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New Zealander, Volume 5, Issue 330, 19 July 1849, Page 1 (Supplement)

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upon by our English Court! of Equity at to contract! for the purchase of lund,— l do not lee any cause for mrpriie in the fact that Governor Fitz Roy thought it right to reconsider this case. But, whether of the two, the Commitiioner'i report or the Governor's decision, j vii more in accordance with the spirit of Her Majeity'i declaration, ii a question with which we have nothing to do. Our only question is, whether the Governor had lawful authority to decide. It is to be remarked that the principle upon which Mr. Commissioner Godfrey proceeded, namely, that tho purchaie wai to be dated from the lait payment made by the purchaier, ii practically abandoned by the learned Attorney-General ; who has not put upon the record, by vray of objection to the grant, any allegation that the land wii purchased from the natives after the Proclamation of the Queen's •ovcreignty over these Islands. So far, then, as the Ordinances of this colony are concerned, 1 find no ground jfor avoiding this grant. If Governor Fitz Roy would have had lawful authority to istiue this grant to Beattio in case Her Majesty's declaration had stood alone and had not been followed by any Ordinance, then, as I conceive, he possessed that authority .still, notirithstscding the Colonial Ordinance. But it it contended that the Governor of New Zealand had not, at the date of this grunt, any power to grant the Island of Kawau, unless the grant were made in accordance with the Royal Instructions of sth December, 1840 ; which forbad the Governor to dispose of public lands to private persons gratuitously. This argument rests on the assumption that the Commissioner's report and the confirmation thereof had finally excluded Beattie from the benefit of the Queen's declaration, and consequently that the Island of Kawau had, before the date of this grant, become part of what may be called the ordinary Crown Lands, that is to say, of lands vested in the Crown clear of any engagement or promise ; — that it was in the same condition and subject to the same rules in all respects as the lands which the Crown had acquired for itself by a direct purchase in its own name. It rests also on the further assump- | tion, that this Court is bound to notice those Royal Instructions even to the length of setting aside a grant on the ground of inconsistency with them, though the grant would be good within the general terms of the authority given to the Governor by the Charter, and publicly notified as so giren ; and although it is not alleged on the record that the grantee had notice of the existence of any such instructions. If the first of these assumptions were conceded, it would become necessary to consider the important question suggested by the learned Attorney-General as to the true interpretation of the cluuse in the Charter, by which the power of grauting Crown Lands is given to the Governor, as well as the general question of the vOlfect of Royal Instructions. But, in the view to which I have come, there is no room for any inquiry of this kind. The best consideration I can give to the case leads me to the conclusion, that the case of this claimant did still fall within the scope of Her Meje»ty'« declaration, notwithstanding that report and the cou firmatioti thereof. If this be so, there existed, in fact, no Instructions at all apply ing to the land comprised in this claim, except, indeed, the Instructions of 14th ' August, 1839, which notified Her Majesty's declaration as to the Land Claims, as recited in the Preamble j of the first Laud Claims Ordinance. < Thejtrtie object of tho instructions of sth December, 184-0, is clearly expressed in the despatch of 9th Dec., ' 1840, at the commencement of tho very paragraph cited by the Attornoy General. After adverting to the necessity of passing a local Ordinance for the settlement •f the laud claims, and of appointing a Commission under such Ordinance, the despatch proceeds thus — *• When the demesne of tho Crown shall thus have been clearly separated from the lands of private persons, and from those still retained by the aborigines, tho sale and settlement of that demesne will proceed according to the rules laid down in the accompanying instructions under the Royal Sign Manual (Par. Pap. 1841, p. 3 >.) Those instructions therefore were not. intended to afFect any lands which might fall within the operation of tho local Ordinance. Indeed the whole frame of the in* structions themselves is inconsistent with such an intention. But it is further contended that, whatever might be the extent of the power conferred on the Governor by the charter, yet this grant is bad as being made in violation of stat. 5 and 6 Viet. c. 36 (the Australian Land Sales Act.) This objection is not expressly raised upon the re* cord : as U the case also with tho objection founded on the ltoyal instructions. However as the defendant acquiesced in the arguing of these points, and as lam most desirous to do uothing which may hinder or delay the examination of any part of tho important question before the Court, I have thought it better to notice the former of those points, and I shall prooeed likewise to consider the latter. But the course which 1 deem it exped cut to follow, under the circumstances, with a view to the event of this matter being carried into a higher Court, will not preclude the defendant from any advantage of which he might otherwise be entitled to avail himself in a Court of appeal, on the ground of these objections not being specifically raised on the record. The Land Sales Act was in forco in this Colony at the date of tliu grant, and it is not contended that the grant is made iv terms of that Act. Is there then any caving clause in the Act by which this grant may be »u»tained ? The 20tU section enacts " that nothing herein contained sball affect or be construed to affect any contract, or to prevent the fulfilment of any promise or engagement, made by or on behalf of her Majesty with respect to any lands Bituate in any of tho said Colonies in cases where such contracts, promises, or engagements shall have been lawfully made before the time at which this Act shall take effe#t in any such Colony." It has always been understood in this Court that the declaration of her Majesty in refurence to land olaimants was a " promisoor engagement" within the meaning ,of this section ; and, I believe, the practice of the profession has been in conformity with that under* standing. It is now admitted that some of the

