SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5444, 7 September 1878, Page 3

SUPREME COURT—IN BANCO.

Friday, September 6. _ (Before his Honor Mr. Justice Richmond.) MEIHANA TAHIKI ,V. KINROSS. This is a demurrer to tho defendant a sccoiv* plea AU but one of tho grounds of demurer are either identical with tho objections made to the pleas in the case of Kawatini v. Kinross and Burnett, or depend upon tho same construction of tho Native Lands Act, 1807, section 32, and are disposed of by tho judgment already given in that case. The ground of demurrer remaining to be considered is that the plea does not allege that tho conveyance of 2Sth July, 1870, upon which tho defend mt relies, was ever interpreted tn the Maori vendors, as required by the 74th section of the Native Lands Act, 1865. . _ „ . On fie part of the defendant, It is not denied that tho proper interpretation of the deed, pursuant to section 74 of tho Native Lands Act, 1305, as amended by section 32 of the Act of 1867, is essential to Its validity; but It is contended that it is enough for tho defendant to aver, as he does in his pica, that “ the plaintiff conveyed and assured to tho defendant" tho fee simple of the lands in question, and unnecessary to show In detail a compliance with tho statutory requirements. The question raised is as to the degree of particularity required by our rules o! pleading, and many cases havo been cited on the part of tho plaintiff to show that at common law tho plea would have been insufficient in this respect, and that it is a fortiori insufficient under the rules of tho Supremo Court, which, it is said, require a greater degree of particularity. Many instances may be cited to show that in pleading a deed of any kind at common law It was far from necessary to state in detail every circumstance essential to its validity* Allegations that one had made a lease or feoffment, or had given his bond, wero considered to imply that the lessor feoffor or obligor was of full age, and free from other disability. Com. Dig. Pleader, c. 81; Plow, 564; 1 Chitty PI., 245. In pleading a feoffment it was unnecessary to allege livery of seisin, for that was implied in the word enfeoffed. Co. Litt., 303 a ; Stephen on Pleading, 254 (7th Ed.). So enrolment of a deed might be pleaded without showing tho circumstances necessary to a valid enrolment; ora fine levied by husband and wlfo!without showing how tho wife was examined, or before what justice it was acknowledged. Plow. 105 a AU these, and many other instances, fall under the general rule that necessary circumstances implied by law need not bo expressed. Co. Litt., 303 A. Bnt it is argued on the part of tho plaintiff that greater particularity was requisite in showing compliance with tho requirements of a statute: and to some extent that may bo true. The general rule is thus stated by Sergeant Stephen (Stephen on PI. 309): With respect to acts valid at common law, but regulated as to the mode of performance by statute, it is sufficient to U3O such certainty of nllegatoa as was sufficient betoro the statute.” This, however, implies a limitation, viz that where a power, as that of devising real estate, is first created by statute, it must bo shown with some degree of particularity that the statute lias been pursued. Thus, in pleading a devise of land it was requisite to state it to have boon in writing, though in point of law it could not otherwise ha a device, I Ch. Pleading, 241. This is tho rule of which tho plaintiff, aa I understand, invoices tho application to tho present case. Many authorities wero cited on this point in tho caso of Kawatini v. Kinross, andl havo been again referred to them by Mr. Bell. One on which a good deal of reliance appeared to be placed is Com. Dig. Pleader, c. 70. where it is said. “ So in all cases where any circumstances aro required by tho purview of on Act to make it good, they ought to be averred : as where the statute 1 Eic. 111, c. 1, makes a feoffment &c„ by cestui qm use. of full ago, sane, and at large, &c„ good, ho who pleads a feoffment by cestui que use ought to aver that ho was sane, of full ago, and at large.” For this Plowden. 376, is cited, whore in fact it appears to be so laid down by Chief Justice Dyer, who refers to the Year Book M. 16 H, YJX., 2, pt. 4, But in tho Year Book tho point was not decided unanimously, and is denied to bo law by Wray C. J. in 1 Leonard 18, where it is styled rather unfairly “ e conceit of Plowden." Tho statute 1 Kie. 111., o. 1, is the subject of a learned disquisition by Mr. Sandora, forming part of chapter lof nis treatise on Uses. It was passed to enable cestui que use to make a conveyance of the legal estate vested in tho feoffees to uses. Such a conveyance would bo an exercise of a purely statutory power.