SUPREME COURT.

Anglo-Maori Warder, Volume 1, Issue 10, 27 June 1848, Page 2

SUPREME COURT.

Saturday, June 24, 1848. The Chief Justice attended this morning, and delivered judgment as follows, in the cause The Queen against George Clark. This is a suit of scire faclas to annul a grant, made in the name of the Crown, by Governor H z Roy to the De r endant. The grant is in the usual form, and comprises 4000 acrt s t-f land, of which the boundaries are set forth in the grant. This piece of laud was claimed by the defendant as having been purchased by him from certain of the natives of this country before the proclamation of the Queen's sovereignty over these islands. The claim was examined by Comiri-.sioners Godfrey and Richmond ; who repor'ed upon thu same, recommending; that a grant of 2j6j acres should be made to the defendant. Their report was confirmed by the officer administering the government, and the confirmation was publicly notified in the Government Gazette of 21st June, 1543. Subsequently Governor Fiiz Roy referred the defendant's claim to Mr. OmmisMiMjer FifzGerald, who reported Unon the same on | the 2nd of May, 184), and recommended that the : defendant should receive a crown grant to the full extent of his claim. In pmsuancpof Mr. Commis- j sioner FnzGcrald's report, this grant wts made on the 16: h cf May, 1814. The question now before the Court is raised u.on a demurrer to the defenders | pea It is therefore incumbent upon thj Court to •-xiiniiie the pleadings upon both sides, and to give judgment according t» the right of the ca>e t as it appeals upon the whole record taken together. The objections, which are assigned as groui.tls of denimrer, coire-pond in substance with the objections slated at the close of the declaration. The only difference is thi—that they are applied in the one case to th» repoit ot Mr. Commissioner FitzGeru d ; in the other, to the grant itself. This furnishes a atural and clrar division of the whole matter. I w ll therefore foil 'W it, and consider, in the first place, whether the rcpjrt was irregular or illegal; and secondly, how far any irregularity or illegality in that report wou'd affect the validity of the grant to the defondait. The fi'St objection, then, to the report is the following—" That the said Commissioner R. A. FUzCerahl was no', uur was any single commissioner, authorised by the provisions of the Land Claims Amendment Ordinance (SesE. 3, No. 3), to rMcar claims or to reverie reports already duly heard, investigated, and reported upon by two commissiuneis, pursuant to provisions of the Land Claims Ordinance, mate the force of this objection, it is necessary to consider th.* two repoits which aie referred to in the pleading, uiJ also to advert to ceitaiu fac's uf wlich, though not stated oa the rtcoid, the court U bound to take judicial notice. Tue flr»t Lmd Claims Ordinance (pastel "in June, 1841) directs (Sec G) that " the said commissioners sha I in every case inquire into, and set loilh, so tar as it shall be possible to ascertain the same, the price or valuable consideration, with the sterling value thereof, paid for the lands churned — and shall also inquire into, and setforth the number of acres which such payment would have been equivalent to, according tu the rates fixed in a schedule annexed to this oidmancc." Tuat schedule, marked B, was framed to comprise all purchases made between Ist Junuary, 1815, and 31st December, !539; and the iat.-s fixi-d 6'ieieiii, ranged fro-n 6d. ,in acie to S-,. an ac e. It was further " provided that no grant cf laud shall be recommended by the said which shall exceed in extent twj thousand five hundred and sixty acres, unless specially authorised thereto by the Governor, with the advice of the executive council." in the secondaesMou of the legislative counc If another Land Chums Ord-iiance was pjs td (-ess. 2 No. 11). It eiMCfel (a 4) tlidt " Whenever ;t bhall be report, d b> any commissioner or commisvh-ners ol Und claims that any person ts entitled, under the provision- or the a aid oiumance (mtam.<g the otigin.il Li.id CUm* O.di.umce) to a grant of laud in re s p Cl t nt h s rU;ed pun base, such person shall, on th: report beh.j: coufi ui.d by his Excellency tin.- Gou-nor, he cnfk-U to ngrrtii* fiom the Crown our. of the land v rt udU soli I to su-h peis.u of four timts ai ninny aco> "a> he bin* 1 bj i'oi-nt to ha.e txp ndel pounds m i m«nnrr and f-r tue puipo>es hereinbefore inent oned.' | TiO.e jiurptses included, not only the pi-tha-e of tlui laii't, but a';ov.ir.jus heads of expenditure— connected j «i h the coiuejuuce o! emigrants to the land, and u u h uf tiie fanner ordin-iucv a- re->tr'ct-d th- nc -uimendati n& ot the comnm i. ne s t. 2ot>) acres [ .Jt 1 icral'y 80 much ol tl..i yri.uutict ,i„ uj, UeVU-