claimants may fairly have tho benefit of the saving cla«se, but it is argued that Beattio can not bo brought within the terms of it. Tho learned Attorney Go* neral contends that tho intention of the Legislators was to give to the Commissioner! nnd not to tho Governor tho power of deciding which of the claimants were to be held entitled to the benefit of Her Majesty's declaration, and, therefore, that Beattie not having been found by the Commissioner to be so entitled, did not come within Her Majesty's Promiso or Engagement. In other words it is contended that tho Promise of (Her Majesty ' was subject;to a condition, that tho claimant must obtain from a Commissioner a Report in his favour. Now this condition is not ex* pressed in the declaration itielf or in the Colonial Ordinance which was passed for the purpose of carrying the declaration into effect. 1 need not repeat my reasons for thinking that iu/ such condition is to be inferred from that Ordinance,hut that quite the oontrary is to be gathered from it. But it is further said, that at any rate a compliance with the terms of the schedule B was essential ; that Her Majesty never engaged to give to any claimant a greater number of acres than he would be entitled to according to tho scale contained in that schedule : and that therefore the grant to Beatlie cannot be sustained, because it purports to convey to him a number of acres greatly in excess of tho number which would fall to him under tho schedule. Tho engagement or promUe of Her Majesty to ihe Land Claimants is, as I conceive, )to be found in the Proclamation which Sir George Gipps issued on the 14th of January, 1840, in obedience to Her Majesty's command, conveyed to him by instructions from the Secretary of State, dated 14th August, 1839 : and vrhich same instructions are in part recited in the Land Claims Ordinance, as expressing the gracious intention of Her Majesty. That proclamation notified to the claimants that it was not intended "to dispossess the owner* of any land acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community." The terms of her Majesty's promise are stated also in tho 3rd Section of the Colonial Ordinance! without any material variation from the language of the Proclamation. By this rule the commissioners were directed to guide themselves. Thus, in Section 6, " if the commissioners shall be satisfied that the penon claiming such land* is entitled, according to the declaration of her gracious Majesty as aforesaid, ke, the said commissioners »h»ll report the same, &c." It is obvious that her Mujeaty, in dealing with the claims of the alleged purchasers of laud, was bound to regard also the claims and interests of two other classes of porsons : namely, the original native owners of the land, and the general body of colonists. Accordingly the royal declaration naturally assumed the shape of a promise addressed to the claimants, with two conditions annexed thereto ; each of tlu two conditions having reference to one of the tiro classes just mentioned. It is " Her Majesty's gracious intention to recognize claims to land, which may have been obtained on equitable ternw from the said chiefs, &c., and which may not be prejudicial to the present and prospective interests of such of her Majesty's subject* as have already resorted, or may hereafter resort to the said colony." (4 Viet. No. 2, Session 3-) In effect, Her Majesty says to each claimant, " Show that you have acquired the land fairly and honestly from the natives ; let it be seeu further that the retention of the land by you will not be injurious to your fellow colonists, and you shall retain the land." Now the reteation of the land might be injurious either by reason of its extent or otherwise. The word " otherwise" was used in the first announcement, which was naturally somewhat (general in its language. A commentary upon the word is supplied by the colonial Orditiance.ia those provisions thereof, which relate to such lands as might be " re* quired for the site of any town or village, or for ths purposes of defence, or for any other purpose of public utilitj." (Section 7 ) The promise of Her Majesty contains no reference to the price per aero paid f r the land. No doubt the nature and quantity of the payment to the natives might be a proper subject for consideration by the Commissioner in reference to the question, whether the transaction between the claimant and the natives had been a fair and honest purchase ol the land or not. But, supposing the Commissioner once satisfied on that point, there remained only two questions to be answered : namely— first, is the extent of the land claimed so great that the possession of it by one person would impede the regular settlement ot the country ? and, secondly, whatever be its extent, is the situation or character of the land claimed such as to make it unsafe or prejudicial to the public interest to leave that land in the posbcssion or control of one person ? Now the price paid per acre docs hot seem to have any necessary connection wicb either of these questions. For instance, it might uuppeli to be found that two pieces of land, equal or nearly so in extent, and similar ia situation, hid been bought [at prices widely differing as to the rate per acre ; or, that pieces of land very unequal in extent and dissimilar in situation, had been bought at Very nearly the same price pur acre. And, if there was no such necessary connection, it appears difficult for this Court to imply any such connection as a pait of Her Majesty's original promise In this way as well as by a consideration ot the general frame and construction of tiie Land Claims' Ordiuance (of which I have already spoken at some lengthj, 1 am led to the conclusion that the Schedule B is not to be regutded us being in any sense a condit.on oi the Queen's promise. I rather conceive that the Governor was not bound to regard any other conditions than those two, to which I have just adverted as originally annexed to the Royal declaration at the tiiueot the publication of it by Sir G. Gipps. VVI >n the Governoi bad decided in the case ot auy claimant that time two conditions were siitisiic(l,hc might then as 1 conceive (by vir tue of this 20th Section ot the Land Sales Act) lawfully fulfil the Queen's engagemeut towards that claimant, by issuing to him a crown giant. I state these consideiatious for the reason above given, and because they have appeared to me to have some weight. But 1 cannot help regarding them now with much less confidence ; as my brother Chapman, in the written judgment which he has kindly traiibinitted from Wellington, ap> pears to incline to the contrary opinion, although lie expresses considerable hesitation upon the point. Fortunately, it is unnecessary to come to any decision upOJi it j at. tlw question vi .Uu uutt&U'uUiwi oi tuti siivnjg