- Tho opinion of Dyer turns.upon tho circumstance that it is required in the body of the Act that the feoffor bo of full ago. of sane mind, &o.; and on this ground ho distinguishes between 1 Eic. 111., c. 1. and the Statute of Wills, 33 H. VIIL, c. I, in which latter statute a similar provision is contained in a separate clause. Ho says: " Bnt inasmuch as this is not in the body of tho purview, but is a branch afterwards, the devisee neees not to aver that tho devisor was of full age aod void of the other imperfections ; but the other party who is to take advantage of it, shall plead it.” A similar principle is embodied in our E. G. 71. On the whole it appears (1) that the point made by Dyer was, even at the time it was decided. a very doubtful one. and (2) that Dyer’s opinion wholly turns on the circumstance that tho restrictions are contained in the enabling clause, and not in a separate proviso; to which I must add that such a point would unquestionably bo otherwise decided at the present day. on the principle expressio eorum q\m tacite insunt nihil operatur. Another authority relied on by tho plaintiff was Oldroyd v. Crampton, 4 Bing, ft. C. 24, S. C. 7. L. J, (n. s.) C. P. 67. The effect of the caso is thus stated in a note to 1 Chitty Pleading 245:—“The declaration in a demise of tolls bytrustees of a turnpike road under 3 Geo, IV. 0.126, § 65, 67, must state that the demise was in writing, and signed by two or more trustees or their clerk; but it seems that it need not nidge a detailed observance of tho preliminaries enjoined by section 55, as where a number of minute particulars are to be followed, a general allegation of observance is sufficient.” There was no actual decision, as Addison, of counsel for tho plaintiff, accepted the Court's offer of leave to amend: but the statement in Chitty seems to be justified by what foil from Chief Justice Tlndal during ihe argument. Understood in this way, the case is no authority for the plaintiff. As little, or still less in my opinion, is the case of Corner v. Sweet, L.E. 1 O.P. 401, where earlier decisions of the same Court, in Bloomer v. Duke, 20L.J,, C.P. 214. and Tabor v. Edwards, 27 id. 183, are reviewed. In Corner r. Sweet it was objected that, as the whole of an inspectorship deed under the Bankruptcy Act, IS6I, was not set out. it would not be seen that it was made for the benefit of all the creditors, or was reasonable in its provisions. But tho plea averring that the requisite majority of creditors had consented, aud that the deed was in all respects an inspectorship deed within tho true intent of tho Act, was held sufficient. Willes J., in delivering judgment, adverted to the distinction which existed under the old rules of pleading " between tho averment that the act was done contra, formant statute , or secundum, farmam. statute. In tho former case a general aver-' ment was held not to be a sufficient avernment of an offence committed, unless facts were shown which showed a breach of the statute; whereas in tho latter caso the general averment that the act was done according to the form of the statute was (with certain exceptions) always held to bs sufficient, and under it —it being an averment of fact —a compliance with the statute might be proved, and it was not open to special demurrer.” "One instance,” the learned Judge went on to say, “was that of an assignment of a sheriff’s bond, where it was held sufficient to allege that the assignment was according to the form of tho statute in such case made and provided. So soon as special demurrers were abolished it followed that you might in all cases where a general description of the deed was given make the pleading good by averring generally that it was according to the form of the statute.” All this, it appears to me, so far as it is applicable,—l shall state presently why I don’t 'consider it wholly applicable,—is rather against than in favor of the argument in support of the demurrer. It shows that according to the course of English pleading, both before and since the Common Daw Procedure Act, 1852, a general averment of conformity to a statute was usually hold sufficient. I have already mentioned that. according to the English rule, in pleading a devise it must be averred that the testator made his will In writing, and it is not enough to say that he devised; but on the other hand it seems that it was, and I suppose still is, unnecessary in pleading a devise under the Statute of Frauds to state that tho will was executed in the presence of and attested by three witnesses in the manner required by the statute (2 Chitty Pi. 426 note u). This is a remarkable instance of tho length to which English Courts have gone in admitting the principle of necessary implications in pleading even in the caso of instruments which derive all

