SUPREME COURT Civil Sittings. Tuesday, April 20th, 1847.

New Zealand Spectator and Cook's Strait Guardian, Volume III, Issue 183, 1 May 1847, Page 2

SUPREME COURT Civil Sittings. Tuesday, April 20th, 1847.

Before Mr. Justice Chapman. Scire Facias. The Queen on the prosecution of W. Wakefield, versus Alexander M 'Donald (two grants). The same — David Scott. The same — George Young. The writs of scire facias in the above four cases, were issued previous to the last sittings but one of the Supreme Court. In the two first cases, the defendant admitted the plaintiff's allegations, subject to the decision of the Court on the legal points raised, which has not been given. The third case was put off on the application of the defendant, and ought to have been tried at the last sittings. It did not come on, however, for trial, till the 20th instant. The fourth case has not yet been tried. It will abide the decision in the third case. Counsel for the Crown, Mr. D. Wakefield and Mr. Ross. Council for defendant, Mr. Hart and Mr. King. The counts in all four cases are nearly the same. They are as follow : — The first count sets forth the promise made by Governor Hobson, in his letter of the 6th Sept., 1841 ; and it is alleged that the New Zealand Company and their assigns have had and enjoyed the land, and expended large sums thereon upon the faith of the promise. The second count states that the deed of grant to the defendant recites a certain report by one of the commissioners appointed to hear, examine, and report upon claims to land, &c; and that defendant was entitled to receive a grant of land in the town of Wellington, which report is contrary to the Ordinance of the 9th June, 1841. The 3rd count states that the report recited in the deed of grant was made by one William Spain, Esq., who at the time, of making the said report, had no power or authority under the Ordinance to report as alleged.

I The 4th count states, that the Commissioner mentioned in the deed of grant to the defendant never did make any report according to the Land Claims Ordinance. To these counts there was pleaded by the defen dant — Ist, The general issue; 2dly, That the promise from Governor Hobson was obtained by misrepresentation ; 3dly, That the Company had waived that promise ; and, Athly, The proclamation of Sir George Gipps' of January, 1840, respecting the Land Claims in this colony. Upon these pleas seven issues were raised. The length of the Judge's address prevents us from giving the evidence which was chiefly documentary, and has been previously published in our Journal of August 23, 1845. Mr. Justice Chapman addressed the Jury as follows : —

Gentlemen of the Jury,— l fear I shall be compelled to engage your attention for a considerable time, because the number of the issues and the evidence given will necessarily take long to go through. But I shall rather endeavour to facilitate your labours by confining them simply to the facts arising out of that evidence, separating all the law, and reserving it to be argued hereafter, say on the 10th May, 'Tfiis'proceeSinVis upon what is called a writ of Scire Facias. It 13 a general rule of our law, and one which greatly promotes the liberty of the subject, and general justice, that the Crown can neither do nor intend wrong to any of its subjects ; and where it can be shown to the Crown that a wrong has been done, there is some person made responsible for it. In ordinary cases, theie issome one that can be made the defendant ; but in this case, where the party aggrieved claims to have a better right than the grantee, he is entitled to a writ of Scire Facias, and he then uses the name of the Crown in trying that right. In other respacts this writ differs not from ordinary ones. The pleadings and issues are similar in ordinary cases of summons, and the case goes to the jury as in common cai>es. But this one necessarily bristles with points of law ; and in order to facilitate the mode of proceeding I have decided to reserve them altogether, directing you to find only the facts according to your view of the evidence. You are aware, — I dare say every one conversant with the proceedings of Courts of Justice is, — 'that the right of any party who comes before the Court to dispute the law is not put an end to by the trial. If a Judge directs a jury hastily as to the law, and the jury return their verdict in accordance with that direction and their view of the facts, it is competent to the party opposing to move on consideration for a new trial. On almost every point of law that can arise at a trial, the party objecting has a remedy afterwards, either by moving in arrest of judgment, or for a new trial, or to have judgment recorded for him, so that the whole law may be carefully reconsidered by what is called the Court above. The only difference in this case is that the reservation of points of law is to avoid a hasty ruling on the part of the Judge, in order to obtain his more deliberate judgment afterwards. Jf therefore you should ifnd for the defendant, in this case, I shall give the plaintiff the opportunity of moving that judgment be recorded for him. As a Court of Appeal now exists, they have a remedy they had not before. If now any error appeared, they can refer the case to the Governor in Council, besides the ultimate appeal they have also to the Privy Council. There is now an intermediate and