SUPREME COURT. Wellington, 20th January 1849. THE QUEEN v.M'DONALD.

New Zealand Spectator and Cook's Strait Guardian, Volume V, Issue 366, 3 February 1849, Page 3

SUPREME COURT. Wellington, 20th January 1849. THE QUEE N v.M'DONALD.

His Honor Mr. Justice Chapman delivered the following judgment in this case : — This is an action of scire facias, brought in tihe name of the Crown, under the authority of a fiat of the Attorney- General, granted to the Principal Agent of the New Zealand Company, for the purpose of trying the validity of a deed of grant made by the late^ Governor Captain Fitzroy, to the defendant, anddated the 29th' July, 1845. This^action was commenced in July, 1846. After joinder in demurrer, it was set down for argument on' the 21st of September of the same year, and counsel were heard in support of the declaration, but no counsel appeared for the defendant. Judgment was- then delayed, principally because another writ of a similar nature was pending against Mr, David Scott ; and as in that case several issues of fact were raised by the pleadings, it seemed to me desirable that they should be determined, before the Court gave judgment upon this demurrer ; the more especially as that was really the' principal and more important case, as well on account of the situation of the laud, as of the extent of the buildings erected thereupon. That case was tried in May, 1847, before myself and a special jury, but the jury could not agree, and were ultimately discharged by the Court. As the New Zealand Company permitted two terms to elapse, and a third to commence, without taking any further step, Mr. Scott brought ejectment against some of the parties in possession, and obtained a verdict against one of them. The defendant in the ejectment obtained a decree which in effect permitted him to recover from Mr Scott, as a condition precedent to execution, the actual'value of the improvements- he had made under a well grounded belief that the title was in himself. These proceedings had the effect of eliciting the opinion of the Court on the whole case, but as the judgment was of a nature not to be susceptible of appeal/the counsel for the Principal Agent of the Ne"w'Zealand Company has moved for judgment in this case, for the express purpose of appeal to the judicial committee' of the Privy Council. The case is accordingly now so shaped as to permit that course to be taken, and with a well grounded prospect,- moreover, that the case of the Queen v. Scott will be placed upon the same fooling, by withdrawing the pleas, and demurring to the sufficiency of the declaration. ' • -■>' The declaration in this case- contains four counts. The first count states, " that before the said grant was made to the defendant, town, on the 6th day of September, 1841, the representative of her Majesty the Queen, the , then Governor of the colony, did by a certain writing under his hand (which writing was I then produced, and under a rule of this Court annexed to the record) undertake and agree with the Principal Agent of the New Zealand Company, that the said Company should receive a grant of all lands which had, by any one, been validly purchased from the natives within certain limits described in a schedule referred to in the said letter, whereof due notice was on the 13th day of October given in the' official Gazette. The count further avers, that these' proceedings were afterwards confirmed by the Secretary of State, that the New Zealand Company and their as-signs-shad and enjoyed quiet possession of the said lands, and that they had on the faith of the undertaking expended upon the said land large sums of mb'ney. • The second count states that the deed of grant recites a certain report made by one of the Commissioners appointed to hear, examine, and report upon claims, &c, setting forth that the defendant is entitled to receive a grant of land, &c, situated in the town of Wellington, which report is contrary to the* provisions of the " Land' Claims Ordinance," whereby the Governor was misinformed and deceived, &c. The thi.d count states that the said recited report was made by one William Spain, Esq., who had no power or authority under the said ordinance to report in manner and form as alleged, whereby the Governor was deceived, &c. The fourth count states, that in the said deed it is recited that the said Alexander' M'Donald is entitled to receive a grant, &c, whereas it also appears-by the said deed that the said lands were 1 - comprised in a certain claim of one Robert Tod ; whereby the Governor was deceived,- &ci To the sufficiency in point of law of all! these counts to disturb the grant to the defendant, the defendant has demurred, assigning several causes of demurrer, which r maybe' thus briefly stated. To the first count U-4s^obje.cted, Ist, --that it- is not averred that the'ttaid -'alleged under--taking is-B y*%iatter of record (i. tfl^by an In*V v strument under fthe^Colonial Seal), (by'wbicb^ alone any- interest can of Vould^be'^-doirveyed

