Victoria University of Wellington Law Review
These cases have been retyped from the originals
R v Taylor
Enclosure 1 in No 1
Supreme Court Auckland
Monday, 16 July 1849
Judgment of their Honors the Chief Justice and Mr Justice Chapman
Judgment of his Honor the Chief Justice
This is a suit of scire faias to set aside a grant, dated 15th July 1844, made in the name and on behalf of the Crown by Governor FitzRoy; and which purports to convey to James Forbes Beattie and his heirs the island of Kawau, in the gulf of Hauraki.
The island was claimed by Beattie, as having been purchased from certain persons of the native race of this country before the proclamation of the Queen's sovereignty over these islands. The claim was referred, according to the provisions of the colonial ordinances (Session 1, No 2, and Session 3, No 3) to Mr Commissioner Godfrey; who reported on the 1st July, 1843, that no grant could be recommended for the claimant. This report was confirmed by the officer administering the government; and the confirmation was published in the "New Zealand Government Gazette," of the 25 October 1843.
Subsequently, on the 15th July 1844, the present grant was made. By the operation of three deeds mentioned in the declaration, all the interest of Beattie under the Crown grant has become vested in the defendant, John Taylor.
It is alleged by the attorney-general, and admitted by the defendant, that no commissioner appointed to examine and report upon claims to land ever reported that Beattie was entitled to receive a grant of 2,560 acres, or any grant whatsoever, in respect of the aforesaid claim.
The attorney-general says that this grant ought to be declared void, and set aside for three reasons; of which the first and second are as follows: 1st, because the grant was made contrary to the commissioner's report so made and confirmed as aforesaid, and to the provisions of the aforesaid ordinances; 2ndly, because at the date of the grant, Governor FitzRoy had no power or authority to make a valid grant of the said island to the said James Forbes Beattie and his heirs, in manner and for the considerations in the said grant set forth and described.
These two reasons may be conveniently taken together; as the same questions are involved, in a greater or less degree, in the consideration of each. The third, to which we shall recur hereafter, is in its nature quite distinct from the two which precede it. I purpose therefore to combine, for the purpose of discussion, the former objections, omitting for the present all further reference to the last.
The subject which presents itself for inquiry in the first place, has on a former occasion been brought under the consideration of this Court; but it presents itself now under a somewhat different form. What were the powers of the commissioners of land claims? Did they take away anything from the authority of the governor? If so, how far did they interfere with that authority?
In order to answer these questions, it will be necessary to examine the provisions of the Land Claims Ordinance (Sess 1, No 2)
This Ordinance sets out by copying, in the preamble, certain recitals of an Act which had been passed for the like purposes by the governor and council of New South Wales, namely, "that in various parts of the islands of New Zealand tracts of land were claimed to be held by various individuals by virtue of purchases from the chiefs of the aboriginal tribes - that no such individual could acquire a legal title to, or permanent interest in, any such tracts by virtue of such purchases that Her Majesty had, under the hand of one of Her Majesty's Principal Secretaries of State, declared her royal will and pleasure not to recognise any titles to land which did not proceed from, or should not be allowed by Her Majesty - and that it was expedient to put beyond doubt the invalidity of all titles founded upon such purchases." The Ordinance then recites that it was by the said Act declared and enacted, "That all titles to land in New Zealand, which were not, or might not thereafter be allowed by Her Majesty, were and should be absolutely null and void." Then, after mentioning the appointment of certain Land Claim Commissioners by the governor of New South Wales, and the subsequent separation of New Zealand from the government of New South Wales, the preamble concludes by reciting, "that it is expedient that a local Ordinance for the same general purpose intended to be provided for by the said Act of New South Wales, together with other enactments applicable to the altered circumstances of the colony of New Zealand, should be enacted by the governor and Legislative Council of the same." The first section repeals the Act of New South Wales, and determines the commission issued by the governor of New South Wales. The second then proceeds to declare and enact that "All titles to land in the colony of New Zealand which are held or claimed by virtue of purchases or other titles from the chiefs or other individuals of the aboriginal tribes, and which 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."
From this enactment, taken in connection with the preamble, it would appear that the first and principal object of this Ordinance was to enforce by the highest authority, the rule, that all titles to land acquired by settlers in a British colony, must be derived from, or allowed by, the Crown.
The third sections recites that, "Her Majesty hath, in the said instructions, been pleased to declare Her Majesty's gracious intention to recognise claims to land, which may have been obtained on equitable terms from the said chiefs or aboriginal inhabitants, and which may not be prejudicial to the present or prospective interests of such of Her Majesty's subjects who have already resorted, or who may hereafter resort to and settle in the colony;" and that "it is necessary that an inquiry be instituted into the mode in which such claims have been acquired, the circumstances under which such claims may be and are founded, and also to ascertain the extent and situation of the same." The objects of the inquiry, as they are here stated, evidently correspond with the conditions annexed to Her Majesty's declaration. The mode of acquisition and the circumstances were to be inquired into, to the end that it might be known whether the land had been obtained on equitable terms: the extent and situation of the land were to be ascertained, to the end that it might be known whether a grant of that particular land to the claimant would be prejudicial to the interests of the general body of colonists.
It is plain that an inquiry of this kind was rendered necessary by the terms of Her Majesty's declaration, and that, in order to a faithful execution of Her Majesty's purpose, such an inquiry must have been made, even if this Ordinance had not been passed.
It may make this question clearer, if we bear in mind how the matter would have stood in the case just now suggested. The governor alone had power to grant lands on behalf of the Crown; and, if we suppose no person to have been interposed between him and the claimants, it would have rested with him alone to determine in what cases he would exercise the power which he possessed, or (in other words) to decide in what cases claimants were entitled to the benefit of Her Majesty's declaration. To enable him to decide correctly, he would have had, either himself to make this inquiry, or to cause it to be made by others for him; but ultimately, the governor would have to satisfy his own mind and to decide for himself, whether a Crown grant should issue or not.
Now how far did the Land Claims Ordinance remove the responsibility for a due fulfilment of Her Majesty's intention from the governor to other persons? How far did it limit his power?
I proceed to consider the residue of the Ordinance with a view to these points.
The third section enacts, "That is shall be lawful for the governor, and he is hereby authorised and empowered, to issue one or more commission or commissions and thereby to appoint commissioners, who shall have full power and authority under the same to hear, examine, and report on all claims." In the next section (4), it is enacted that certain claims shall be referred to the commissioners to be appointed under the Ordinance, "to the end that all such claims may be heard, examined, and reported upon for the information and guidance of the said governor of New Zealand." There is nothing in these words to give the commissioners any power of deciding on the claims referred to them. At any rate, there is nothing to give them the power of deciding finally.
Had it been intended that a commissioner's report should be a final and conclusive decision on the claim to which it related, it might have been expected that the claimants would have been directed (as in the ordinary case of any claims lying within the jurisdiction of a court of law) to apply at once to the commissioner's Court, so that the commissioners might take cognisance of all claims, and dispose of all on one principle and in one way. But, on the contrary, with one exception, it was left to the discretion of the governor to refer claims to the commissioners or not, as he pleased. The exception is in section 4, which provides that certain claims which had actually been referred by the governor of New South Wales to the former commissioners, should be referred again by the governor of New Zealand to the new commission. But in all cases where no discretion had as yet been exercised by the governor of New South Wales, the governor of New Zealand is left free. He is not bound or required by the Ordinance to refer any other claims than those. The commissioners are authorised to deal with all claims which may be referred to them; but it is expressly provided (in section 5) "that nothing herein contained shall authorise the said commissioners to receive or report upon claims, except such as shall be referred to them under and by virtue of the provisions of this Ordinance."
In section 6, it is enacted that "if the said commissioners shall be satisfied that the person claiming such lands is entitled, according to the declaration of Her gracious Majesty, to hold the said lands or any part thereof, they shall report the same, and the grounds thereof, to the said governor accordingly." The natural inference from this is, that the grounds were to be stated in order that the governor might judge of their sufficiency, before he proceeded to act on the report.
In section 7, the act of the commissioners in making a report is described as a proposal. It says "the commissioners shall not propose to grant to any claimant whatsoever any land" of the kinds described in that section. But, as if to remove all doubt, it is, at the end of section 6, provided "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 it proper so to do." If then the report of the commissioner was not to have the effect of a binding and final judgment in favour of the subject, could it be intended that such a report should have that effect against the subject? Could the Crown rigidly uphold and enforce the opinion of its own officers whenever that opinion would lead to the appropriation by the Crown of the lands comprised in the claim, and yet repudiate their opinion, wherever it tended to support the title of the original claimant? As I have said on a former occasion, I cannot conceive this to have been the mind of the Legislature: first, because of the manifest unfairness of such a rule; and, secondly, because of the terms of the last section of the Ordinance, "Provided always, and be it declared and ordained, that nothing in this Ordinance contained shall be deemed in any way to affect any right or prerogative of Her Majesty, her heirs or successors."
The conclusion to which I come, upon a review of the whole of this Ordinance is, that the functions of the commissioners were not judicial, but ministerial; that it was their business to collect information for the use of the governor, and to submit proposals for his consideration, not to take away his discretion, but to enable him to exercise his discretion safely; the power of ultimately deciding what were the cases that came within the benefit of the Queen's declaration, still rested (as I conceive) with the governor. I see no indication of any purpose to transfer that responsibility from the governor, the Queen's own agent, to the agents whom the governor might appoint. Everything in the Ordinance appears to me to point the contrary way.
Next, as to the quantity of land which the governor might grant to a claimant. The only restriction imposed by the Ordinance is upon the commissioners: they are forbidden to recommend a grant of more than 2,560 acres without a special authority enabling them to do so. But, supposing the authority given, there is no limit set to the number of acres which they might recommend to be granted. Now such a recommendation would be nugatory, unless the governor had power (if he saw fit) to issue a grant to the extent of the recommendation. It appears, therefore to have been understood that the power to grant land to the claimants would not be subject to any arbitrary numerical limit. But though the Legislature did not attempt to fix, by a general enactment, any definite number of acres which no grant in any case should exceed, still they might so frame the Ordinance as to limit and define, in each particular case, the number to be granted. In other words, instead of imposing beforehand one limit upon the whole body of claimants, they might deem it preferable to limit the claimants one by one, by means of a calculation to be performed afterwards by the commissioners or the governor. Was this latter plan in fact adopted by the Legislature? In particular, was the schedule B framed with this view? In order to answer this question, we must look to the words of the Ordinance, and chiefly of the 6th section, which alone contains any references to that schedule. It is thereby enacted that the commissioners "shall also inquire into and set forth the number of acres which such payment (namely, the payment to the natives for the land) would have been equivalent to according to the rates fixed in a schedule marked B, annexed to this Ordinance." Now here we find, just as in the greater part of the enactments of this section, a direction to the commissioners and nothing more. They are told to apply the schedule and to state the result. Whatever might be the utility of that result, as one of many matters desirable for the information of the governor and for the guidance of his judgment, there are no words in the Ordinance attaching to that result any legal effect, much less any binding and conclusive effect as against the grantee. And that no such effect can legally belong to it, is to be inferred by the same course of argument as was applied, in the case of "the Queen against Clarke," to the other directions given in this section to the commissioners. I conclude, therefore, that, so far as this Ordinance is concerned, each grant was to be restricted within those limits alone, which were prescribed by the nature of the case and by the general law. So much of the land comprised in any claim as had in fact been validly purchased from the natives, might be lawfully granted by the governor in the name of the Crown. The governor did not derive that power of granting from the Ordinance, but the Ordinance implied and assumed that he possessed it. If the governor thought that in any particular case, the spirit of Her Majesty's declaration required him to depart from the schedule, I do not see anything in the Ordinance to make such a departure unlawful or fatal to the validity of the grant.