•iißti'iit with the new arrangement, w„s repealed, lin* "srrond onlininrcwis pns«rd 25th February, IPI2. It name into operation at oner; anil whilst it continued in operation, Commis*ionerß Godfrey and Richmond male their report, datrd 30th May, 1843. Tliry reported that tlicy were of opinion that Gt-orge Clarko made a bona fi 'c purchase (mm the native chief-* on (he -fill of March and the 2utU of September, 1836. Thev estimated the payment made for the land at £ 17G 18». ; find they recommended that a grant for 2."tf 0 ncrcs, with certain exceptions, should be issued. Ir U to be observed, that there is nothing in the leport to thow that any monies had been expended by the defendant in the manner, or for the p-irp'-srr, mentioned in the ordinance then in force, save only t'-e puivha.se money given to the natives for the land iisdf. | Now according io the new rate fixed by that ordinance, | the deftndint was entitled, in respect of that purchase I racney, to only jpoS acres ; and I see that, in the conI urination t»f the report referred 'o by the record [Government Gczntc, 21st June, 1843), the quantity to be gi anted is stated accordingly at I'JDS acres, with ctriain exceptions. It docs not appsar, then, in what way the C.immis-doners conceived the defendant to be entitled to 2"6 i» acres, but it is important to bear fit mini! that the number of 2560 was not fixed upon as an absolute limit set by law. As the law then «to d, there was no restriction at all upon the quantity which ihe comn is-douers might recommend to be ennted, except so far as a restriction wa* implied in the rule that the claimant should receive, ou> ot the bmd validly sold to him, a grant of four t mes as t> ny acres as be should have expend d pounds sterling uj the Government Gazette of oth September, T *3d3, it was notified to the public that the ordin- ore jusj uenttoned had b<en disallowed by htr M jesty. The necessary consequence of this was the revival of the original en>ctmentof June, 1841 In the ease, then, of this defendant a revision of the report made by Commission-rs Godfrey and Richmond became necessary. The difference between the effects of ihe tno ordinances was to him very considerable. Under the formet ordinance (even supposing the calculation to In made in the mnnuer least favourab'e to the defendant, by taking;, in Schedule B, tin: highest sum per acre sec against the year lci36, in which the defendants purchase was made—namely, 2s. per acre), the comideration money would havo covered 4709 acres, it* tha defendant's claim had included so many. Subsf-qtiently to the di-al owance of the second Land Claims Ordinance, and on the 13th of January, 181*1, a third ordinance was passed, intituled "An Ordinance to amend the Land Claims Ordinance, Seas. 1, No. 2." This third ordinance, after reciting th; original ordinance, enacts as follows :—'* A'l the powers of hearing, examining, and reporting on claims to land, and alt other the powers and authorities given by the said recited ordinance to any two commissioners, msy be exercised as fully and effectually by any dingle commissioner, as the same have heretofore been exercised oy two commissioners,** Under this ordinance Mr. Fitzgerald was acting as a single commissioner when he made his report of 2d May, 1544. Of the three objections to this report, the first, which h now under consideration, refe s to the nature of the power exercised by the commissioner in this report. Toe objec'ion is, that no sing-le commissioner could "rehear claims or reverse reports already duly heard, investigated and lvrorted upon by two connLksioners." As to the way in which this report did interfere with or modify that made by the two commissioners, the only tvidence is the report itself. Now, upon inspection of the report, it h plain that more claims than one arc included therein, and more grants than one are recommendi d; but the report does not specify or distinguish ihe claims in deliil. Grunts to iho am iunt of sj'o acres are recommended. Taking the report us I find it, and comliinin* with it the aUmitt.