clause of the Lanrt Sales' Act is not raised upon the r ecord ; mi d, if it were, would still bp precluded by the repeal (as to this Colony) of the Act itself. We now come to the two remaining objections, both of which are connected with the frame of the Grant itself. The first is grounded on an untrue recital in the Grant. i The Grant contains a recital in the following words : • c Whereas one of our Commissioners appointedto hear, examine, and report upon claims to land obtained by purchase from the aboriginal inhabitants of the colony of New Zealand, has reported that James Forbes Beattie of Sydney, New South Wales is entitled to receive a grant of 2580 acres of land, particularly mentioned and described in Claim No, 445." Now, it is admitted that no such Report in favour of the grantee was ever made. The recitulltself is, in the main,a portion of the printed form of the grant ; the names and numbers being filled in by writing. How it came to pass, that the form was not only not cancelled, but was even filled up contrary to the fact does not In any way appear. But it is admitted that the recital, as it stands, is not true. On the other hand, it is not alleged on the Record that this untrue statement proceeded from any false suggestion or deceit of the grantee. Indeed the matter or the recital was entirely within the knowledge of the grantor and not, under ordinary circumstances, at all within tbe knowledge of the grantee at Sydney. Nothing is alleged against the grantee j audit is plain that no. tiling can he presumed againbt him. 'i lie authorities cited in the Queen v. Clarke and in the Queen v. MacDonald (Wellington, Jan. 20, 184!)) show cleaily that, under such circumstance 1 ?, an utitrue recital does not make the grant void. The negligence of the Queen's agent cannot be allowed to prejudice the right of the grantee. It was probably from a sense of the conclusiveness of the authorities on this head, that this objection was but lightly pressed in argument, and is not even distinctly put forward on the Record as one of the ' reasons for avoiding the grant. The last objection to the grant is in these words, that " the Grant is not a good grant of the whole island ot Kawau to the said J. F. Beattie and his heirs, the said island containing in fact 4630 acres or thereabouts, and ithc said J. F. Beattie being in the recital of the said grunt alleged to be entitled to receive 2560 acres, and the said island being stated in the said grant to be said to contain 2560 acres more or less." The recital of the Grant has been just now quoted. The operative part is as follows : " Now know Ye that I We, of Our Special Grace for Us Our Heirs and Successors do hereby Grant unto the said James Foibes Ucattie his.heirs and assigns all that Allotment or Parcel of Land in our said Ten itory, said to contain 2560 acres more or less, situated in the Gulph of Hauraki, and of which the boundaries are reported to be aslollows: licing the Island of Kawau, in tbe Frith of the Thatnre or Gulph of Hauraki, and lying abreast of Tawuranui." Now, it is plain that the operative part of the grant was not intended to be narrowed to the precise measure of the recital. For, whilst the recital mentions only 2560 acres, the land which the grant purports to convey, is said to contain not 2560 acres, but 2560 acres more or less. The Governor appears io have thought (conectly, as I conceive) that he was not bound to the precise number proposed by the Commissioner. The piece of land to be conveyed was to be a piece which might be found to contain either more or less than 5*560 acres. Its boundaries were not to be determined by measurement. What theu were the boundaries 1 Clearly, those of the island of Kawau ; for none other are mentioned. The vile ot interpretation upon which Mr. Hartley relied(Chitty onjthe Prerogatives,39B)appears to me to be applicable to this case. "11 the intention be obvious, Royal Grants are to receive a fair and liheral interpretation accordingly. And, though the general words of grant may be qualified by the recital, vet, if the intent of the Crown be plainly expressed in the granting part, it shall enure accordingly and shall not be restrained by the recital. (Also 6" fiac. Ab. 5i5, Prerogative. F,) 1 do not doubt that it was intended that the grant should convey to Iteattic the whole island of Kuwau. At the same tune it would appear that at the time of making this grant, the area ol the island was supposed by the grantor not very greatly to exceed 2560 acres. Was this mistake caused by any misrepresentation or act ol" the grantee ? Nothing of the kind is alleged. On the contrary, the declaration itself alleges that "the said island was claimed by the said J. Y. Beattie ;" and. the Commissioner's Report states the claim to comprise " a tract of land thus described : The island of luiwau in the Frith of the Thames, abreast of Tawaianui." The grantee Beattie appears to have put forward a claim to the whole island, but it does not appear that he made any allegation in his claim as to the number of acres contained therein. The statement (in the Report) ot the supposed area of the island appears to proceed fiom the Commissioner, not from the claimant. (Compare the printed claim in Government Gazette, 12 April, 1843.) If then a false recital— a direct and distinct statement of matter not true — does not render a grant void, pro vided the grantee be bhmelcss ; neither can buch un effect be given to a false description, incidentally introduced and capable ot being rejected without impaii ing or affecting the force or operation of the sentence ol which it forms a part. Moreover, it has been very fairly urged by the learned Counsel for the defendant, that this is not stiictly to be callid even a description, but rather an allegation of common report anil repute as to the description. The words arc, "said to con tain 2560 acres, more or less." It is true that the variance, in this case, between the supposed extent and the real extent is very considerable. Hut it has never been laid down that such a variance is fatal to a grant, even where the error has been matter of distinct and positive averment on the face of the grant. The legal test is to be found, not in the largeness cftheenor, but in the source of it; or. in other words, in the answer to tbe question, whether the misstsitiMiieut proceeded from the mistake of the grantor or iroiu the suggestion or traud of the grantee. Upon the whole then I conclude, that the reasons urged on behalf of the Crown against the validity of this grant arc insufficient in Law, and that the same is a good and valid Conveyance Irom the Crown to Beattie and bis heirs, not of 251J0 acres only, but of the whole Island ol Kawau. The Chief Justice then read the Judgment of His Honor Mr. Justice Chapman :—: —