Upon the whole, them, the objects of the Ordinance were twofold: first, to promulgate on the highest authority the principle, that all titles and claims to land in New Zealand, founded on purchase from the natives, would be legally invalid and void, unless allowed by the Crown: and, after that, to furnish to the governor of the colony, means of determining what claims ought to be allowed, and to what extent.
All that has been just now said as to the extent of the governor's authority to grant land to any claimant, pre-supposes the governor to be otherwise at liberty to exercise his own judgment upon the merits of the claim. But it is contended that in the case of this particular claim, Governor FitzRoy was not at liberty to do so. It is maintained that Beattie's case had been settled and finally disposed of before governor FitzRoy came into the colony, and that Governor FitzRoy had no lawful authority to re-open the question.
It is alleged in the declaration that Mr Commissioner Godfrey's report, before mentioned, was confirmed by the officer administering the government, for whose information and guidance that report was made, and that the confirmation was published in the "New Zealand Government Gazette," of the 25th October, 1843. This is admitted, although (probably from an error of the press), the number of the claim, as stated in the Gazette, differs from that which is twice given in the report. The former is 245; the latter, 445. It is therefore contended that this grant is void, because it was made contrary to the said commissioner's report, so made and confirmed as aforesaid, and to the provisions of the Ordinances, session 1, No 2 and session 3, No 3.
As to the point that the grant was "contrary to the commissioner's report," my opinion has been indicated in what has been said as to the construction of the Land Claims Ordinance. I have stated my reasons for thinking that a mere contrariety between the grant and the report does not render the former invalid. Also in the case of the "Queen against Clarke;" much was said which will be found to bear on this point; both as to the distinct characters of a commissioner's report and a Crown grant, and generally, as to the mode in which the Court is bound to construe this Ordinance. In that case also a confirmation by the acting governor was insisted on; but it became unnecessary to consider the question of its legal effect, inasmuch as the confirmation appeared to have lost any effect which might have belonged to it, and to have fallen to the ground, together with the report itself, by the disallowance of the second Land Claims Ordinance. The present case differs from the former; for, here, nothing has occurred to displace or affect the confirmation. We have, therefore, to inquire, whether that confirmation by the Acting-Governor Shortland took away from Governor FitzRoy the power of making this grant?
Does the Ordinance, then, contain any enactment to this effect? So far from there being any express enactment respecting the effect of a confirmation, the Ordinance does not require, does not even mention, any confirmation at all. Doubtless a public notification of this sort might be highly convenient, for obvious reasons; but the Ordinance says nothing about it.
It is true that, by the fourth section of the second Land Claims Ordinance (Session 2, No 14), a confirmation by the governor is (in somewhat indirect terms) required in certain cases. "Whenever it shall be reported by any Commissioner or Commissioners of Land Claims that any person is entitled, under the provisions of the said 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, &c." It was, probably, out of this enactment that the practice of publishing confirmations in the "Government Gazette" took its rise. But, however that may be, it is to be observed that, in this Ordinance, confirmation is required, not in respect of every report, but of such reports only as were made in favour of the claimants, that nothing is said as to the form in which the confirmation should be made, or as to the effect of the confirmation when made, and that this Ordinance itself had been disallowed, and the disallowance notified in the "Government Gazette" before the confirmation, which we are now considering, was published.
The public confirmation, therefore, in this case was a pure voluntary act of the officer administering the government. If so, it seems impossible to maintain that an act, which the Legislature had not deemed it necessary to require at all, could have a greater effect in barring the Crown and prejudicing the subject than belonged to any of the acts which the Legislature had required in express terms. These remarks apply to the case of any grantee. But, in respect of the grantee in the present case, there is a further point to be noticed: he is described in the grant and on the record as "James Forbes Beattie, of Sydney, New South Wales," and this is all that is shown to the Court respecting him. For all that appears, he may never have been within this colony. The purchase would appear to have been effected through an agent; for though it is admitted that Beattie purchased the island from the natives, the commissioner's report says that "Henry Taylor, on the 11th January 1840, made a bargain with the native chiefs, but did not complete the purchase until the 3rd March 1841." Now it is plain that Beattie, as a claimant of land within this colony, was bound to take notice of the Ordinance by which the mode of disposing of the land claims was prescribed. But a merely voluntary notification in the "Government Gazette" of New Zealand (whatever effect it might have here) could not of itself affect a person resident in another colony. I conclude, then, that Governor FitzRoy might lawfully enter upon the consideration of Beattie's case, notwithstanding all that had passed. And having regard to the facts stated on the face of the report, that the bargain was made with the native chiefs on the 11th January; that the proclamation issued by the governor of New South Wales at Sydney was dated 14th of the same month; that the purchase was subsequently completed; seeing, also, that the report contains no charge of fraud, and bearing in mind the rules which are constantly acted upon by our English Courts of Equity as to contracts for the purchase of land, I do not see any cause for surprise in the fact that Governor FitzRoy thought it right to reconsider this case. But, whether of the two, the commissioner's report or the governor's decision, was more in accordance with the spirit of Her Majesty's declaration, is a question with which we have nothing to do; our only question is, whether the governor had lawful authority to decide. It is to be remarked, that the principle upon which Mr Commissioner Godfrey proceeded, namely, that the purchase was to be dated from the last payment made by the purchaser is practically abandoned by the learned Attorney-General, who has not put upon the record, by way of objection to the grant, any allegation that the land was purchased from the natives after the proclamation of the Queen's sovereignty over these islands.
So far, then, as the Ordinances of this colony are concerned, I find no ground for avoiding this grant. If Governor FitzRoy would have had lawful authority to issue this grant to Beattie in case Her Majesty's declaration had stood alone, and had not been followed by any Ordinance, then, as I conceive, he possessed that authority still, notwithstanding the colonial Ordinance.
But it is contended that the governor of New Zealand had not, at the date of this grant, any power to grant the island of Kawau, unless the grant were made in accordance with the Royal Instructions of 5th December 1840, which forbad the governor to dispose of public lands to private persons gratuitously. This argument rests on the assumption that the commissioner's report and the confirmation thereof had finally excluded Beattie from the benefit of the Queen's declaration, and consequently that the island of Kawau had, before the date of this grant, become part of what may be called the ordinary Crown lands, that is to say, of lands vested in the Crown clear of any engagement or promise; that it was in the same condition, and subject to the same rules, in all respects as the lands which the Crown had acquired for itself by a direct purchase in its own name. It rests also on the further assumption that this Court is bound to notice those Royal Instructions even to the length of setting aside a grant on the ground of inconsistency with them, though the grant would be good within the general terms of the authority given to the governor by the Charter, and publicly notified as so given, and although it is not alleged on the record that the grantee had notice of the existence of any such Instructions.
If the first of these assumptions were conceded, it would become necessary to consider the important question suggested by the learned Attorney-General as to the true interpretation of the clause in the Charter, by which the power of granting Crown lands is given to the governor, as well as the general question of the effect of Royal Instructions; but, in the view to which I have come, there is no room for any inquiry of this kind. The best consideration I can give to the case leads me to the conclusion, that the case of this claimant did still fall within the scope of Her Majesty's declaration, notwithstanding that report and the confirmation thereof. If this be so, there existed, in fact, no Instructions at all applying to the land comprised in this claim, except, indeed, the Instructions of 14th August 1839, which notified Her Majesty's declaration as to the land claims, as recited in the preamble of the first Land Claims Ordinance.
The true objects of the Instructions of 5th December 1840 is clearly expressed in the Despatch of 9th December 1840, at the commencement of the very paragraph cited by the Attorney-General. After adverting to the necessity of passing a local Ordinance for the settlement of the land claims, and of appointing a Commission under such Ordinance, the Despatch proceeds thus: "When the demesne of the Crown shall thus have been clearly separated from the lands of private persons, and from those still retained by the aborigines, the sale and settlement of that demesne will proceed according to the rules laid down in the accompanying Instructions under the Royal Sign Manual" (Parl. Pap. 1841 p 30). Those Instructions therefore were not intended to affect any lands which might fall within the operation of the local Ordinance. Indeed, the whole frame of the Instructions themselves is inconsistent with such an intention. But it is further contended that, whatever might be the extent of the power conferred on the governor by the Charter, yet this grant is bad as being made in violation of strat 5 and 6 Vict cl 36 (the Australian Land Sales Act).
This objection is not expressly raised upon the record, as is the case also with the objection founded on the Royal Instructions. However, as the defendant acquiesced in the arguing of these points, and as I am most desirous to do nothing which may hinder or delay the examination of any part of the important question before the Court, I have thought it better to notice the former of these points, and I shall proceed likewise to consider the latter. But the course which I deem it expedient to follow, under the circumstances, with a view to the event of this matter being carried into a higher Court, will not preclude the defendant from any advantage of which he might otherwise be entitled to avail himself in a Court of Appeal, on the ground of these objections not being specifically raised on the record.
The Land Sales Act was in force in this colony at the date of this grant, and it is not contended that the grant is made in terms of that Act. Is there, then, any saving clause in the Act by which this grant may be sustained? The 20th section enacts "that nothing herein contained shall affect or be construed to affect any contract, or to prevent the fulfilment of any promise or engagement, made by or on behalf of Her Majesty with respect to any lands situate in any of the said colonies in cases where such contracts, promises, or engagements shall have been lawfully made before the time at which this Act shall take effect in any such colony."
It has always been understood in this Court that the declaration of Her Majesty in reference to the land claimants was a "promise or engagement" within the meaning of this section; and, I believe, the practice of the profession has been in conformity with that understanding. It is now admitted that some of the claimants may fairly have the benefit of the saving clause, but it is argued that Beattie cannot be brought within the terms of it. The learned Attorney-General contends that the intention of the Legislature was to give to the commissioners, and not to the governor, the power of deciding which of the claimants were to be held entitled to the benefit of Her Majesty's declaration, and, therefore, that Beattie not having been found by the commissioner to be so entitled did not come within Her Majesty's promise or engagement; in other words, it is contended that the promise of Her Majesty was subject to a condition that the claimant must obtain from a commissioner a report in his favour. Now, this condition is not expressed in the declaration itself or in the colonial Ordinance which was passed for the purpose of carrying the declaration into effect. I need not repeat my reasons for thinking that no such condition is to be inferred from that Ordinance, but that quite the contrary is to be gathered from it.