by the then Governor to the New Zealand Company ; 2nd, that the letter of Governor Hobs'on discloses a conflition annexed to the alleged undertaking;, and that it is not averred or shown that such condition was ever performed by ihe Principal Agent. As to the second, third, and. fourth count, it is objected, Ist, that it sufficiently appears by the warrant of the Governor, and the fiat of the Attorney-General, that the Principal Agent was only authorised to use the Queen's name to try the validity of the grant on the ground set forth on the first count, and that all but the first count are therefor.? bad, as being without any authority to use the Queen's name ; 2d, that they are further bad, as containing matter not embraced by the writ ; 3d, that assuming the counts to be allowable notwithstanding the two objections above stated, they are not sufficient in law to avoid the grant, inasmuch as they do not aver or show that the Governor, i. c. the Crown, was deceived by any false suggestion, misinformation, or misrepresentation of the defendant, or of any person acting under his authority or on his behalf. As to the second and third counts, it is objected that it is not sufficiently shown in what manner the Governor was deceived, either by the report recited in the deed or by the alleged informality in the appointment of the Commissioner, and that no presumption of deceit could arise either from the report or from such supposed informal appointment. As to the fourth count, the defendant says it is insufficient, as not snowing in what manner the Governor was deceived by the recital in the deed. That , the recital sufficiently shows that the claim -was in respect of a purchase made by Robert Tod, and the transfer of that .c.laim or the right to a grant under it, is a matter of indifference to the Crown. That the trne question (if the Count be allowable at all)- is as to the validity of Tod's daim, and the deed of grant, in point of fact, contains no false recital whatever. The first question , raised by the demurrer is this: — Did Governor Hobson's letter, stiengthened by the subsequent confirmation of the , Secretary of State for the Colonies, convey such an interest to the New Zealand Company as to invalidate a subsequent grant to the defen Jant 1 This letter is in the following words : — "'Understanding that some doubt is entertained as to the, intentions of the Government with respect to the lands claim-, ed by , the New Zealand Company in respect both to the jright of pre-emption vested in the Crown, and to conflicting claims'between the, Company and other purchasers. " It may be satisfactory for you to know that the Crown will forego its right of preemption to the lands comprised within the limits laid down in the accompanying schedule, and 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 previons purchasers according to a scale to be fixed by a local ordinance. "You are at liberty to give the utmost publicity to this communication. (Signed) " W. Hobson." This letter is not under the Colonial Seal. It.does not purport to convey any immediate interest. It promises to give a grant on the single condition that the Company shall compensate actual purchasers in land elsewhere. But Mr. Wakefield contends that it gives the Company such an equitable right to the lands comprised within the schedule (of which the land granted to the defendant is part) as to render that grant void. In the case of the Queen v. Symonds, (a correct report of which was printed iv the Independent newspaper,) this .Court was called upon to consider the effect upon a subsequent grant of an instrument, which, like the above, contained a promise of a grant by a former Governor. That instrument, like this, was notuoder the Public Seal, but perhaps it came nearer to conveying an immediate interest than the present tor it was averred and admitted that all conditions imposed on the claimant had been fulfilled ; but we came to the conciusion that such an instrument could not prevail against a subsequent grant, and a further review of the authorities only strengthens my opinion of the correctness of the view there taken. The Queen herself can only grant by matter of record, i. c. by Letters Patent under the Great Seal, and enrolled. Within the colony the power of making grants is exercised by the Governor by virtue of a clause in the Charter . of the colony clothing him with such power. Had that clause, been silent as to the mode of granting, analo 7 gy would have supplied the defect by requiring grants to be by matter of record. It does so in the clause relating to the exercise of the prerogative of mercy, for although it is not said the grant of pardon shall be under the Colonial Seal, yet I apprehend no pardon Cpuld be pleaded unless so made.. In the elapse which relates to grants of, land, itjs expressly provided that such grants shall be,, made,ifj«fcn.J^ Public, Seal of the colony.