-d fact that the grant now impeach*d was issued in pursuance of it, 1 infer that tins iej ort d d not d ffer from tint of toe tno comnmsioneis in any uth r ponn than this, namely, that Commia loner Fitzgerald recommend* da grant ot 4000 acres, i„ l, eU( ,f tbe 25G0. recommended by the two comnmsiotiers. Now in this I see no lehsaring or reversal of the lormer rep r. The commissioners, in calculating the number • >f aces to be recommended to bd granted, had piocelled up an a r dc which was then law, hut was now no lon *e r so. The restoration ot the old rule had made it cec<ssary to have thjss calculations reconiid.Trt! and revise!, before grants cou'd be issued. Th-: Mmr'e csmmissioner did nothing more than reviews calculation, the principle of which, m all the reports made under the disallowed ordinance, was iucjiisisttnt wnh the revived law. 1 dj not see tLat th- mid menu of the origin 1 re,.ort were arreted; or that aujtbuuthvrem was unssttled, which had been s-ttl-d hi con ormiiy with the law as it now stood, it appears to me ttu.t (so far at any rule as this claim U e .ncerncO Mr. CjinmtsS'oner Fitzgerald did not, in making tins report, ex ruise any t>owers but such as were given to bun by the words of the ordinance under which h j acted. I come now to the second ground ot demurrer,.which runs thus; "that the said Comnii sioner, K. A. Fitzgerald, was not, nor was any single C'limiHS-ionir,authorised to report upou cUhua to hi'd ui.d r the Land U.u.us Ordiujuiv [Scsmo 1 1, t \o 23 \\h cu he had not hj-tril and cwiiimud m manner prescribed by the. said ordinance." Tins is im objection to the p-rsou of the cucim-sioner. Jt 1* cont.udod (if I ly apprehc.d the argument ot the learned Attorney Ga-.erulJ hat no re, o:t could lawn 11/ be male upon any claim except by the very comntii-sio-icr. who hturd and esnmm.d the c'aiin. The o-,-jeoiou is "rounded on the words of the Lmd Cki-ns Ordinance, nU\ch enacts (section 3) that it shall be lawful lor Hie Governor ol the colony of «tfew Zealand to appoint who shall have full po' ■ »ind umhorny to htur, und report on .11 claims lo guints ol l»nd, svc.; and in the O.h section, that " the smd cjromiae-.o siiall in every casu mqu re into and set for hj, sp far as it shall possib'e ta ascertain the suine, the price orvjluabi. with the sterling value tbcie.d', j.-.d for the ia» da claimed—and shall alio intuite intu and set forth the number of acres which -ml. pjyuieut would bj eijaivulent to, accordiug to tiis rates fiied in a ichedule anuexed to this oidnuinc. And if the mui* CytuuiisioiiMrs, or any of th m, fehill bjßa-ufied Out the pt-tFon or person tUmiin* buih lands tr any part thetvuf is or are entitled aciordni!»to ihe ihcM.ation of Her Gracous M»J >ty afor ? .i t d to hold ihe said I.ui 's ur auj p iri thert'jt th. ■/ t/ic situi comni-uOHpfS shttil repwrt'ilie siuK and thi Riouii J3 thvriut t. the hu t d governor ju»r !io;fy." Now a uu) U liiilviOtn'-'deJ that ltrtas the mundyn ol the lei'u.m.rt? tl'ut, as u uiU. t -c mtfi.dii.able Bin it is argued that the rut: »* a's bile ami lap-ratne mull c.ibCa. l;-.lt, ui & : tirat p ace, no ruU, of mw run he iiiipa'd'.Ut., unless it ocatth.' s mi-* time pracsit.i'de. Nj act can be pr 1-uo,tmcdilh'g.lonti,esi.mii!ufnMu-o«.ipli.uie.wi:,ft red by law, un'.r,* it appc ir that c.m- . phan.e ww (..i Mble. Itciuld never be held fiat. i( ; -liecommisdoiwrsditdafur investigating the clv'ra, but bt fore any report had bceu made, no report a I all ehvu i be made in such a Therefore, u t- utf

construction of ihc words were clearly the true one, it would be necessary to show lb at it was practicable to itfer this parlicuia" claim back again to the commis- , doners who originally heard it for their revised and final report thereon. 3ut on this record, there is no averment to thattffect. For anything which appears in this record, ihe original commissioners may have ceased to hold their office, m>y have become mcompetent to perform ths duties of it, or may have died in the interval. But, if such a restriction was ever inienc'ed it was abandoned and repealed by the ordinance under which the single commissioner acted, which says " all the powers of hearing examining and reporting on claims to land, and all other the powers and authorities given by the said recited ordinance to any two commissioners may be exercised as fully and effectually by any single commissioner, as ihe same have hitherto been exercised by two commissioners " Wbateverpowei the word "said" may have to specify and to restrict, the word " any" seems to have equal power to generalise and to extend. I consider therefore that this ground of demurrer also is insufficient. I proc ecd l 0 tnc luin * an * l aSt ground " that it is not alleged in the Bald plea, that the said Commissioner, Kobert A. FitxGera'd, vas specially authorised by the governor in Council to recommend a greater quantity than 2560 acres of land to be granted to the said defendant. Now it is admitted upon the record that "the recommendation of Mr. Commissioner FitzGerald was not in the pleading me j tioned preceded by or' made in pursuance of any special auihority given for -»v%t purpose