Tim yuuEN v. tavlou. Tats is a suit upon a writ of *eire facias, brought by the Attorney General against the Defendant, to anmil a grant made under the Colonial Seal to one James Forbes Beattie, (fiom whom the defendant deduces his title) in July, 1844, and witnessed by the late Govt-r nor, Robert Fitzßoy, Ksquiiv. It appears by the pleadings that the land which is the subject ol the giant, being the Island of Kawau, was claimed by the said Jameti Forties Beattie, of Sydney, as haying Utxm purchased. Jjy him iium the native

"wnerg *' bcfoie the proclamation of the Queen's sovereignity over these Islands." In due time Mr. Beattie preferred his claim in Accordance with the provisions of the Land Claims Ordinance (4 Vie. No. 2.) Tho claim was referred by the Governor, under Land Claims Ordinance, 5 Vie. No. 14., to Mr. Commissioner Godfrey who, on the Ist day of July, 1843, reported as follows : »' No giant of the abovo described land can be recommended to the claimant." To this report, a note of explanation it appended, to the effect that the usual compensation is not awarded, "asit is very evident that no real purchase was made from tho natives until the last payment on the 3rd March, 184!, took place." This report was afterwards confirmed by Mr, Shortland, the officer administering the government, and the confirmation was announced in the official Gazette of the 25th day of October, 1843. In December 1843 his Excellency Captain Fitzßoy assumed the Government ; in the following year Mn Bcattio's claim was ie-opened ; and without any further reference to or report by any Commissioner, so far as appears, on the 15th July, 1844, a crown grant of the whole of tho Island of Kawau was issued to the claimant, under the Public Seal of the Colony. This instrument recites that " Whereas, one of our Commissioners appointed to hear, examine, and report upon, claims to land obtained by purchase from the aborigi-« nal inhabitants of the Colony of New Zealand has repotted that James Forbes Beattie, of Sydney, is entitled to receive a grant of (2560) two thousand Avo hundred and Sixty acres of land particularly mentioned and described in claim No. 44* of James Forbei Beattie." The operative part of tho grant is as follow* :— " Now know ye, that we, of our special grace, for U« our heiri and successors, do hereby grant unto the laid, James Forbeß Beattie, hi* heir* and assigns, all that allotment or parcel of l*nd in our said territory, laid to contain 2560 acres, more or leit, situated in the Gulph of Hauiaki, and of which the boundaries are reported to be as follows : — Being the Inland of Kawau, in the Frith of the Thames or Gulph of Hauraki, and lying abreast of Tawaranui." The declaration, after tracing a title from the grautee to the present defendant, proceeds to lUta tha grounds on which it is sought to avoid the grant i tK tho following terms :— "1. Because the said grant was made contrary to the said Commissioner's report, made and confirmed, as aforesaid, and (contrary) to th» provisions of tho aforesaid Ordinances. " 2. Because, at tha date of the said grant, Gore 'nor Fitz Roy had no power or authority to make a ra id grant of tho said Island of Kawau to the said Jams; Forbes Beattie and hit heirs, in manner and lor the considerations in the said grant set forth and <!&.■< scribed. " 3. Because the said grant is not a good grant of the whole of the liland of Kawau to the said James Forbes Beattie and lii& heirs, the said Island containing, in fact, 4G30 acres or thereabouts, and the said James Forbes Beattie be-, ing in the recital of the said grant alleged to b<: entitled to receive 2. r >6o ncres, and the said Island being stated in the said grant to be said to contain 25(J0 acres, more or lcsi." To the sufficiency of all that is averred in the d^ clara ion to avoid this grant the defendant has demurred, contending in effect that the power of the lute Governor to make the grant in question wa9 not restricted, either by any diiection in the said Ordinance binding oa the Commissioners, or by any other clause; and that the grant conveying specifically •• the Inland of Kawau" ought not to be. defeated, either by tbe recital, or by the words " said to contain 2560 acres, more or less." It is impossible to approach this anomalous case, even aided by all the light thrown upon it by the learned Counsel, without feeling painfully embarrassed by the irregularities which perrade it, as disclosed by the pleadings as well as by the deed of grant itself. With' some of theie irregularities we have nothing to do, and as some points have been brought forward in argument which are not raised upon tho record, it may be useful, nml is perhaps even necessary to clear away thoie points before we can determine on what grounds the Judgment of the Court ought to rest. In tho flint place it must bo takon to bo assumed «n« n tbe record that, in spite of the mere opinion of tU° Commissioner, the purchase of tha Island was in fac* made before the proclamation of the Queen's sovereignly in and over these Island*. Tho claim of James Forbes Beattie is mentioned in the declaration without any averment that the allegation of a purchase amounts to a fal-e suggestion, capable of invalidating the grant. The deed of grant bears upon its face that it is for an I " original claiir ;" and if it had been intended to impeach it on the ground that there wns no valid purchase, or that any oilier suggestion of the grantee was false in fact, so as to shew deceit, 1 thin , *>oth on principle and authority it should have been *o stated jin the writ and declaration. The dred of grunt being regular in form, any matter of fact intonded to be relied on. to defeat it should be averred in the declarrtion, in such a way as to enuble the defendant cither to demur to its sufficiency or to traverse it. This ob- | vious principle is upplird to this class of actions by a cass in Dyer.