As no interest in land howsoever slight 'can pass from the Crown to the subject in England, except by matter of record under the Great Seal, so in the colonies none can pass but under the Colonial Seal. This well recognized and on the whole salutary rule of law passed from the old Colonial Governments to the several States of America, and I am not aware that any one of them has thought it wise to alter the rule. The laws of other colonies, founded by other powers, have a similar provision, and certainly no British Colonial Court at the present day recognizes any other rule than that which I here, after full consideration, lay down : — that no interest in land can pass from the Crown, to the subject, except under the Public Seal of the colony. I think therefore 'that Governor Hobson's mere letter, though published in the Official Gazette, and afterwards approved of by the Secretary of State, was a mere barren com- j pact, conveying nothing to the New Zealand Company and absolutely inoperative to impeach a grant. As to the other point affecting the first count, I agree that there is a con- | dition, which, even supposing this were an agreement merely between private persons, would render specific performance of Captain Hobson's letter incapable of being enforced, without averment on the other side of fulfilment or at least readiness and willingness to fulfil the condition. The part to be performed by the Principal Agent was, — " to compensate all previous purchasers according to a scale to be fixed by a Local Ordinance.'' 1 j Governor Hobson took the only step he could take, at that time, towards the due performance of his part of the agreement, bypassing an Ordinance (5 Vie, No. 14) called the " Land Claims Ordinance," (the second of that title,) the 7th section of which executed so much of Governor Hobson's letter as embraced his promise to pass such an ordinance. This section is as follows :—: — "IF any part of the land to be granted to, the New Zealand Company under the provisions of the aforesaid arrangement shall have been sold by the aboriginal inhabitants to any other claimant other than the New Zealand Company, compensation in other land shall be made to such claimant by the said Company according to such rate, as to the Commissioner shall seem meet." This Ordinance was passed in February, 1842. In the following April the Commissioner opened his Court. The Ordinance continued in force until the 6th of September, 1843, when notice of its disallowanc3 by her Majesty was published in the Government Gazette, After that date the condition imposed upon the New Zealand-Company became impossible tobeperformed, and although a graut to the New Zealand Company might have been made after that date, it must have been made — not in furtherance of Governor Hobson's letter — but by virtue of some new arrangement. It is contended by Mr. Wakefield that this letter, even if inoperative against the Crown, at all events constitutes a direction to the Commissioner to reserve tbe lands in question, and that therefore in compliance with the first " Land Claims Ordinance" (4 Vie,. No. 2), they should not have been recommended for grant. I cannot accede to this interpretation. To come within the terms " directed to reserve by the Governor," I think there must be some express direction given by the Governor and addressed to the Commissioner, and not a mere possible inference to be drawn by the Commissioner from a letter addressed to another person. I now come to the second, third, and fourth counts, and I will first consider those grounds of demurrer which go to the merits. And, first, it is objected to all these counts that it is not averred therein, that the Governor was depeived by any misrepresentation or misinformation of the defendant himself, and this ground of demurrer I think fatal to the counts 'in question. The leading case usually referred to on the point, but by no means the earliest in which the principle is asserted, is that of the King and Queen v. Kempe, (reported in 1 Lord Raymond, 49, and 12 Mod. 78). Mr. Viner, in his abridgment, abstracts the rule as laid down in this and other cases thus :—": — " There is a difference to be observed in all cases where t,he King is said to be deceived in his grant : if the matter which is said to be false in the Letters Patent be suggested on the part of the grantee, and that to the prejudice of the, King, there the King shall be said to be deceived so as to make it void, (Adjudged 12, Mod. 78, T. 7, W. & M., King v. Kempe), * • but if the King be not deceived by any matter suggested by the grantee, but is ,only*mistaken in his own affirmation or surImises 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 jupon this difference the books are plentiful, (8 H. 7. 3 Dy. 97, b. >apd 352 a. 2-Cro., 34. 2 Brownl* 242.. 11. C0., 4 b., Curie's case, Mod. Rep. ,197.) , So where he is, not so deceived, the grant shall not be void, if by any construction it can be made good.. Ad-.