cheaper appeal under the new Ordinance, in all cases where the interest in dispute is above £100. There are one or two preliminary matters I wish to go into. One is this. Mention has been made of the amount of property inrolved in this cause, and of the expenditure by the tenants in erecting buildings on the ground in dispute. It is my duty to directyou to exclude all this from your consideration. You are only to try certain issues as to the Grant; and you are to relieve yourselves from any impression of hardship that might ensue to the various tenants from any verdict of yours. In point of law and equity also the expenditure in houses and stores on the land in question will not come into the case, because it is a rule that whereparties erect buildings on land the legal ownership of which lies in another, who stands by without disputing their proceedings, they are entitled to compensation, and in some cases the Courts will even decree they may enjoy the land. So that in point of fact the expenditure on the land cannot be in dispute. You are only to try the question of the land itself; for if iv your opinion all the facts, and in that of the Court all the law, should be in the defendant's favour, it would be in the power of the Court to order no actions to be brought against the tenants until compensation made for the buildings they had erected. Another formal caution I must repeat, is that from the great difficulty of striking ajury in so small a community, the parties may have admitted persons having some interest, however remote, in this suit. If this had been a common jury, this would have been a fair ground for challenge, but not in a special jury,- as the parties ought to have objected to persons having any such interest before the jury was struck. If the Court, indeed, were acquainted with the circumstance of any juror having such a bias, it would oblige the Court to exclude that juror from the box : but all that is now imposed upon me is to direct you to remove from your minds any feeling of interest on either side. I am aware there was a strong feeling among th&settlers against the old land claimants, but I think I am right in saying that they are now considered as merged into the body of colonists : if however there should still be any lurking feeling of the kind, I call upon you to banish it from your consideration, and to admit at once that the defendant in this cause is as much a settler as any one of us. Another circumstance I put to you to engage your careful consideration. Although many are interested in setting aside this grant, you should yet bear in mind that the old claimants were in reality the pioneers of civilization. Although they had no legal rights yet they had moral ones, admitted by certain acts and subsequently by more than one Ordinance here : and Englishmen who originally trusted their lives to savages have prepared the way for settlement, and are entitled to consideration .on all our v parts and yours especially.

I shall now put the issues before you. The case for the Crown contains four counts. (The Learned Judge then explained the counts to the jury.) Those four counts however do not contain all you will have to try, as to these pleas are made, and you will accordingly have to try several issues. (The learned Judge then went through the pleas.) Having briefly explained the issues, I will go through them and through the evidence : and here I think it convenient to confine you thereby to the facts. There being four counts and seven issues, if I were to direct you now to find either for the plaintiff or the defendant on each issue, some of my directions against the Crown and some against the defendant would leave the case open to what we call crott rules : and if I came hereafter to the conclusion that I had made a misdirection, a new trial would have to take place : but by confining myself to facts and reserving all the law, then a final decision can be come to when that is argued. As an illustration I can hardly give you a better one than the first count. It is proved by the production of the letter, but bristled with points of law as to the consideration paid, or conditions unfulfilled, or (supposing the letter to be good as between the parties) whether it could prevail against a grant. All these are points^pf law which the Court will have full opportunity of deciding hereafter on the arguments of counsel. If you are satisfied with Governor Hobson's signature, I must direct you to find that the promise alleged in the declaration was made. But then the count contains something more than was contained in the promise; namely, that a confirmation of it was afterwards given by Lord Stanley, and of this no evidence being offered, you should find it was not so confirmed, I direct you accordingly, and am responsible for doing so, to find that the promise was made as alleged, but was not confirmed : reserving the point whether that averment in the declaration was indeed important to be proved. Presuming you will find according to my direction, the next questions are whether that letter was obtained by misrepresentation, and whether it was afterwards waived : and both these being questions of fact and not of law, they come within your decision. Taking the issues as they stand, I will first put to you whether the letter was obtained by misrepresentation ? In order that you should say so, for