WOODWARD V. BEARD.

Wellington Independent, Volume XVIII, Issue 1969, 13 October 1863, Page 1 (Supplement)

WOODWARD V. BEARD.

This case is also an appeal from the decision of the Resident Magistrate. It differs very materially from both the cases in which I have already given judgment. The promissory notes in this case were made in New Zealand; and there is no question of the Statute of Limitations. The notes on the face of them profess to be made in consideration of value received in the passages of the defendant and his family from Liverpool to New Zealand, and it appears from the case that the defendant had, in fact, received the consideration before giving the notes. But it is suggested that inasmuch as other notes had already been given in England for the passage money, and those notes were unstamped, and therefore void, the fresh notes given in substitution for them, which required no stamp in New Zealand, were bad also. I cannot admit that there is even a show of reason in this argument. It would seem a preposterous doctrine to hold that because a person had given a void security in respect of an executory consideration, aJJ regular formal contract to pay money in respect of the consideration when exexecuted, will be void also.

The next point is that the plaintiff had no right to sue, but that the action ought to have been brought in the name of the Superintendent. On this point my mind is not free from doubt, as I have already intimated in the case of Woodward v. Austin, in which, however, the question was not of so much importance as it is in the present.

On looking into the case of Robertson v. Sheward, which was cited in Woodward v. Austin, for the purpose of showing that the Treasurer, payee, might well sue, in spite of the Provincial Lawsuits Act, I find that the question whether the public officer of the bank ought not to have sued was not properly raised on the record ; and in Law v. Farnell (L. T., Nov. 19, 1859) the manager of a bank who was held to have rightly sued in his own name, was generally the holder of bills for the company, with authority to sue.

Looking at the provisions of the Provincial Lawsuits Act, 1858, 1 cannot help thinking that it was the intention of the Legislature that the Superintendent alone should sue and be sued in respect of the Provincial property, and the various claims of and upon the Province ; inasmuch as it is enacted that lie shall, as well as that he shall be, authorised to bring and defend actions , &c, concerning the property belonging to the Province; and such " property," according to the best construction I can put on the interpretation clause of the Act (which evidently refers to words in the first draft of the Bill, not now appearing in the Act itself) must include a " right, clear on demand," in respect of " a contract entered into by any Superintendent, or other person, for or on behalf, or as a public officer, of any Province."

I am therefore of opinion on the whole — although I do not entertain a very decided opinion on the subject — that all right of action which any persons might hare had, in their own name, be-

fore the passing of the Provincial Lawsuits Act, j 1858, on behalf of the Provincial Government, for I whom they acted in a fiduciary capacity, became vested, after the passing of the Act, in the Super- | intendent, and that he was the proper person to sue.

Such being my opinion, the judgment of the Court, in pursuance ot the terms of the case stated, must be that the appeal be dismissed with costs. Appeal dismissed with costs.