No. 96.
Proceedings of the Court of Appeal in re Princes Street Reserve, Dunedin, on the 2nd, 3rd, and 4th November, 1869.

[Before their Honors Sir G. A. Arney, Chief Justice, A. J. Johnston, Gresson, Richmond, and Ward.]

The Queen, Plaintiff in Error v. James Macandrew, Defendant in Error.

Messrs. J. G. Allan and Izard for the Plaintiff in error; Messrs. Travers, Smith, and Macassey, for the defendant in error.

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Mr. Alllan.—I have to appear, your Honors, in support of an appeal from the judgment of His Honor Mr. Justice Ward, delivered at Dunedin. The case originally came before His Honor in the form of a demurrer to a plea by the defendant, and judgment was given, as I understand, upon the declaration. Nothing was said as to the merits or demerits of the plea, and at present I am rather in the dark as to whether the plea was allowed or not. The judgment proceeded upon the merits of the declaration, and the declaration was held to be bad. Of course, in this appeal, we have, I assume, not only the merits of the declaration but of the plea to consider; and therefore the whole record will be open, and judgment will be given for that party who is entitled to receive it. This case is, of course, one of very great importance, and I may say of very great novelty. I have looked through a variety of books for precedents; and as I can find no recent cases bearing on the subject, the authorities are old on which we shall have to rely.

The declaration in this case contains a writ in the form of a soire facias, issued in the name of the Queen, to ascertain whether a certain Crown Grant issued by the Governor of this Colony to the Superintendent of Otago is good or not. [Writ of sci. fa. read.] That is the declaration founded on the writ, which has followed as closely as possible to any precedents that could be found on these matters. It first of all sets out the grant which is on record, and which we propose to make void; it then goes on to show certain trusts made by the Governor of the Colony with the advice of those who were then acting as his Advisers. Then it says that in conformity with these trusts reserves were duly and legally made, and that subsequently the Governor, by mistake, signed these letters patent granting the land to the Superintendent of Dunedin. To this there is a special plea. Of course it must be assumed that this record being all that is before the Court, that is the only plea in answer to the writ and declaration we have brought against the Superintendent of Otago. It is rather a long one, and sets up matter which I shall show the Court is no answer to the declaration. It is a very nice and clear narrative of facts, which to an English pleader seems to be rather lengthy, but the facts which the plea professes to set out are stated clearly enough. [Plea read.] To this plea it was thought necessary to demur on the following grounds:—"1st. That the second plea is bad, as being an argumentative traverse of the allegation in the writ and declaration that the grant therein mentioned was made by mistake."

Johnston, J.—There is nothing in that that is special pleading, and we have no special demurrers here. I do not think the plea was bad because, although it amounted to a traverse of the declaration, it was at the same time argumentative.

Richmond, J.—The question is whether the statements in the plea are sufficient in answer to the declaration, and the fact of the argument does not make them bad.

Mr. Allan.—I shall draw your Honor's attention to this presently, that the rules and proceedings in England as to scire facias are in force here, and special demurrers are not abolished there.

Richmond J.—Would that not be subject to our judgment? We have adopted special rules, but subject to our general mode of proceeding and pleading. The two things may stand together. The reasoning against the allegation in the writ, that the grant was issued by mistake, might have been expunged as irrelevant, but it is another thing to say it makes the plea bad if there are substantial allegations in it.

Mr. Allan.—Then the 2nd ground of demurrer is "That the facts stated in the second plea do not amount to a traverse of the said allegation of mistake. 3rd. That the second plea does not show any covenant or agreement binding on the Crown so as to prevent the land in the grant comprised, being set apart as a reserve for Native purposes. 4th. That the second plea does not traverse the allegation that the land in the grant comprised was in fact reserved for the benefit of the Native inhabitants in the said writ and declaration mentioned before the making of the grant, and so admits that the said grant was made in breach of the provisions of 'The public Reserves Act, 1854.'" We say then that on that plea it is a clear admission that the reserves were made. "5th. That the second plea admits that the Governor executed the grant under a mistake in this, that he believed the land comprised in the grant to be land which he had power to grant, being a Native reserve. 6th. That the said second plea shows that certain persons waived certain supposed claims to purchase the land in the said grant comprised from the New Zealand Company upon the ground that the said land would be set apart for public purposes beneficial to the said persons, and so as in fact to enhance the value of the sites which the said persons actually did select; but fails to show that the purposes for which the said grant was made were in fact beneficial to the said persons, and that it is consistent with the facts in the said plea alleged, that the said grant was prejudicial to and in violation of the rights as well of those persons as of the other subjects of Her Majesty in the writ mentioned." Notice was then given of the following objections to the demurrer:—"1st. That the declaration does not allege or disclose any act of fraud, deceit, misrepresentation or other misconduct on the part of the defendant or any person acting on his behalf which led to the issue of the Crown Grant. 2nd. That the declaration does not show or allege that the alleged mistake was a mutual one."

Johnston, J.—I do not know what that means at all.

Richmond, J.—It refers to the equitable doctrine, I presume, that there must be a mutual mistake.

Johnston, J.—It does not point to me the mutuality between whom.

Mr. Allan.—I gather that it was their intention to assimilate those Crown Grants to deeds between subject and subject, and that the law as to the ratification of contracts between parties would show that a mutual mistake should have been alleged. 3rd. "That the declaration does not allege or show that the grant was made and issued to the defendant in ignorance or forgetfulness on the part of the paid Governor and his said Executive Council of the alleged trust for Native purposes." 4th. "That consistently with the averments contained in the declaration, the alleged mistake may have been one of law or equity merely, or of some other character not rendering the grant voidable." 5th. "That the declaration does not show that any valid trust for Native purposes was ever created in respect of the lands granted to the defendant; for the Governor had not, at the time when the said alleged trust was created, or at any time, power ex mero motu to alienate any of the public lands of the Colony for purposes not page 175directly authorized by the terms of his commission or instructions, or by some Act of a competent Legislature." I understand that objection to amount to this, that the reserves would be properly made if you show that the Governor had power to make them; but they are not properly made because the Governor had no such power.

Johnston, J.—I thought it rather pointed to this, that the Governor ought to be passive in the matter, and should not make them until he was stirred.

Mr. Allan.—We have it on evidence that he was stirred both by the Commissioner for Crown Lands and the Civil Secretary.

Richmond, J.—Still the Commissioner was only a creature of the Crown.

Mr. Allan.—The 6th objection is, "That the declaration fails to show how the Governor derived any authority to make reserves of public lands for Native purposes. 7th. Consistently with the declaration, it may only have been intended by the Governor to devote the lands granted to the defendant to Native purposes temporarily, or as long as the lands might be required, or as long as members of the Native race might actually resort thereto, whereas the declaration assumes that the lands were to be set apart for Native purposes absolutely. 8th. That the declaration does not show that any of the cestui que trust in whose favour the supposed trust was created are living, or have any representatives who may benefit by the repeal of the grant, or that the Crown would, or could, if the said grant was repealed, give effect to the said alleged trust. 9th. The declaration does not disclose a case which would sustain a claim for specific performance of the said alleged trust against the Crown, nor does it disclose a sufficient case for relief on the ground of mistake, even as between private individuals. 10th. That by the writ and declaration it appears that the Sheriff of the District of Wellington has been required to perform a duty outside his jurisdiction or bailiwick." The last objection was abandoned in the Court below. The judgment was entered up, "and hereupon, on the 25th August, 1869, came here as well the plaintiff as the defendant, by their respective solicitors aforesaid, and it appears to the Court here that the said declaration is bad in substance. Therefore it is considered that the plaintiff take nothing by Her said writ, and that the defendant do go thereof without day, &c." Then the errors are set out, and there is a joinder by the defendant. That is the state of the record, and, as I understand, the learned Judge, in giving judgment, held, first of all, that the agreement was not good, as not being properly set out, and that the reserves were not properly made because they were contrary to the Royal Instructions of 1846; that, I believe, was the principal point upon which judgment was given. That the Governor had only a limited power by his instructions; and according to those instructions it was shown that the reserves could not have been made, because they were not within the limited circle within which he could make reserves. In considering these objections, and in considering the validity of the declaration or the validity of the plea, it is of importance (in fact, it is the first step we must take) to ascertain clearly what is the law in reference to disallowing Crown Grants. We are not here to consider the form and validity of a deed as between subjects, but we are here to consider what should be done, or has to be done, by the Sovereign in reference to any objections which the Sovereign herself may take, or others, may suggest to her, in regard to such grants. The law on that subject must be clearly ascertained before we can for a moment say whether this plea or this declaration is good. We may assume at starting that whenever a Crown Grant issued by the Sovereign is to be impeached, another way of doing so may be followed; but where the actual intention is to upset, recall, or cancel those grants, then it is essential to show under what circumstances Courts sitting as representatives of the Sovereign can say those grants are bad, and whether they should be cancelled; and it is utterly erroneous to say that they are to be treated as deeds between subjects. In Foster on Scire Facias, page 242, I find the following:—"Every such grant by letters patent of the sole right to make, use, exercise and vend any invention, is void if the invention was" not invented or found out "by the grantee, or first introduced into the kingdom by him, and also if the invention is not new and useful to the public. It is also void for uncertainty or being too general, for misrecitals, for false suggestions, by which the Crown has been deceived or misinformed in her grants; or where she has granted more than she lawfully may, or what may be to the prejudice of the commonwealth, or to the general injury of the people, or where she has granted the same thing to two persons." Again at page 245—"If the patent be void for any of the reasons which have been briefly assigned as sufficient to invalidate the grant the Queen jure regio, for the advancement of justice and right, may have a sci. fa. to repeal her own grants. A sci. fa. is the only means which the law provides for the repealing of letters patent, and it lies at the suit of the Crown." In Stewart's Blackstone, vol. iii. p. 280 (p. 260, Hovenden's edition, 1836), there is this passage—"Where the Crown hath unadvisedly granted anything by letters patent which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grants, the remedy to repeal the patent is by writ of sci. fa. in Chancery. Again, in Stephen's Commentaries, 4th ed., vol. i. p. 618—"The manner of granting by the Crown does not more differ from that by a subject than the construction of such grants when made. For, 1, a grant made by the Crown at the suit of a grantee shall be taken most beneficially for the Crown and against the party; whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the royal grants, that they are made, not at the suit of the grantee, but 'ex speciali gratiâ, certâ scientiâ, et mero motu regina (Aut regis),' and then they have a more liberal construction; as is also the case when they are made upon a valuable consideration. A subject's grant shall be construed to include many things besides what are expressed, if necessary for the operation of the grant. Therefore, in private grant of the profits of land for one year, free ingress, egress and regress to cut and carry away those profits are also inclusively granted; and if a feoffment of land was made by a lord to his villein, this operated as a manumission, for he was otherwise unable to hold it. But the grant of the Crown shall not insure to any other intent than that which is precisely expressed in the grant, as if it grants land to an alien it operates nothing, for such grant shall not also inure to make him a denizen, that so he may be capable of taking by grant. When it appears from the face of the grant that the Crown is mistaken or deceived, either in matter of fact or in matter of law, as in case of false suggestions, misinformation, or misrecital of former grants; or if the royal title to the thing granted be different from what was supposed; or if the grant be informal; or if an estate be granted contrary to the rules of law—in any of these cases the grant is absolutely void. For instance, if the Crown page 176grants lands to one of his heirs male, this is merely void; for it shall not be an estate tail, because there want words of procreation to ascertain the body out of which the heirs shall issue; neither is it a fee-simple, as in common grants it would be, because it may reasonably be supposed that the King meant to give no more than an estate tail; the grantee is therefore (if anything) nothing more than tenant at will." The writer cites Gladstones v. Earl of Sandwich, 4 Man. & G. 995. I would also call the attention of the Court to the following passage from Bacon's Abridgment, vol. vi. 514, Title, Prerogation. As the King's grants proceed chiefly from his own bounty and his letters patent are records of a high nature, they ought to contain the utmost truth and certainty, and have, in all times, been construed most favourably for the King, contrary to the grants of common persons; and accordingly in a great variety of cases we find uncertainty, misrecitals, false suggestions, and all such matters as show that the King was deceived in his grant, held such reasons as have been sufficient to vitiate the grants. In a matter, therefore, in which such great exactness has been required, it may be necessary, in the first place, to lay down the following general rules:—First, that in the construction of letters patent every false recital in a part material will not vitiate the grant, if the King's intent sufficiently appears. This was so held in the case of The King v. Bishop of Chester, where a grant was made to a person as a knight, who in truth was no knight: and though the grant was held void for this reason, in B. R., yet the judgment was reversed in Parliament. Secondly, that, if the King is not deceived by the false suggestions of the party, but only mistaken by his own surmises, this will not vitiate his grant, and so was the resolution in the case of The King v. Kemp. Thirdly, that though the King mistakes, either in matter of law or fact, yet, if this is not any part of the consideration of the grant, it will not vitiate it, and so is Lord Chandos' case…. Fourthly, that the words excerta scientia et mero metu, in the King's charters and letters patent do occasion them to be taken in the most benign and liberal sense, according to the intent of the King as expressed in his grant. Fifthly, that though in some cases general words of a grant may be qualified by the recital, yet if the King's intent is plainly expressed in the grant in part, it shall inure according to that, and is not to be restrained by the recital." The first great authority that I find upon this subject, and in which the law seems to be most fully gone into to show the main principles upon which the Courts will act in considering whether a grant from the Crown is to be held void or not, is the case of Alton Woods, Coke's Reports, part 1,40b. (in Fraser's edition, at page 100).