by the Governor ia Council as required 1 tfm Land Claims Ordinance. The terms of the ofdiiihnce clearly require that before the commissioner shall kecommend an extended grant he shall be in possession ofa special authority enabling him thereto. The wotds sre, " Provided that no grant of land shall be recommended by the said comroissoneis, which shall exceed in extent two thousand five hundred and sixty acres, unless specially authorised thereto by the governor with the udvicc of the executive council." In tbiß case, the commissioner, at the time of making the recommendation, hadnot received any tuch authority. He assumed to exerciee a power which the law had withulden from him. The recommendation then waa illegally made and the report was, so far at any rate, vitiated. It remains to consider the effect of this admitted illegality in the commissioner's report upon the grant subsequently made to the defendant in pursuance of that report. But first, having noticed all the objections, made to the commissioners report, I pass to the reasons urged by the leirn-d Attorney. General for setting aside the grant itself. The firstis: "because the said grant was made contrary to the said commissioners report (meaning the report of Me«srs. Godfrey and Richmond) so made and confirmed as aforesaid." This objection involves two assumptions: one of law, and the other of fact. The first is, that a Crown Grant to aland claimant made contrary to the Commissioners Report upon the claim, the report having been confirmed is necessarily void. The second assumption is that, at the time of making the Crown grant to the defendant, the Commissioners' Report was a Report " made and confirmed.*' The quesiionof law jrsolves itself into the one main question, to which I shall address myself presently i namely, how far a Crown grant is connected with or dependent upon, the Commissioner-' Report preceding it? But could the Report of Cain missiontra Godfrey and Richmond be regarded as being, in tact, a Iteport " made and confirmed," at any time after the disallowance of the ordinance upon Which it was based ? Certainly it was once confirmed, but the disaPowance of the ordinance necessarily (as it appears to m<>,) opened the case again, and did away with the confirmation. The claimants were remitted to tbe larger bounty aud more liberal scale of the first ordinance and it was needful that evety report which had been made upon the footing of (he 2nd ordinance, should Be reconsidered and levised. Tbe report had nowlostits character of finality. It appears to me that no grant could in any w.se be v-Jd for contrariety to a Report which was based upon a put ciple that was itself in contrariety to the revived law. The other reason for annulling the grant instated thus: *' Because no greater quintity than 2,5G0 acres of land coul& or can be granted to any claimaui under the provisions of the said Lind CleimV Ordinance, except upon the recom> mendttion ut the commissioneis who heard and exa mined the cla'm in manner prescribed by {he said Ordinance, being specially authorized thereto hy the Governor, with the odvirt ot tne Execuiive Council." This reason comprise* two distinct objections: the forme, derived fiora the fact thet the report in pursuance of which the gran' was issued, w»s not made by thecoinmissionets who orie,iaally examined the cliiro, the latter from the want of legal authority in tbe commissioner who made that report. As to the former, I have already indicated my opinion in the remarks which I have wade upon thv same objection when applied to the report itself. If the report could not be pronounced illegal merely on this ground of a diversity in tbe persons of the commissioners, still less cculd the crown grant which followed it. The latter objection remains. The commissioner no doubt exceeded his powers. The L&nd Claims' Ordinance imposed a condition precedent to the recommendation of an extended grant, and that coud tion had not bEen fulfi led when the recommendation in thi* case was made. The recommendation then being illegal, is the grant, made in pursuance of recommendation, illegal also ? This the ore main question recurs, upon which the Court has to decide, and to which 1 now proceed. Our first business is to lijok to the words of the Ordinance itself. Now there is certainly dj express enactment in the ordinance hat a grant such as this si a'l be M void by reason of its being preceded ormade in pursuance 4? irregular or illegal recommendation. (;fcourse'lt o tj' not mean that express words of avoidance are necessary t for the purpose of avoiding a grant, in any case where the grant is plainly contrary to ths meaning and intent