the question is divisible into two portions, you must be satisfied, First, That the statements made to Captain Hobson were misrepresentations, and Spcondly, That by reason of such misrepresentations weighing «n the Governor's mind the letter was obtained. If you are of opinion that no misrepresentation was made, then there is an end of the plea : but if you are of opinion there was, then should you think it did not influence Governor Hobson, but that he was influenced by other motives, I must tell you the plea is not proved, for I need hardly say that the letter could not in that case be said to have been obtained by misrepresentation. Now the only evidence given on this matter is that of Colonel Wakefield: and before reading it I shall mention something of a short discussion between Mr. Hart, Mr. D. Wakefield, and myself, as to discrediting it. Colonel Wakefield gave his evidence most clearly, and it is so far entitled to merit: at least we may congratulate ourselves on its clearness. But Mr. Hart observes, that from his station there is a probability of a bias existing in his mind. Now he is the only evidence, and it is true that he is called by Mr. Hart. The Court could not say that Colonel Wakefield would make any statement contrary to the truth; but we are all biassed by friendships, by feelings, and are apt, without knowing it ourselves, to clothe them in language having a leaning one way or the other. But if Mr. Hart had considered Colonel Wakefield's demeanour was that of a hostile witness, he was entitled to depart from the usual rule of evidence and to treat him as such— in fact, to cross-examine him. The rule as to leading questions is, that a lawyer may not put them unless he thinks his witness a hostile one ; in which case he is entitled to put simple questions eliciting simple affirmative or denial. If Mr. Hart had thought his witness a hostile one he might have pursued that course, and you are entitled to take his not pursuing it as a proof he did not think so; and whatever suspicion of bias might exist in your minds it must be remembered Colonel Wakefield gave all his answers fairly enough. (The Judge then proceeded to go through the evidence.) Colonel Wakefield does not admit that he represented to Governor Hobson that Scott was not residing on the spot or in Wellington. The sum of what he said is this. He first admits that he designated the whole of the land claimants as " interlopers ;JI; JI he then slates he does not suppose all the private claimants were not settled on their land, but only those he knew : and when pressed as to Scott, he says it was probable he did not name him as he (Scott) was not prominently forward, while Mr. Tod's case was, and was supported by natives. On those statements it is for you to say whether any misrepresentation was made : and then if you think so, whether you find the letter was obtained by it. Here the defendant is in a difficulty, because he depends on Colonel Wakefield's evidence : and at this distance of time memory cannot be precise, and where merely words are to be recollectod, multiplicity of evidence is not practicable. In this case Dr. Evans and Mr. Wicksteed being absent, Mr. Hart is obliged to put his case before you on what he calls imperfect evidence : and although no imputation' lies on him in consequence, you must still take the evidence as it stands, and found your judgment on it and no other, in determining whether there was deliberate misrepresentation, and if so, whether that deliberate misrepresentation obtained the letter. I shall lirect you thus: — That the presumption is, (rhere persons use words they intend them to operate according to their common meaning, supposing it had been proved Colonel Wakefield ised misrepresentations mentioned in the de:laration, the presumption would be thai be neant them. Now the letter itself will enable jrou to determine whether it was obtained by misrepresentation, or whether in fact Governor Hobson had no other motives to influence him. The Judge then read the letter.) Nowreference s made in this letter to "doubts as to the title, fee : supposing, therefore, there be no evidence

I w * ta * en l entB alleged to be made by Colonel VVakeheld, the obvious presumption would be that the letter was meant to quiet those doubts : and you are entitled to look at the letter to see it it contains what would rebut the charge of misrepresentation, or of its having occasioned the letter being written. With this caution I leave the matter in your hands. The next point to consider is, as to the alleged waiver of that letter. It maybe a questionhereafter, supposing the letter to be valid and no misrepresentation to have been made, whethei the waiver of an agreement could take place in law*— whether, if this was an agreement which a Court could maintain, the plea ought not to have been a " mutual release" instead of a | wairer." But although I mentioned this to Mr. Hart, you must exclude this question and j-simply find whether or not the waiver was made as alleged. The evidence offered by Mr. Hart I to prove the waiver was made, is to be found in the two letters of Mr. Somes and Mr. Ward, dated May 1843, and in the Company's petition to Parliament. As to the simple fact of the disputed land being in the town of Wellington, I may here say that the Court will take judicial notice of its being in Wellington, without reference