Arney, C. J.—I suppose the other side do not for a moment impeach the law you are now laying down. This is not the grant by the Governor of a larger estate than he had, nor is it a misrecital of the estate on the grant, but I presume they will agree that the reservation is not lawfully made.

Johnston, J.—They may admit all this law, and say, "That is not our case at all. We do not deny that sci. fa. will lie if only you can make out that there was a complete operative legal reservation beforehand." If they would admit that, it would save arguing what is not denied.

Mr. Travers.—We do not admit that, but we want to see the legally created trust.

Mr. Allan.—Then I will simply refer your Honors to the authorities upon the subject: They are the Duke of Chandos's, 6 Co. 55; Earl of Ruttand's Case, 8 Rep. 57; Alcock v. Cook, 5 Bingham, 340; and Gladstones v. Earl of Sandwich (ubi supra). It is essential that I should state to the Court what I conceive to be the canons and inferences and legal principles to be drawn from these cases. I take it, from the authority of these cases, that if the Sovereign, or the Governor representing the Sovereign, never intended to grant the land at all, that would make the grant void. Secondly, assuming that the Governor intended to grant the land, if he had granted the whole interest in that land before to some one else, that would clearly make the grant void. Again, it has been held, in more than one case, that a grant by the Crown may be made good in this way:—If the Crown only granted the principal estate and then granted the reversion over, and if the Crown in doing so was perfectly aware of its intention, and had not been deceived in any way, that grant might take effect in giving possession. For instance, if the grant recites a life estate in some one else, and then goes on to give the fee, it is held that the person who is claiming the grant is not deceiving the King in any way, for he has told him what the previous estate is. But if there has been a previous estate created, and a person subsequently gets the estate granted to him and does not take care to have the previous estate recited on the face of the grant, then it is very clear that the King has been deceived, and that would make the grant void. I think these are the general principles upon which Crown Grants are held to be good or bad. There is no doubt that the Court would hold the grant to be good if it could, but as it imports the Queen's honor that she should not be giving anything that she does not possess, it must be shown clearly on the face of the grant that she knew of the early estate and intended to give that up.

Johnston, J.—Coming nearer to the point, we may put it thus: Supposing the case of mistake to arise in this way, that there is a valid grant to A.B., and then, by mistake or misinformation, the Queen is induced to grant the same estate to CD., it is a question whether there is any necessity for sei. fa. at all. If the former grant remains good, perhaps a sci. fa. is not necessary. But the question here is whether the former grant is good, and the cases alluded to all bear upon something different from that. Now, as I understand the allegations of this case, there was an exercise of the Royal will creating an interest and reserving a portion of land, which, though not done by deed at the time, inured and had practical operation. Then you say, That being so, the mistake was that, at a time subsequently, when the Queen granted this land to the Superintendent of Otago, she was misinformed as to the operation of her former grant.

Mr. Allan.—That is one of my points. It is essential not merely that such grant should have been formally made, but it should show on the face of it that the Governor has been informed of the previous reservation. And even though my friend should push it to the furthest point, and say that it was a terminable estate, it would not only be necessary for him to show that the parties were no longer in existence, and therefore the estate had terminated, but also it should be recited on the Crown Grant that such an estate as that was existing when the grant was made.

Arney, C.J.—That the same lands were already reserved for Native uses? But would not that imply that the Governor himself either stated what was not true, or that he was doing what he had no power to do, in giving away other people's property, or he must say that it was only granted to the Natives for a particular purpose, and he was then giving the fee over it. This was not giving an estate page 177to the Natives; it is a reservation for the members of the tribe so long as they should reside at a particular place. But then he does not give it in that time. One does not see what the Advisers of His Excellency could have put upon the face of this grant so as to bring this within the cases you are citing. It appears to me that those authorities are perfectly true in themselves, but they are not pertinent to this case.

Mr. Allan.—I am considering the different phases in which the case may be put, as I understand from the nature of the objections. If they admit that we have had a valid and absolute reservation made, then the grant falls. But if they say that there has been some sort of a grant made, but on for a particular time or for a particular estate, or to last during the lives of any person, then I [unclear: sa] in order to make the Crown Grant good that must be recited on the face of it.

Johnston, J.—You are arguing for them, that if it can be shown that all that reserved before was the particular estate, this may be granted in reversion.

Mr. Allan.—No: because the grant does not recite the particular estate previously granted, and therefore the Crown was doing what it was not aware of. That is the reason why I thought it necessary to refer to these cases.

Richmond, J.—Everything seems to turn upon the validity of the alleged reservation in 1853. If that were valid, the other side seems to admit that the Crown Grant would be void. The principles for which Mr. Allan has been contending are, as I understand, admitted, therefore it is not necessary to elaborate the point. The maxim is, that the Crown does no wrong; if a party shows that the action of the Crown will do him a great wrong, the Crown is supposed to be deceived by its advisers, and a writ of sci. fa. issues.

Mr. Allan.—Then I will come to the objections to this declaration. I contend that the declaration would be good even supposing all the earlier allegations were left out up to the mere question of the estate, supposing the Crown Grant was merely recited. These are objections on demurrer, and therefore we must assume that all the facts are true as set out on the demurrer; and therefore, assuming that all previous allegations were left out, I say it would be sufficient if there was the mere allegation that we are informed that by mistake the Governor signed that grant without saying what sort of estate had been created.

Arney, C.J.—Would not the declaration be required to allege the fact of a previous reservation, so as to point the general allegation that a mistake was made?

Mr. Allan.—I have no authority to support the view in reference to sci. fa., but I think, where an equitable plea is set up by mistake, there is an allegation that the parties have been mistaken, and that is sufficient.

Ward, J.—But here you set up the reason. You say there was a prior trust, therefore the Crown Grant was issued by mistake. You set up the mistake itself, and therefore there is no use in arguing that it might possibly be right if the allegation you set up were omitted.

Johnston, J.—I cannot conceive, supposing you were in the Court of Chancery, that you could merely state in your declaration that there was a mistake, without showing what that mistake was.

Arney, C. J.—On that you could answer an allegation by simply saying, "This is all a mistake."

Mr. Allan.—Assuming that the mistake were set out on the declaration, that the Governor had previously reserved this land for the use of the Natives, then I say that would be a ground for setting aside this grant.

Johnston, J.—In fact, as far as I see, in order to support the declaration you must say that there had been such a previous disposition of the property in question by the Governor within his powers, that the subsequent issue of the grant was in derogation of his former acts, and therefore the Crown Grant was issued by mistake.

Mr. Allan.—The objection to the declaration must be taken in this way: That this is not a traverse but a demurrer to the declaration, and all the allegations stated in the declaration must be supposed to be true. I am now taking the declaration by itself, and I have a right to consider every way in which it can be treated as good. I am first putting before the Court how far that would be, supposing the Governor was not aware, at the time of making the grant, of the previous reserve. The question is, whether the facts stated in the declaration, being necessarily taken as true, show ground sufficient to upset the Crown Grant? I say they do. It is admitted that an application was made by the Commissioner of Waste Lands, and that the reserve was afterwards made; that the right of the Crown thereby passed to some one else, and therefore there was nothing which the Crown could grant; consequently the Crown Grant is void.

Johnston, J.—Is there anything to show that the right had passed away?