of the law. For example, it the grant had laid donn a positive and absolute 1 mtt to the number of acres to be grant-'d in any case vw'bout saying more, there would be no hardship in holding a grant of a greater number of acres void. For the grantee would be boned to take notice of the law, and a com pari- ' son of the terms of the law with the terms of the i grant would bting home to him at once a knowledge of the illegality. But it is not contended ; that tins grant purports to corvey more than under ■ this ordinance tie grantee might lawfully receive, j We have nothing here to do with any question of in- j trin&io illegality. There is in the whole ordinance no j enactment avoiding any titles, except the general j cuaLirmnt (in session 2) that •• all titles to land which are held or churned hy virtue of purchases from tne chief* or other individuals of tbe aboriginal tribes, ami which are not, or mm not hereafter be allowed by Ur 3Wii,je*tv, lur heir; aud successor*, are and tbe tame that! be- absolutely null and \old ;'• words which natural* sujj;tst the hViMcuce that the legislature iutt tided all tries s» confirmed to stand gcod, unless indeed ihe grants were in themselves contrary to law. The words relied in as havirg the effect of invalidating this grant refer (it will be seen) to the recommendations to he mads by the commissioners, and not at all to grants to be made hy the Governor. The words are "Provided that no grants if land shall be recommended by Vic said commuiioncrSf which shall

exceed in extent 2560 acres, unless specially authorised thereto by the Governor, with the advice of the executive council." Here is a direction given by the legislature to the commissioners, but none at all given to Ihe Governor, nor is there one word respecting the making of a grant or the effect of a grant when made. Is this court, then, to imply an enactment not expressly made ? Certainly the ccurt is bound to do so, if the intention of the legislature be otherwise plain and beyond doubt. But it behoves the court to consider well belore it says what the legislature bus not said. If au implication of law is to oust a man of his freehoU, it behoves that implication to be clear and inevitable. It is laid dowo amongst the rules to be observed in the construction of statutes, that "a statute shall never have an equitable construction in order to overthrow au estate/* [Bac. Ab. Statute I. 461.] And this rule flows from the very nature of the law, which has for one of its main objects to give quiet to titles and permanence to property. Moat of all must it be the duty of the court to reject such an equitable or extended construction, where the estate to be overthrown is founded upon a I purchase for valuable consideration. Tbe Defendant 'is admitted to be a purchaser in good faith and for valuable consideration. It is on this ground alone that he receives a grant. The Crown has granted nothing to him but what he had previously acquired for the Crown. It was by the act, and at the cost of the. grantee, that the very power of granting ; accrued to the Crown. It is laid down in G Bac. Ab., Prerogative, t. 516, " That when the king's giants are ! upon a valuable consideration, they bhall be construed favourably for the patentee, for the honour of the king." This maxim is not, in its terms, precisely applicable to tbe present case: but it is an instance and illustration of a general and settled principle of law. But, over and above the general principle just stated, It "appears to me that there is enough in the ordinance itself to show that such an extended construction can have no place here; and also that the distinction which I have adverted to, as apparent in the language of the ordinance, between a recommendation by the commissioner and a grant by the Governor is not a verbal distinction only, but a very substantial one* After a number of particular regulations have been prescribed in the body of tbe 6th section, for the gnidauce of the commissioners in framing their reports, the section concludes with the following •* Provided also that nothing herein contained shall be held to oblige the said governor to make and deliver any such grants as aforesaid, unless his excellency shall deem it proper so to do.