AUCKLAND. [From the New Zealander.] SUPREME COURT. Saturday, June 24, 1848.

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 314, 2 August 1848, Page 2

AUCKLAND. [From the New Zealander.] SUPREME COURT. Saturday, June 24, 1848.

The Chief Justice attended this morning, and delivered judgment as follows, in the cause The Queen against George Clarke. This is a suit of scire facias to annul a grant made in the name of the Crown, by Governor Fitzroy to the defendant. The grant is in the usual form, and comprises 4000 acres of land, of which the boundaries are set forth in the grant. This piece of land was claimed by the defendant as having been purchased by him from certain natives of this country before the proclamation of the Queen's sovereignty over these islands. The claim was examined by Commissioners Godfrey and Richmond ; who reported upon the same, recommending that a grant of 2560 acres should be made to the defendant. Their report was confirmed by the officer administering the government, and ihe confirmation was publicly notified in the Government Gazette of 21st June, 1843. Subsequently Governor Fitzroy referred the defendant's claim to Mr. Commissioner Fitzgerald, who reported upon the same on the 2nd of May, 1844, and recommended that the defendant should receive a crown grant to the full extent of his claim. In pursuance of Mr. Commissioner Fitzgerald's report, this grant was made on the 16th May, 1844. The question now before the Court is raised upon a demurrer to the defendant's plea. It is therefore incumbent upon the Court to examine the pleadings upon both sides, and to give judgment according to the right of the case, as it appears upon the whole record taken together. The objections, which are assigned as grounds of demurrer, correspond in substance with the objections stated at the close of the declaration. The only difference is this — that they are applied in the one case to the report of Mr. Commissioner Fiizgerald : in the other, to the grant itself. This furnishes a natural and clear division of the whole matter. I will therefore follow it, and consider, in the fit st place, whether the report was irregular or illegal i and secondly, how far any irregularity or illegality in that report would affect the validity of the grant to the defendant. The first objection, then, to the report is the following :—": — " That the said Commissioner R. A. Fitzgerald was not, nor was any single commissioner, authorised by the provisions of the Land Claims Amendment Ordinance (Sess. 3, No. 3,) to rehear claims or to reverse reports already duly heard, investigated, and reported upon by two commissioners, pursuant 4o the provisions of the Land Claims Ordinance, Sess. 1, No. 2," In order to estimate the force of this objection, it is necessary to consider the two reports which are referred to in the pleading, and also to advert to certain facts, of which, though not stated on the record, the court is bound to take judicial notice, The first Land Claims Ordinance (passed 9th June, 1841) directs (Sec. 6) that " the said commissioners shall in every case inquire into, and set forth, so far as it shall be possible to ascertain the same, the price or valuable consideration, with the sterling value thereof, paid for the lands claimed — and shall also inquire into, and set forth the number of acres which such payment would have been equivalent to, according to the rates fixed in a schedule annexed to this Ordinance." That schedule, marked 8., was framed to comprise all purchases made between Ist January, 1815, and 31st December, 1839 ; and the rates fixed therein ranged from 6d. an acre to Bs. an acre. It was further " provided that no grant of land shall be recommended by the said commissioners, which shall exceed in extent two thousand five hundred and sixty acres, unless specially authorised thereto by the Governor, with the advice of the Executive Council." In the second session of the Legislative Council, another Land Claims Ordinance was passed (Sess. 2, No. 14). It enacted (s. 4) that "\\ henever it shall be reported by any commissioner or commissioners of land claims that any person is entitled, under the provisions of the said Ordinance (meaning the original Land Claims Ordinance) to a grant of land in respect of his alleged purchase, such person shall, on the report being confirmed by his Excellency the Governor, be entitled to a grant from the Crown out of the land validly sold to such person of four times as many acres as he shall be found to have expended pounds sterling, in manner and for the purposes hereinbefore mentioned." Those purposes included, not only the purchase of the land, but also various beads of expenditure, connected with the conveyance of emigrants to the land, and their settlement thereon. By this second Ordinance so much of the former Ordinance as restricted the recommendations of the commissioners to 2560 acres, and generally so much of that Ordinance as was inconsistent with the new arrangement, was repealed. This second Ordinance was passed 25th February, 1842