Mr. Allan.—This is being considered upon general demurrer. If there is a demurrer to the plea, they have a right to investigate the declaration and see whether it is good or not; but the declaration must [unclear: e] considered as if it had been generally demurred to, and all the facts in the declaration must be considered to be true. I say that the facts are these, that the Crown Grant which was issued never recited these reserves at all. Secondly, that trusts were created for the Natives, and that reserves were afterwards made; and therefore, on the face of this declaration, it shows that the Governor must have been mistaken in his grant, and that in fact he had nothing to give away at the time. I contend further that the declaration clearly shows that the Governor had power to make the reserves, and that they have been duly made. Also, by the mode they have taken in pleading, the grant is shown to be void, and must therefore be cancelled. Whether the Governor was mistaken or not, I say, on the principles I have laid down, that if land has been granted away to one person, and then to another, the second grant is in itself void; and the declaration having set out these facts, the parties, cannot now be allowed to plead that the Governor had no power to make these reserves, or that they were not made. There is a vast difference between demurring and pleading. When they demur, they not only admit all the facts on the record, but they also give a large license to the persons upholding the declaration. Every demurrer involves this, that supposing the facts in the declaration to be true, they do not show a valid case in law. But this is our demurrer to the pleas, and we say that that helps our declaration wonderfully. They have chosen to plead over, and therefore allow a certain license in pleading, which could page 178not be the case if they had demurred. We must take it, therefore, that they admit that the reserve has been made. It is possible that they may contend that there was no power to make the reserve; but if they say that and call upon us to show that the Governor had power to make the reserve, then I say that is a matter of law, and as such cannot be pleaded.

Johnston, J.—It would have been as well if you had said that by virtue of an Act the Governor was empowered to do so.

Mr. Allan.—The Court must take cognizance of all public Statutes and all Royal Instructions that are issued under them, and therefore it is not essential to state them in the declaration; but if we recite these statutes, that is sufficient to support the declaration. I shall contend, and contend with confidence, that upon the various Acts which have been passed by the Imperial Legislature and by the Colonial Legislature in reference to the lands in New Zealand, and by the power conferred upon the Governor in regard to dealing with those lands, the Governor had clearly power to make these reserves. The first Act I find bearing upon the subject is 3 and 4 Vict. c. 62, which is entitled "An Act to continue until the 31st December, 1841 and to the end of the then next Session of parliament, and to extend the provisions of an Act to provide for the Administration of Justice in New South Wales and Van Diemen's Land, and for the more effectual Government thereof, and for other purposes relating thereto." The second and third sections of that Act give power to the Queen to create a new Colony, and also to direct by her Royal Instructions what things are to be done. The Queen, in pursuance of that Act, and in pursuance of the powers vested in her, issues a charter which is designated "A Charter for erecting the Colony of New Zealand, and for creating and establishing a Legislative Council and Executive Council, and for granting certain Powers and Authorities to the Governor for the time being of the said Colony." That seems to be the commencement of the separate existence of the Colony of New Zealand, and the creation of a Governor vested with powers under the Act. That charter is dated the 16th November, 1840. There is no doubt that these various charters are from time to time repealed, and the Court will understand that I do not rely upon the Charter of 1840 or that of 1846, but am now endeavouring to give a slight historical account of the various events, leading up to the precise one with which we have more particularly to deal. As we go on there is always a reservation in each new Act, providing that the Instructions shall not be repugnant to those previous Acts which are not repealed. The Charter of 1840 constitutes New Zealand into a Colony, then it creates a Council, then in a subsequent part it goes on to say, "And we do hereby give and grant to the Governor of our said Colony of New Zealand for the time being, full power and authority in our name and on our behalf, but subject nevertheless to such provisions as may be in that respect contained in any Instructions which may be from time to time addressed to him by us for that purpose, to make and execute in our name, on our behalf, under the Public Seal of our said Colony, grants of waste land to us belonging within the same, to private persons for their own use and benefit, or to any persons, bodies politic or corporate, in trust for the public use of our subjects there resident, or any of them: Provided always, that nothing in these our letters, patent contained shall affect, or be construed to affect, the rights of any aboriginal natives of the [unclear: aid] Colony of New Zealand to the actual occupation or enjoyment in their own persons, or in the persons of their descendants, of any land in the said Colony now actually occupied or enjoyed by such Natives." That seems to be the first power given to the Governor, and it is most ample power, and one which has been constantly claimed against the New Zealand Company. The Queen says—"We have rights in the waste lands of our Colony, and we confer the power to alienate these lands, in the way in which we have instructed him, upon the Governor of our Colony for the time being." I do not know that I need refer to anything further in that charter. The next Act that I find is 9 and 10 Vict. c. 103, which is entitled "An Act to make further provision for the Government of the New Zealand Islands," and received the royal assent on the 28th August, 1846. It repealed the previous Acts and Letters Patent so far as repugnant to the new Act. By section 14, certain powers vested in Her Majesty may be delegated to the Governors of the New Zealand Islands; under that Act a charter was issued, bearing date "the 23rd day of December in the tenth year of our reign."

The 14th clause of that charter says. "And we do hereby give and grant to the respective Governors of the said Provinces respectively full power and authority to make and execute in our name and on our behalf, under the Public Seal of the said respective Provinces, grants of waste lands to us belonging within the same, either to private persons for their own use and benefit, or to any persons, bodies politic or corporate, in trust for the public uses of our subjects there resident or any of them." That seems to continue very much the same powers which were given by the earlier charter. Then follow the Royal Instructions of 1846.

Mr. Travers.—I object to the Royal Instructions being cited. I do not object to the charter being adduced, because it is to be treated as part of the Act, but the Instructions which are issued under the charter cannot be used.

Richmond, J.—But they are referred to in the Act.

Johnston, J.—The Statute gives the Sovereign power to issue a charter for certain purposes, subject to certain Instructions referring thereto.

Mr. Travers.—Do your Honors hold that you take judicial cognizance of those Instructions?

Johnston, J.—You can argue against it by and by; but I do not think the Court is prepared to say we shall stop Mr. Allan on the ground that we cannot take judicial cognizance of the Instructions.

Mr. Allan.—Your Honors will bear in mind that the Act allows the Queen to issue Instructions, and she may execute her authority by Instructions.

Richmond, J.—The general principle is, that any Instructions as to increasing the power are to be taken as part of the Statute.

Mr. Travers.—My object was to ascertain whether Instructions could be quoted, because an objection might be raised against me afterwards if I quoted Instructions of a similar character.

Richmond, J.—I understand that wherever a Proclamation has been issued in execution of a statutory authority, judicial notice is to be taken of it just as if it was a direct legislative provision.

Johnston, J.—Of course it is competent for us to hold that the Instructions are ultra vires.

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Mr. Allan.—Chapter 13 of the Royal Instructions of 1846 treats of the settlement of the waste lands of the Crown. The 12th section of that chapter provides that demesne lands are to be held by the Crown in trust for its subjects; section 13, that the said lands are to be divided by Proclamation into counties, &c.; section 14, that no land is to be alienated except under regulations afterwards prescribed; section 15, that no part of these lands is to be alienated except by Proclamation; section 16 provides that surveys shall be made previous to alienation; and section 17 gives the Governor power to reserve certain lands for certain purposes stated in that section. I do not know that I need refer to that section at present, and I merely draw attention to the earlier sections because we contend that we are not affected by them at all. The next Act is 10 and 11 Vict. c. 112, called "The New Zealand Company's Colonization Act." That Act suspends certain of the Royal Instructions as to the settlement of waste lands in New Munster, and provides by section 2 that all demesne lands of the Crown in New Munster shall be vested in the New Zealand Company for the purposes contained in the Act. There is power afterwards for the Crown to resume those lands if it chooses; section 19 enables the New Zealand Company to relinquish their undertaking if they think fit—"and all the lands, tenements, and hereditaments of the said Company in the said Colony shall thereupon revert to and become vested in Her Majesty as part of the demesne lands of the Crown in New Zealand, subject nevertheless to any contracts that shall then be subsisting in regard to any of the said lands." Then there is the Act 11 Vict. c. 5. which passed on the 7th March, 1848, suspending for five years the operation of certain parts of the previous Act. We next come to the Constitution Act of 1852. That Act recites all the previous Acts and all the previous Letters Patent, and these are repealed with the usual provise, "That all laws and ordinances made under and in pursuance of the said recited Acts, and any Charters, Letters Patent, Instructions, or Orders in Council issued in pursuance thereof, shall continue as lawful, valid, and effectual as if this Act had not been passed, save so far as any such Laws, Ordinances, or Acts may be repugnant to or interfere with the operation of this Act." Then it provides for the establishment of a Legislative Council, of Provincial Councils for a House of Representatives, and makes ample provision for the Government of the Colony; and at length by section 72 it enacts, "Subject to the provisions herein contained, it shall be lawful for the said General Assembly to make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown in New Zealand, and all lands wherein the Native title shall be extinguished as hereinafter mentioned, and all such other lands as are described in an Act of the Session holden in the 10th and 11th years of Her Majesty, chapter 112, to promote colonization in New Zealand, and to authorize a loan to the New Zealand Company, as demesne lands of the Crown, shall be deemed and taken to be waste lands of the Crown within the meaning of this Act." That section, therefore, repeals all former Instructions, and vests all the land in New Zealand in the General Assembly, who are to have the dealing with and management of the waste lands. "Provided always that, subject to the said provisions, and until the said General Assembly shall otherwise enact, it shall be lawful for Her Majesty to regulate such sale, letting, disposal, and occupation by Instructions to be issued under the signet and royal sign-manual." The Act alters the mode of dealing with the land and conveying it, but if the Legislature does not choose to interfere, then the Queen shall still exercise her right, and has ample power to deal with the land as she likes. The words are as full and explicit as they possibly can be. Again, by section 79 it is provided, "It shall be lawful for Her Majesty, by any such Letters Patent aforesaid, or Instructions under Her Majesty's signet or sign-manual, or signified through one of Her Majesty's Principal Secretaries of State, to delegate to the Governor any of the powers hereinbefore reserved to Her Majesty respecting the removal of Superintendents, and the regulation of the sale, letting, disposal, and occupation of waste lands," &c. This clause contains much more ample provisions than the earlier Acts or Charters, for here the instructions may be conveyed through one of the Principal Secretaries of State.

