New Zealand Spectator, AND COOK'S STRAIT GUARDIAN. Wednesday, May 17, 1848.

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 292, 17 May 1848, Page 2

New Zealand Spectator, AND COOK'S STRAIT GUARDIAN. Wednesday, May 17, 1848.

keep this distinction clearly in view, leans ■gainst Mr. Wakefield'a point. A mortgagor in possession, one would think, can hardly be deemed to hold adversely to the mortgagee, and jet the mortgagee may legally treat him as » trespasser, and bring ejectment without either notice to 'quit or demand of possession. The rule as to demand of possession and refusal in ejectment, is precisely analogous to a demand and refusal in trover, except perhaps that the refusal in trover should be more distinct and specific. Wherever the circumstances of the case make the defendant a wrongdoer, within the peculiar meaning of the action of trover, there a demand and refusal of the chattel need not be proved ; but where the circumstances do not amount to a conversion, where the defendant's possession was permissive or innocent in the first instance, and no conversion has taken place since, then the plaintiff, in order to succeed in. his, action, must make the defendant a W£°*!£$ 0 ? T » by. proving a demand and refusal before action brought. Jn' the present 'case, Mr. Grace's possession was adverse from the beginning, and therefore no demand of possession need be shown. The notice sent by Mr. Scott to the tenants in possession to pay rent to himself, and not to their lessors created no tenancy of any kind. If Mr. Grimstone had promised to comply, it might perhaps have been evidence of a tenancy at will ; but I even doubt that. If Mr. Grace had promised, or if Mr. Grimstone had promised with his landlord's concurrence, no doubt it would have established that relation, Doe dent. Stanaway v. Rock, 4 Man. $ Gr. 30 ; but then, such an acknowledgment would, by creating the relation of landlord and tenant, very much have smoothed the plaintiff's way. As to the second point, the action was properly brought against the tenant in possession, and would indeed have been improperly brought against any other. As tenant of Mr. Grace, he, the original defendant, gives notice to bis own landlord, as he is bound to do by the statute. The plaintiff is not bound to find out even Mr. Grace. Mr. Grace then comes into Court, and applies to be let in to defend, and he takes a rule for that purpose as of course. From that moment his name appears as defendant upon the record. His counsel now comes in and says, he has parted , with all his estate, &c, to Mr. Fox, and he demands.that the plaintiff be put out of Court; and for what ? for having brought his action •gainst Mr. whom he finds in possession, instead of against a mortgagee or assignee of the premises, of whom he never before heard, concerning whom he was not bound to inquire, and of whom he never could hear except by chance. Mr. Grace, by applying to be let in to defend his possession, is estopped from now saying it is not in his possession. It would be monstrous, indeed, if a plaintiff could be thrown over at any stage oi the proceedings, by permitting a landlord to say, first that the property is his, and then that it is not his, the more especially as the merits could be tried as well against the original defendant as against any other. And it is fortunate that the practice is so ; for otherwise, that protracted litigation, which Mr. Wakefield has so forcibly and so justly deprecated, might be still further protracted to an almost indefinite extent. The very object of estoppel is to prevent protracted litigation ; and that by which Mr. Grace is here concluded is of the highest kind known to the law, namely, by matter of record. I now come to the merits. I have considered the recital of the Commissioner's report, together with the terms of Mr. Scott's notice of claim as published in the Gazette, ' and referred' to' in the' deed of grant : and I think it cannot be collected from the said recited report and claim, that the Crown has been deceived, either within the meaning of the Land Claims Ordinance, or otherwise. have at times presented themselves to my mind, arising for the most part out of the irregular and anomalous manner in which grants were formerly permitted to pass the public seal of the colony ; butthe several cases that have been brought before the Court have compelled us to investigate the learning of this branch of the prerogative so as to determine to what extent it is' applicable to the circumstances of the colony. During the "progress of these cases, moreover, I have possessed myself of more ample published sources of the learning respecting grants of the Crown, and have been enabled to examine most of the decisions in which grants have been avoided for deceit ; and I find no exception to the rule* that in order to operate to the avoidance of a grant the false suggestion must be on the part of the grantee to the prejudice of the Crown, "for there" say the books "the king shall be said to be deceived in his grant, so as to make it void," but "where the words of the letters patent are the words of the king, although he appears by his inference to be mistaken, even in his law; yet the king shall not be said to be deceived, so as to avoid his grant." This distinction jruns through, a great' number of caset, deter-