judged 12.M6d.' 78, the^King v. Kemp." (Yin. Abr. xviii.Prerog. O. b.) The mos? recent case in which I find this principle-as-serted, and the case recognised as law, is iGladslanes v. the Earl of Sandwich,' in C. B. 'Mich. 1842, (4. Mann & Gr. 995), where iChief Justice Tindal in delivering the judg,ment of the Court says, " where the King is not deceived in his consideration or 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 the King shall not be said to be deceived to the avoidance of the grant." Now in all that is set out In these counts as matter of deception or misrepresentation, there is nothing thai can by any reasonable construction be charged against the grantee. The report recited is the work of the Commissioner employed, not by the grantee — not even -with any constructive assent of his, but employed adversely to him an order to investigate, challenge, and if need be, to pare down and even disallow his claim ; a report made by an officer* and therefore an agent of the Crown, for its own protection and that of the public at large, against individual claimants. Assuming for the present that the Governor was deceived, the only way of bringing such deceit home to the grantee is by making the Commissioner his agent ; for which, for the reasons already stated, there is not the slightest foundation. But is it shewn that the Crown has been deceived at all ? To dispose of this question I must consider the counts separately, and, I shall do so as briefly as possible, because I consider the case made against the Grant is I really and substantially answered by the principle of,the King v. Kempe. The second count avers that the Ciown has been deceived by the reports of the Commissioner being contrary to the provisions of the Land Claims Ordinance. I think the count does not sufficiently show in what manuer the report is contrary to the Ordinance, but Mr. Wakefield referred to the 7ih section as being that which renders the report in question deceptive. What the recited report recommends is a Grant of a piece of land situated within the town of Wellington ; what the Ordinance j forbids the Commissioner to recommend (among other things) is ," any land which may be required for the site of any town or village" and the 6th section provides that " no grant of land shall be recommended * * that may hereafter be required for the site of any town or village reserve." The Commissioner, then, was directed not to recommend, Ist, land which, at the time, was required for the site of any town or village," and 2nd, land which might thereafter be required for the site of any town or village reserve. Now, taking the plain meaning of the words of the Ordinance, can it be said that an acre or two within a town already proclaimed, and disposed of in a way with which the Government did not intend to interfere, was land "required for the site of a town or village V What the words of the section import is this — that if in ihe opinion of the Commissioners the claim contained an eligible site for a town or (by sec. 6) land which might at some future period become an eligible site, they were not to recommend it. It would be a misconstruction to call this or that acre in the town of Wel- | lington " the site of a town or village" or "the site of a town or village reserve." Moreover the report clearly and truly informs the Governor that the piece of land recommended to be granted is situated in Wellington ; the Governor was bound to know the provisions of the Ordinance and the fact is truly stated ; I think, therefore,^ that there was no misinformation or deception in point of fact, to affect the claimant, even if the Commissioner had been his agent, so as to make the report the Grantee's own. The third count states, that the Governor was misinformed and deceived by the report being made by one Wm. Spain, Esq., who had no authority, and the point contended for is this, that the "Land Claims Ordinance" (read with the Land Claims Amendment Ordinance, 7 Vie. No. 3,) requires claims to b3 referred to a Commissioner appointed under the Ordinance, who had first taken the oath prescribed by the same, whereas Mr. Spain came out with a commission from her Majesty and did not take the prescribed oath. Now the act of referring the claim to a Commissioner is, by the Ordinance, the act of the Governor himself, and if he refer a claim to his own officer informally appointed, I do not see how it can be said that he has been deceived in point of fact. If there has been any r informality, (and the demurrer in effect admits so much) it is entirely the work of the representative of the Crowd, and it never can be , permitted that the Crown should first make an iinformal appointment, then, by its representative, refer a claim under the. Ordinance to jthe officer so informally appointed, and at jlength step in and, say, or, permit another to 'say, the Crown has been misinformed anddeceived by this chain of its. own acts. That an attempt should be made .to impeach a grant, on