Richmond, J.—There is another section, 74, which possibly it may be desirable to take notice of, although it does not refer directly to your subject. It provides for the payment to the New Zealand Company, till their debt is discharged, of one-fourth of the sum realized the alienation of waste lands, except by way of license for occupation for pastoral purposes, and for certain reserves which are specified.

Mr. Allan.—That clearly shows that the Act recognizes the power to make these alienations, and also that land may be reserved for the use of the Natives. There are other sections applying to the New Zealand Company and to the Canterbury Association, but I do not think it is necessary that I should refer to these now. There we have the great Act which is now governing New Zealand, passed by the Imperial Legislature, who say by it,—We are determined to take these lands and vest them in the Colonial Legislature, who shall deal with them as they think fit (and we know that the Legislature has dealt with them and made rules as to how they shall be granted or alienated for money considerations); but if the Colonial Legislature think it better for the Sovereign to deal with these lands, and to exercise the vast unlimited power conferred upon her by the Imperial Legislature, then the Queen can do so, and exercise her powers by communication with the Governor, through the Secretary of State for the time being. In the year 1852 Her Majesty's Principal Secretary of State for the Colonies was Sir John Pakington, who in a Despatch to Sir George Grey of the 21st July, 1852—

Mr. Travers.—I submit that Despatch cannot be gone into.

Richmond, J.—Is it worth while insisting on quoting this Despatch? It is quite clear that Sir George Grey had delegated to him, under section 79 of the Constitution Act, Her Majesty's powers. That was a subject of discussion in the Legislature in 1854, and those powers were impeached.

Mr. Travers.—They were objected to on the ground that the Instructions had not been promulgated.

Mr. Allan.—I must submit, and press upon the Court, that section 79, in addition to Letters Patent or Instructions under the signet or sign-manual, also says, "or signified through one of Her Majesty's Principal Secretaries of State," and therefore that Instructions so communicated must be taken notice of.

Mr. Travers.—We dispute the Despatch; we know there was a delegation under the sign-manual, and that the Despatch accompanied it, but that the Despatch forms no part of it.

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Richmond, J.—I believe these Instructions were kept back for some time and then produced, when it turned out that they had all along existed in an authentic shape. What paragraph of Sir John Pakington's Despatch do you rely upon, Mr. Allan?

Mr. Allan.—I quote the 27th paragraph, which says, "The remaining exceptions to the general transfer of the control over the waste lands consist in the provisions thought necessary to maintain the Canterbury Settlement, and to empower Her Majesty's Government to maintain that of Otago, if it shall find the Crown bound by [gap — reason: damage]sting engagements to do so, or shall deem it expedient to renew the powers of the Association o[gap — reason: damage]esh terms. For the present, therefore, the affairs of these settlements and the distribution of their funds remain as heretofore, and I will duly acquaint you with any decision at which Her Majesty's Government may arrive respecting either of them." I can show presently that the Crown took the whole of the powers of the Canterbury and Otago Association upon themselves. The 33rd paragraph of the Despatch says, "It has further been thought essential to preserve to the Crown by section 71, with power of delegating it to yourself, the authority which you already possess of portioning out districts in which the customs and usages of the Natives may be pres[unclear: ed], and exempting them as it were from the common law of the settled portions of New Zealand. This is a power not to be exercised without strong ground, and which, it is rather to be hoped, you may not find it necessary at present to exercise; but under the power reserved by section 79, I have to inform you that the authority given to the Crown in that behalf, as well as for the formation of municipal corporations by section 79, is for the present delegated by Her Majesty to yourself."

Arney, C.J.—How can the people of New Zealand be supposed to know that as part of the law?

Mr. Allan.—How can it be otherwise?

Arney, C.J.—"I am to inform you" is merely "I tell you," and that is not a statutory instruction.

Mr. Allan.—I shall certainly press that I am entitled to refer to the instructions conveyed by Sir J. Pakington.

Richmond, J.—How can it matter to you? If you are bent upon establishing the validity of the Regulations of the 4th March, 1853, you will see that they are validated by "The Waste Lands Act, 1854," and "The Waste Lands Act, 1858;" therefore it boots not to inquire whether they were valid as promulgated.

Johnston, J.—Although these Regulations of 1853 do not seem to apply to aboriginal natives, yet the recital of "The Waste Lands Act, 1854," which validates them, recites the statutory power to delegate and the fact of delegation. The recital of an Act of Parliament is of course not conclusive on the subject, but it is primâ facie evidence of the delegation of the powers.

Richmond, J.—This Act does more; it declares that these regulations are valid.

Arney, C.J.—But how does that Act affect the present case?

Mr. Allan.—My contention will be that full power is shown to have been given to the Governor to make reserves. Do your Honors think that I cannot refer to the Despatches?

Johnston, J.—It is perfectly unnecessary. We have it that powers were delegated to the Governor; of course, I suppose you will next go on to show that those powers were properly used.

Mr. Allan.—Presently. There is another Act to which I wish to refer the Court, "The Public Reserves Act, 1854," which gives power to the Governor to grant to Superintendents Her Majesty's interest in demesne lands, "except such of the said lands as shall have been, and now are, or may hereafter be reserved for purposes of military defence, the service of any officer or department of the General Government, or for the benefit of the Native inhabitants of the said Colony." That Act is both prospective and retrospective in its action, and I contend that as our declaration shows that the reservation was made, the power has gone from the Governor to deal with the land. Of course we must take the intention of the Legislature from the language of the Statute, and we see that the intention was to give the Governor considerable power of dealing with all lands which might be devoted to certain purposes; but any land which is designated for military purposes, for certain public purposes, and for the benefit of the Native inhabitants, cannot be interfered with. The next Act to which I shall refer your Honors is "The Waste Lands Act, 1858," section 11 of which says—"And where as it is proper and expedient that power should be given to the Governor to fulfil engagements heretofore made on behalf of Her Majesty, and also to make reserves for certain public purposes within the Colony: Be it therefore enacted that it shall be lawful for the Governor at any time to fulfil and perform any contract, promise, or engagement heretofore made by or on behalf of Her Majesty, and whereof there is evidence in writing, with respect to any allotment or parcel of land within the Colony, and any Crown Grant made in pursuance of any such contract, promise, or engagement shall be valid."

Richmond, J.—Section 12 says that reserves may be made, but it does not say for the Natives. No doubt the Legislature in later years thought that the Natives would take care to make reservations for themselves, and would not sell all the best of the land. I suppose that was the reason for considering that there was no necessity for making reservations for the Natives; I do not see that this Act bears upon the argument, if it does not bear against you.

Arney, C.J.—Do I understand you as quoting that Act to show that the Governor should keep his contract or engagement with a Native tribe.

Mr. Allan.—I refer to it, not as bearing very strongly on the case, but as confirming the statement that the Governor was bound to fulfil any engagement entered into on behalf of the Crown. This land was reserved in 1853, before the passing of that Act, whereas it was granted to the Superintendent some time after the passing of the Act.

Johnston, J.—In "The New Zealand Native Reserves Act, 1856," you will find pretty clearly what Native Reserves mean: "Whereas in Various parts of New Zealand lands have been and may hereafter be reserved and set apart for the benefit of the aboriginal inhabitants thereof." From that it appears that "reservation" means a "setting apart for the benefit of."

Richmond, J.—There can be no doubt that there are such things as Native Reserves in New Zealand recognized by law. There are two classes, one over which the Native title has never been extinguished (made by the Natives themselves in fact); and the other reserves out of blocks of land page 181over which the Native title has been extinguished, which reserves are held by the Queen or some other trustee, in trust for the Natives under the English law. I do not suppose that will be disputed by the other side.

Mr. Travers.—We recognize those two classes of reserves. The latter class is part of a contract where the New Zealand Company bought part of a block, and made the reserve as part of the block.

Richmond, J.—It is called a reserve, but it is a different thing from that reservation which the Natives themselves make.

Johnston, J.—The distinction seems to be that those which are reserved by the Natives themselves are those which are merely not parted with; whereas those which were reserved, under the powers given to the Governor, from general sales, require some act of selection and a specification of the particular purpose for which they are set apart.

Mr. Allan.—I think I have gone through all the Acts that seem to refer to this mode of dealing with land; and I now contend that, supposing we are called upon, upon the state of the record, to show the authority by which the Governor made these reserves, I have shown ample power under these Acts to make such a reservation. I contend that the earlier Instructions, under which it is supposed that these reserves were made, do not apply; but if I should be driven to fall back upon them, I shall contend, that even against a reserve made under those Instructions, this grant would not prevail. I say, however, that the powers conferred upon the Governor, and which powers he exercised, were those derived from section 79 of the Constitution Act.

Richmond, J.—But section 79 only enables Her Majesty to delegate her powers under the Act, and those powers, for the present purpose, are to be found in section 72. Looking at that, it will be found that it is to make regulations respecting the sale, letting, disposal, and occupation of the waste lands. It is not to dispose of them, but to regulate the disposal of them. Do you contend that under the delegation of Her Majesty's powers the Governor could do as he liked with the waste lands?

Mr. Allan,—If your Honor looks to the earlier part of that section you will see that the General Assembly is authorized to make laws for the sale, letting, or disposal of the lands, so that all the power which the General Assembly has to dispose of the lands of the Crown is derived from this Act, and I do not suppose it has ever been doubted that, under that clause, the General Assembly had full power to sell, or let, or do anything they liked with those lands. Then follows the provision that until the General Assembly shall otherwise enact, the Queen is to regulate the sales, &c. That word "regulate" merely means the Queen shall provide how the lands shall be disposed of.

Richmond, J.—I could understand your argument if you could show that under the Regulations of 1853 the Governor reserved to himself the power of making reserves, and then that he did make this particular disposition of the public lands. But I cannot see that you can contend that the power to regulate is the power to dispose. The two things are quite distinct in my mind at present.

Mr. Allan.—In my view of the matter, the regulation gives ample power to dispose. It means that he may provide as to what is to be done with the lands, and it does not say whether by writing or by word of mouth. That gives ample power to him, or to the Queen, or to the General Assembly, as they may think, to dispose of the lands. The very fact of their disposition of the land regulates it. The Governor, or the Legislature, may make most ample provisions in writing, and publish them, as to what they shall do with the land; or the Governor, having the power to regulate, might, if anybody came to him, say by word of mouth, "I will give you the land for so much." The very fact of his saying "I will sell the land to you, or others, in that particular way," is regulating the disposition of it.

Johnston, J.—Surely it is a different power to regulate the sale of lands from the power to dispose of them without a check against gratuitous disposition, which was contended for before the passing of the Constitution Act? The regulation of these lands, surely, is not that they are to be given to the Natives for nothing? That is not regulation.