—" Where the scirc facial," be report--, " issues at tbe suit of the King, the cause of forleilnro is mentioned in the writ (which the declaration follows), but not so in other tcire facias issued by one patentee against another. (Anon. Dy. 198 b. pi. 50.) Since Sir •'. Dyer* time the beneficial part of Ibis rule has certainly not been narrowed, for in the modern precedents of writs by patentee v. patentee, the causes of forfeiture are set out. I think, therefore, we ought not to embarrass ourselves with the correctness or incorrectness of Mr. Commissionsr Godfrey's opinion (a mixed question of luw and fact), but mutt take it to be admitted upon the record that the puichase was good, so as to operate to the complete extinguishment of the native ti le in the Crown's favour, in January, 1840, — though parts of the purchascmoney may have been paid subsequently to the change of ownership. In like manner we must exclude from our conii* deration the obvioubly ialse recital, th»t the cominusaiouer'a report was in favour of a grant, whereas, in fact, it was ag-unit it, la this cobny tho grantee does

aot pirpare bis own deed of grant. He makes his claim, or effects his purchase, as the case may be, aud after a time it is announced to him that his deed of grant is ready to be delivered to Vim. He is throughout a mere passive recipient of the instrument. The deed of grunt is wholly prepared by an officer of the government ; it is even on a printed form. What the , .grantee ii alone answerable for is the perfect troth of ' his notice of claim, which is imported into the deed of ' grant by a number of reference. The other recitals, not being the grantee**, being made without hit privity, and not even within his power of connection, if faulty, i comc with&i those " mistakes in the Crown*s own affirmation W surmises" which art held not to avoid a grant; and not within those " falne itiggestioni of the grantee" which are fatal, as showing deceit. As to '■i-his clear distinction, it is unnecessary to repeat what was said in Clarkes rase by his Honor, or by myself in McDonalds case ; it will be dnough to refer to Rex et Regina v. Kempe, 12 Mod. 70. Viner's Abr. xviii. Prerog. O. b.,and Gledstanes v. the Earl of Sandw'ch, -4 Maim and Gr. 995, as cited by hia Honor in Clarke'i case. Another point contended for by the leimcd Attor-ney-General in argument, but not raised upon the record, is that the power of the Governor Js altogether limited or restricted by the Land Sales Act, 5 and 6 Vie. c. 36 ■> which, at the date of the grant, was in force in the colony. No doubt this doctrine was correct, so lung as the statute was in force, but it 1 cannot now he taken advantage of. So long as the Act in -.question was law within the colony, it hovered oter every grant of the Crown, ready to invalidate such at were not in conformity with its provisions, or were not ■within the saiing of the 2Gih Section, t.t?., were not in pursuance of some prsvious " contract, promiso, or engagement" made with the grantee, or with some assignable class of persons to whicb the grantee belonged. As to the class of land purchasers before the .proclamation of the Queen's sovereignty, the " contract* promise, or engagement" made with and to them, is to be sought for, as I apprehend, in the Land Claims Ordinance, 4 Vic, No. 2. (or for a limited period in •the Land Claims Ordinance, 5 Vic, No. 14.) Hence, assuming that the Crown was wholly unrestrained by the terms of the two ordinances, yet so long as the Land Sales Act (5 and ' 6 Vie. c. 36) was law, any departure fiotn the "contract, promise, or engagement. 1 ' made with or to the " original land claimants," and protected by the 20th Section of the statute, would hring the case within the invalidating operation of its provisions. But the Land Sales Act is •law no longer. By the 9th and lOtk Vic, p. 104, sec. 11, it is enacted, " that from and after the paising of this act, the said recited act (5 and 6 Vie. ; c. 36) shall not apply to land situate in the colony of New Zealand." This takes away the invalidating effect of the statute, from and after the 23th August, 1846, though the court had not cognizance of the repealing act until some months la'e% This repealing clause is followed by a proviso, which keeps alive the act for the purpose of validating any tiling done under it ; but all its restraining end invalidating force ceased from the da*e of the nevt enactment, from which time its provisions, as well as those of the 5 and 6 Vic, c. 36, are specifically confined to New South Wales, South Austrian, and Western Australia. Even without express words of repeal, an act which limits and res rains the rights of the Queen i« always held to be repealed by the passing of another act on the same subject-matter, unless the limiting or restraining words are re-enacted in the new statute. (Atty. Genl. v. Newman, 1 Price 438 ; A. G. v. Le Maichant, 2 T. R. 201, n.) The effect of repealing a statute is thus broadly laid down by Tindal, C.J., in Kaye v. Goodwin, 6 Bing. 583. «• I take the effect of repealing a statute to be to obliterate it as completely from the records of the parliament as if it had never past, and it must be considered as a law that never existed— except for the purpose of those actions commenced, prosecuted, and concluded whilst it was an existing law." The lan. guage of Lord Tenterden, in Surte«s v. EUUon, as well as that of Parke, 8., in Stcavenson v. Ollirer, is to the same effect. This rule has been applied by the courts to a vast number of dissim lar cases. In Miller's case, 1 W. 81. 