It came into operation at once ; and whilst it continued in operation, Commissioners Godfrey and Richmond made their reportjcdated 30th May, 1843. They reported tUfTihey were of opinion that George Clarke made a bona fide purchase from the native chiefs on the 4th of March and the 26th of September, 1836. They estimated the payment made for the land at £476 1 8s. ; and they recommended that a grant for 2560 acres, with certain exceptions, should he issued. It is to be observed, that there is nothing in the report to show that any monies had been expended by the defendant in the manner or for the purposes mentioned in the Ordinance then in force, 'save only the purchase money given to the natives for the land itself. Now according to the new rate fixed by that Ordinance, the defendant was entitled, in respect of that purchase money, to only 1908 acres : and I see that, in the confirmation of the report referred to by the record (Government Gazette, 21st June, 1843), the quantity to be granted is stated accordingly at 1908 acres, with certain exceptions. It does not appear, then, in what way the commissioners conceived the defendant to be entitled to 2560 acres, but it is important to bear in mind that the number of 2560 was not fixed upon as being an absolute limit set by law. As the law then stood, there was no restriction at all upon the quantity which the commissioners might recommend to be granted, except so far as a restriction was implied in the rule that the claimant should receive, out of the land validly sold to him, a grant of four times as many acres as h~ should have expended pounds sterling. By the Government Gazette of 6th September, 1843, it was notified to the public that the Ordinance just mentioned had been disallowed by her Majesty. The necessary consequence of this was the revival of the original enactment of June, 1841. In, the case, then, of this defendant, a revision of the report made by Commissioners Godfrey and Richmond became necessary. The difference between the effects of the two Ordinances was to him very considerable. Under the former Ordinance (even supposing the calculation to be made in the manner least favourable to the defendant, by taking, in schedule 8., the highest sum per acre set against the year 1836, in which the defendant's purchase was made — namely, 2s. per acre), the consideration money would have covered 4769 acres, if the defendant's claim had included so many. Subsequently to the disallowance of the second Land Claims Ordinance, and on the 13th of January, 1844, a third Ordinance w^s passed, intituled " An Ordinance to amend the Land Claims Ordinance, Sess. 1, No. 2." This third Ordinance, after reciting the original Ordinance, enacts as follows :—": — " All the powers of hearing, examining, and reporting on claims to land, and all other the powers and authorities given by the said recited Ordinance to any two commissioners, may be exercised as fully and effectually by any single commissioner, as the same have heretofore been exercised by two commissioners." Under this Ordinance Mr. Fitzgerald was acting as a single commissioner when he made his report of 2nd May, 1844. Of the three objections to this report, the first, which is now under consideration, refers to the nature of the power exercised by the commissioner in this report. The objection is, that no single commissioner could " rehear claims or reverse reports already duly heard, investigated and reported upon by two commissioners." As to the way in which this report did interfere with or modify that made by the two commissioners, the only evidence is the report itself. Now, upon inspection of the report, it is plain that more claims than one are included therein, and more grants than one are recommended; but the report does not specify or distinguish the claims in detail. Grants to the amount of 5500 acres are recommended. Taking the report as I find it, and combining with it the admitted fact that the grant now impeached was issued in pursuance of it, I infer that this report did not differ from that of the two commissioners in any other point than this, namely, that Commissioner Fitzgerald recommended a grant of 4000 acres, in lieu of the 2560, recommended by the two commissioners. Now in this I see no rehearing or reversal of the former report. The commissioners, in calculating the number of acres to be recommended to be granted, bad proceeded upon a rule which, was then law, but was now no longer so. The restoration of the old rule had made it necessary to have those calculations reconsidered and revised, before grants could be issued. The single commissioner did nothing more than review a calculation, the principle of which, in all the reports made under the disallowed Ordinance, was inconsistent with the revived law. I do not see that the substance and merits of the original report was affected : or that anything therein was unsettled, which, had been settled in conformity to law as it now stood. It appears to me that (so far at any rate as .this claim is concerned) Mr. Commissioner

Fitzgerald did not, in making this report, exercise any powers but such as were given to him by the words of the Ordinance under which he%cted. I come now to the second ground of demurrer, which runs thus : "that the said Commissioner, R. A. Fitzgerald was not, nor was any single Commissioner, authorised to report upon claims to land under the Land Claims Ordinance [Session 1, No. 2] which he had not heard and examined in manner prescribed by the said Ordinance." This is an, objection to the person of the Commissioner. It is contended (it I rightly apprehend the argument of the learned Attorney General) that no report could lawfully be made upon any claim except by the very Commissioner who heard and examined the claim. The objection is grounded on the words of the Land Claims Ordinance, which enacts (section By that it shall be lawful for the Governor of the colony of New Zealand to appoint Comrrissioners, who shall have full power and authority to hear, examine, aud report on all claims to grants of land, &c. ; and in the 6th section, that " the said Commissioners shall in every case inquire into and set forth, so far as it shall be possible to ascertain the same, the price