Richmond, J.—If you could show that after the Constitution Act passed any power survived from the Instructions of 1840 or 1846 to dispose of the lands in this way, your argument would be stronger; but clause 17 of chapter 13 of the Royal Instructions of 1846 does not seem to contemplate Native Reserves.

Johnston, J.—It is to be noticed that after the Constitution Act passed, the Public Reserves Act, in which the Governor was empowered to give lands to Superintendents, acknowledges the existence of Native Reserves.

Richmond, J.—They might have been made under the Australian Land Sales Act, or by the New Zealand Company. The Australian Land Sales Act enabled reserves to be made, and that Act was in force in New Zealand for a time; and besides that, there were reserves made by the New Zealand Company, so that there is enough to satisfy the term "reserves."

Mr. Allan.—We may fall back upon the instructions of 1846, or even earlier, for authority to make reserves, so long as those Instructions are not repugnant to the Constitution Act; and I contend that these reserves might have been made under the 7th section of the 13th chapter of the Instructions of 1846. There a very large power of making reserves is given, and amongst others we have "as places fit to be reserved as quays, landing-places, or otherwise."

Arney, C. J.—It is rather suggested by the wording of the section that the landing-places there mentioned are not landing-places for a particular race or class of people, but for all persons within a certain district.

Mr. Allan.—I say that these landing-places would be for the enjoyment of persons going there, and who, living in the Province, would be inhabitants of it.

Ward, J.—Yes; but the first letter of Mr. Domett says, "certain Natives who are in the habit of visiting the towns of Dunedin and Port Chalmers." How can you say they were a large portion of the inhabitants of the Province? Under which head of the 17th section do you say that these reserves would come supposing they were made for the purposes stated in that letter?

Richmond, J.—The whole of the inhabitants had an interest in providing accommodation for the aboriginal inhabitants, and the interest of the whole of the inhabitants may be involved in that. I suggest that as possibly an argument for you to use. The question of making provision for the access of the original sons of the country to the place which they had so long occupied may be one of great public importance.

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Johnston, J.—It is certainly for the interest of the public generally that such reserves as these should be made at towns.

Mr. Allan.—I should contend on that ground, certainly, that these reserves would come within the meaning of the 17th section. The Governor has clearly under that section power to make reserves for certain purposes, and I shall contend that the power then conferred upon him would be properly exercised if exercised strictly in reference to these letters. Persons coming to the Province would really be inhabitants of the place. It does not matter how long they might be there; and it does not matter, under the construction to be put upon that section, whether you show what number they were, or whether they were actually permanent inhabitants of the place or not. I submit that they should be treated as inhabitants while they are there. It has not been stated by the pleading that the houses here mentioned were not for the public utility. Therefore we must assume that they were, and that under the section the reserve could be made. I should also refer to "The Public Reserves Act, 1854," which recognizes the fact that reserves had been made, and were thereafter to be made.

Johnston, J.—You say that within the meaning of the 17th section the reserves had been made, and therefore the subsequent grant is in operation.

Mr. Allan.—I contend that if the Governor has made these reserves, and it appears on the face of the declaration that he did make them, they cannot afterwards, in anyway, be altered by any other disposition of them.

Ward, J.—Do you seriously contend that the Act recognizes every reserve, whether legal or illegal, made before it was passed?

Mr. Allan.—All that it is necessary for me to contend is, that the fact of "The Public Reserves Act, 1854," and "The Native Reserves Act, 1856," recognizing the existence of reserves, is prima facie evidence that those reserves were legally made. It is admitted on the record that these reserves were made, and the other side cannot raise as a ground of demurrer that the reserves have not been made, or were not made legally. They say, "You have not shown that the Governor has power to make reserves;" but I contend that if it is recognized by the Acts, and I have shown to the satisfaction of the Court that reservations could be made, that is enough for my purpose, and it is not essential that I should go on subsequently to show how those reserves should be made. If it was their intention to dispute our suggestion that the reserves were duly made, they should have taken objection to it on the declaration. I say that the power of the Governor is to be found in the general law of the Colony, and therefore need not be stated in the declaration.

Arney, C. J.—I suppose your argument is, that under the public law of the Colony the Governor had power to make the reserves, and, that being so, it is not necessary for you now to show the modus operandi.

Mr. Allan.—Of course I reserve to myself the right to contend that it is not necessary to go into the public law of the Colony upon the subject, and that upon this declaration we are not obliged to show how the reserves were made.

Richmond, J.—Your contention is that the Court should take judicial notice of the power of the Governor to make reserves, if your construction of the 17th section of chapter 13 of the Royal Instructions, 1846, is correct, and if those Instructions were the law of the land in 1853.

Mr. Allan.—I contend, as I have already stated, that upon this demurrer they have no right to dispute it, because if they intended to dispute it they should have raised the objection on the declaration.

Richmond, J.—The fifth ground of objection is rather argumentative; but it says that the declaration does not show that any valid trust for Native purposes was ever created in respect of the lands granted to the defendant. If it had stopped there it would have been wide enough to contend, first, that the Governor had no power, and, secondly, that if he had power, he did not properly exercise it; but it goes on to state that the Governor had not mero motu power to make reserves. I understood your contention to be that the defendant could not contest the exercise of the power, but merely its existence; he could not say "The power is not well exercised," but, "It does not exist. I would, however, call your attention to the seventh ground of objection, which goes more to the exercise of the power, and says that non constat the reservation was not temporary; that paragraph acknowledges, as it were, the power of the Governor, but says that it was not exercised the way you contend.

Mr. Allan.—But I say that supposing even they could raise such a ground of objection, it is not necessary that we should go on and show whether the reserve was for a temporary or permanent purpose. It is sufficient for us to allege that the reserves were duly made.

Richmond, J.—The reserves might have been for purposes which expired before the date of the grant, so that granting the land to the Superintendent of Otago would not be in derogation of any prior right created by the Crown, and therefore not repealable.

Arney, C.J.—The eighth objection points out how the trust, if it had existed, may have expired, and that there may be no more of the race for whom it would be used. However, the presumption being that human life continues for half a century, we must presume that this tribe is not extinct.

Mr. Allan.—Before going to a further stage, I would like to revert for a short time to the Constitution Act. The Court will observe that section 72 gives power to the General Assembly to regulate the sale of waste lands, and section 74 refers directly to the alienation of waste lands, amongst the exceptions to that clause being lands reserved for the use or benefit of the aboriginal inhabitants. Now, I contend that, supposing even the power was not given under the earlier Instructions, it is clearly given here; and if the General Assembly does not interfere, then the Crown has complete power to deal with the land as it thinks fit. Indeed, the General Assembly has acted throughout upon the view of the case that the power of regulating and dealing with the lands enables them to alienate or do as they like with it. All the subsequent powers given to Superintendents and others are derived from that interpretation; therefore I contend that under these two sections there was ample power given to the Queen or her Representative here, not only to sell or let the land, but to reserve it for the use of the Natives, and to give it away gratuitously if she wished. If, then, thè power has really been used, it would be valid under those two sections. I would also refer the Court to "The Native Lands Act, 1867," section 11, which says that the expression "Native Reserve" shall mean any land which falls page 183within the follewing descriptions; and then subsection 5 saya—"Lands appropriated by the Governor for the use or benefit of any aboriginal natives." So that we have ample power under the earlier Instructions, ample power under the Constitution Act, and further, various Acts recognizing as reserves lands appropriated by the Governor, and also recognizing his right to make, subsequent reservations. There is also "The Native Reserves Act, 1856," which gives power to appoint Commissioners to manage these lands and do things for the benefit of the Natives. I say then, there is ample statutory authority before the Court recognizing the power to make these reserves. There is also a suggestion on the record that the lands are affected with a trust in the hands of the Queen. Therefore the Queen is admitted by the defendant to be a trustee of lands for the benefit of the Natives, and being a trustee, it is a clear rule of law that where a person is created a trustee and accepts the trust, and there is admission of the acceptance of the trust, that trust cannot be renounced. Furthermore, if there was any subsequent act necessary to make the trust good, it was the duty of the Crown to perform that act, as it was trustee. Then, there is another point, and I say it is a most important point in the consideration of this case, that here we must consider the state of the pleading. The Crown has declared and the defendants have pleaded over, and not in the way of traverse, what would have been formerly called, before the passing of the Common Law Procedure Act, a plea, in confession and avoidance—that is a plea in answer to our declaration. Take, then, the record as it stands. Now, supposing we had not chosen to demur to these pleadings, but had joined issue upon them and had gone down to trial, if it was a good plea in confession and avoidance, then the defendants must have begun, and, unless they had proved their declaration, everything on our record must have been taken as true, and a verdict would have passed for us.

Johnston, J.—There you shift your ground, and say it is not an argumentative traverse?

Mr. Allan.—I merely say supposing it is a good plea. If it is a plea in confession and avoidance, all matters stated on the record are admitted, and supposing there was any defective pleading, then the defects in the pleading would be cured. Further, that this is a demurrer by us to their pleading, and if they take any objection at all it must be on general demurrer. There are a great many authorities for this, and I will refer your Honors first of all to Chitty on Pleadings, vol. i. 671a.

Johnston, J.—If you go to the next paragraph, you will find all this applies to defective allegations in the pleadings, and not to supplying an omission.

Mr. Allan.—I say it does cure this; that if there were other things, as they contend, which we ought to have inserted in order to show how the reserves were made, then, if it were necessary to insert those and they pleaded over, I say that aids our declaration. The plea itself admits that a reservation was made, for they go on to state something to show why it ought not to have been made. We contend that we have a good title, and the plea admits it. The plea does not deny that the reserves were made, but goes on to show why they should not have been made.

Johnston, J.—A defective description of title might be cured by their admission that there was such a title, but the non-traverse of it would not make a defective title good. I thought your contention was really that the statement of the title of reservation was good.