451, it was held that a proceeding, commenced under an insolvent act, but not completed at the time of its repeal, could not be continued after such repeal. So in the case of the Bankrupt Act, 6 Ceo. IV., c. 16, which repealed all former acts, and contained no continuing clause, it was held that an act of bankruptcy committed under the former acts would not support a commission under the neir itntute, and that no proceeding under the old acts could be continued or acted upon after tbeir repeal: and in one case even enrolment of completed proceedings, merely so as to make them evidence, was refused. (Suttees •v. Ellison, 9 B. and C», 7^o; Phillipps v. Hopwood, 10 B. and d 39; Maggiv. Hunt, 4 Bing. 212; Kaye T.Goodwin, 6 Bing., 576; Worth v. Budd, 2 B. and Ad., 172.) The rule has been applied to a felony at •common law, made liable to an aggravated punishment by an act of parliament, which but punishment, it was held by all the judges, could not be inflicted after the repeal of the act, though the offence was com* mitted while it was in force. (R. v. McKenzie, R. and R.s C. C. 429.) The Court of Exchequer, also, refused an application for costs upon certain proceeding)*, under a statute repealed after the proceedings were had, but before the application (Charrington v. Meatheringham, 2M. and W., 228 ; aud Warne t. Beresford, 2 M. and W., 848.) Most of the cases where the rule has been applied, are reviewed by the Court of Queen' « Bench, in the Queen r. Inhabitants of Mawgan, 8 Ad. and Ell., 496, in which case the court arrested judgment in certain proceedings against the defendants for the non-rtpair of a highway under an act of parliament, the act having been repealed pending the proceedings. There are two cases, coming within quite anothar class, Which engraft an apparent exception upon this rule ; but they scarcely amount to what a very able writer has called "an opposing stream strong enough to stem the older currents (of cases that for years hare flowed on in a particular direction), and to make it doubtful what direction they (the caies) will hereafter take." {Ram. Astttt, Pref v.) The csies I allude to relate to certain illegal contracts, contrary to the provisions of certain statutes against gambling and usury, in wliicli statute* such, contracts are declared to be absolutely void. Such void contracts (generally made so for the protection of the unwary against the crafty and designing,) are not set up and made valid by the subsequent repeal nf the acts making them void. Such contracts are trfated a* nullities from the beginning. (Jacque* t. Withy, IH. 81. 65. and Hitchcock v. Way, 6Ad and Ell, 943.) In the first of these cases this distinction was taken : that though the contract once void remained for ever void, yet the penalty against the trrnng doer could not be inflicted after tl c repeal of the stamte. And L;rd Abinger lias an C 6 recognized this distinction in more general terms, by intimating that a right to protection under a statute may be continued after its repeal, though all penal consequences cease. (Charrington v. Meatheringharo, 2M. and W. 228 ) And even Hitchcock v. Way limits Jacques r. Withy in this, " that the law as it existed at Via time the action commmtd icttit de-

cide the right* of the parties to the euit, — unless the, legiilature express a clear intention to vaty Hie relations of the parties to eaich other." (Per Lord Denman, C J.) It would seem, therefore, that even if beneficial provisions may be kept alive after the repeal of a itatute, though only by an action commenced before the repeal, yet all penal consequences cease by •ueh repeal at any moment before final Judgment. After carefully considering the effect of these two casei in modifying the gene**! rule, I cannot discover that they have anything in common With the case before us. They both disclose an illegal contract, which under a statute was void from the beginning— a mere nullity which the eourls could not lend their aid to set up anew. Whereas the present giant is good upon its fatse, and ejectment against a wrong doei might have been brought npon the title it disclosei. Voidable, perhaps, it might hare been, but not prima facie void, and until formally cancelled and tacated by a judgment upon scire facias it remains good. This suit, therefore, is not to set up, and will not have the effect of setting up, a contract originally and incurably void, but is to procure a forfeiture of an instrument prima facie good "and valid, and is more analagout to a penal proceeding than to the two cases I have thought it necessary to examine. I would further observe that the language of the repealing clause in the 9 and 10 Vic, 104, is even more sweeping than a simple enactment of repeal. It is enacted not merely that the 5 and 6 Vie. 36, •hall no longer be applicable to sales of land but thai it «« shall not be applied to land situate in the colony of New Zealand." 1 think, therefore, we are now precluded from looking at the repealed Act, though we must undoubtedly have done so, before the 26th of August, 1846, and possibly might have done so had this writ been sued ou; before that day — but even this I doubt. I therefore state the effect of repealing the 5 and 6 Vie. c. 36, thus : That except as to rights acquired, things done and completed, and suits commenced and concluded (or perhaps, under Lord Denman» dictum, commenced only) under it, between 22nd Nov., 1842, and 23 Aug. 1846, — *nd except also as to the validating effect of the proviso, the act must be considered to be as effectually swept away as if it had never had any existence :— and this even if the declaration bad contained a count formally raising the point upon the record, as was done ia Whitakei'a case, b?it is not done here. Another point taken by the learned Attorney General in argument relates to the supposed effect of royal instructions in modifying or limiting the power and authority of the Governor under the Charier of 1840. The distinction taken by him is certainly ingenious and may hereafter require careful consideiation at our bands, but although important and inteiesting a« a general principle of colonial law, it does not come into question upon this record. The grant is not sought to be set aside on the ground that it h contrary to any such instruction. To raise the point, the instruction should be pleaded according to its supposed legal effect j and unless admitted as so pleaded by demurrer, would require strict legal proof. This might be a matter of some difficulty. Not being ofiecord, we<*ould not get the instruction} into court by the same means as are available in the case of instruments duly recorded. The parliamentary papers are cci tainly not evidence for the purpose. The Go vernor has the sole custody of and controul over instruction! addressed to himself. Can we bring a Governor into court for the purpose.' If once in court, can we or any other court compel him to disclose a state paper of this nature ? [Wyati v. Gore, Holt N. P. c. 299— C00k v. Ma well, 2 Stark. 