to the exact spot in the town. This Court sits in Wellington, and though I do not take notice of such and such a street in it, yet there is no other Wellington in the colony. The evidence on which you are called to determine that the letter of Governor Hobson was waived, is found In the documents I have named. There was much discussion whether this evidence was admissible, — and it may arise again ; but you need not notice it now. If I hereafter decide that I improperly admitted this evidence, any verdict of yours founded upon it could be set aside. The party must ordinarily give regular notice to produce a document before secondary evidence can be admitted : and, for instance, if there were a large property depending, he would be entitled to come in and call for a commission to get the evidence in England. The ground on which I admitted this evidence is, that where a statement is put forward by a party, it may be read as an admission against the party putting it forth. Now, if the Crown had fulfilled the agreements of May, 1843, and given the Company the grant there referred to, the Company would have been in possession of this land now in dispute, and Scott would have had to sue out the scire facias to try his right. What you are to determine now is, whether there was a " waiver." It is notorious that no grant has been made to the Company, and from whatever causes the delay has arisen, the agreement of May, 1843, was never carried out. Therefore it is quite clear, taking that agreement, that one party having failed in its contract, the other would be entitled to go before a Court of Equity to quash the agreement so not carried into effect, and there is- no doubt whatever it would be quashed accordingly. Then this letter of Mr. Ward's states an arrangement ; Mr. Somes' letter states the terms of that arrangement; and the petition speaks of it as an agreement whereby the Company consented to " waive their absolute right, &c." Now it being notorious they did not receive the grant promised, and the principle of agreements being that the parties should mutually perform their contracts, as the agreement was not performed by the Government, the question is, whether there was a waiver at all— because the offer of a " waiver" cannot be supposed to continue to all time, and if one party did not accept the offer, the other would be absolved from it. If you think the letter amounted only tr> an offer which was not accepted, you will find there was no waiver. I must leave it to you to say whether it was only an offer, and if you say so then an offer to do something, is not to do it, and you will find as I have said. The next count in the declaration, which involves the 4th issue, turns on the alleged deceit of the Crown. It is alleged that the recital in the deed of grant is contrary to the Ordinance, whereby the Crown was misinformed and deceived in its grant. Generally speaking, the presumption is in favour of the grant, and the Crown is bound by it. The rules as to misinformation are rather more in favor of the Crown than of the grantees. They are generally thus : that the grounds on which a grant may be set aside are, Ist., where a grant is made of more than the Crown possesses, aafor instance, if the Crown, having a lease of land for 1000 years, after 500 years expired, grants the land in fee ; and then the grantee would be called in error, though he were entirely ignorant of the lease; the presumption being allowed to arise that the Crown was deceived even notwithstanding the grantee's ignorance. 2d. Where any part of the land was previously granted to some one else, as for instance, if the Crown having an estate in fee of 100 acres, leases it for 5 years and then grants it to another; and here again the presumption is that the Crowji has been deceived. 3rdl3', and this is the ground for you to consider here, where the Crown is deceived in the consideration or in recitals, and is misinformed either in fact or in law, the presumption of deceit again arises. In this ease the presumption of deceit is one of those points in law which may be rebutted, and the jury may on the whole circumstances declare whether the crown was misinformed. There is a distinction where the misinformation proceeds from another party, and where the grantee benefits by it, the presumption arises it was through him. And if the] form of j grant be inconsistent with the facts, the grantee may examine it to see if it be valid ; and in such j cases between party and party it is open to the grantee to object to the grant, which occasions the practice of the solicitor of one party drawing the conveyance, and then sending it to the other party for inspection. Where the grant is a printed one, there is no obligation on the grantee to take that or none. The question then is, whether the Crown has been deceived in the manner stated in the declaration? It has been necessary for me to^ give a careful consideration to the Land Claims Ordinance on this matter, and there is no doubt that the 7th clause of that Ordinance is doubtfully worded : at the same time it is the province of this Court to give the interpretation to it, and after our most careful deliberation, (for here I am aided by the concurrr u nC^i°j- my brother the Chief Justice) we think the Ordinance does contain a statutory injunction to any Commissioner not to recommend any land m a town for a grant.