But it is further said, that at any rate a compliance with the terms of the schedule B was essential; that Her Majesty never engaged to give to any claimant a greater number of acres than he would be entitled to according to the scale contained in that schedule; and that, therefore, the grant to Beattie cannot be sustained, because it purports to convey to him a number of acres greatly in excess of the number which would fall to him under the schedule. The engagement or promise of Her Majesty to the land claimants is, as I conceive, to be found in the proclamation which Sir George Gipps issued on the 14th January 1840, in obedience to Her Majesty's command, conveyed to him by instructions from the Secretary of State, dated 14th August 1839, and which same instructions are in part recited in the Land Claims Ordinance, as expressing the gracious intention of Her Majesty. That proclamation notified to the claimants that it was not intended "to dispossess the owners of any land acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community." The terms of Her Majesty's promise are stated also in the 3rd section of the colonial Ordinance, without any material variation from the language of the proclamation. By this rule the commissioners were directed to guide themselves. Thus, in section 6, "if the commissioners shall be satisfied that the person claiming such lands is entitled according to the declaration of Her gracious Majesty as aforesaid, &c., the said commissioners shall report the same, &c." It is obvious that Her Majesty, in dealing with the claims of the alleged purchasers of land, was bound to regard also the claims and interests of two other classes of persons, namely, the original native owners of the land and the general body of colonists. Accordingly, the royal declaration naturally assumed the shape of a promise addressed to the claimants, with two conditions annexed thereto, each of the two conditions having reference to one of the two classes just mentioned. It is "Her Majesty's gracious intention to recognise claims to land which may have been obtained on equitable terms from the said chiefs, &c., and which may not be prejudicial to the present and prospective interests of such of Her Majesty's subjects as have already resorted, or may hereafter resort, to the said colony." (4 Vict No 2 sect 3.) In effect, Her Majesty says to each claimant, "Show that you have acquired the land fairly and honestly from the natives; let it be seen further that the retention of the land by you will not be injurious to your fellow colonists, and you shall retain the land." Now the retention of the land might be injurious either by reason of its extent or otherwise. The word "otherwise" was used in the first announcement, which was naturally somewhat general in its language. A commentary upon the word is supplied by the colonial Ordinance, in those provisions thereof which relate to such lands as might be "required for the site of any town or village, or for the purposes of defence, or for any other purpose of public utility" (sect 7). The promise of Her Majesty contains no reference to the price per acre paid for the land. No doubt the nature and quantity of the payment to the natives might be a proper subject for consideration by the commissioner in reference to the question, whether the transaction between the claimant and the natives had been a fair and honest purchase of the land or not. But, supposing the governor once satisfied on that point, there remained only two questions to be answered, namely, first, is the extent of the land claimed so great that the possession of it by one person would impede the regular settlement of the country; and, secondly, whatever be its extent, is the situation or character of the land claimed such as to make it unsafe or prejudicial to the public interest to leave that land in the possession or control of one person? Now, the price paid per acre does not seem to have any necessary connection with either of these questions. For instance, it might happen to be found that two pieces of land, equally or nearly so in extent, and similar in situation, had been bought at prices widely differing as to the rate per acre, or that pieces of land very unequal in extent and dissimilar in situation had been bought at very nearly the same price per acre. And if there was no such necessary connection, it appears difficult for this Court to imply any such connection as a part of Her Majesty's original promise. In this way, as well as by a consideration of the general frame and construction of the Land Claims Ordinance (of which I have already spoken at some length), I am led to the conclusion that the Schedule B is not to be regarded as being in any sense a condition of the Queen's promise. I rather conceive that the governor was not bound to regard any other conditions than those two to which I have just adverted as originally annexed to the royal declaration at the time of the publication of it by Sir G Gipps. When the governor had decided in the case of any claimant that those two conditions were satisfied, he might then, as I conceive, (by virtue of this 20th section of the Land Sales Act,) lawfully fulfil the Queen's engagement towards that claimant, by issuing to him a Crown grant. I state these considerations for the reason above given, and because they have appeared to me to have some weight; but I cannot help regarding them now with much less confidence, as my brother Chapman, in the written judgment which he has kindly transmitted from Wellington, appears to incline to the contrary opinion, although he expresses considerable hesitation upon the point. Fortunately, it is unnecessary to come to any decision upon it, as the question of the construction of the saving clause of the Land Sales Act is not raised upon the record; and, if it were, would still be precluded by the repeal (as to this colony) of the Act itself.
We now come to the two remaining objections, both of which are connected with the frame of the grant itself. The first is grounded on an untrue recital in the grant.
The grant contains a recital in the following words: "Whereas one of our commissioners appointed to hear, examine, and report upon claims to land obtained by purchase from the aboriginal inhabitants of the colony of New Zealand, has reported that James Forbes Beattie, of Sydney, New South Wales, is entitled to receive a grant of 2,560 acres of land, particularly mentioned and described in Claim No 445." Now, it is admitted that no such report in favour of the grantee was ever made. The recital itself is, in the main, a portion of the printed form of the grant, the names and numbers being filled in by writing. How it came to pass, that the form was not only not cancelled, but was even filled up contrary to the fact, does not in any way appear; but it is admitted that the recital, as it stands, is not true. On the other hand, it is not alleged on the record that this untrue statement proceeded from any false suggestion or deceit of the grantee. Indeed, the matter of the recital was entirely within the knowledge of the grantor, and not, under ordinary circumstances, at all within the knowledge of the grantee at Sydney. Nothing is alleged against the grantee, and it is plain that nothing can be presumed against him. The authorities cited in the Queen v Clarke and in the Queen v Macdonald (Wellington, 20 Jan 1849) show clearly that, under such circumstances, an untrue recital does not make the grant void. The negligence of the Queen's agent cannot be allowed to prejudice the right of the grantee. It was probably from a sense of the conclusiveness of the authorities on this head that this objection was but lightly pressed in argument, and is not even distinctly put forward on the record as one of the reasons for avoiding the grant.
The last objection to the grant is in these words, that "the grant is not a good grant of the whole island of Kawau to the said J. F. Beattie and his heirs, the said island containing in fact 4,630 acres or thereabouts, and the said J. F. Beattie being in the recital of the said grant alleged to be entitled to receive 2,560 acres, and the said island being stated in the said grant to be said to contain 2,560 acres more or less."
The recital of the grant has been just now quoted. The operative part is as follows: "Now know ye that we, of our special grace, for us our heirs and successors, do hereby grant unto the said James Forbes Beattie, his heirs and assigns, all that allotment or parcel of land in our said territory, said to contain 2,560 acres, more or less, situated in the gulph of Hauraki, and of which the boundaries are reported to be as follows: being the island of Kawau, in the frith of the Thames or gulph of Hauraki, and lying abreast of Tawaranui." Now it is plain that the operative part of the grant was not intended to be narrowed to the precise measure of the recital. For whilst the recital mentions only 2,560 acres, the land which the grant purports to convey is said to contain not 2,560 acres, but 2,560 acres, more or less. The governor appears to have thought (correctly, as I conceive) that he was not bound to the precise number proposed by the commissioner. The piece of land to be conveyed was to be a piece which might be found to contain either more or less than 2,560 acres. Its boundaries were not to be determined by measurement. What then were the boundaries? Clearly those of the island of Kawau, for none other are mentioned. The rule of interpretation upon which Mr Bartley relied (Chitty on the Prerogatives, 393), appears to me to be applicable to this case. "If the intention be obvious, royal grants are to receive a fair and liberal interpretation accordingly. And though the general words of grant may be qualified by the recital, yet if the intent of the Crown be plainly expressed in the granting part, it shall endure accordingly and shall not be restrained by the recital." (Also 6 Bac. Ab. 515, Prerogative F.) I do not doubt that it was intended that the grant should convey to Beattie the whole island of Kawau. At the same time it would appear that at the time of making this grant, the area of the island was supposed by the grantor not very greatly to exceed 2,560 acres. Was this mistake caused by any mis-representation or act of the grantee? Nothing of the kind is alleged. On the contrary, the declaration itself alleges that "the said island was claimed by the said J.F. Beattie;" and the commissioner's report states the claim to comprise "a tract of land thus described: the island of Kawau in the frith of the Thames, abreast of Tawaranui." The grantee Beattie appears to have put forward a claim to the whole island, but it does not appear that he made any allegation in his claim as to the number of acres contained therein. The statement (in the report) of the supposed area of the island appears to proceed from the commissioner, not from the claimant. (Compare the printed claim in "Government Gazette," 12th April 1843.) If then a false recital a direct and distinct statement of matter not true does not render a grant void, provided the grantee be blameless; neither can such an effect be given to a false description, incidentally introduced and capable of being rejected without impairing or affecting the force or operation of the sentence of which it forms a part. Moreover, it has been very fairly urged by the learned counsel for the defendant, that this is not strictly to be called even a description, but rather an allegation of common report and repute as to the description. The words are, "said to contain 2,560 acres, more or less." It is true that the variance, in this case, between the supposed extent and the real extent is very considerable. But it has never been laid down that such a variance is fatal to a grant, even where the error has been matter of distinct and positive averment on the fact of the grant. The legal test is to be found not in the largeness of the error, but in the source of it; or, in other words, in the answer to the question whether the misstatement proceeded from the mistake of the grantor or from the suggestion or fraud of the grantee.
Upon the whole then I conclude, that the reasons urged on behalf of the Crown against the validity of this grant are insufficient in law; and that the same is a good and valid conveyance from the Crown to Beattie and his heirs, not of 2,560 acres only, but of the whole island of Kawau.
This is a suit upon a writ of scire facias, brought by the Attorney-General against the defendant, to annul a grant made under the colonial seal to one James Forbes Beattie (from whom the defendant deduces his title) in July 1844, and witnessed by the late governor, Robert FitzRoy, Esq.
It appears by the pleadings that the land, which is the subject of the grant, being the island of Kawau, was claimed by the said James Forbes Beattie, of Sydney, as having been purchased by him from the native owners "before the proclamation of the Queen's sovereignty over these islands." In due time Mr Beattie preferred his claim in accordance with the provisions of the Land Claims Ordinance (4 Vic No 2). The claim was referred by the governor, under Land Claims Ordinance, 5 Vic. No 14, to Mr Commissioner Godfrey, who on the 1st day of July 1843, reported as follows: "No grant of the above described land can be recommended to the claimant." To this report a note of explanation is appended, to the effect that the usual compensation is not awarded, "as it is very evident that no real purchase was made from the natives until the last payment on the 3rd March 1841 took place." This report was afterwards confirmed by Mr Shortland, the officer administering the Government, and the confirmation was announced in the official Gazette of the 25th day of October 1843. In December 1843, his Excellency Captain FitzRoy assumed the Government; in the following year Mr Beattie's claim was re-opened; and without any further reference to or report by any commissioner so far as appears, on the 15th July 1844 a Crown grant of the whole of the island of Kawau was issued to the claimant under the public seal of the colony. This instrument recites that, "Whereas one of our commissioners appointed to hear, examine, and report upon claims to land obtained by purchase from the aboriginal inhabitants of the colony of New Zealand, has reported that James Forbes Beattie, of Sydney, is entitled to receive a grant of (2,560) two thousand five hundred and sixty acres of land particularly mentioned and described in claim No 445 of James Forbes Beattie."
The operative part of the grant is as follows: "Now know ye that we, of our special grace, for us our heirs and successors, do hereby grant unto the said James Forbes Beattie, his heirs and assigns, all that allotment or parcel of land in our said territory, said to contain 2,560 acres more or less, situated in the gulph of Hauraki, and of which the boundaries are reported to be as follows: being the island of Kawau, in the frith of the Thames or gulph of Hauraki, and lying abreast of Tawaranui."
The declaration, after tracing a title from the grantee to the present defendant, proceeds to state the grounds on which it is sought to avoid the grant in the following terms:
"1. Because the said grant was made contrary to the said commissioner's report, made and confirmed as aforesaid, and (contrary) to the provisions of the aforesaid Ordinances.
"2. Because, at the date of the said grant, Governor FitzRoy had no power or authority to make a valid grant of the said island of Kawau to the said James Forbes Beattie and his heirs, in manner and for the considerations in the said grant set forth and described.
"3. Because the said grant is not a good grant of the whole of the island of Kawau to the said James Forbes Beattie and his heirs, the said island containing, in fact, 4,630 acres or thereabouts, and the said James Forbes Beattie being in the recital of the said grant alleged to be entitled to receive 2,560 acres, and the said island being stated in the said grant to be said to contain 2,560 acres, more or less."
To the sufficiency of all that is averred in the declaration to avoid this grant the defendant has demurred, contending in effect that the power of the late governor to make the grant in question was not restricted, either by any direction in the said Ordinance binding on the commissioners, or by any other clause; and that the grant conveying specifically "the island of Kawau" ought not to be defeated, either by the recital or by the words "said to contain 2,560 acres, more or less."
It is impossible to approach this anomalous case, even aided by all the light thrown upon it by the learned counsel, without feeling painfully embarrassed by the irregularities which pervade it, as disclosed by the pleadings as well as by the deed of grant itself. With some of these irregularities we have nothing to do; and as some points have been brought forward in argument which are not raised upon the record, it may be useful, and is perhaps even necessary, to clear away those points before we can determine on what grounds the judgment of the Court ought to rest.