183— Home v. Bentinck, 28, & B. 138— Andeison v. Hamilton, 2 B & B, 156 — and as to the United S.'ates see Greenleaf Evid., 2S6]. If we cannot aid a suitor against the Crovrn in this behalf, how can we make it available in the Crown's favour ? —-in other words, would any one of the Courts at Westminster permit on one side, what it could not enforce on the other f These and other questions which must occur to every law>ei shadow forth practical difficulties, apirt from those substantive objections which arise from the legal character and iorce of the instrument. The whole question will merit the most scrupulous and careful investigation on principle and authority, whenever it may arise, and it is one on which it w ould be most useful to obtain the decision of the highest Court of appeal. The questions then to which we are confined, as being those alone which are raised upon the record, relate, first, to the power and authority of His Excellency Governor Filz Roy to execute a grant of the whole island of Kawau, containing 4630 acres, to James Forbes Beattie, in July, 1814, under the charter of 1840, an 1 the Land Claims Ordinances; and, second, supposing the grant to be within the Governor's authority, does the misdescription of quanl it y vitiate it, either wholly or in part. The narrowest interpretation of the Governoi 's power and authority is that involved in the tint issue, namely, that he had no power to make a grant which was not previouilv recommended by a Commissioner ; in other words, that the Governor is bound by the restrictions which the Land Claims Ordinance imposes on the Commissioners, and that the Commissioner having reported that*' no grant could be recommended," the Governor's »ran», contrary to that recommendation, ought to be annulled. This view of tho limited authority of the Governor I think untenable in point of law, and for the reasons stated in *• the Queen v George Clarke." The gi anting power is part of the Royal prerogative lawfully delegated to the Governor. The office of Governor is in principle precisely analogous to that of Lord Lieutenant of Ireland $ whose powers hare always been regarded in that light. — (Jenk. 171 ) So also have the powets of Colonial Governors.—(Chit. Prerog. Siokes, 193, Cbalm. Opin. vol. 1, 190, 233, 241, 316 ) This is clearly the only ground on which the colonial courts can ex amine any question affecting the Governor's authority, or assert any one principle applicable thereto. The nature of the act (of pardoning, or granting land, for instance) is in nowise changed by delegation. It seems formerly to have, b,e,e.u considered, mat wjthin th« realm of

England, the power of executing any portion of the prerogative was incommunicable by the King to the subject. But this rule could never have been applied to any foreign possession of the Ciown, or to distant places. In the case of ambassadors, a delegation of the prerogatives must have been necessary and an established practice, almost be>ond the time of historical not to «ay legal memory. And when Ireland became annexed to the Crown we find the point early railed and decided, that as to certain prerogative powers, such as the power of pardoning even treasons, of making Knights, &c , in the name of the King, there was a good delegation and exercise of the Royal preiogative. "The distance of place and sudden occasion and the King's absence make' all the diffeience," agreed by all the Judges of England.— (Jenk. 171, pa. 36, citing Yew Book I,^H. 7. 16). Under the general rule, " that the colonies settled by British subjects are subject to the law of England, so far as the same may be applicable to their ciicumstances and condition," the prerogatives of the Queen as exercised by the Governors of Colonies are entitled to all those legal safeguards on the one hand, and subject,to those restraints on the other, whichjthe common and statute law of England have gradually established. It is under this rule (which, properly considered, is most beneficial to the subjects of Her Majesty) that this court has invariably considered Crown grants within the colony. We actsd upon this view in the case of the Queen v. S^monds, (M'lutosh's case), May, 1817, and again in the Queen v. Geo. Clarke, June 181 S. In the latter case it was considered that the prerogative of the Crown as exeicised by the Governors under the Charter, cannot be taken away or limited, except by the express words of an ordinance or statute. It follows that the restrictions imposed on the Commissions s, do not bind the Governor, nor is the Governor bound in any way by the Commissioner's report. The whole language of the Ordinance goes to show that the enquiry before the Commissioners hath no other object in view than to secure to the Governor full information of all (the circumstances of each claim. The Commissioners are to " hear, examine, and report upon claims," &c, and nothing more. On the one hand '• nothing in the said Ordinance contained shall be held to oblige the said Governor to make and deliver any such grams as aforesaid (i. c. grants lecommended by the Commissioners), unless his Excellency shall deem it proper so to do."— (4 vie. No. 2, Sec. 5 ) On the other hand, "nothing in this Ordinance contained shall be deemed in any way to affect any right or prerogative of Her Majesty, her heirs, or successors" (sec. I3):and these words, being general, can only mean whether that prerogative be exei cised by Hei Majesty herself, under the Great Seal of Great Britain, or by the Governor, by viitue of his delegated authority} for it is matter of notoriety that in the colony a ditect exercise of the Royal prerogative, either in granting land or otherwise, rarely takes place. That is almost invariably effected within the colony by letters patent, in the Queen's name, under the Colonial Seal, witnessed by the Governor, and duly reIcorded. The framers of the oidinance would scarcely have deemed it necessary to save the prerogative in order to meet a case that can hardly ever occur. They cleat ly intended to leave, and the oidinance does in fact leave to i the Governor a two-fold discretion— a disci etion in botli directions. He may, under sect. 5, withhold a grant recommended, and he may, unJer sect. 13, (and e»en without it, restraining words being absenf,) make a grant without such recommendation, or contiary theieto. I fonneily e.itertained, at least, a suspicion, that the framers of the ordinance might perhaps have intended to bind the Governor, but that they had failed to employ language apt for their purpose. The passage cited by Mr. Hartley, from feir George Gipps's despatch effectual!) removes that suspicion, and shows conclusive!) that the