Id citing and relying on the authorities I have heon discussing, the plaintiff’s counsel have taken for granted that conveyances by Maoris of land granted to them by the Crown under the Native Lands Act are assurances, which, like wills, derive their force and efficiency from a statute. In my opinion this is an erroneous assumption. Such conveyances are not an exercise of statutory authority in any other sense than are conveyances by othersubjectsofher Majesty Intheso islands. The provisions on which the plaintiff’s counsel are 1 insisting are in the nature of restrictions and disabilities imposed upon the grantees—imposed no doubt for a protective purpose, as la the disability of infancy, but still disabilities. . They are not like conditions annexed to a- new statutory power of alienation ; for the Maori convoys not in virtue of the statutes on the subject of native lands, but as owner of an estate in fee simple. By way of contrast. I may refer to section 47 of the Act of 1865, which does create'a statutory power of conveyance before grant. It must be understood that I do so merely in Illustration of the fallacy contained in the argument for the plaintiff, and that I do not mean to intimate that theproper manner of pleading adeed under the 47th section should be in fact different from that of pleading a conveyance after giant issued. In toy opinion the case is not to be determined on the ground of any analogy to the requirements of the common law rules for pleading instruments made in exercise of a statutory power, and certainly not by any reference to black-l§tter precedents. In pleading a conveyance made in the form prescribed by the Conveyancing Ordinance, it is not the practice to aver that it was attested by a witness; and (as Mr. Conolly argued) no one has ever thought of demurring on the ground that such an averment is requisite. The allegation that the vendor conveyed and assured is rightly deemed sufficient. So, I think, is here the averment that the plaintiff conveyed and assured. By this allegation the defendant takes upon him the burden of proof that the deed on which ho relies has all the statutory requisites, and that the transaction is a valid one. The plaintiff by a denial of the allegation can put his adversary to proof of every necessary requirement of a lawful conveyance, and will bo able at the trial to take advantage of anything omitted; or, If he prefer it, he may at once, by averring the omission of any particular which ho knows in fact to have been omitted, raise upon the record the question whether what has been left undone Is in truth essential. This, I am well satisfied, Is more in accordance with our rules of procedure, and what is of tome importance, with utility also and common sense, than Is the opposite view; and I must say that, after considering the matter, I have no hesitation at all In overruling this demurrer. Demurrer overruled, i Unless plaintiff elect to reply on usual terms there must bo Judgment for the defendant. The case of Hohopa' to Ringanohu v. Sutton is governed by the judgment in the former case. In this case the demurrer was to the replication. As the plaintiff's objection to the plea fails, and ho aoes not defend his replication, there must bo judgment for the defendant, unless plaintiff elect to amend on the regular terms. HOHBPA TJB RINGANOHU V. KINROSS. Tho objections to the pica in this case being governed by the ruling in the case of Tahiki v. Kinross, were also over-ruled, HOROMONA V. ©ROWER, The injunction in this case Was refused, tho coats of both sides to ho coats in the cause. JONES V. ASHTON. Judgment was delivered, making the rule for a prohibition, argued on Wednesday week, absolute, giving costa against the plaintiffs below, but not against the District Judge. 31‘DONAIiD V. KINO AND ANOTHER. Mr. Izard appeared to support a demurrer to the declaration;' Mr. Chapman contra. Judgment was reserved. TUCKER V. KINO, A similar case to the last, was ordered to stand over until Wednesday next. i POTTS V. KNIGHT. This was a demurrer, to defendant's plea. Mr. Oliver argued that the demurrer must bo

upheld; Mr. Izard against it. Tho plea purported to show, ground for equitable relief against forfeiture for non-payment of rent. The Court intimated that no sufficient ground was shown, and that tho demurrer must be allowed. Costa to' follow the usual course. Leave to amend was applied for, hut refused. ■