In the first place it must be taken to be assumed on the record that, in spite of the mere opinion of the commissioner, the purchase of the island was in fact made before the proclamation of the Queen's sovereignty in and over these islands. The claim of James Forbes Beattie is mentioned in the declaration without any averment, that the allegation of a purchase amounts to a false suggestion, capable of invaliding the grant. The deed of grant bears upon its face that it is for an "original claim;" and if it had been intended to impeach it on the ground that there was no valid purchase, or that any other suggestion of the grantee was false in fact, so as to show deceit, I think both on principle and authority it should have been so stated in the writ and declaration. The deed of grant being regular in form, any matter of fact intended to be relied on to defeat it should be averred in the declaration, in such a way as to enable the defendant either to demur to its sufficiency or to traverse it. This obvious principle is applied to this class of actions by a case in Dyer: "Where the scire facias," he reports, "issues at the suit of the king, the cause of forfeiture is mentioned in the writ (which the declaration follows), but not so in other scire facias issued by one patentee against another. (Anon Dy 198 b pl 50.) Since Sir J Dyer's time the beneficial part of this rule has certainly not been narrowed, for in the modern precedents of writs by patentee v patentee, the causes of forfeiture are set out. I think, therefore, we ought not to embarrass ourselves with the correctness or incorrectness of Mr Commissioner Godfrey's opinion (a mixed question of law and fact), but must take it to be admitted upon the record that the purchase was good, so as to operate to the complete extinguishment of the native title in the Crown's favour, in January 1840, though parts of the purchase-money may have been paid subsequently to the change of ownership.
In like manner we must exclude from our consideration the obviously false recital, that the commissioner's report was in favour of a grant, whereas in fact it was against it. In this colony the grantee does not prepare his own deed of grant. He makes his claim or effects his purchase as the case may be, and after a time it is announced to him that his deed of grant is ready to be delivered to him. He is throughout a mere passive recipient of the instrument. The deed of grant is wholly prepared by an officer of the Government; it is even on a printed form. What the grantee is alone answerable for is the perfect truth of his notice of claim, which is imported into the deed of grant by a number of reference. The other recitals, not being the grantee's, being made without his privity, and not even within his power of correction, if faulty, come within those "mistakes in the Crown's own affirmation or surmises" which are held not to avoid a grant; and not within those "false suggestions of the grantee" which are fatal, as showing deceit. As to this clear distinction it is unnecessary to repeat what was said in Clarke's case by his Honor, or by myself in McDonald's case; it will be enough to refer to Rex et Regina v Kempe, 12 Mod. 70, Viner's Abr. xviii. Prerog. O. b., and Gledstanes v the Earl of Sandwich, 4 mann. and Gr. 995, as cited by his Honor in Clarke's case.
Another point contended for by the learned Attorney-General in argument, but not raised upon the record, is that the power of the governor is altogether limited or restricted by the Land Sales Act, 5 and 6 Vic c 36, which at the date of the grant was in force in the colony. No doubt this doctrine was correct so long as the statute was in force, but it cannot now be taken advantage of. So long as the Act in question was law within the colony, it hovered over every grant of the Crown, ready to invalidate such as were not in conformity with its provisions, or were not within the saving of the 20th section, ie, were not in pursuance of some previous "contract, promise, or engagement" made with the grantee, or with some assignable class of persons to which the grantee belonged. As to the class of land purchasers before the proclamation of the Queen's sovereignty, the "contract, promise, or engagement" made with and to them, is to be sought for, as I apprehend, in the Land Claims Ordinance, 4 Vic No 2 (or for a limited period in the Land Claims Ordinance, 5 Vic No 14).
Hence, assuming that the Crown was wholly unrestrained by the terms of the two Ordinances, yet so long as the Land Sales Act (5 and 6 Vic c 36) was law, any departure from the "contract, promise or engagement" made with or to the "original land claimants," and protected by the 20th section of the statute, would bring the case within the invalidating operation of its provisions. But the Land Sales Act is law no longer. By the 9th and 10th Vic c 104, sec 11, it is enacted, "that from and after the passing of this Act, the said recited Act (5 and 6 Vic, c 36) shall not apply to land situate in the colony of New Zealand." This takes away the invalidating effect of the statute, from and after the 28th August 1846, though the Court had not cognisance of the repealing Act until some months later.
This repealing clause is followed by a proviso, which keeps alive the Act for the purpose of validating anything done under it; but all its restraining and invalidating force ceased from the date of the new enactment, from which time its provisions, as well as those of the 5 and 6 Vic, c 36, are specifically confined to New South Wales, South Australia, and Western Australia. Even without express words of repeal, an Act which limits and restrains the rights of the Queen is always held to be repealed by the passing of another Act on the same subject matter, unless the limiting or restraining words are re-enacted in the new statute. (Attorney-General v Newman, 1 Price 438; A G v Le Marchant, 2 T R 201, n).
The effect of repealing a statute is thus broadly laid down by Tindal, CJ, in Kaye v Goodwin, 6 Bing 583. "I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never passed, and it must be considered as a law that never existed except for the purpose of those actions commenced, prosecuted, and concluded whilst it was an existing law." The language of Lord Tenterden in Surtees v Ellison, as well as that of Parke B, in Steavenson v Olliver, is to the same effect. This rule has been applied by the Courts to a vast number of dissimilar cases. In Miller's case, 1 W Bl 451, it was held that a proceeding, commenced under an insolvent act, but not completed at the time of its repeal, could not be continued after such repeal. So in the case of the Bankrupt Act, 6 Geo IV c 16, which repealed all former Acts, and contained no continuing clause, it was held that an act of bankruptcy committed under the former Acts would not support a commission under the new statute, and that no proceeding under the old Acts could be continued or acted upon after their repeal; and in one case even enrolment of completed proceedings, merely so as to make them evidence, was refused. (Surtees v Ellison, 9B and C, 750; Phillipps v Hopwood, 10 B and C, 39; Maggs v Hunt,  EngR 479; 4 Bing. 212; Kaye v Goodwin,  EngR 605; 6 Bing., 576; Worth v Budd, 2B and Ad, 172) The rule has been applied to a felony at common law, made liable to an aggravated punishment by an Act of Parliament; which last punishment, it was held by all the judges, could not be inflicted after the repeal of the Act, though the offence was committed while it was in force. (R v McKenzie, R and R's C C, 429.) The Court of the Exchequer also refused an application for costs upon certain proceedings, under a statute repealed after the proceedings were had, but before the application (Charrington v Meatheringham,  EngR 54; 2 M and W, 228; and Warne v Beresford, 2 M and W, 848). Most of the cases where the rule has been applied, are reviewed by the Court of Queen's Bench in the Queen v Inhabitants of Mawgan, 8 Ad and Ell, 496, in which case the Court arrested judgment in certain proceedings against the defendants for the non-repair of a highway under an Act of Parliament, the Act having been repealed pending the proceedings.
There are two cases coming within quite another class, which engraft an apparent exception upon this rule; but they scarcely amount to what a very able writer has called "an opposing stream strong enough to stem the older currents (of cases that for years have flowed on in a particular direction), and to make it doubtful what direction they (the cases) will hereafter take." (Ram. Assets, Pref. v.) The cases I allude to relate to certain illegal contracts, contrary to the provisions of certain statutes against gambling and usury, in which statutes such contracts are declared to be absolutely void. Such void contracts (generally made so for the protection of the unwary against the crafty and designing), are not set up and made valid by the subsequent repeal of the Acts making them void. Such contracts are treated as nullities from the beginning. (Jacques v Withy, 1 H B1 65, and Hitchcock v Way, 6 Ad and Ell, 943.) In the first of these cases this distinction was taken: that though the contract once void remained for ever void, yet the penalty against the wrong doer could not be inflicted after the repeal of the statute. And Lord Abinger has since recognised this distinction in more general terms, by intimating that a right to protection under a statute may be continued after its repeal, though all penal consequences cease. (Charrington v Meatheringham,  EngR 54; 2 M and W, 228.) And even Hitchcock v Way limits Jacques v Withy in this, "that the law as it existed at the time the action commenced, must decide the rights of the parties to the suit, unless the Legislature express a clear intention to vary the relations of the parties to each other." (per Lord Denman, CJ) It would seem, therefore, that even if beneficial provisions may be kept alive after the repeal of a statute, though only by an action commenced before the repeal, yet all penal consequences cease by such repeal at any moment before final judgment. After carefully considering the effect of these two cases in modifying the general rule, I cannot discover that they have anything in common with the case before us. They both disclose an illegal contract, which under a statute was void from the beginning a mere nullity which the Courts could not lend their aid to set up anew. Whereas the present grant is good upon its face, and ejectment against a wrong doer might have been brought upon the title it discloses. Voidable perhaps it might have been, but not prima facie void; and until formally cancelled and vacated by a judgment upon scire facias it remains good. This suit, therefore, is not to set up, and will not have the effect of setting up, a contract originally and incurably void, but is to procure a forfeiture of an instrument prima facie good and valid, and is more analogous to a penal proceeding than the two cases I have thought it necessary to examine. I would further observe that the language of the repealing clause in the 9 and 10 Vic, c 104, is even more sweeping than a simple enactment of repeal. It is enacted not merely that the 5 and 6 Vic, c 36, shall no longer be applicable to sales of land, but that it "shall not be applied to land situate in the colony of New Zealand." I think, therefore, we are now precluded from looking at the repealed Act, though we must undoubtedly have done so before the 26th of August 1846, and possibly might have done so had this writ been sued out before that day, but even this I doubt. I therefore state the effect of repealing the 5 and 6 Vic, c 36, thus: That except as to rights acquired, things done and completed, and suits commenced and concluded (or perhaps under Lord Denman's dictum commenced only) under it, between 22nd November 1842 and 28th August 1846, and except also as to the validating effect of the proviso, the Act must be considered to be as effectually swept away as if it had never had any existence: and this even if the declaration had contained a count formally raising the point upon the record, as was done in Whitaker's case, but is not done here.
Another point taken by the learned Attorney-General in argument relates to the supposed effect of royal instructions in modifying or limiting the power and authority of the governor under the Charter of 1840. The distinction taken by him is certainly ingenious and may hereafter require careful consideration at our hands; but, although important and interesting as a general principle of colonial law, it does not come into question upon this record. The grant is not sought to be set aside on the ground that it is contrary to any such instruction. To raise the point, the instruction should be pleaded according to its supposed legal effect; and unless admitted as so pleaded by demurrer, would require strict legal proof. This might be a matter of some difficulty. Not being of record, we could not get the instruction into Court by the same means as are available in the case of instruments duly recorded. The parliamentary papers are certainly not evidence for the purpose. The governor has the sole custody of and control over instructions addressed to himself. Can we bring a governor into Court for the purpose? If once in Court, can we or any other Court compel him to disclose a state paper of this nature? (Wyatt v Gore Holt, NPC 299; Cook v Maxwell  EngR 40; 2 Stark, 183; Home v Bentinck 2B and B138; Anderson v Hamilton 2B and B 156; and, as to the United States, see Greenleaf Evid, 286). If we cannot aid a suitor against the Crown in this behalf, how can we make it available in the Crown's favour? in other words, would any one of the Courts of Westminster permit on one side, what it could not enforce on the other? These and other questions which must occur to every lawyer shadow forth practical difficulties, apart from those substantive objections which arise from the legal character and force of the instrument. The whole question will merit the most scrupulous and careful investigation on principle and authority, whenever it may arise, and it is one on which it would be most useful to obtain the decision of the highest Court of Appeal.
The questions then to which we are confined, as being those alone which are raised upon the record, relate, 1st, to the power and authority of his Excellency Governor FitzRoy to execute a grant of the whole island of Kawau, containing 4,630 acres, to James Forbes Beattie, in July 1844, under the Charter of 1840, and the Land Claims' Ordinances; and 2nd, supposing the grant to be within the governor's authority, does the misdescription of quantity vitiate it, either wholly or in part.