mined at a time when grants of offices, franchises, &c, were common, which cases are recognized as law to this day, but I think it will be found to be most clearly kept in view in the King and Queen v. Kemp, 12 Mod. 78, recognized as law in Gladstanes v.Earl of Sandwich 4 M. & G. 1029, and in Auditor Curie's case 11 Co: 4b. Mr. Viner, Prerog. xvii. (O. b.) 1. abstracts the result of these cases thus:—" lf the King be not deceived by any matter suggested by the grantee, but is only mistaken in his own affirmation or surmises, although it be in the law itself such grants are good and such construction of them shall be made as tends to their support and," he adds— "upon this difference the books are plentiful." Now the only suggestion made by the grantee himself is that he claimed the land in question, by virtue of a purchase from the natives made at the time and in the manner described in the notice of the claim. If that suggestion had been false, the deceit which flows as a legal consequence from a false suggestion by a, grantee could not, I apprehend, be cured by any report of a Commissioner under the ordinance; but in this case there is neither plea, averment, nor evidence that Mr. Scott's only suggestion was false in fact. If the report of the Commissioner, recited in the grant, be calculated to deceive or mislead the Govern6r, can that be charged against the grantee ? I think not. And this brings me to consider the light in which we ought to regard the Commissioner. The Commissioner is uot in any one sense the agent of the grantee so as to charge him ; he is not even an arbitrator in whose nomination the grantee has had a voice : he is in some sense a quasi-judge between the parties, but of a tribunal forced upon the grantee. If the Commissioner be in any sense an agent, he is the agent, as he is assuredly the officer, of the Crown. But further : lam inclined to think it would be a strained construction to say that the Crown was deceived at all. The Governor was bound to know the lav, i. c., the ordiuance, and the Commissioner informs him of the fact by recommending a piece cf land "in Wellington," as the recital shews. I agree with Mr. Wakefield (notwithstanding what has fallen from Mr. Hart and Mr. King) that the Land Claims Ordinance, whilst it proposed to deal liberally with all claimants under purchases made previous to January, 1840, was intended to deprive all such claimants of the advantage which might^accrue to them to the injury of the Crown, from the establishment of a town on land so purchased, perhaps at a very low price ; but its language is certainly not skilfully contrived to effect that object. It contains no express words restraining the Governor from making grants in any of the cases named in the 6th and 7th sections ; but there are numerous cases which maintain the rule, that no portion of the prerogative, howsoever minute, can be taken away, but by the clear and express words of a statute. The Governor's function of making grants is a branch of the prerogative, communicated to the Governor by the Charter under the great seal. As the express words of a statute are necessary to affect the prerogative of the Queen, throughout the British empire ; so, within this colony, the express words of a statute or ordinance are necessary to affect so much of the prerogative as the Governor of the colony exercises ; and as the Land Claims Ordinance contains no such express words, I consider the Governor could legally make the grant, in the absence of any deceit of the grantee himself. As to the alleged uncertainty in the description of the boundaries, I agree with the counsel for the plaintiff, that in proving that the piece of land sought to be recovered is comprised within the boundaries named in the grant, he proved enough; All the witnesses spoke to that effect, except Mr. Wills. But -I will go further." The notice- of claim is expressly referred to by a recital in the grant. It is a rule applicable to the construction of grants, that where there are words of reference to a pre-existing instrument, that instrument may be referred to, in order to render certain that whicb,without such reference,would be uncertain ; and it was resolved in Whistler's case, 10 Co. 64. thatitwasno ground of objection that the recited instrument is not of record. The grant traces one boundary " fly" a stream which does not exist, the notice of claim makes that some boundary start "from" a stream which does exist, and the Commissioner's report follows the claim. Substitute the word from for the word fiy, and the only difficulty of a serious nature is cleared up. I think the suggestion, that the word " by" is a mere mistake of the clerk who filled up the blank printed form of the deed of grant is a very reasonable one, and the more recondite lur* mise of one of the witnesses, that the word " by" is the claimant's own word, but that the printer of the Government Gazette corrected it, is not tenable. In considering the amount of meme profits I have felt no small anxiety ; for und übtedly •the operation of the Ordinance m»y in some

cases, and roust be in this case a harsh application of the doctrine of relation — in general one of very questionable equity. Mr. Wakefield in his argument dwelt on the excessive character of the damage. With that the Court has nothing to do. The evidence was very clear and uniform on the point and it was for the jury to draw their own conclusion. A new trial, on the ground of excessive damages, certainly would not be warranted. What the Court has to decide is this : Has the jury assessed the damages on the right principle ? or more specifically : — ought the Court to strike out so much of the mesne profits as depend solely on the Land Claimants Estates' Ordinance, Sess. iii, No. 20? The deed of grant, taken alone, operates only from the day of its date (the day inclusive). The ordinance enacts that : — " In all cases where any claim to land hath been or may be confirmed by a grant from the Crown under the provisions of the said recited ordinance, the legal estate in the land comprised in such grants shall be deemed to be in the grantee thereof from the date of the purchase by him of such fend as aforesaid." This ordinance seems to me to effect precisely what the recital expresses as intended. Whatever may be the date of the grant, the ordinance works upon it, so as to cause the legal estate of the land comprised in the grant to be vested in the grantee from the date of his original purchase, and so plain and unambiguous are the words, that they admit of no other interpretation. That an act of the Legislature may work upon conveyances so as to vary or defeat their intrinsic import, is not new in the history of Legislation. We have a very striking and familiar instance of this in the statute of uses. The act converts what, according to the operative words in a deed, would be a mere equitable right, into a legal estate, taking the seizin out of the person contemplated in the deed, and conferring it on the person not intended to have it. I have considered Governor Hobson's letter of September 6, 1841, and I think it does not obviate the effect of the ordinance. That letter promised "that the Company will receive a grant of all such lands as may by any one have been validly purchased from the natives ; the Company compensating all previous purchasers according to a scale to be fixed by a local ordinance." This letter was never executed" by either party, and it has already been decided, by this Court after much consideration, in the case of the Queen t>. Syraonds, that the Crown can convey nothing to the subject, except under the public seal of the colony. No interest, howsoever slight, passed to the New Zealand Company or those claiming under it by the letter in question, and therefore it cannot affect the operation of the Land Claimants Estate ordinance. For these, as well as for some technical reasons, which it is unnecessary to consider, I think the verdict must stand. Rule discharged. Counsel for the Plaintiff, Mr. Hart and Mr. King ; counsel for Defendant, Mr. D. Wakefield. j