37

A.—4,

stituting the sole ratio decidendi in Attorney-General v. Brown—" after the argument/ he says, "it appeared to me that it was a charitable use. But that was not the ground of the judgment in that case, whether it was well or ill founded; because I was of opinion that the Court of Chancery had jurisdiction in that case, whether it was or was not a charitable use." The case before the House of Lords in which this observation was made was an information against the Corporation of Dublin, charging misappropriation of rates levied on the inhabitants under Act of Parliament for the improvement of the water supply of the city, and praying (amongst other things) a declaration and execution of the trusts and an account of the rates. Lord Redesdale delivered an elaborate opinion. He remarks that "in early times our Kings took upon themselves by prerogative to grant certain duties, very much resembling these duties, for the benefit of towns and cities; to wall towns, to pave towns, and for various other purposes. There are in the Register writs expressly adapted to that purpose, reciting the grant, by some remote ancestor of the King, of certain duties which were to be applied to the walling of towns, or paving towns, or other public purposes; and that those duties so taken had not been so applied; and, not having been so applied, the writ authorized certain persons to call before them the persons whose duty it was to account, and to direct whatever should be in their hands to be applied according to the original intention of the grant, until the whole should be applied according to the intention of the grant." After denying that the jurisdiction rests merely upon the Statute of charitable uses, his Lordship proceeds,—" The right which the Attorney-General has to file an information is a right of perogative; the King, as parens patrice, has a right, by his proper officer, to call upon the several Courts of Justice, according to the nature of their several jurisdictions, to see that right is done to his subjects who are incompetent to act for themselves, as in the case of charities, and other cases I take this case to be one which falls precisely within the description that I have mentioned. I apprehend it is one in which, according to the practice of the ancient law, such a commission as this which is to be found in the Register, might have issued; because the persons who collect these rates are to account for the application of them, and to apply them accordingly." Lord Eldon, then Lord Chancellor, appears to have fully agreed with Lord lledesdale, saying that noble and learned lord had " reasoned satisfactorily, at least to his humble judgment, that if a writ of account could have been maintained, a suit in Chancery would be also capable of being maintained, unless the jurisdiction of the Court was expressly, or by necessary implication, taken away." And in accordance with the opinion of these eminent persons, a decree of the Lord Chancellor of Ireland dismissing the information was reversed, and an account of the rates was decreed against the Corporation. This case seems to us to lay down a broad and intelligible doctrine which is applicable to the present suit. In a passage which we have not yet quoted, but which perhaps is of more pointed application to the present case than anything in his judgment, Lord Redesdale says, " It is expedient, in such cases, that there should be a remedy, and highly important that persons in the receipt of public money should know that they are liable to account, in a Court of Equity, as well for the misapplication of, as for withholding, the funds. Suppose even the case of a public accountant clearly within the Act"—His Lordship means the Statute appointing Commissioners for auditing public accounts in Ireland—" who having embezzled or misemployed the public moneys, had rendered accounts which were imperfect or fabricated—could not the Attorney-General, upon discovery of the fact, or the fraud, proceed by information to recover the moneys so fraudulently withheld or misappropriated ? It has been said, by high authority, that such a right vests in the Attorney-General by virtue of his office, and that the Court of Exchequer, upon such information, has jurisdiction to order such person to account and pay the money. A similar remedy is applicable, as I conceive, to every other person having the trust and management of public money; any public accountant of any description." Can it be supposed that the application of the principles thus laid down by the learned lords, depended upon the municipal character, either of the defendants themselves, in the case before the House, or of the purposes to which the funds under their control were applicable ? There is no hint given of such a limitation; and it cannot be doubted that the House, on the advice of those learned lords, would have asserted the same jurisdiction against persons entrusted with the local funds of a county. We are unable to see any reason whatever why they should not be applied to the officers and the funds of the Provinces of New Zealand. One topic only remains to be dealt with on this part of the case. The information in the Attorney-General v. Mayor, &c, of Dublin, charged that the Corporation were trustees of the water-rate, and that their conduct amounted to a breach of trust; and prayed a declaration and execution of the trust, and an account of the rates. The decree made by the House of Lords was interlocutory only for an account, and it does not appear how the cause was finally disposed of. It may be thought that this decision and that in Attorney-General v. Brown are referable purely to the jurisdiction of the Court over a trust fund. Were this the true view of the matter, these decisions would be inapplicable; for it is plain that the revenues of the Provinces of New Zealand are not, in the ordinary sense of the term, trust funds, nor are those who administer them, in the ordinary sense of the term, trustees. No Court could undertake the administration of such a trust, for it would be to assume the duties of a Government. But on any rational construction of the judgments of Lords Eldon and Redesdale, it will be seen that they proceed upon a wider ground than that of the existence, iv the case before the House, of an ordinary trust. There is a sense in which every public officer is a trustee —a trustee, not neces6—A. 4.