The narrowest interpretation of the governor's power and authority is that involved in the first issue, namely, that he had no power to make a grant which was not previously recommended by a commissioner; in other words, that the governor is bound by the restrictions which the Land Claims' Ordinance imposes on the commissioners, and that the commissioner having reported that "no grant could be recommended," the governor's grant, contrary to that recommendation, ought to be annulled.
This view of the limited authority of the governor I think untenable in point of law, and for the reasons stated in "the Queen v George Clarke." The granting power is part of the royal prerogative lawfully delegated to the governor. The office of governor is in principle precisely analogous to that of Lord Lieutenant of Ireland; whose powers have always been regarded in that light. (Jenk 171.) So also have the powers of colonial governors. (Chit Prerog Stokes, 195; Chalm Opin vol 1 100, 233, 241, 316.) This is clearly the only ground on which the colonial Courts can examine any question affecting the governor's authority, or assert any one principle applicable thereto. The nature of the act (of pardoning, or granting land, for instance,) is in nowise changed by delegation. Its seems formerly to have been considered that, within the realm of England, the power of executing any portion of the prerogative was incommunicable by the king to the subject. But this rule could never have been applied to any foreign possession of the Crown, or to distant places. In the case of ambassadors, a delegation of the prerogatives must have been necessary and in established practice, almost beyond the time of historical, not to say legal, memory. And when Ireland became annexed to the Crown we find the point early raised and decided, that as to certain prerogative powers, such as the power of pardoning even treasons, of making knights, &c., in the name of the king, there was a good delegation and exercise of the royal prerogative. "The distance of place and sudden occasion and the king's absence make all the difference," agreed by all the judges of England. (Jenk 171, pl 36, citing Year Book J, H 7, 16).
Under the general rule, "that the colonies settled by British subjects are subject to the law of England, so far as the same may be applicable to their circumstances and condition," the prerogatives of the Queen as exercised by the governors of colonies are entitled to call those legal safeguards on the one hand, and subject to those restraints on the other, which the common and statute law of England have gradually established. It is under this rule (which properly considered, is most beneficial to the subjects of Her Majesty) that this Court has invariably considered Crown grants within the colony. We acted upon this view in the case of the Queen v Symonds, (McIntosh's case), May 1847, and again in the Queen v George Clarke, June 1848. In the latter case it was considered that the prerogative of the Crown as exercised by the governors under the Charter, cannot be taken away or limited, except by the express words of an Ordinance or statute. It follows that the restrictions imposed on the commissioners, do not bind the governor, nor is the governor bound in any way by the commissioners' report. The whole language of the Ordinance goes to show that the inquiry before the commissioners hath no other object in view than to secure to the governor full information of all the circumstances of each claim. The commissioners are to "hear, examine, and report upon claims, &c.," and nothing more. On the one hand, "nothing in the said Ordinance contained shall be held to oblige the said governor to make and deliver any such grants as aforesaid (ie grants recommended by the commissioners), unless his Excellency shall deem it proper so to do." (4 Vic No 2, sec 6.) On the other hand, "nothing in this Ordinance contained shall be deemed in any way to affect any right or prerogative of Her Majesty, her heirs, or successors," (sec. 13); and these words, being general, can only mean whether that prerogative be exercised by Her Majesty herself, under the great seal of Great Britain, or by the governor, by virtue of his delegated authority; for it is a matter of notoriety that in the colony a direct exercise of the royal prerogative, either in granting land or otherwise, rarely takes place. That is almost invariably effected within the colony by letters patent in the Queen's name, under the colonial seal, witnessed by the governor, and duly recorded. The framers of the Ordinance would scarcely have deemed it necessary to save the prerogative in order to meet a case that can hardly ever occur. They clearly intended to leave, and the Ordinance does in fact leave to the governor a two-fold discretion a discretion in both directions. He may, under section 5, withhold a grant recommended; and he may, under section 13, (and even without it, restraining words being absent,) make a grant without such recommendation, or contrary thereto. I formerly entertained, at least, a suspicion, that the framers of the Ordinance might perhaps have intended to bind the governor, but that they had failed to employ language apt for their purpose. The passage cited by Mr Bartley, from Sir George Gipps' Despatch, effectually removes that suspicion, and shows conclusively that the Ordinance is skilfully framed to effect the intention, and no more than the intention, of the Legislature. That is, that the intention, as capable of being deduced from the words of the Ordinance itself, to which all judicial interpretation is necessarily confined, is equi-pollent, (so to speak) with the real intention of the framers. Referring to the Ordinance of New South Wales, of which the 4 Vic No 2, is almost a verbatim copy. Sir George Gipps, in his Despatch to Lord John Russell, May 30, 1840, says, the commissioners are, in no case, to recommend a larger grant than 2,560 acres to any individual, though this, of course, cannot limit Her Majesty's prerogative of granting more should circumstances require it. I thought it of importance to introduce the restriction into the Act, if only to serve as a sort of index of the intentions of Government." (Parl Paper, 11th August 1842). The "circumstances" alluded to by Sir George Gipps are, of course, such as might be presented to the mind of the Governor acting for the honour of the Crown; such as a large outlay of capital, occupation in a way beneficial to the public, or any other matter of which the commissioners could not take notice. What these "circumstances" may have been in any particular case, we are not competent to inquire.
In favour of the larger interpretation of the governor's authority embodied in the demurrer to the second issue, Mr Bartley cites section 2 of the Land Claims' Ordinance, which declares that "all titles to land in the said colony of New Zealand, which 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;" from which he deduces the converse proposition, namely: that all titles which may be so allowed are good and valid; and that the Crown grant under the colonial seal, being the instrument by which such allowance by Her Majesty is executed, must be deemed conclusive evidence of such confirmed and allowed title. I must own I am much impressed with the force of this argument in favour of any grant otherwise good upon its face, made to an original land claimant. His Honour, in the Queen v Clarke, seems to have considered that the words cited "naturally suggest the inference that the Legislature intended all titles so confirmed to stand good, unless indeed the grants in themselves were contrary to law." (Clarke's Case, p 13 of printed copy). And after much consideration I am of opinion that, apart from the Australian Land Sales' Act, the true interpretation goes to that extent. Pending the operation of that Act, I incline to the opinion, that the "contract promise or engagement" contemplated by the saving clause of that Act, is embodied in the schedule of the Land Claims' Ordinance, which stops short of the extreme interpretation contended for on the part of the defendant. So far, however, does this reasonable inference from the cited words impress me, that had this Court been called upon, while the Act was in force, to choose between the two interpretations, ie, to say whether the "contract," &c., was embodied in the schedule, or whether the allowance by Her Majesty executed in the grant, was not, in fact, itself that contract, or conclusive evidence of it I should certainly not have decided in favour of the schedule without very great hesitation; knowing as I do, how jealous our law is of any restriction on the prerogative without the clear and express words of a statute, and how much disposed the highest Courts in the realm are to support the prerogative by every reasonable construction to the Queen's honour, and the subjects' advantage.
The conclusion to which I come, therefore, is, that the present grant was within the power and authority of the governor to execute in July 1844.
The only point which remains to be considered is, as to the legal effect of the misdescription of the quantity of land which the island of Kawau contains. The deed of grant states it as "said to contain 2,560 acres; "the declarations avers that the actual contents are 4,630 acres. There can be no doubt that if a claimant describes the land to contain less, or at all events, materially less, than the real contents, and the grant is made on the faith of that suggestion of quality, it would come within the same rule as a false suggestion as to the annual value; and on proper averment of the deceit, a grant would be voidable on that ground; but it is clearly otherwise in a case like the present. In such a case, it comes within the rule as to "a mistake in the Crown's own affirmation or surmises," as already laid down. The mis-description of quantity appears to have been an expedient resorted to by the officers who filled up the printed deed of grant, to bring it within the supposed restriction of the Land Claims' Ordinance an expedient which was, under any view, wholly unnecessary; for if the restriction upon the commissioner not to recommend more than 2,560 acres had been binding on the Crown, no such contrivance would have enlarged the governor's power.
In support of the principle above stated, we have the clear and direct authority of a judicial decision, completely in point. The case of Brand v Tod in Noy's Reports, p 29, is to this effect: "Note the difference agreed to by the Court. If the king grant to A all the waste in D, (after an ad quod damnum returned) and that the waste contains 120 acres; yet if it contains 300 acres all pass; for the grant is general, and the ad quod damnum was to inquire of the damage and not for the quantity of the waste. But, if the king grant 120 acres (part) of his waste in D, and the ad quod damnum returns that it is not to his damage, and that the waste contains 300 acres, there nothing passes; for it is uncertain which 120 acres was intended, and the party shall not have any election against the king."
Now here the grant is not 2,560 acres of (or part of, or out of) the island of Kawau; but, in general, "the island of Kawau." Moreover, "said to contain 2,560 acres," is less strong than "contains 120 acres;" and the excess here is not so great as in the case in Noy. Hence, I think, all passes. It is not often that a decided case can be found so completely in point as to the facts as well as the principle, as the case cited is with the case before us.
I think, therefore, that, in spite of the obvious irregularities which pervade this grant, the declaration shows no sufficient ground to disturb it.
Judgment for the defendant.
The Attorney-General for the Crown.
Mr Bartley for the defendant.
Attorney-General v Whitaker
Supreme Court, Auckland
Tuesday, 17th November 1846
The Court sat this morning, when His Honor the Chief Justice gave judgment on the following motions:
On behalf of William Halse, Esq.
The further declarations filed in this matter, appear to me sufficient. They show that on various occasions Mr Halse was consulted, and gave advice on matters of business properly belonging to the profession of a Solicitor, as distinct as from that conveyance; and that he did not act on these occasions gratuitously, and merely as a friend of the parties consulting him, but that he received his charges as in the ordinary course of a Solicitors' business. Having regard to the circumstances of the settlement of New Plymouth at the time, and to the amount of legal business likely to arise in it, I consider it to be sufficiently shown by these declarations that Mr Halse had, in the terms of the Supreme Court Ordinance, established himself in the exercise of his profession, on, or before the 22nd day of December, 1841. The order therefore, will be as prayed.
This is a suit upon a writ of scire facias to repeal a Grant made by His Excellency Robert FitzRoy, Esq., late Governor of this Colony, to the defendants, of certain lands situated in the parish of Kawau. The grounds upon which it is sought to set aside this Grant, are,
1. That the land comprised in the Grant was never offered for sale by public auction prior to the date of the grant, as required by the Australian Land Sales Act, 5 J C Vict c 36.
2. That the consideration was not paid in money as required by the same statute: and
3. That the said land was not disposed of in the manner, and according to the regulations prescribed by the same statute.
To the declaration the defendants have demurred, and the material point which this Court is called upon to decide, is this, "Whether a Grant of a portion of the waste lands of the Crown, by way of exchange for other land previously held in fee by the grantee, is lawful and valid, notwithstanding the aforesaid statute." Other grounds of demurrer were assigned; but were waived at the argument; and the defendants asked for the judgment of the Court on that point only which has been just now stated.
It is to be observed at the outset, (and it is a very material observation) that the Grant now in question is alleged to have been made by the Governor in the name of the Crown; not by the Crown immediately, nor yet by the Governor acting under any authority specially relating to this transaction, but by the Governor acting in the name of the Crown, that is, in the exercise of the general authority which, as Governor, he has received from the Crown; and it is impeached, as being an act in which the lawful limits of that general authority were exceeded.