such ground seems to me to afford an illustration of the justice of the rule laid down in the JKing v. Kerape. I cannotavoid remarking here, as a mere matter of fact, that at the- abortive trial of the case of the Queen- v; Scott the proof of a similar count wholly failed. The appointment of Mr. Spain, , the taking of the proper oath, the due reference of the claim to him — all come within the maxim omnia prasumuntur rite esse acta donee probetur in contrarium — and no evidence to rebut this presumption of law was adduced. An "exemplification of the enrolment of Mr. Spain's commission might have' been had out of the proper custody, an exemplification of the oath might have been prodnced from the office, of the Registrar of the Sup/cmc Court at Auckland, neither was done, but even had the facts averred in the count been proved, I do not think they would have supported the>allegation of deceit, for tbe reasons I have already given. As to the fourth count but little need be said. All it avers is true. It truly shows that the claim was that of Mr. Robert Tod, but tbe person then entitled to receive a grant was the defendant. The only person entitled to impeach the, grant on the, ground that the defendant is not entitled is Mr. Tod. Moreover it seems to have been entirely overlooked that an assignment of the nature indicated by the recital is expressly provided for by the Land Claims Ordinance, (4 Vie, No. 2) the 6th section of which provides that the Commissioner in his report "shall statejwhe-ther-the claim or claims reponted-on is, or ere original or derivative with the name or names of the party or parties to whom tbe .grant or Jease should issue." <Jf the grant could only issue to the. original claimant this provjsjoa would be insensible, and, I think even -without such provision it would, in the language of -the demurrer, be matter of indifference to the Crown, whether the claimant's right remained in himself or had been assigned to another. Two alleged causes of demurrer remain to be noticed. Ist. That tbe :Governorfs^warrant and, Attorney-General's fiat ibnly permit the Queen's ,name to bemused -to try the grant on the ground set out in -the first count, 'and that .consequently, the -andsubsequent counts are bad as using iher'MaJesty'is name without warrant. 2nd. That :tbe~sseGond land subsequent counts are bad aY extending f be- ' yand the writ, whereas the declaration in scire facias onghtto pursue the writ. These objections cannot *be taken advantage of ,by demurrer, but fo"rftv»&'»proper subject for pleas in abatement of so-inudb of the "writ and so many of the counts^asicom'e within the objections. Demurrer can do no more than question the sufficiency, in point of law, of the several matters set out in tbe declaration or subsequent pleadings, and, "It is never founded -on matter collateral to the pleadings it opposes, but arises on the face of the statement itself." (Steph. PI. 70.) The real difficulty in the way of demurrer is that tbe defect objected to cannot be imported inco the record. When tbe petition was in use, oyer thereof, so as to make it in effect part of the declaration, was not allowed (Earl of Kent's case H. 21, E. 3, fo. 47, pi. 68, cited Smith v. Upton, 6 M. and Gr. 252, n. (a).) I collect from a note to the recent case of Smith v. Upton (Citing Rex v. Neilson, 1 Webst. Pat. Ca. 671) tha.t in practise tbe petition has been abandoned, but the Attorney- General's fiat stiU remains necessary, and the same reason which, would ex- :- clude oyer of tbe petition (namely, that it is not an instrument of which profert need be made) would, I conceive, operate against granting oyer of the Governor's warrant for the purpose of treating it as if set out in the declaration, and so making it the object of demurrer. lam inclined to think, embodied in pleas in abatement, the objections,. especU ajly the first, might have prevailed ; but tbe defendant, indeed both parties, 'by such a course would have lost the benefit of a judgment on the merits-, and would not have precluded a further; suit- ;, for' although the war* rant is in its terms limited to the singleground of Governor Hobson's letter,, it is clearly within the Attorney-General's, discretion to permit the Queen's name to be used on other ground, though it is not probable he" would have granted his fiat to impeach Mr*. Spain's appointment. With the exception just stated, I think the, several causes of demurrer well founded* that the several counts in the' declaration do not disclose any ground for avoiding- the grant,, and that there must therefore be Judgment for the Defendant.