or valuable consideration, with the sterling value thereof, paid for the lands claimed — and shall also inquire into and set forth the number of acres which such payment would be equivalent to, according to the rates fixed in a schedule annexed to this Ordinance. And if the said Commissioners, or anyofthem shall be satisfied that the person or persons claiming such lands or any part thereof is or are entitled according to the declaration of her Gracious Majesty as aforesaid to hold the said lands or any part thereof, they, the said Commissioners, shall report tho same and the grounds thereof to the said Governor accordingly." Now it may be fairly conceded that it was the intention of the legislature that, as a general rule, the recommending Commissioners should be the hearing and examining Commissioners. Such would be the reasonable and natural course. But it is argued that the rule is absolute and imperative in all cases. Now, in the firs f place, no rule of law can be imperative, unless it be at the same lime practicable. No act can be pronounced illegal en the ground of noncompliance with a condition required by law, unless it appear that compliance was possible. It could never be held that, if the Commissioners died after investigating the claim, but before any report had been made, no report at ail should be made in such a case. Therefore, if this construction of the words were clearly the true one, it would be necessary to show that it was practicable to refer this particular claim back again to the Commissioners who originally heard it for their revised and final report thereon. But on this record, there is no averuient to that effect. For anything which appears in this record, the original Commissioners may have ceased to hold their office, may have become incompetent to perform the duties of it, or may have died in the interval. But, if such a restriction was ever intended, it was abandoned and repealed by the Ordinance under which the sin- . gle Commissioner acted, which says " all the powers of hearing, examining, and reporting on claims of land, and all the powers and authorities given by the said recited Ordinance to any two Commissioners, may be exercised as fully and effectually by any single Commissioner, as the same have hitherto been exercised by two Commissioners." Whatever power the word " said" may have to specify and restrict, the word " any" seems to have equal power to generalise and to extend. I consider therefore that this ground of demurrer also is insufficient. I proceed to the third and last ground " that it is not alleged in the said plea, that the said Commissioner Robert A. Fitzgerald, was specially authorised by the Governor in Council to recommend a greater quantity than 2560 acres of land to be granted to the said defendant." Now it is admitted upon the record that " the recommendation of Mr. Commissioner Fitzgerald in the pleading mentioned was not preceded by, or made in pursuance of, any special authority given for that purpose by the Governor in Council, as required by the Land Claims Ordinance." The terms of the Ordinance clearly require that, before the Commissioner shall recommend an extended grant, he shall be in possession of a special authority enabling him thereto. The words are, " Provided that no grant of land shall be recommended by the said Commissioners, which shall exceed in extent two thousand five hundred and sixty acres, unless specially authorised thereto by the Governor with the advice of the Executive Council." In this case, the Commissioner, at the time of making the recommendation, had not received any such authority. He assumed to exercise a power which the law had withholden from him. The recommendation then was illegally made, and •the report was, so far at any rate, vitiated. It remains to consider the effect of this admitted illegallity in the Commissioner's report upon the grant subsequently made to the defendant in pursuance of that report. But first, having noticed all the objection s

made to the Commissioner's report, I pass to the reasons urged by the learned Attorney General for setting aside the grant itself. The first is : " That because the said grant was made contrary to the said Commissioners' report (meaning the report of Messrs. Godfrey and Richmond) so made and confirmed as aforesaid." This objection involves two assumptions : one of law, and the other of fact. The first is, that a Crown grant to a land claimant made contrary to the Commissioners' report upon the claim, the report having been confirmed, is necessarily void. The second assumption is, that at the time of making the Ciown grant to the defendant, the Commissioners' report was a report " made and confirmed." The question of law resolves itself into the one main question, to which I shall address myselfpresently : namely, how far the Crown grant is connected with, or dependent upon, the Commissioners' report preceding it? But could the report of Commissioners Godfrey and Richmond be regarded as being, in fact, a report " made and confirmed," at any time after the disallowance of the Ordinance upon which it was based \ Certainly it was once confirmed, but the disallowance of the Ordinance necessarily (as it appears to me) opened the case again, and did away with the confirmation. The claimants were remitted to the larger bounty and more liberal scale of the first Ordinance, and it was needful that every report which had been made upon the footing of the 2nd Ordinance, should be reconsidered and revised. The report had now lost its character of finality. It appears to me that a grant could in no wise be void for contrariety to a report which was