And indeed, there appears to be no reason for considering this Grant as being, in the strict and proper sense, an act of the Crown itself. There were instances in the earlier history of the British Colonies or Plantations (particularly in North America and the West Indies) where lands situation in those Colonies were granted directly and immediately by the Crown. If this Grant were of such a nature, the question to which the argument of the defendants has been mainly addressed, would be a material one; would be indeed, the main point. I mean the question "Whether such a Grant be now sustainable in a Court of Law, as a valid exercise of a prerogative still abiding in the Crown, untouched by the Land Sales Act." But the Grant now under consideration does not appear, from anything upon these pleadings, to have been any such direct act of Her Majesty: but to be simply the act of an officer, possessing indeed high powers as the direct representative of Her Majesty, yet whose powers are (as will be seen) defined, and strictly regulated in this particular respect by an Act of Parliament.
The real question then, appears to be the same as that which arises in every case, where, an agent having performed an act in the name or on behalf of his principal, the principal afterward contends that he is not bound thereby. That question is the following: The authority under which the agent acted being in itself lawful, was the particular act in question within the scope of that authority? Was it an act expressly authorised, or else, was it necessarily implied and involved in some other act which was expressly authorised?
In this view of the case, the ground of Demurrer on which the Defendants rely appears to have been defectively alleged, and indeed (if the words of it be taken strictly) even to raise an irrelevant question. But on this I do not insist: for, in such a case, liberty to amend would of course be given. I regard the demurrer as being so amended as to raise both questions and proceed to consider the real question before the Court upon its merits.
The Defendants then admit that the circumstances stated in the declaration as grounds of objection to the grant, are, in point of fact, truly stated. They admit that, upon the ground of conformity to the statute, the grant cannot be sustained; but they say that it is to be sustained as independent of and unaffected by the Statute.
It is said that the whole act has no bearing upon the case; that it is, on the face of it, an Act for regulating Sales and Sales only: that it does not profess to regulate Exchanges. The Act it is said, describes itself as "An Act for regulating the sale of Waste Lands belonging to the Crown in the Australian Colonies."
But the position thus assumed that the extent of the operation of a statute is to be measured by the words of the title thereof is clearly untenable. It has been long settled that the title of an Act is strictly speaking, no part of the Act itself; and that it cannot be allowed to limit or control the meaning of plain words in the Operative part of the Act. Now the words of the Operative part of this particular Act the words of the main and substantial enactment are so plain, that it were no easy matter to find any that should be plainer. It is enacted (in sec 1.) "that within the Australian Colonies the Waste Lands of the Crown shall be disposed of in the manner and according to the regulations hereinafter prescribed and not otherwise "And, (in sec 2) "That the Waste Lands of the Crown in the Australian Colonies shall not, save as hereinafter is excepted," (which exception is no part of the question now under consideration) be conveyed or alienated by Her Majesty or any person or persons acting on the behalf or under the authority of Her Majesty, either in fee simple or for any less estate or interest, unless such conveyance or alienation be made by way of sale, nor unless such sales be conducted in the manner and according to the regulations hereinafter prescribed." To me these words appear plain enough to preclude all reasonable doubt as to the intention of the Legislature. The construction of which the Defendants contend namely, that the large and general words employed by the Legislature really mean nothing more than the special and limited word "Sale," is capable of being easily disposed by a simple substitution of this one word for the terms actually used. Make the substitution, and the enactments become at once idle and unmeaning. I think the learned Attorney General gave a good answer to this point, in saying that there would be something in the Defendant's argument if the words had stood thus "In all cases of sale the mode of proceeding shall be according to the regulations hereinafter prescribed" words of that sort would have shown a clear intention not to prescribe for other modes of alienation.
Further if the Defendants' construction could be maintained and the whole case taken out of the operation of the Statute, it would be still necessary to show that the power of granting Crown lands by way of exchange was previously vested in the Governor, as a part of his general authority. Now it is remarkable, that it has not been contended that such was the case; and indeed, considering the passages cited at the argument from the "Charter" and the "Royal Instructions" it is not easy to see how that position could be maintained.
Whatever be the effect of this enactment upon the Queen's Prerogative whether the words be sufficient to bind the crown or not, it appears plain that they are sufficient to bind any officer or subject of the Crown no "person acting on the behalf or under the authority of Her Majesty can lawfully alienate waste Lands of the Crown unless such alienation be in conformity with the statute. It is not necessary to pursue the inquiry into the subsequent sections of the act, because it is admitted that the regulations therein laid down have not in this instance been complied with.
It is also necessary to consider the effect of the 3rd section, which excepts certain lands out of the operation of the Act, for, though the defendants have on the record, claimed the benefit of this exception, that point also was waived at the argument.
But still further, if we look beyond the particular words of this Act, to the general purport and aim of the whole of it, the case appears to me to be equally strong against the defendants. In construing this Act, as in construing all other Acts, we are bound to regard, especially and primarily, the object of the Legislature in passing it; and to bear in mind the particular mischief, against which provision was thereby made.
There is one object expressly avowed in the preamble, namely, to secure uniformity in the disposal of Waste Lands of the Crown. It became important with a view to this result, that the nature of the system which it was the will of the Legislature to cause to be uniformly pursued for the future, should be distinctly and clearly stated.
The regulations to be laid down, were to guide the Governors of all the Australian Colonies, and not only the Governors, but the Colonists. There was to be one body of rules to which the purchasers might look as well as the seller. It was necessary then, that the rules should be laid down in plain words, and those words be taken in their plain sense. Any deviation from that obvious sense, unless forced upon the Court by the necessity of giving a coherent interpretation to the other parts of the Act (and no such necessity appears), would be in this case peculiarly dangerous. It would tend to re-produce the very mischief against which the Act is directed.
Moreover, it is impossible to read and consider this Act without seeing that there is another principle which has been greatly regarded by its framers. This principle is the exclusion of preference and partiality; the subjecting (for the future) of every piece of Waste Land in the Colony to a common and equal right in the people of the Colony. This principle pervades every part of the Act the main enactment itself and (in no less degree) the exception out of that enactment. According to the general rule, waste land must be sold and that by Public Auction. Private contract is in some cases absolutely excluded, in others allowed; yet not until the land to be comprised in the private contract has been offered for sale by Public Auction. So in the exception, public benefit alone is regarded: the principle of equal right in every colonist is recognised. In the one case, it is an equal right to enjoy, if he pleases, and according to the nature of the thing to be enjoyed; in the other case, it is an equal right to appropriate the enjoyment.
If then, this Act were to be construed as still leaving it within the general authority of the Governor of the Colony, to alienate Waste Lands of the Crown by way of exchange, and without public competition, this Court would not, I conceive, be acting in obedience to that ancient and sound rule, which declares it to be "the duty of the Judges at all times to make such construction as shall suppress the mischief and advance the remedy." (3 Rep 7.)
It appears then, that the effect of this statute is to render a grant of Crown Lands, such as the one now in question, unlawful and invalid. How far a direct act of the Queen's prerogative may sustain such a grant, or any other grant of lands within this Colony, notwithstanding this statute? How far the decisions upon the statute of Ann (1 Ann st 1 c 7.) which were strongly insisted on by Mr Whitaker, might apply to such a case? These are questions which do not arise here. The question raised, and very forcibly urged by Mr Whitaker, as to certain Crown Grants issued in pursuance of instructions contained in a despatch published in the Government Gazette of 26th March, 1844, is, in my judgment a very different question from the present. It is one which I cannot properly enter into; but I think it right to say, that I do not concur with the learned Counsel, in considering those grants to stand on the same footing as the one now in question.
Upon the whole, after giving a most serious consideration to this matter, and desiring to act in the spirit of our English Law, which seeks always to quiet mens' titles, rather than to shake them rather to heal than to wound; and that still more especially in cases like the present, where the good faith of the parties is not impugned. Yet I cannot avoid the conclusion that this grant was made in a manner contrary to both the letter and the spirit of the Imperial Act; and that, being so made, it is incumbent on this Court to order the same to be revoked and annulled.
I have the satisfaction of knowing that my learned brother, Mr Justice Chapman, has come clearly to the same conclusion.
Judgment for the Crown.
Scott v Grace
Supreme Court Sittings
Wednesday, 28 June 1848
[First of two judgments]
His Honor Mr Justice Chapman delivered the following judgment in this case:
This is a rule Nisi obtained by the counsel for the defendant, after a verdict against him in ejectment, calling on the plaintiff to show cause why execution should not be stayed, on the grounds set forth in the defendant's affidavit, viz.: that having expended money in building a house upon the land recovered, under a reasonable belief that the title was in himself, with the acquiescence of the plaintiff as well as that of the Crown, in whom alone the title was at the time, he is entitled to be reimbursed the amount of his outlay, or at least to the extent of the actual present value of his improvements, before the plaintiff ought to be permitted to proceed to execution.
This proceeding under the rules of this Court "by motion upon proper affidavit to stay proceedings in the cause," takes the place of the common injunction in England, to stay proceedings at law, until an equitable right supposed to reside in a defendant can be determined. This Court being a court of equity as well as a court of law, (as the Court of Exchequer was until lately, and as most of the colonial courts are) this mode of proceeding has been deemed more convenient, less expensive, and more in accordance with the general spirit of our rules and the constitution of this Court than the mode of proceeding in the courts of equity at home. But although we have endeavoured to simplify our practice, and to assimilate the common law and equity procedure with each other, chiefly on the basis and principles of the former, yet we have been cautious to abstain from encroaching upon any substantive rights either legal or equitable. It should, therefore, always be borne in mind, that notwithstanding any change of mere procedure which we may have introduced or may hereafter introduce, it is not the less incumbent on parties to place before the Court, for its due information, every material fact necessary to support the particular motion, application, or suit before it, as effectually, though not as verbosely, as would be necessary to sustain a bill, petition, or motion in England.
In this case the legal right of the plaintiff has already been tried and determined. At the last sittings he obtained a verdict in his favour, with damages for mesne profits; and after a full argument of the law of the case by the counsel for the parties, the Court sustained that verdict.
The facts now disclosed by Mr Grace's affidavit in support of this rule are briefly these: In the year 1840 Mr Grace purchased at public auction the piece of land embraced by the verdict for the sum of £76:17s. Mr Grace was forthwith put in possession, and the land was afterwards conveyed to him by deed. His vendors made title under a land order and certificate of choice of the New Zealand Company, and the defendant was professionally advised and believed that the Company had good right to a grant to the same from the Crown. So far Mr Grace derives his belief from the parties through whom he claims; in what follows his belief is traced to acts or omissions of Mr Scott and his grantor the Crown. Mr Grace further states that his belief in the validity of his title derived from the New Zealand Company's land-order and certificate was strengthened by the 7th section of the Land Claims' Ordinance which he sets out, and still more particularly by the letter of Governor Hobson of the 5th of September 1841, which he also sets out. I pass over so much of the affidavit as relates to the money expended in the first instance in buildings consumed by the disastrous fire of 1842, for no claim is made or could be made for such expenditure. Mr Grace then states that he expended £300 on the buildings now standing on the said piece of land; and that during the time he was engaged in expending the same, the plaintiff, to the best of his belief, was residing in Wellington; that he, the defendant, did not receive any notice of a claim to the said piece of land from the plaintiff, or from any other person, until January 1846; and that he continued in possession of the said building and received rents for the same.
Against the defendant's rule no affidavit has been filed, but it has been opposed on the general ground that the facts stated are insufficient to give the Court equitable jurisdiction: that the general notoriety of Mr Scott's adverse claim published in the Gazette, ought to have deterred a claimant under a title derived from the Company, from expending money; that Mr Grace never had such a title as would justify a person of ordinary prudence in laying out money; that equity will not relieve him from the consequences of his own blunder; and that his remedy is at law against his vendors or against the New Zealand Company; whilst on the other hand Mr Scott's right now rest, not merely on his Crown grant, but on the verdict of a jury and the deliberate affirmation of that verdict by a court of law. It is further urged that if any such equity as is contended resides in Mr Grace, the Court can only give it effect, by way of equitable set off, in the event of Mr Scott requiring the aid of the Court.