Mr. Allan.—Of course I contend that it is so, but say, supposing it shall be held not to be so, then it is cured by the course they have taken in pleading. The Court cannot admit any evidence to show that something was omitted, because they ought to have traversed that the reserves were properly made. We say we have made a good title here; but if they wish to show anything that we ought to have stated in addition, they cannot do it, because they ought to have traversed the declaration and not pleaded over. Therefore the Court will assume that the reserves were made, and all the formalities necessary to do so were complied with. I would call the attention of the Court to the King v. Mayor of York, 5 Term. Rep., E. B. 66; and Clarke v. King, 3 Barnwell and East. I contend, upon the authority of these cases, that the declaration is perfectly good, and that we have brought ourselves within the rules which I have laid down, because we have shown that an estate was created and is still in existence, and therefore the grant was made improperly and by mistake. In the ordinary way you cannot enforce a trust against the Crown except by petition, but in this case the Crown created its own trust. It set the lands apart, and whether they are affected by the ordinary doctrine of trusts or not, it is inconsistent with and derogatory to the Crown that it should afterwards make a grant inconsistent with that trust. In whatever way these lands were originally set apart is rendered comparatively unimportant by what took place subsequently.

Johnston, J.—You may say this, that whether it is an ordinary question of trust or not, the Crown has imposed upon itself a duty (I may be to some extent imperfect in respect to the remedy, but a duty recognized by the Acts and incumbent on the Crown to do what is necessary in the interest of the Natives), and it is inconsistent with that duty for the Crown afterwards to grant the land to other persons.

Mr. Allan.—That is really my argument, and it is really of little importance how the trust was created originally. It is a different thing from obtaining the land from the persons. The Queen herself holds the lands in trust for certain persons, and holding them in that way, certain duties are imposed upon her which cannot be departed from, and it would not be allowed for her to say, "I have got this property and have a right to give it to somebody else." The Crown has chosen to take that property and use it in a particular way, and is bound by all the doctrines of trusts to do its duty towards the person for whom it is trustee. I do not think I can put it stronger than this:—There is a right in the Crown recognized to set apart these lands for these purposes (it is admitted on the declaration that this right exists), that the Crown occupies fiduciary position in regard to these lands, and it imports the honor of the Crown that this trust should be carried out. The mere fact of giving away a certain estate in land would not be so strong as that by any means. Even if all the necessary formalities were not complied with (and there is nothing shown in the Acts of the Legislature as to what is absolutely necessary to be done), I contend that the mere fact of setting the lands apart is sufficient. If any subsequent acts are required on the part of the Crown to make that reservation perfect, the Crown, having taken the duty upon itself is bound to carry it out, and would not be entitled subsequently to make this Crown Grant, or if it made the grant it must be assumed that it was made in mistake. We say the plea is bad on several grounds. It alleges that the land was sold to the New Zealand Company by the Natives, and that afterwards some arrangements were entered into between page 184the Company and certain persons calling themselves the Otago Association, by which certain reserves were made; certain lands were withdrawn from sale, which subsequently the Otago Government occupied as sites for public buildings. The object of this setting apart of certain land is said to have been to enhance the value of the adjacent property of the Association; but I contend that there is nothing on the face of the plea amounting to a contract with the New Zealand Company. There is enough to show these had, but not enough to make this agreement binding on any persons subsequently taking the land. It is necessary to show that there was such a contract as the Court could give effect to, and there is nothing in the plea amounting to that. It amounts merely to this, that there was an agreement between the New Zealand Company and certain persons coming to New Zealand and settling in Dunedin, that certain lands should be used for the sites of public buildings, but that does not show that the Governor was bound to complete the matter. The New Zealand Company would have been carrying out their agreement if they had given any land there.

Johnston, J.—If the plea shows that before the time of reservation these lands were vested in the New Zealand Company, and if that Company had power to deal with them plenarily, how can the Crown deal with them afterwards?

Mr. Allan.—I say that the plea does not show that at all. It merely says, that there was some agreement that some land should be set apart for public purposes; I say this land was not parted with to the Otago Association; and the furthest point that the argument can be carried is this, that the New Zealand Company did not part with the land, but when they were selling land to certain persons (or offering land for sale, for I believe it was not purchased), they said they would withdraw certain lands for the purpose of making wharves and quays. There is nothing on the plea to show that the New Zealand Company parted with the land, and in fact they did not.

Richmond, J.—Your general contention about the plea is intelligible enough; you say the plea introduces a number of new facts, ergo, it is an affirmation plea. But it is bad as an affirmation plea here; the use of these new facts involves the denial of material facts stated in the declaration.

Johnston, J.—It is a statement of facts not inconsistent with the facts stated in the declaration, but the conclusion of law drawn from these facts is a wrong one.

Mr. Allan.—We say that it admits the reservation.

Richmond, J.—It does not appear on the face of the plea how the Company had a right to deal with the land at all. The deed of cession gave them no right to deal with the land, and there never was a right to make a deed of cession, as far as I see. I am aware that the New Zealand Company had liberty to deal with the Natives, but that would not give them the fee-simple of the land.

Mr. Allan.—No; and at the time they allege they withdrew these lands, they had no right to do so.

Richmond, J.—Then again there is another matter which probably we may have to go into. Supposing it is shown that the New Zealand Company could validly contract with the Otago Association, and there was an implied contract with the purchasers from the Association for the reservation of these Princes Street Reserves, that would become binding on the Crown under the cession of the rights of the Company in 1850. That would be against you, and is evidently the contention of the other side. You have contended that there is no such engagement as would be binding on the Crown to have the Princes Street Reserve open as water frontage; but you have to go farther and show that after July 1850, when the New Zealand Company Charter ceased, the Crown took these unappropriated lands, with liberty to deal with them under the Instructions of 1846. That is not by any means clear. Would it not be subject to the terms of purchase under the Constitution Act, which are recognized as affecting the demesne lands of the Crown? It is too much to assume that the Crown could deal with the unsold lands in the Otago Block in the same way as with the lands in Auckland, where it is quite clear there was no engagement with the New Zealand Company. I am not at all certain that chapter 13 of the Royal Instructions, 1846, would apply to the Otago Block.

Johnston, J.—Am I not right in saying that the agreement between the New Zealand Company and the Otago Association took place between the passing of the 10 and 11 Vict. c. 112, and the year 1850, when, by virtue of the performance of the conditions of section 19 of that Act, the Crown got possession of the New Zealand Company's title and estate subject to their contracts, and that this was a contract which passed to the Crown by virtue of their taking possession of the Company's estate?

Mr. Allan.—I do not admit that it was a contract, and I still contend that what they did at that time they had no right to do.

Richmond, J.—Upon the surrender of the Company's Charter, express provision upon this head was made by Additional Instructions, which controlled the Instructions of 1846. It seems necessary for you to show that, consistently with the engagement entered into by the New Zealand Company with the Otago Association, this reserve might be made. It is not enough to show that it might be made under chapter 13 of the Royal Instructions, 1846, but also that it was consistent with the engagement with the Otago Association to make it, if this engagement devolved upon the Crown.

Mr. Allan.—I contend that in the inception this is not a contract. Supposing it amounts to Anything having the ordinary meaning of a contract, the terms of it are not such as a party to it could have compelled the New Zealand Company to carry out. What does it amount to? Nothing more than this, that upon the agreement to sell lands, certain lands were to be used for public purposes. It is quite consistent with this, if it constitute an agreement that other hinds should be given than these. Supposing the Otago Association, or the persons who have bought these lands, could have called upon the New Zealand Company to give them a piece of land for the purpose of making a wharf or quay, it would not be absolutely essential, and they could not compel the New Zealand Company to give them this particular piece. That comes clearly within the doctrine of specific performance; that is, you cannot compel a party to perform a contract unless the contract is publicly known, and the parties are subject to the contract. There is no agreement here between persons now resident in Dunedin, who, by virtue of it, could call upon the Crown or the Otago Association to give them the land, if it was wanted for public purposes. The term "contract," which is used throughout in these page 185Acts of Parliament, does not relate to the mere setting apart of land, which the Crown had the power to do under all the Acts; but it means a contract with persons coming here as to the sale of land That is really a contract; and it is a misnomer to say that this was a contract because the New Zealand Company, in laying out the land for a town, may have said that a certain portion of it would be useful for public purposes; but that would not prevent the Crown from using this land as it chose.

Richmond, J.—Do you mean to say that the Crown could have established a High Church Settlement on the Princes Street Reserve? The question is a serious one, because it points to this, that the whole settlement is affected by the terms of purchase; that is what will be argued on the other side, and those terms will be used against you. No one conversant with the land laws or New Zealand will suppose that the lands in Otago and Canterbury are the same as Crown lands in other part of the Colony, even after they fell into the hands of the Crown, because they were subject to the contract with the settlers. The General Assembly has by section 78 of the Constitution Act prohibited the Crown from doing anything inconsistent with the contract of the Otago Association. It is within my recollction that there have been remonstrances against the Crown affecting to deal with lands within the Canterbury Block.

Mr. Allan.—But there a contract would exist, because the land was held out to be sold at a particular price. It is a matter well known that the Crown has taken possession of lands within the Otago and Canterbury Blocks. The rights of those two Associations were not permanent, but were only to last for a time.

Richmond, J.—They were in existence when this reserve was made.

Mr. Allan.—Not in 1853.

Richmond, J.—I do not recollect the exact date of the cessation of the Otago Association, but the Canterbury Association lasted for some time afterwards. The contracts were however in existence.

Mr. Allan.—That is, that the lands should be sold at a particular price.

Richmond, J.—Much more than that—including the whole scheme of education and religion.

Mr. Allan.—I say that the term "contract" refers to contracts for the sale of the land, and it would be preposterous to say that the Crown could not afterwards deal with the land which had not been sold, or which was for public purposes. In fact, "The Public Reserves Act, 1854," goes against that, for it says that all the lands which may have been granted for public purposes may be granted in a certain way to Superintendents of Provinces and others. On the 23rd November, 1852, the Otago Association ceased to have anything to do with the land. They never had a charter, and the Government would not give them one, because they did not comply with certain conditions; the Association had agreed to sell a certain quantity of land within a certain time, and they were unable to do so, and the Crown said "You have forfeited your rights, and we will resume the land."

Richmond, J.—Against that, you have section 78 of the Constitution Act specially providing for the observance of contracts.

Arney, C.J.—The contracts specially referred to were those contracts between the New Zealand Company and the Association.