The 6th clause is stronger than the 7th, and absolutely prohibits any Commissioner from recommending any grant which "comprehends, &c," while the other clause saya " provided, &c. — to village." Now the only point for consideration is, whether the words "in the opinion of the majority, &c." gives the Commissioners any -discretion; or whether, where it was known the whole land was required for the town, the Commissioner ought to have included the piece in question in a recommendation, or ought not, on the contrary, to have proposed compensation in lieu. The question on the interpretation of the statute is, whether the Commisioner was justified in recommending part of a town, or whether he ought not to have recommended compensation according to the schedule fixed by the Ordinance, which in this case would have amounted to about 200 acres? and our interpretation is, that the Ordinance does itself contain a statutory direction that the Commissioner should not recommend for a grant any land forming part of-a town or required therefor. So far as to the recommendation of the Commissioner : but in giving this opinion of the Court on the terms of the statute, we are bound to add that we do not think it would prevent the Crown from granting land in fee on other recitals. We give no opinion as to the power of | theCrown Underthe Australian Land Sales Act, indeed, the Government was obsolutely prohibited from disposing of any land except at£l per acre ; and it is well known that this Court has set aside one of Captain Fitzroy's grants because it did not fulfil that Act. And with regard to the contract made with the land claimants by the Crown, it begun with Lord Normanby's instructions toSir George Gipps in 1839, tlie substance of which was embodied in Sir George's proclamation of Jan. 1840: this proclamation was again repeated by Governor Hobson, and embodied in the Land Claims Ordinance. This forms the contract with the old claimants, and this contract ought to be performed to the letter. That is our opinion, gentlemen, of what the Commissioner's duty was on that occasion : but it is for you to say whether or not in point of fact the Crown was deceived. The Crown must have been aware that the land was in Wellington, because the plan in the corner of the deed states where it was. The Crown may have looked at this at the time, and as far as it goes it may weigh in your minds towards rebutting the presumption that the Crown was deceived; I am not aware that any other evidence was offered to rebut that presumption. Ido not see on my notes any other fact to call your attention to. I have mentioned our view of the Ordinance, and that it contains an injunction prohibiting the grant of land forming part of the town, and it is for you to decide now, upon the whole case, whether the Governor, representing the Crown, was deceived, or gave the grant with his eyes open. The next counts relate to the appointment of Mr. Spain. The recital itself in the deed, is that "one of our Commissioners, &c." The original Act necessitated two' Commissioners to report, but subsequently another Act was passed making the report of one sufficient. That part of the recital is therefore good. Taking no evidence at all, the presumption would be this: — Ist. That the Commissioner had been duly appointed, and 2nd, the presumption being that " all things are rightly and lawfully done," a public officer making an act is presumed to have been authorised to do it, and to have done it rightly. For the defendant, therefore, the presumption is that the Commissioner was properly appointed, and further, that he acted rightly in reporting in his (defendant's) favour. For the Crown it is alleged that the recital was "one William Spain :" that he it was who made the report, and that he was not a Commissioner under the Ordinance. We had to presume, on reading the deed, that the Commissioner was properly appointed and duly acted: the instant, therefore, that " William Spain" is named, the presumption arises that he legally performed the requisite formalities, one of which was the taking the required oath : and you should require strong evidence to rebut it. (The Judge then referred to the evidence.) There is no doubt Mr. Spain always called himself " her Majesty's Commissioner," but that is not important. The Judges may be called her Majesty's Judges, because, like Mr. Spain, we brought out warrants imperatively commanding the Governor to appoint us Judges under the Colonial Seal : and indeed I believe the only