*' There is, then, so little necessary connection between a report from the commissioners and a grant from the governor of the lands recommended by the commissioners to be granted, that after due and full inquiry has been made by tbe commissioners, and after n favourable report has been made, and that in the most exact conformity to the regulations of the ordinance, yet it is. after all, left wholly m the discretion of the governor, whether to issue a grant or not. The report however complete and regular, gives to the claimant in whose favour it is made no legal right to a grant This being so,—the claimant deriving no legal benefit from the report though made in most exact compliance with the requirements of the Ordinance, cau it be fairly held that a non-compliance with one of those requirements shall operate not simply to his prejudice, but to ihe defeating of his claim even after it has been confirmed by a Crown grant 2 I cannot think that the legislature intended to lay down a rule so greatly wanting in mutuality, as that the connection between the report and the grant should be broken off when it might operate in favor; of the claimant, and should subsist when it might operate against him. Hitherto a have confined myself to these poin's; first, that crown grants are not within the words of the proviso, or of any prohibitory enactment, in the Land Claims Ordinance ; and, 2udly, that this Court cannot lawfully extend those words so as to include them. And these two considerations appear to me to constitute a complete answer to all the objections urged against this grant. I wish however carefully to guard my self against being unders'ood to imply that if Crown Grants had been within the words—if it bad been expressly provided that no extended grant should be made without a special authority from the Governor and Executive Council—that therefore a grant, if it happened to be made without that special authority, would be void in the hands of the grantee. On the contrary (although the question does not directly arise* here) I conceive that, even then, it would be necessary, in order to avoid the grant to shew that the non-compliance with the requirement of the Ordinance was procured by, or at least known to the Grantee. From the notes collected by C.B.Comyns, of old cases, in which the validity of crewn gran's came in question, it is plain that one chief test, by winch it was decided whether errors, false recitals or misdescriptions, contained in a deed of grant were sufficient to avoid the deed, was this: if they were such as to create a presumption that the King had been deceived by misrepresentation, or false suggestion or concealment, on the part of the grantee, then the dreil was void : but otherwise not. —(Comyn'-s Digest, Grant. G. 4—9., , and Bacon's Ab. Prerogative— F. M 4.) And in one of 1 the few modern cases in whicd the same question has arisen, TindaU Chief Justice, in delivering the judgment of the Court, said—** We think the present ca e e is to be governed by the principle laid down in the case Rex et Regina v. Rcmpe (1 Lord Raymond 49.) that where tbe King is not deceived in his consideration, nor otherwise to his prejudice, by any suggestion on the part of the g-amee, but the intent was to pass the interest expressed in the grant, only the King has been mistaken in the law, there he shall not be said to be deceived, to the avoidance of the grant."— {Gledstanes v. Earl of Sandwich.—A, Mann and Grang, 1,029.) The same principle pervades the judgment of the Court of Common Pleas, in Alcock v. Cook—b Bing. 346. It is unnecessary to trace this branch of the subject further. It suffices to observe, that on this record there is no averment that the defendant was party to, or cognizant of the illegality of the recommendation made by Mr. Commissioner FitzGerald. This remark applies equally to the other objections urged against the grant. The same is to be said of nearly all the remarks I have made upon the third objection. Iu terms they are confined tothat, as being the only one which appears t<> me of any weight,but, in substance, they extendequally to theothers Looking then at the whole case, I find on the one hand that the grant is good in form—that it purports to convey to the defendant nothing but what the Governor "in the name of the crown could lawfully coimy to him"— that it interferes not with any right of any subject of the Crown —tlul there b no misrepresentation or inKcon duct of any kind imputed to the grantee ; on the other hand, I find that, in a proceeding preliminary to the issuing of the grant, an act was illegal!) done hy an agent, not of the grantee, but of the crown—nn act aitectiiip, not Uiegntiit itself, but a document distinct from the grant—and that the grantee is not to have been connected in any way with tint act or ivcn to ha\e had any knowledge of it. Under 'lh-h> circumstances, and for the reasons already stated, I urn U opinion that this grant is gov& in Imy His Honor then read Mr. Justice Chapman's jo-lg-meitt, at the conclusion of which, he pronounced, Judgment for Dcfecdan:,