Mr. Allan.—It also refers to the charter. If the Queen chooses she may give a charter to them, observing the contracts previously entered into. The Association were to get their charter only provided they did certain things; and failing that, the Crown resumed the land, and the right to deal with it under the 72nd section as any other land. I contend that upon the ordinary rules of law the contract set out in the plea does not show any contract binding upon the New Zealand Company or upon the Government of New Zealand. The Canterbury Association was put an end to at the same time, and directions were given that only the Crown should afterwards deal with the lands, under the Regulations of 1852. It cannot be maintained that the Crown is bound by any agreement when no agreement is set out. Again, what is the character of the land with which the Company was entitled to deal? It had been a constant fight between the Crown and the Company, the Crown saying, "We have a right to the land, and you have none, although you are dealing with it." Then the New Zealand Company's Colonization Act (10 and 11 Vict. c. 112) was passed, and was the first Act which gave the Company any power to deal with lands in New Zealand. By this Act the demesne lands of the Crown in New Munster were vested in the Company, but subject to certain restrictions, one of which is that they shall not sell or dispose of those lands except at a fixed price. I say it is contrary to fact, and contrary to the legislation over the land as pointed out here, to say that the New Zealand Company had absolute right to give away lands or to devote them to any purposes they might choose. The Crown says, "We will recognize any purchases you have made, and allow you to have land, or you may sell land vested in us, but you shall not sell it except at so much an acre. If you wish to set land apart for public purposes you may, but it must be under certain restrictions, because there may be reasons which would make it injurious to the rights of the Crown if you did with them as you chose. Therefore, if you wish to devote these lands you must convey them in trust to public persons, and in a manner sanctioned by the Governor." On the face of this plea it is shown that this reserve by the Company was made after the passing of that Act; and therefore, if it was to be a reserve which should receive such a character as could not be altered, they should have shown that the provisions of the Act were complied with, and this they do not show. I would also impress upon the Court, that the word "contract," which is so much relied on, occurs in this very Act; that if the Crown chooses, in consequence of the New Zealand Company not wishing to go on, and not being able to carry out the Act, then the Crown may resume the land, subject to these contracts. But then you must consider the word "contract" in reference to the Act, and it can be no contract which is not recognized by the Act. If the expression had occurred for the first time in some subsequent Act of Parliament it would make some difference, and my friend might have a stronger argument; but it occurs in the Act itself, and therefore these contracts are contracts subject to the conditions—"If you wish to part with the land you must not sell under 20s. an acre." It is true they were not Crown lands in the meantime, but that does not affect my argument, for they were Crown lands at the time this reserve of ours was made. Then, I say, our objections go further. True it is, if you have any case at all, your case is simply, as you say, that certain persons were called the Otago Association, or persons who came and resided there; but all that you dare allege upon your plea is, that from the time of the first settlers page 186coming this land was occupied by the Provincial Government for public purposes; and that is a contradiction in itself, for the early settlers came in 1848, and we know that there could not have been any Provincial Government until 1853.

Richmond, J.—There is no such body now in fact, although the Acts begin to speak of Provincial Governments. I observe that the Auckland Waste Land Regulations talk about a Provincial Government, and I think it a great pity that such looseness of language should be used. If they mean the Superintendent and his Executive Council, they should say so.

Mr. Allan.—I say this allegation on the plea is untrue on the face of it. Further, they do not connect the Provincial Government in any way with the Otago Association. There is nothing to show that the fact of the land being occupied by the Provincial Government (even if were so) proves that It was carrying out the purpose of this agreement, nor does it show that the Provincial Government of Otago could claim under the Otago Association. It is quite consistent with the plea that if the Otago Government were occupying this land they did so after it was reserved, and I believe that, so far from being on grant from the Crown, the people who were occupying this land at the time were paying rent for it. That, however, is not on the record. I say that the whole of the allegations in the plea admit the existence of these reserves, and, doing so, the plea is clearly bad, because the land could not afterwards be turned aside for other purposes. Upon every rule of pleading they have admitted on the record that the reserves were duly made, and having admitted that, whether they were made under mistake or not does not matter to us. There stand our reserves, and, according to the Public Reserves Act, you cannot call upon the Government afterwards to turn these reserves from the purposes for which they were set apart, and go further and say, "You admit on the face of your plea that these reserves were made; you must have known that, by the laws of New Zealand, Native Reserves having been made could not be set aside for other purposes; and therefore, in the face of the cases cited, you deceived the Governor when you told him he had power to give you this land. Furthermore, by omitting the fact in the Crown Grant that the reservation was made, you have also deceived the Governor." I submit, therefore, on these grounds, that the plea is bad in every part of it, and certainly that the two last objections are fatal; and I submit, also, for the reasons I have assigned, that our declaration is good.

Mr. Izard.—I do not propose to occupy the time of the Court at any considerable length in this matter. Nearly all of the points have been gone into by my learned friend, and it is only to one or two points that I shall specially call your Honors' attention. And first of all, with regard to the power of the Governor under the Royal Instructions, 1846, and the subsequent legislation to make such reserves. By the Royal Instructions, 1846, the Court will see that the Governor shall not have power to alienate lands of the Crown gratuitously except in certain cases. Then come the Royal Instructions of the 7th February, 1850, which are very expressive on the point, and which, after reciting the Instructions of 1846, go on to say, "Now, therefore, we do hereby repeal that part of our Instructions which prohibits the alienation of land gratuitously, so far as regards such naval or military officers, military pensioners, or aboriginal inhabitants as aforesaid"; so that at that time, so far as these Royal Instructions are concerned, that clause of the Instructions of 1846 which forbade the gratuitous alienation of the land is entirely abolished, and power is given to the Governor to alienate lands for the benefit of the aboriginal inhabitants. Then we have the Royal Instructions of 12th August, 1850, which say, "Now, therefore, know ye that we have revoked and determined, and do by these our Instructions, under our sign-manual and signet, revoke and determine, so much and such part only of the 13th chapter of the said Instructions as relates to the lands comprised in and affected by the aforesaid contracts between the New Zealand Company and the settlers at Wellington, Nelson, and New Plymouth, and the Associations of Otago and Canterbury, and so far as the same may be inconsistent with the said contracts respectively, or any part thereof." The Court will remember that by the 10 and 11 Vict. c. 112, the 13th chapter of those Instructions had been suspended within the Province of New Munster in all its provisions in relation to waste lands of the Crown. This being the course of legislation on the subject, we next come to the Constitution Act, which in express terms, by its first section, says, "The said Act, and all Charters, Letters Patent, Instructions, and Orders in Council issued in pursuance thereof, shall be and the same are hereby repealed, so far as the same are repugnant to or would prevent or interfere with the operation of this Act, or any Letters Patent or Instructions to be issued under authority or in pursuance of this Act;" so that all previous charters, &c., are repealed, and, by section 79, power is given to the Crown, to regulate and deal with the waste lands. That being so, we have "The Public Reserves Act, 1854," in the preamble of which the power of the Crown to make reserves is fully recognized. Next comes "The Native Reserves Act, 1856," in which the whole question of these Native Reserves is dealt with, and power is expressly given to the Governor to deal with such reserves. The first section gives power to appoint "Commissioners of Native Reserves," and to remove these Commissioners from time to time. The Act gives these Commissioners very great power in dealing with these reserves, but they are to act in regard to them in all respects under the Governor. This shows that the Legislature considered that the Governor had power to make these reserves, and, as a matter of fact, Proclamations under this very Act, appointing Commissioners, were published in the Gazette.

Johnston, J.—It is ex post facto.

Mr. Izard.—But it shows that the Governor did exercise the power of dealing with the land.

Arney, C.J.—Do I understand you to say that this Act alluded to these reserves by name?

Mr. Izard.—No; it treats of Native Reserves generally. I find, in a General Government Gazette, so late as 1865, a Proclamation appointing Commissioners to deal with these particular reserves.

Johnston, J.—How does that affect the pleadings?

Mr. Izard.—If the Proclamation bears on the face of it evidence that it refers to the same thing as our declaration, I submit that I may call the attention of the Court to it.

Richmond, J.—The mere opinion of the Crown upon the matter is nothing. It may be evidence of an Executive Act having been complied with, but it will not help you in the least degree.

Johnston, J.—It may tend to aid your allegation that the Letters Patent of 1866 were issued by mistake.

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Mr. Izard.—It is a matter which may be important to us in more ways than one. It shows that up to so late a date as 1865 the Crown had actually dealt with this land as a Nature Reserve. It is, so far as it goes, a declaration on the part of the Crown of the existence at that date of a claim to the land on the part of the Natives, consistent with the claim we have set out in our declaration. That is all I wish to refer to that Proclamation for. Tour Honors were asking, at an earlier period of the argument, for some authority on the question as to the declaration of trust and the way in which it might be made. The sort of trust we seek to set up in this case is created by the letters here set out. We do not confine ourselves to saying that the letters alone show the trust, but we say the letters, plus the allegation that the reserve was afterwards duly made, constitute in themselves a sufficient declaration of trust. But even if there had been no allegation that the reserves had afterwards been duly made, I contend that there is sufficient to show the existence of a trust. I would refer your Honors to Forster v. Hale, 3 Vesey.

Gresson, J.—That is between party and party.

Richmond, J.—You might embody Vesey and Vesey Junior without finding anything that would bear on the granting of Native lands in New Zealand. It is sui generis.

Johnston, J.—If the Crown has adopted a trust of a fiduciary character with regard to any lands, it cannot afterwards derogate from such trust.

Mr. Izard.—I do not think it is possible to find an authority bearing directly on a reservation of this kind, and we are driven to argue upon the analogy of cases between subject and subject. I do not suppose my learned friends on the other side would contend that this was not a good reservation on the letters followed by the Act. Besides it is not necessary for us to show that the reservation was made in writing. There is only one other point that I wish to touch upon, and that is the last ground of our demurrer. That is aimed at this, that they set out in their plea the existence of the Otago Association; that they say there was an agreement that certain lands should be set apart for wharves and quays for the benefit of persons purchasing land in the vicinity; but the plea does not go on to say that what has been done in this case is for the benefit of those persons, or for the benefit of the Otago Association; and we say that, consistently with their plea, this reservation on their part may be no benefit whatever to those persons, and may be even prejudicial to their rights and those of other of Her Majesty's subjects. They should have gone on to show that this was a beneficial reservation to them as claiming through the Otago Association. Consistently with their plea, this grant which we seek to overthrow may be just as hurtful to the Otago Association and those persons from whom they claim as we say it is to us. What they say is this, "We claim under the Otago Association;" but they do not go on to say that this was such a grant as the Otago Association were entitled to. Having justified under the Otago Association, and having got their grant, I submit that, to make their grant good in this point of view, they should have gone on to allege that it was such a grant as would have satisfied the terms of the Otago Association. On the face of the grant it might be consistent with some of the terms of contract with the Otago Association and still be inconsistent with others, and I say that they should have shown distinctly on the face of the plea, that it was such a grant as would be consistent with all. On these grounds I submit that the plea is bad and our declaration good.