exception to this practice is in the case of the Governor himself, who brings out a commission direct from the Crown. There being an express Ordinance that Commissioners should be appointed, the presumption is that Mr. Spain was appointed under it. The plaintiff's counsel say they have seai-ched the Gazette and do not find that any oath was taken by Mr. Spain • but there is nothing in the Ordinance to compel any officer of the Crown to publish that suth an oath was taken. It would have been easy for the Ciown counsel to have applied to the Cololonial Secretary for a copy of the oath actually taken by Mr. Spain : and their not doing so strengthens the presumption that the oath he took was the proper one. You are therefore remitted to the simple statements, Ist, as to the notification, " her Majesty has been pleased to appoint, &c," and 2ndly, as to the way in which Mr. Spain describes himself not to "hear, examine, and report," but to "investigate and determine." These are pieces of evidence you are entitled to consider in deciding whether in fact the strong presumption that he acted rightly has been rebutted. There can be no doubt the report was made by Mr. Spain ; and you are to say whether the presumption named has been removed: and here I must again caution you that where a public officer acted for years, the jury must be well satisfied he was not duly appointed, before that presumption can be rebutted. Then as to the two last counts. Supposing you should be of opinion Mr. Spain was duly appointed, and duly took the required oath, 1 do not know that the report ought to be vitiated because he described himself "her Majesty's Commissioner." I therefore take upon myself the responsibility of directing you that inasmuch as he has reported, he has reported in accordance with the terms of the Ordinance. There is one point I must call your attention to as connected with the 6th and 7th clauses of

the Ordinance. I have said that our opinion was the Commissioner could not propose to grant land in the town : but I must ask youto say whether the land in question was in fact required for the site of the town. The last point I shall have to trouble you with is contained in the plea which sets forth SirGeorgeGipps' proclamation of Jan. 1840. It is not necessary >ou should find that proclamation, as we shall have to decide on it hereafter. My opinion is that that proclamation, repeated subsequently by Governor Hobson, was embodied in the Ordinance, and that consequently all the promises contained in the proclamation have been thereby fulfilled. But in case that opinion should be disturbed when the matter comes to be argued, I must ask you to find whether, after the passing of the proclamation and before the laying out of the town of Wellington, Scott gave notice of his claim to Colonel Wakefield. There was something said about a notice being taken to the newsoaper for publication ; but you must not take notice of that, because it would be incumbent to prove, even had the notice been published, that the party named in the notice saw it. This it is which makes it necessary to serve a written notice on the party himself. You must therefore judge whether proper notice was given. Colonel Wakefield admits that Scott often spoke to him, but cannot recollect the dates,- and says he does not remember Scott coming to him at Petoni: and when he actually did get the notice, there does not appear to me any certainty. I will now ask you to say whether the grant of the land to Scott was "in extent or otherwise prejudicial to the then present or prospective interests of the settlement." You may dismiss the question of extent, as of course it could not be prejudicial in that light. In the New South Walc-s Ordinance, and in the Ordinance passed here, the word "otherwise" is somewhat explained. The following expressions are used; vizt., in the former act, "or which shall in the opinion of the majority, &c. ;" in the latter, "shall not propose, |Src." Then, gentlemen, after your deliberations, the questions will be put to you specifically as to your opinions on each of the issues. The Registrar will put to you' seriatim the several questions for your replies : and I have now only to dismiss you to your deliberations. The trial lasted two days, and the jury were locked up about six o'clock in the afternoon of Wednesday, the 21st, and after a confinement of twenty-four hours, and the foreman stating that there was no chance of their agreeing on a verdict, Mr. Justice Chapman discharged them.