503.
No. 188.
(NEW SOUTH WALE3.)
The LORD CHANCELLOR to the RIGHT HON. SIR MICHAEL HICKS
BEACH, BART., M.P.
MY DEAR SIR MICHAEL HICKS BEACH,
5, Cromwell Houses, S.W.,
9th January 1879.
I beg to acknowledge your letter of the 12th December, enclosing me copies of a correspondence, which I herewith return, with the Agent-General for New South Wales, respecting a decision recently pronounced in the County Court at Neath in an action brought upon a contract entered into by the Agent-General in this country.
2. Mr. Forster expresses an opinion that a gross wrong has been done, and a grievous failure of justice has taken place, and expresses the hope that steps may be taken to remedy this wrong, or to prevent its recurrence either by amendment of the law, or by calling the judge in some way or other to account. the conduct of the judge in the way in which it has presented itself to Mr. Forster. I am not able to view The question, which arose upon a printed form of contract, was whether credit had been given personally to Mr. Forster, the Agent-General for the Government of New South Wales, or to the Government itself. In the former case Mr. Forster would be liable; in the latter he would not. depend upon any technical rule of law applicable to all cases, or to any special class of This question was one the answer to which did not cases, but upon a consideration of the circumstances of the particular case, the relative position of the parties, the antecedent probabilities of the case, and, above all, the wording and construction of the contract. Without expressing any opinion as to what would be my own decision were the case to come before me judicially, it appears to ine that the case was clearly one upon which any judicial mind might fairly have arrived at a conclusion either in favour of or against the view contended for by Mr. Forster without being supposed to have fallen into any flagrant or censurable
error.
3. I may add that the Lord Chancellor has no authority to correct or regulate the judgments of County Court judges by way of appeal, even if he should suppose them to be erroneous in point of law. Parliament has provided for an appeal in cases where the value exceeds a certain amount, and has provided that there should be no appeal where the value falls short of that sum unless the judge gives leave to appeal, which in this case he has not done.
Mr. Forster bases his claim for some action by the Government on the ground that similar cases may occur again, and that in none of them, if they are under value, can an appeal be had. I must. however, point out that the remedy appears to me to be as regards the future in Mr. Forster's own hands. His contracts in this country with sub-agents are apparently made upon printed forms. these forms a sentence that the contract is to create no personal liability in the Agent- It is only necessary to insert in Genoral, and that the only right of action is to be in the Colony against the Govern- ment. If persons in this country are willing to enter into a contract of this descrip- tion, no difficulty such as has arisen in the present case can again occur; and if this is intended to be the effect of the contract, it will present misapprehension that it should be distinctly expressed
The subject connects itself, as you observe in your letter, with another question of considerable difficulty and importance, namely, how far and in what manner Colonial Governments should be enabled to sue, and whether they should be made liable to be sued, in the courts of this country. This is a matter requiring much consideration, and I think it might well be submitted to the Law Officers of the Crown for their opinion. My present impression is that it might be desirable to authorise suits to be brought in our courts by the Attorney-General of the Colony, suing on behalf of Her Majesty, that is, on behalf of the Government of the Colony. The Attorney-General of the Colony ought, on behalf of the Colony, to be liable to any cross suit in the same matter that may be necessary for doing complete justice, just as a foreign sovereign suing in our courts would be liable to a cross suit I do not think it would be necessary to accompany a privilege of suit of this kind with a general liability to be sued in our courts. In that respect I should leave Colonial Governments to such process in their own courts as they are now liable to.
The Right Hon. Sir Michael Hicks Beach Bart., M,P.,
&c.
&c.
&c.
I am, &c., (Signed)
CAIRNS.
A 12916.-182. 25.-19/84.
PUBLIC RECORD OFFICE
mwimmin
CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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