ordinance is skilfully framed to effect the intention, and no more than the intention of the Legislature. That is, that the intention, as capable of being deduced from the words of the ordinance itself, to which all judicial interpretation is necessarily confined, is eqni-pollent, (so to speak) with the real intention of the framers. Referring to the ordinance of New South Wales, of which the 4 Vie. No. 2, is almost a verbatim copy, Sir George Gipps in his despatch to Lord John Russell, May 30, 1810, saj«, "the Commissioners are in no case to recommend a larger grant than 2560 acres to any individual, though this of course cannot limit |H*ir Majesty's prerogative of granting more should circumstances require it. I thought it of importance to introduce the restriction into the act, if only to serve as a sott of index of the intentions of government." (Pail. Paper, 11, Aug. 1812). The " circumstances" alluded to by Sir George Gippa are of coiuse juch as might be presented to the mind of the Governor, acting for the honor of the Crown ; such as a large outlay of capital, occupation in u way beneficial to the public, or any other matter of which the Commissioners could not take notice. What these "circumstances" may have been in any particular case, we are not competent to inquire. In favour of the larger interpietation of the Governor's authority embodied in the demurrer to the second issue, Mr. Bartley cites Sec. 2 of the Land Claim's Ordinance which declares that '• all titles to Land in the said colony of New Zealand which aie not or may not hereafter be allowed by Her Majesty her heirs and successors are, and the same shall be absolutely null and void" ; from which he deduces the converse proposition, namely :— tlut all titles which may be so allowed are good and valid, and that the Ci own Grant under the Colonial Seal, being the instrument by which such allowance by Her Majesty is executed, must be deemed conclusive evidence of such confirmed and allowed title. I must own I am much impressed with the force of this argument in favour of any grant otherwise good upon its face, made to an original land claimant. His Honour in the Queen v. Claike seems to have considered that the words cited " naturally 6Ugge6t the inference that the legislature intended all titles so confirmed to stand goods unleti indeed, (lie grants in themselves were con-

trary to law." (Clarkes case, p. IS of printed cop> ). And after much consideration lam of opinion that, apart from the Australian Land Sales' Act, the true interpretation goes to that extent. Pending the operation of that Act, I incline to the opinion that the "Contract p«omise or engagement" contemplated by the saving clause of that Act, is embodied in the Schedule of the Land Claims' Ordinauce; which, stops sboit of the extreme interpretation contended for on the part of the defendant. So far, however, does this reasonable inference from the cited words impress me, that had this court been called upon, while the act was in force, to choose between the two interpretations— i. c. to say whether-the " Contract," &c, was embodied in the Schedule, or whether the allowance by Her Majesty executed in the grant, was not in fact itself that contract, or conclusive evidence of it, I should certainly not have decided in favour of the Schedule without very great hesitation } knowing as I do, how jealous our law is of any re** triction on the prerogative without the clear and express words of a Statute, and how much disposed the highest courts in the Realm are to suppoit the prerogative by every reasonable construction to the Queeu's honour, and the subjects advantage. The conclusion to which I come, therefore, is, that the present grant was within the power and authority of the Governor to execute in July, 1844. The only point which remains to be considered is as to the legal effect of the misdescription of the quantity of land which the island of Kawau contains. The deed of grant states it a<s " said to contain 2560 acres :" the declaiation avers that the actual contents are 4G30 acres. There can be no doubt that if a claimant describe the land to contain less, or at all events : materially less, than the real contents, and the i grant is made on the faith of that suggestion of quantity, it would come within the same rule as a false suggestion as to the annual value ; and on 1 proper averment of the deceit, a grant would be voidable on that ground j but it is clearly otherwise in a case like the present. In such a case, it comes within the rule as to " a mistake in the Crown's own affirmation or surmises" as already laid down. The misdescription of quantity appears to have been an expedient resorted to by the officers who filled up the printed deed of grant, to bring it within the supposed restriction of the Land Claims' Ordinance— an expedient which was, under any view, wholly unnecessary? for if the restriction upon the Commissioner — not to recommend more than 2560 acres — had been binding on the* rown, no such contrivance would have enlarged the Governor's power. In support of the principle above stated we have the clear and direct authority of a judicial decision, completely in point. The case of Brand v. Tod in Noy's reports, p. 29, is to this effect :— *• Note the difference agreed ty by the Courf. If the King grant to A all the waste in D, (after an ad quod damnum returned) and that the waste contains 120 acres : yet if it contains 300 acres nil pass; for the grant is general, and the ad quo'l damnum was to enquire of the damage and not for the quantity of the waste. But, if the King grant J2O acres (pan) of his waste in D, and the ad quod damnum returns that it is not to his damage and that the waste contains 300 acres, there nothing passes j for it is uncertain which 120 acres was intended, and the party shall not have any election against the King." JVotv here the grant is not 2560 acres of (or pait of, or out oO the island of Kd wan ; but in general " the Island of Kawau." Moreover, f ' said to contain 2560 acres" is less strong than "contains 120 acres;" and the evcess here is not so gr^al as in the case in Noy. Hence, I thiuk, all passes. It is not often that a decided case can be found so completely in point as to the facts as well as theptinciple, as the case cited, is with the case before us. I I think therefore that, in spite of the obvious in egulatities which pervade this grant, the declaration shows no sufficient ground to disturb it; Judgment for the Defendant.