The question for the Court to determine is this: Has Mr Grace, the defendant in the action, show, that the improvements were made on the land under such circumstances of reasonable belief of good title on his part, and of acquiescence on the part of the plaintiff, or the Crown, or both, as to entitle him to compensation at the hands of Mr Scott for the value of such improvements, according to the principles recognised by the court of equity in England?
It was the inflexible rule of the common law that every improvement "affixed to the freehold" belonged at once to the owner of the land. Lord Coke goes so far as to say that it is waste to build a house on the land of another; and, having so built, it is waste to pull it down again (Co Lit 53 a.) Since the time of Lord Coke, and in some cases even before his time, the courts of law have, by their own vigour, broken in upon this harsh rule in numerous cases, and in favour of productive industry in general, a customary law has grown up, which not only permits the removal of many "things affixed to the freehold" but, in case of disturbance of such customary right by the owner of the freehold would give the bona fide occupier compensation in damages. In such case the interference of equity has become unnecessary, but a great number of harsh and inequitable applications of the ancient rule still remain without remedy at law; the progressive advance of equity jurisprudence in England has however in most cases provided remedies where the common law was silent, or incapacitated, by the stubborn nature of its pleadings and the simple nature of its judgments, from giving effectual relief.
In a case like the present the common law affords no relief between the parties, and thus one of the essential conditions of equitable jurisdiction and relief is fulfilled.
The general rule of equity, that where there is a remedy by action at law the court will not interfere, is overridden by the higher rule that where the equity jurisdiction once attaches the court will not stop, but in order to prevent multiplicity of suits, will go on to decree compensation. This often occurs in bills for the specific performance of agreements, where some damage has been suffered which mere performance would not compensate. In such cases compensation is superadded to the specific relief notwithstanding such compensation is recoverable at law. Another class of cases is where a party seeking relief is compelled to compensate the party against whom he seeks relief, on the principle "that he who seeks equity must do equity;" as, where one of two joint tenants lays out money for the benefit of the joint estate, a court of equity will not decree a partition at the suit of him who has not laid out money, without compelling him to pay the amount of his share of the improvements. I mention these two classes of cases, because the learned counsel for the plaintiff in the action contends, upon the authority of such cases, that the courts of equity never enforce, in a direct suit by the bona fide possessor, his claim for improving a property from which he had been evicted by the true owner. For this position Mr King cited an American authority, that of a case decided by Mr Chancellor Walworth of the State of New York, as given in a note to the chapter upon "Compensation and Damages" in Mr Justice Story's Commentaries on Equity Jurisprudence; but giving full weight to that learned authority as being a clear statement of the result of the English cases, the learned judge's opinion will be found to comprise an exception which lets in the present case. "I have not been able to find any case" he says "either in this country or in England wherein the Court of Chancery has assumed jurisdiction to give relief to a complainant who has made improvements on the land, the legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter after he had knowledge of his legal rights." This is no doubt a correct statement of the result of the cases, but if acted upon to its fullest extent, it obviously goes no further than to answer so much of Mr Grace's case, as rests upon his belief of title founded upon the representations of his own vendors and their grantors, coupled with his innocent outlay under that belief.
This doctrine of the English courts of equity is certainly not so highly remedial as the rule of the civil law, and those systems of jurisprudence which are based thereon. Jure naturæ æquum est, neminem cum alterius detrimento et injuria fieri locupletiorem is the language of the Digests, Lib L Tit xvii § 206, and even this maxim scarcely expresses the full nature of the remedy; for it was not, in all cases necessary to show that an amelioration made with perfect good faith actually enriched the true owner. Erskine in his institute of the law of Scotland, says, "the laws of all civilized nations have adopted this principle even in the case of pupils (minors) though they cannot be bound by any contract. It is on this principle (he continues) that though a house built on ground not the builder's own accrues to the proprietor of the ground, and not to the builder; yet by the civil law the proprietor claiming the house, whether he was a gainer or not by the building, was liable to restore to the builder the full expense of the materials and workmanship bestowed upon it." Ersk Inst Book iii, Tit 1, § 11. But "by the usage of Scotland" he afterwards says "the claim to recompense is restricted to such expenses as are profitable to the true owner." The old law of France and the law of Canada are the same. "Un possesseur de bonne foi qui a construit un batiment, ou qui a augmenté la valeur du fonds dont il est, par la suite évincé peut demander le prix des améliorations qu'il a fait, jusqu' à concurrence neansmoins de ce que le fonds se trouve augmente par la valeur." Denisari au mot possession, § 21. And the modern code civil adopts the same rule.
The doctrine of the English courts of equity in cases not including fraud or acquiescence has not been allowed to pass unquestioned in the United States. In a case in the Circuit Court of the Supreme Court over which Mr Justice Story presided, that learned judge expresses his reluctance to admit the doctrine in terms which I cannot refrain from citing: "As to the right of the purchaser bona fide and for a valuable consideration to compensation for permanent improvements made upon the estate which have greatly enhanced its value under a title which turns out defective, he having no notice of the defect, it is one upon which, looking at the authorities, I should be inclined to pause. Upon the general principles of courts of equity acting ex æquo et bono, I own that there does not seem to me any just ground to doubt that compensation under such circumstances ought to be allowed to the full amount of the enhanced value upon the maxim of the common law, Nemo debet locupletari ex alterius incommodo; or as it is still more exactly expressed in the Digest, Jure naturæ æquum est, neminem cum alterius detrimento et injuria fieri locupletiorem. I am aware that the doctrine has not as yet been carried to such an extent in our courts of equity. In cases where the true owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration without notice, seeks an account in equity as plaintiff against such possessor for the rents and profits, it is the constant habit of courts of equity to allow such possessor (as defendant) to deduct therefrom the full amount of all the meliorations and improvements which he has beneficially made upon the estate and thus to recoup them from the rents and profits, so if the true owner of an estate holds only an equitable title thereto and seeks the aid only upon the terms of making compensation to such bona fide possessor for the amount of his meliorations and improvements of the estate beneficial to the owner.
"In each of these cases the court rests upon an old and established maxim in its jurisprudence, that he who seeks equity must do equity. But it has been supposed that courts of equity do not and ought not to go further, and to grant active relief in favour of such a bona fide possessor, making permanent meliorations and improvements by sustaining a bill brought by him therefore against the true owner after he has recovered the premises at law. I find that Mr Chancellor Walworth in Putnam v Ritchie, entertained this opinion, admitting at the same time that he could find no case in England or America where the point had been expressed or decided either way. Now if there be no authority against the doctrine, I confess that I should be most reluctant to be the first judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such bona fide purchaser in such a case, where he has manifestly added to the permanent value of an estate by his meliorations and improvements, without the slightest suspicion of any infirmity in his own title, is contrary to the first principles of equity. Take the case of a vacant lot in a city where a bona fide purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete; is it reasonable or just that, in such a case, the true owner should recover and possess the whole, without any compensation whatever to the bona fide purchaser? To me it seems manifestly unjust and inequitable thus to appropriate to one man the property and money of another who is in no default. The argument, I am aware is, that the moment the house is built it belongs to the owner of the land by mere operation of the law, and that he may certainly possess and enjoy his own. But this is merely stating the technical rule of law by which the true owner seeks to hold what, in a just sense, he never had the slightest title to that is, the house. It is not answering the objection, but merely and dryly stating that the law so holds. But then admitting this to be so, does it not furnish a strong ground why equity should interpose and grant relief? I have ventured to suggest that the claim of the bona fide purchaser under such circumstances is founded in equity; I think it founded in the highest equity, and in this view of the matter I am supported by the positive dictates of the Roman Law." [Bright v Boyd, cited in a note to the xix chapter of Story's Equity Jurisprudence, 4th edition.]
This admirable view, breathing as it does in every line, the largest and purist equity, was afterwards adopted and acted upon by the full Court, and may now, I presume, be deemed the settled rule of equity jurisprudence in America, applicable to cases stopping short of fraud or acquiescence. The Supreme Court has thus gone beyond what is said to be the utmost limits to which courts of equity in England extend relief, and has adopted the rule of the civil law as received and interpreted in France, Scotland, and other countries. To my mind the reasoning of Mr Justice Story carries with it great weight. In the case now before me, however, it will not be necessary to decide upon similar grounds; but I reserve to myself the privilege of considering the American rule as clearly open to the favourable consideration of this Court, should the question ever be raised. I do so on the ground, that this Court being a mixed Court of law and equity, should render its remedies, so to speak, distributive; the more especially as one of our rules enjoins the Judge, in settling the issue, "to take notice of any defence that would be available by the law of England, as administered by courts either of law or equity." Indeed, it was in contemplation of this rule that I suggested the equitable right to compensation, as residing in the defendants; and it even occurred to me that such an equitable defence might be pleaded under our rule by way of set off. A court of equity, it is agreed, will compel a plaintiff who seeks its aid to do equity: ought not this Court, constituted as it is, to compel a plaintiff to do equity who has sought its aid, either at law or equity? All that I deem it necessary now to say is, that I refrain from negativing the proposition. There is one class of cases which may be said to make a step towards the rule of the civil law; I mean where specific performances and compensation are prayed, the Courts will decree the compensation though they refuse to decree specific performance, and that too, even where compensation would be recoverable at law. In Cut v Ruther, 1 P Wms, 57, this was done; and Lord Hardwicke in the City of London v Nash, directed an issue of quantum damnificatus, though he refused a specific performance; and in a case in the Supreme Court of the United States, Pratt v Law, Story's En. Jurisp. xix 798 n., long before Mr Justice Story's ruling, as already quoted, no doubt was entertained as to the correctness of these decisions.
But there is an element in the case now under consideration which places the defendant's equitable claim to be compensated for the buildings erected with his money, and which will come into the plaintiff's hands, beyond all question.
At the time Mr Grace laid out his money, the absolute dominion of the land in question was in the Crown. He had been let into possession by parties who derived their title from the New Zealand Company. It is true the Company had no such title as they could bring into a court of law or equity; neither, indeed, had Mr Scott; and when Mr Grace says he was advised he had a good title, we must assume that it went no further than what he says in another place that the Company had a right to a Crown grant. Mr Grace mentions the Land Claims Ordinance as strengthening his belief. I have no doubt it did so; and after looking at it over and over again, I think it was calculated to generate reasonable belief, that the old claimants would be compensated by "lands elsewhere." In stating his impression at the time, I have not the least doubt that he really describes the general impression; for otherwise, how would shrewd and sober minded men of business, such as Johnson & Moore, Samuel & Josephs, and others, have erected expensive buildings on the land? Mr Grace, living in an atmosphere where that impression prevailed, could hardly resist its influence, though he and others may not at this date be able to state every minute fact which gave it birth, or imparted to it strength. His affidavit is certainly not as full as it might have been. It omits notorious facts, which I should have supposed likely to have lived in every man's memory. Still I think it contains enough to account for his belief. Mr Hart has suggested that the Land Claims Ordinance of February 1842, which was in force until February 1843, had some share in producing the general belief in question. No doubt it had. Lord John Russell's agreement of November 1840, could scarcely fail to have a similar effect; but I think without these, the belief was reasonable, in the known absence of a grant to any other person or body of persons. What are the terms of Captain Hobson's celebrated letter, penned, and what is more, published in the Government Gazette, with the avowed objects of comforting and quieting the minds of such as Mr Grace. Nothing can be well clearer or stronger than the terms of this letter, or of the moral obligations it involves: "Understanding that some doubt is entertained as to the intentions of the Government with respect to the land claimed by the New Zealand Company, in reference both to the right 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 pre-emption to the land 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 any natives; the Company compensating all previous purchasers according to a scale to be fixed by a local ordinance. You are at liberty to give the utmost publicity to this letter."
