prove that the plaintiff was Superintendent. No issue could be framed on the declaration, as it did not allege that the plaintiff was the Superintendent of the province, wnich was the very foundation of the action. , What was the meaning of the Provincial Law Suits Act, without which it was admitted the Superintendent could not issue ? It was damages for a breach of' covenant — there was no property whatever. The bond did not allege that the province ever paid a sixpsnee. It stated that the parties were brought out and arrived in Auckland, but it did not say by whom. There was no mention that the province incurred one sixpence of expense. There was no property in question at all ; it was a vague kind of right— an action for breach of covenant. The clause in the Act which was quoted did not give the new Superintendent the right to sue in his own name, but in the proper person of the other Superintendent when the action succeeded, j It did not give the right of succession in actions at law. That action could only be applicable to the person to whom the obligation was made. There was no mention that Frederick Whitaker was Superintendent, which should have been stated in the declaration ; or that Frederick Whitaker was the person mentioned in the bond. The plaintiff was not Superintendent at the time the bonds were entered mto — he was not the obligee to the bonds when entered into. Then again the office of Superintendent may die or be in abeyance. It could not be said that the office of Superintendent was like a corporation, or an office which always continued. The declaration did not disclose privity between the plaintiff and defendant, which wa3 required to be done, and, therefore, be submitted that the action could not be maintained. His Honor said he would consider the case, which was one of great importance, and read over the notes he had taken of the arguments before giving judgment, it appeared to him that the real ground of objection was the 4th in the one case, and the 2nd in the other — that the action was void as made to an uncertain person — the others were merely grounds of pleadings. He would give judgment in the case on Wednesday next.

GIBBONS Y. HERON, DAVID, AND CO. This was an application to take money out of Court, which, had been paid in in order to obtain leave to appear and plead under Summary Procedure of Bills Act. Mr. Wynn appeared for plaintiff, and Mr. Brookfield for defendants. * Mr. Wynn said that was an application to take some .money out of Court. There was an action under the Bills of Exchange Act, and the defendants had paid money into Court to plead under the power of the Act. Since that time tenna had been made, and the application was to take the money out of Court. Mr. Erookfield, who appeared for defendants, wished to have the matter postponed until next Wednesday, and he (Mr. W.) had no objection. The hearing of the case was postponed until Wednesday next, by consent. The Court then rose.

• ' The-'e is every probability that the steamer Ant which was wrecked at the Barwon Heads a short time ago," says the Oedong Advertiser, " will be got off and again made fit for service. A number of men have been employed in emptying her of her cargo, and but a small quantity remains in the hold. She is now in six feet of water at low tide. Some eighty empty casks and two Californian pumps arrived at the scene of action yesterday (June 24), and it is intended to clear her entirely of the remaining portion of her cargo, and fill the hold with the empty casks. She will then be hauled further up on the beach, and placed on one of Wrights patent slips, where, the water having been pumped out, steps will be taken to repair damages and render her seaworthy. We are sorry to state that some marauders, having no sympathy with the owners for the loss they have sustained, have been busy whilst the vessel had been in * comparatively unprotected condition, in despoiling the cabin of its fittings, and have doubtless considered some portion of the cargo as perquisites for their own especial use and benefit ; in fact, it is believed, if time had been allowed them they would have torn up and carried away the deck planking. It is almost incredible that such things could occur in.a prosperous colony like Victoria, but it is nevertheless true. It is to be hoped that the wreckers will soon be discovered and brought to justice. The Ant was, we understand, insured for £5,000, and the wreck was bought by her former owners, for £37. Should they be successful in the scheme they are at present engaged upon, they will be large gainers by what they considered a short time ago to be a heavy loss. Should no further contretemps occur it is expected to have the vessel on the slip iv the course of three weeks."