based upon a principle that was itself in contrariety to the revived law. The other reason for annulling the grant is stated thus : " Because no greater quantity than 2,560 acres of land could or can be granted to any claimant under the provisions of the said Land Claims Ordinance, except upon the recommendation of the Commissioners who heard it and examined the claim in manner prescribed by the said Ordi-" nance, being specially authorized thereto by the Governor, with the advice of the Executive Council." This reason comprises two distinct objections : the former derived from the fact that the report, in pursuance of which the grant was issued, was not made by the Commissioners who originally examined the claim, the latter from the want of legal authority in the Commissioner who made that report. As to the former, I have already indicated my opinion in the remarks which I have made upon the same objection when applied to the report itself. If the report could not be pronounced illegal merely on this ground of a diversity in the persons of the Commissioners, still less could the Crown grant which followed it. The latter objection remains. The Commissioner no doubt exceeded his powers. The Land Claims Ordinance imposed a condition precedent to the recommendation of an extended grant, and that condition had not been fulfilled when the recommendation in this case was made. The recommendation then being illegal, is the grant, made in pursuance of that recommendation, illegal also ? Thus the one' main question recurs, upon which the Court has to decide, and to which I now proceed. Our first business is to look to the words of the Ordinance itself. Now there is certainly no express enactment in the Ordinance that a grant such as this shall be void by reason of its being preceded or made in pursuance of an irregular or illegal recommendation. Of course Ido not mean that express words of avoidance are necessary for the purpose of avoiding a grant, in any case where the grant is plainly contrary to ihe meaning and intent of the law. For example, if the law had laid down a positive and absolute limit to the number of acres to be granted in any case without saying more, there would be no hardship in holding a grant of a greater number of acres void. For the grantee would be bound to take notice of the law, and a comparison of the terms of the law with the terms of the grant would bring home to him at once a knowledge of the illegality. But it is not contended that this grant purports to convey more than under this Ordinance the grantee might lawfully receive. We have nothing here to do with any question of intrinsic illegality. There is in the whole Ordinance no enactment avoiding any titles, except the general enactment (in Session 2) that " all titles to land which are held or claimed by virtue of purchases from the chrefs or other individuals of the aboriginal tribes, and vii ich are not, or may not hereafter be allowed by her Majesty, her heirs and successors, are and the same shall be absolutely null and void ;" words which naturally suggest the inference that the legislature intended all titles so confirmed to stand good, unless indeed the grants were in themselves contrary to law. The words relied on as having the effect of invalidating this grant refer (it will be seen) to the recommendations to be made by the commissioners, and not at all to grants to be made by the Governor. The words are " Provided that no grants of land

shall be recommended by the Su,id commissioners, which shall exceed in extent 2560 acres, unless specially authorised the r eto by the Governor, with the advice of the executive council." Here is a direction given by the legislature to the commissioners, but none at all given to the Governor, nor is there one word respecting the making of a grant or the effect of a grant when made. Is this court, then, to imply an enactment not expressly made ? Certainly the court is bound to do so, if the intention of the legislature be otherwise plain and beyond doubt. But it behoves the court to consider well before it says what the legislature has not said. II an implication of law is to oust a man from his freehold, it behoves that implication to be clear and inevitable. It is laid down amongst the rules to be observed in the construction of statutes, that "a statute shall never have an equitable construction in order to overthrow an estate." [Bac. Ab. Statute I. 461.] And this rule flows from the very nature of the law, which has for one of its main objects to give quiet to titles and permanence to pioperty. Most of all must it be the duty of the court to reject such an equitable or extended construction, where the estate to be overthrown is founded upon a purchase for valuable consideration. The defendant is admitted to be a purchaser in good faith and for valuable consideration. It is on this ground alone that he receives a grant. The Crown has granted nothing to him but what he had previously acquired for the Crown. It was by the act, and at the cost of the grantee, that the very power of granting accrued to the Crown. It is laid down in 6 Bac. Ab., Prerogative, F. 516, "That when the King's grants are upon a valuable consideration, they shall be construed favourably for the patentee, for the honour of the King." This maxim is not, in its terms, precisely applicable to the present case ; but it is an instance and illustration of a general and settled principle of law. But, over and above the general principle just stated, it appears to me that there is enough in the Ordinance itself to show that such an extended construction can have no place here ; and also that the