Here, then, the Crown expressly and solemnly assures Mr Grace and all similarly circumstanced, that the body through which he and they derived title, should receive a Crown grant, and that Mr Scott and others in his position should receive not the land itself, but compensation in land elsewhere. It was in accordance with this letter that the ordinance alluded to by Mr Hart was passed.
That Mr Scott himself stood quietly by while Mr Grace laid out his money, and gave no notice of his claim until January 1846, is a circumstance to which I think but little weight ought to be attached. There is a case in 2 Chan cases, 128 Hobs v Norton, which, if it does not absolutely decide, at any rate assumes that a purchaser will not be relieved against the title of the true owners, who being ignorant of his own title at the time, encourages the purchaser to lay out money. This is broadly laid down in Mr Hovenden's work on Frauds (vol 2, 184.) The Land Claims Ordinance, Captain Hobson's letter, and the Land Claims Amendment Ordinance, passed to give it effect, and other documents, cannot fail to have weakened Mr Scott's confidence in his own claim. Mr Wakefield says Mr Scott's claim was not worth five pounds, and certainly Mr Scott was justified in estimating it as not worth much trouble or formality. It is true Mr Scott was well aware of his own mere claim at the time, but the title was not in him, nor did it then appear likely to be. Leaving out of account his omission to give special notice of his claim, I think the act of Captain Hobson, the then Governor, was such as to bring the case within the rule that "where the true owner stands by and suffers (and à fortiori where he encourages and permits) improvements to be made on an estate without pressing his claim, he will not be permitted to enrich himself by the loss of another, but the improvements will constitute a lien on the estate." Clothed with this lien the estate came into Mr Scott's hands. He it is who will enjoy the benefit of the ameliorations, and it is for him to compensate the defendant not to the extent of every shilling which may have been expended, whether judiciously or injudiciously but on the more equitable principle of the value which comes into his hand. It should also be observed that Mr Scott received his grant after the improvements were placed on the land; his grant is silent as to messuages and tenements, and in going to the jury for mesne profits he did not ask for more than the annual value of the land.
The learned counsel have urged that Mr Grace has his remedy against his vendors or the Company. Perhaps so; but that is not such a remedy as the rule of equity contemplates. There is no legal remedy between the parties; and a chain of actions by vendee against vendor up to the Company ultimately, is just such a "multiplicity of actions" as equity especially guards against.
In considering this case, the learned counsel have drawn largely upon the equitable jurisprudence of the United States of America; and I have thought it incumbent on me to examine and remark upon the passages and decisions to which they referred, as well as to some others which occurred to myself. This course has become not unusual in the courts at home, and one instance occurs to my recollection, in which the Court of Exchequer took time to consider their judgment "not that they felt any doubt at the time," as Mr Baron Parke observed, "but from a desire to examine certain authorities to which the Court was referred in American text writers bearing on the subject," and the authorities in question, are mentioned in the course of the judgment. Vlierboom v Chapman, 13 Mee and W 237. If this course be permitted to counsel, and pursued by the judges of the courts at Westminster, it certainly ought not to be objected to here; for in applying the law of England to the circumstance of what is commonly called a new country, we cannot fail to derive incalculable advantage from the jurisprudence of America, and especially from such judges and writers as Kent, Marshall, Story, Greenleaf, and some others. If it be a source of honest pride to us that we have given our laws to that growing nation, may she not reasonably entertain a similar feeling on reflecting, that she is enabled to repay the debt, by the assistance she affords the colonial courts in the construction of their jurisprudence? For my own part, in applying the principles of our law to the circumstances of the colony, I am never quite satisfied unless I have succeeded in tracing those principles to their application in the United States, and certainly there is no author so well calculated to afford us assistance as the great and estimable judge, one of whose works has been so largely quoted in the argument of this case.
As to the payment into Court of the damages given by the jury, I cannot see either on the authority of the case quoted, or of any other, or according to the exigencies of this case, that such a condition ought to be imposed on the defendant. Where an executor or other accountable person admits a balance in a bill against him, he is generally ordered to bring in the money. But here, considering that a clear equity resides in the defendant, the value of the buildings on the one hand, and the amount of mesne profits on the other, may reciprocally stand as security for each other, as far as they go.
Under this rule, I think I cannot do more than an injunction would warrant, namely, order a stay of proceedings, putting Mr Grace upon terms forthwith to prosecute his suit for compensation to issue; for the verdict of a jury will be necessary to determine the present value, unless the parties are willing to submit to the valuation of an arbitrator or arbitrators, which I suggest.
Rule absolute for a stay of execution upon terms as above.
Scott v Grace
Supreme Court Sittings
Saturday, 13 May 1848
His Honor Mr Justice Chapman delivered the following judgment in this case:
This is an action brought by the plaintiff, Mr David Scott, to recover possession of a piece of land in the occupation of the defendant, and comprised within a larger parcel claimed by the plaintiff under and by virtue of a deed of grant made to him in July, 1845, by Governor Fitzroy, under the public seal of the colony. The action has been for some time before the Court; but has been permitted to slumber since the month of September, 1846, pending an action upon a writ of scire facias, sued out by the Principle Agent of the New Zealand Company against the now plaintiff, to try the validity of the deed of grant. Several issues of fact being raised upon the pleadings in that action, the verdict of a jury became a necessary preliminary to the judgment of the Court. It happened unfortunately that the jury impannelled in May, 1847, could not agree upon their verdict, and they were ultimately discharged by the Court. Two terms having elapsed without any further proceedings in that case, the plaintiff has exercised his undoubted right to prosecute his original action; and although for the purpose even of indirectly trying the grant it is restrained within very narrow limits, and is in all respects far less complete, and consequently less satisfactory than an action upon a writ of scire facias, yet it may possibly have an equal effect in quieting further suits, and saving further expense to the parties.
At the trial, for the purpose of showing a legal title in himself, the plaintiff (who conducted his own cause with the assistance, as it appeared, of Mr Hart and of Mr King) relied upon his Crown grant, duly executed under the public seal of the colony; and he proved, by the evidence of an experience surveyor, and other persons, that the piece of land sought to be recovered is comprised within the larger parcel embraced by the grant. He also gave evidence of the annual value of the land, so as to enable the jury to assess the amount of mesne profits. This constituted his case.
For the defence, Mr Wakefield objected: first, that there ought to have been a demand of possession, by the plaintiff, before action brought; but I thought otherwise, and overruled the objection. Secondly, he produced a deed by which Mr Grace, the now defendant, had conveyed the land in question to Mr Fox of Nelson, to secure a certain loan, and for other purposes in the said deed mentioned, and Mr Wakefield contended that the action was wrongly brought against the tenant in possession, and that Mr Fox was the proper defendant. This objection I also overruled. Mr Wakefield then referred to the Land Claims Ordinance, Sess I, No 2, and submitted that the recital of the Commissioner's Report in favour of a grant of land which forms part of the town of Wellington, was contrary to the 7th Section of the ordinance, and that the Crown had been deceived in its grant. Moreover, the grant itself, he contended, was illegal and void, being contrary to the said ordinance, and to the spirit thereof.
Mr Wakefield also elicited by his cross-examination of the plaintiff's witnesses, that there is some ambiguity and uncertainty in the description of the boundaries, and he strengthened this view by independent testimony called for the defence. I did not, however, think that these points, namely, the alleged deceit, illegality, and uncertainty, were so made out as to affect the plaintiff's right to recover in this action, and the jury under my direction found for the plaintiff; but I gave Mr Wakefield leave to move on all or any of the points, if he should think fit, to set aside the verdict, and to ender a non-suit, should the Court, on deliberation, be of opinion that the plaintiff had failed to establish his right to recover.
On the question of mesne profits (which under the practice of this Court can be recovered without a separate action the 1st Geo IV, c 87, which applies to ejectment by landlord against tenant only, being here extended to all cases) the plaintiff claimed previously to the date of his grant, and back to the commencement of the defendant's occupation in August, 1840, under the authority of the Land Claimants' Estate Ordinance (Sess., iii. No 20), which makes the legal estate of the grantee relate back to the date of the original purchase. Being myself desirous of considering the effect of this ordinance at my leisure, I requested the jury to separate the amount they might find the plaintiff entitled to, into two parts, namely, so much as they might find to have accrued antecedently thereto. The jury did so, and Mr Wakefield now moves to reduce the damages for mesne profits by striking out the portion accruing antecedently to the date of the grant, amounting to 123l.
After having had the subject of Governor Fitzroy's grants a good deal before my mind for a considerable period; having, moreover, with as much care as I am master of, considered the law in relation to grants of the Crown, in so far as the same is applicable to the colonial possessions of the Queen, and especially as applicable to this case, I have come to the conclusion that the verdict in this action cannot be disturbed; and I will proceed to state my reasons for this conclusion, as nearly as convenient, in the order in which the points have been raised.
And, first, as to the two preliminary points, which I think hardly merit the importance with which they have been clothed. The rationale of a demand of possession I take to be this: The action of ejectment, which this action follows, is in its nature a species of action of trespass; ie, it presupposes the defendant to be a wrong-doer. But there cannot be even a constructive trespass, so long as the defendant is in possession by the license or permission of the plaintiff. Hence, in all cases where the defendant holds by the express or implied permission of the plaintiff, something must be done to change the relation of the parties; or, as the phrase is, to determine the will. The simple expedient for this purpose is a demand of possession, followed by a refusal to comply with that demand; which refusal, express or implied, has the effect of converting the originally permissive holding, or say the tenancy at will, into an adverse, and therefore wrongful holding. Where the plaintiff means to show that the possession of the defendant is, and has all along been adverse, where there never existed any privity between the plaintiff and defendant, no demand of possession is necessary. If Mr Wakefield will take the trouble to go through the cases, as collected in any of the Nisi Prius books, in which a demand of possession has been held necessary, he will find them to amount to a tenancy at will (the lowest estate known to the law) created by a permissive occupation; the demand being only for the purpose of getting such an express or implied refusal, as will at once render the occupation adverse. The only class of cases which seems not to keep this distinction clearly in view, leans against Mr Wakefield's point. A mortgagor in possession, one would think, can hardly be deemed to hold adversely to the mortgagee, and yet the mortgagee may legally treat him as a 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 wrong doer, 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 wrong doer, by proving a demand and refusal before action brought. In 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 dem, 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 his 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 against Mr Grimstone, 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 of 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. Difficulties 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; but the 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 runs through a great number of cases, determined at a time when grants of offices, franchises, &c., were common, which cases are recognised 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, recognised as law in Gladstanes v Earl of Sandwich 4 M & G, 1029, and in Auditor Curle's case 11 Co: 4 b Mr Viner, Prerog xvii (O b) 1 abstracts the result of these cases thus: "If 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 constructions 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 Governor, 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 not 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: I am 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 law, ie the ordinance, and the Commissioner informs him of the fact by recommending a piece of 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 uncertainly 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 were there are words of reference to a pre-existing instrument, that instrument may be referred to, in order to render certain that which, without such reference, would be uncertain; and it was resolved in Whistler's case, 10 Co 64 that it was no ground of objection that the recited instrument is not of record. The grant traces one boundary "by" a stream which does not exist, the notice of claim makes that some boundary start "from" a stream which does not exist, and the Commissioner's report follows the claim. Substitute the word from for the word by, 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 surmise 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 mesne profits I have felt no small anxiety; for undoubtedly the operation of the Ordinance may in some cases, and must 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 conclusions. 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 land 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 v Symonds, 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.
Counsel for the Plaintiff, Mr Hart and Mr King; counsel for Defendant, Mr D Wakefield.
 VUWLR editor's footnote: this is an incorrect citation in the original of the judgment; refer to footnote 49 in the accompanying article.