distinction which I have ad- . verted to, as apparent in the language of the Ordinance, between a recommendation by the commissioner and a grant by the Governor, is not a verbal distinction only, but a very substantial one. After a number of particular regulations have been prescribed in the body of the 6th section, for the guidance of the commissioners in framing their reports, the section concludes with the following words, "Provided also that nothing herein contained shall be held to oblige the said Governor to make and deliver any such grants as aforesaid, unless his Excellency shall deem ie proper so to do." There is, then, so little necessary connection between a report from the commissioners and a grant from the Governor of the lands recommended by the commissioners to be granted, that after due anJ full inquiry by the commissioners, and after a favourable report has been made, and that in the most exact conformity to the regulations of the Ordinance, yet it is, after all, left wholly in the discretion of the Governor, whether to issue a grant or not. The report, however complete and regular, gives to the claimant in whose favour it is made no legal right to a grant. This being so, — the claimant deriving no legal benefit from the report though made in most exact compliance with the requirements of the Ordinance, can it be fairly held that a non-compliance with one of those requirements shall operate not simply to his prejudice, but to the defeating of his claim even after it has been confirmed by a Crown grant 1 I cannot think that the legislature intended to lay down a rule so greatly wanting in mutuality, as between the Crown and the claimant, as that the connection between the report and the grant should be broken off when it might operate in favour of the claimant, and should subsist when it might operate against him. Hitherto I have confined myself to these points ; first, that crown grants are not within the words of the proviso, or of any prohibitory enactment, in the Land Claims Ordinance ; and 2dly, that this Court cannot lawfully extend those words so as to include them. And these two considerations appear to me to constitute a complete answer to all the objections urged against this grant. I wish, however, carefully to guard myself against being understood to imply that if Crown grants had been within the words — if it bad been expressly provided that no extended grant should be made without a special authority from the Governor and Executive Council— that therefore a grant, if it happened to be made without that special authority, would be void in the hands of the grantee. On the contrary (although the question does not directly arise here) I conceive that, even then, it would be necessary, in order to avoid the grant to shew that tire non-compliance with the requirement of the Ordinance was procured by, or at least known to the grantee. From the notes collected by C. B. Comyn s,

of old cases in which the validity of Crown grants came in question, it is plain that one chief test, by which it was decided whether errors, false recitals or misdescriptions, con* tamed in a deed of grant were sufficient to avoid the deed, was this : if they were such as to create a presumption that the King had been deceived by misrepresentation, or false suggestion or concealment, on -the part of the grantee, then the deed was void : but otherwise, not. — (Comyns Digest, Grant* G. 4—9,4 — 9, and Bacon's Ab. Prerogative — F. 514.). And in one of the few modern cases in which the same question has arisen, Tindal, Chief Justice, in delivering* the judgment of the Court, said — " We think the present case is to be governed by the principle laid down in the case Rex et Regina v. Kemye (1 Lord Raymond 49), that where the King is not deceived in his consideration, nor otherwise to his prejudice, by any suggestion on the part of the grantee, but the intent was to pass the interest expressed in the grant, only the King has been mistaken in the law, there he shall not be said to be deceived, to the aVoidance of the grant." — (Gledstanes v. Earl of Sand' wich. — 4 Mann and Grang, 1,029.) The same principle pervades the judgment of the Court of Common Pleas, in Alcock v. Cook. — 5 Bing, 346. It is unnecessary to trace this branch of the subject further. It suffices to observe, that on this record there is no averment that the defendant was party to, or cognizant of the illegality of the recommendation made by Mr. Commissioner Fitzgerald. This remark applies equally to the other objections urged against the grant. The same is to be said of nearly all the remarks I have made upon the third objection. In terms they are confined to that, as being the only one which appears to me of any weight, but, in substance, they extend equally to the others. Looking then at the whole case, I find on the one hand that the grant is good in form — that it purports to convey to the defendant nothing but what the Governor in the name of the Crown, could lawfully convey to him — that it interferes not with any right of any subject of the Crown — that there is no misrepresentation or misconduct of any kind imputed to the grantee ; on the other hand, I find that, in a proceeding preliminary to the issuing of the grant, an act was illegally done by an agent, not of the grantee, but of the Crown — an act affecting, not the grant itself, but a document distinct from the grant — and that the grantee is not alleged to have been connected in any way with that act, or even to have had any knowledge of it. Under these circumstances, and for the reasons already stated, I am of opinion that this grant is good in law. (To be continued.)