Mr. Travers.—I would first call your Honor's attention to rule 214, in reference to this point. Whether any objections to this declaration are open beyond those of which notice has actually been given by the defendant, say it is open to me to suggest to the Court that there are objections in addition to those of which notice has been given. My friend has contended that inasmuch as the word "duly" appears in the declaration in regard to making this reserve, and as there is no absolute objection in terms to the declaration, on the ground that the word "duly" does not imply that everything was done which was necessary to create the reserve, we are therefore precluded from arguing that the reserve was not properly made.

Richmond, J.—His argument was, that it was open to you to contend that the Governor had not legal power to make the reserve, but it was not open to you to contend that the power had not been properly exercised.

Johnston, J.—This is in error, and the rules in error are laid down in the Court of Appeal Act. It would be well, however, for us to consider whether we are now in a position, as the Court below, in the argument of the demurrer to a plea, that notice of objections to the declaration should be given, and whether, this being an inquiry in error upon the whole record, we are not restricted to the grounds of error. It may be that under the practice in error you are in a better position than you would be in the Court below on a demurrer to the plea.

Mr. Travers.—I contend that even in a narrower position than that, the Court will look at every ground of objection; that we can sustain the judgment in error upon anything that appears upon the records. I submit it would be open to us to suggest any grounds of objection not given in the notice, although the Court might, perhaps, not allow them to be argued without the consent of the other side. The rule is this,—We are entitled to sustain the judgment given in the Court below upon any grounds we can advance, but the plaintiff in error is bound by his notice.

Johnston, J.—If so, it really comes to this, that the defendant in error is in a much better position than he was in the Court below. I particularly call the attention of the Court to this matter, as the Court may consider it desirable to make a rule giving the plaintiff in error as much fair play as the defendant.

Mr. Travers.—He has the right of reply.

Johnston, J—The most important objection may not have been given notice of, and the plaintiff may be called on suddenly to reply to it.

Mr. Travers.—I assume that any objection to the declaration is now fairly open to me.

Mr. Allan.—I say, of course, as I have always understood, that where error is brought the parties are confined to the matter under discussion.

Mr. Travers.—But it is the plaintiff who says there is error in this; the defendant says there is no error on the record.

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Arney, C.J.—That is presumably an answer to the objections already urged. The question is whether you are, within any cases of error, to adopt a practice similar to that which is established by rule 214 in respect to demurrers.

Richmond, J.—There is one observation which seems to settle the matter. The question before us is as to whether the Court below gave a proper judgment. Now the Court below may have given judgment against the declaration upon some ground not assigned in the defendant's notice of objections to the declaration. It would be absurd, then, for the Court here not to uphold the decision in the Court below on the grounds on which its judgment was given.

Mr. Travers.—The course I propose to take is this:—I wish first to show as a matter of pleading that the word "duly" is not a sufficient allegation as to the mode in which the trust is created, and I will cite to your Honors cases in which the construction of the word "duly" has been the special subject of decision. In the first place, to show that in cases in respect of trust it is absolutely necessary that all facts that are required to the creation of the trust should be specifically set out, I will cite The Queen v. Inhabitants of Keightly, 15 L. J., Magistrates Cases, 102. There the Judges all held that the word "duly" merely implies a conclusion of law, and that it would be necessary to support that conclusion, as a matter of pleading, by a statement of the facts from which the conclusion is drawn.

Johnston, J.—That applies to cases in which it could not be thrown overboard altogether, but non constat you could not throw "duly" overboard altogether here, and say that, in consequence of these Letters and Acts set forth, the land was duly reserved.

Mr. Travers.—The declaration shows some grounds for supposing that the Governor exercised the power which he had (if he had it), but I say that "duly" has no force in law. My learned friend appeared to rest a good deal upon the word, and to say that was sufficient to affirm the reservation. I submit that the provisions of an Act of Parliament be invoked for the purpose of showing the power to make the reserve, and also that the reserve was properly made I cite the case of Jackson v. North Wales Railway, 181 J. Chan. 91, in order to show the Court that the allegation of the existence of a trust is a mere conclusion in law, and that it is not sufficient unless the facts that constitute the trust are stated in the declaration. Now I submit that the Governor of the Colony has no power inherent in himself to do any Act whatsoever in relation to the waste lands of the Crown. He is a mere creature of the statute, and, by virtue of his position as Governor, has no power to deal with the waste lands of the Crown. His powers are to be gathered within the limits of certain documents, Royal Instructions Charters, and Statutes, and he has no power, in pursuance of his position as Governor, to do anything in relation to these lands. The main questions are, therefore, firstly, Were the lands which have been granted, and which are now the subject of discussion, at the time they are alleged to have been dealt with, under the control of the Governor, in pursuance of any Charter or Royal Instructions—were they demesne lands of the Crown within the purview of those charters or instructions? Secondly, If they were demesne lands of the Crown, was there any power to make reserves,—any statutory authority to make reserves for aboriginal natives? And, thirdly, were the powers properly exercised? Although it was intimated that the Statute of Frauds did not affect this question, I submit it may have an important bearing upon it, because if this be called a trust, then I shall submit that the Crown is equally bound as a subject by the Statute of Frauds. The Crown may be a trustee, and can create a trust, but it must do so under the great seal. The statute binds the Crown inasmuch as it provides that no trust shall be created unless there is legal evidence in the shape of a writing signed by the party who has the power to create the trust, and in regard to the Crown, that there must be the seal of the Crown to constitute the trust: No doubt if Her Majesty, by sign-manual, or by her Principal Secretary of State, had directed that certain lands should be set apart for the benefit of the people or for the Native race, and they were set apart, then the Crown—the Queen herself, I should say—would have created the trust, and any grant made afterwards would be voidable. But there is a broad distinction between the Queen under the sign manual directing that to be done, and a subordinate officer, such as the Governor of a Colony, doing it. And here it is not even shown that any subsequent act was done, by any duly qualified authority, to give effect to what was to be done on a mere recommendation, a proposal alleged to have been acceded to by the Governor. Even assuming for a moment that the Governor was in that respect an agent of the Crown, as I propose to show he was not, no formal act whatsoever was done, and no formal act could in any way be indicated by the word "duly," that would be binding on the Crown or affect the public. One little difficulty has arisen, as it appears to me, from this being sometimes called a trust—and if a trust, then these letters are supposed to be a declaration of trust—and sometimes a reserve. But there is a wide distinction between a trust for Natives and a reserve for public utility.

Johnston, J.—We must take it that reservation means something, and it means that this was set apart, and if so, this acceptance of a proposition or recommendation shows the purposes for which the lands were set apart. Then they say that the setting apart for those purposes amounts in principle to a trust.

Mr. Travers.—I submit that it is not so. The definition of a reserve, I shall submit, is this:— Land set apart or withdrawn, by some competent authority, from the ordinary course of dealing, under the provisions of, and in conformity with, some law authorizing such setting apart or withdrawal, the purposes for which the same has been set apart or withdrawn being also declared, of course assuming that the lands which are admitted to be converted into a reserve are lands which are within the power of the authority, seeking so to set them apart. Now I propose to test this reserve by that definition, and I have first to inquire,—Can these lands be legally appropriated to any such purpose as that suggested by my learned friend? I do not wish to weary your Honors by going into any of the older laws relating to dealing with the lands of the Crown, but I think I shall be able shortly to call attention to the documents bearing upon this question, and then I shall endeavour to show bow they will affect this question, looking to the date of the letters here set out. These Islands were originally divided into the Provinces of New Munster and New Ulster. New Munster was the scene of certain undertakings by the New Zealand Company and other Companies, and up to the cession of the New Zealand page 189Company's Charter the laws of the Crown were actually surrendered altogether in that Province, and it was only after the cession of the Company's Charter in 1850, that any part of those laws could be said to be in force in that settlement. After the passing of "The New Zealand Government Act, 1840," and up to July, 1850, what were termed the demesne lands of the Crown, though not granted, were absolutely by statute vested in the New Zealand Company. By statute of the Imperial Parliament, the demesne lands of the Crown in New Munster were vested in the New Zealand Company for certain purposes, so that the Crown had absolutely parted with them, and they were no longer in the sense of demesne lands of the Crown, the conveyance to the New Zealand Company and to the Canterbury Association being sufficient to transfer the estate. A grant was held to be necessary, but only for purposes of registration; and during that time, the only way to deal with demesne lands in New Munster was by the New Zealand Company, consistently with the trust. The Governor had no authority whatever over these lands except the authority which was necessary under the prerogative of the Crown for defence purposes; for the furtherance of trade and commerce, and so forth; that is to say, the Crown's right of pre-emption was waived in favour of the New Zealand Company; and if that Company had acquired any land from the Natives, they had under their charter the exclusive right of dealing with that land irrespective of the Crown. In 1850, when, on the 4th of July, the New Zealand Company surrendered their charter, the whole of the lands within the Province of New Munster reverted to the Crown, subject to such contracts and engagements as the New Zealand Company had made, and amongst other contracts which they did make, and which have been referred to in subsequent statutes, was the contract with the Otago Association to set aside amongst other lands those which constituted the site of the City of Dunedin, for purposes of settlement in connection with the proceedings of the Otago Association. That is stated in the plea. The Crown knowing this arrangement, issued to the Governor, on the 12th August, 1850, shortly after the surrender of the charter, certain Royal Instructions for the express purpose of preventing the land regulations contained in the Royal Instructions of 1846 from coming into operation within the boundaries of the land so handed over to the Canterbury Association and to the Otago Association. Your Honors will see, that immediately on the surrender of the charter, in July, 1850, the Land Regulations of 1846 would prime facie have come into operation throughout the whole Colony, but the Crown seeing that, issues these further Instructions: "And whereas it is apprehended that the provisions contained in the 13th chapter of the said Instructions are in certain respects inconsistent with the said contracts between the New Zealand Company and the said respective Settlers and Associations, and it is expedient that the said Instructions should be repealed, so far as the lands comprised in or affected by the said contracts, as far as the same may be inconsistent with the said contracts respectively, or any part thereof." Therefore the Royal instructions of 1846, so far as they were inconsistent with these contracts, were absolutely repealed, and not only were they not in force between the Crown and the Association, but the repealing Instructions go further and say they are not to be in force in regard to contracts with settlers. The matter thus continued in regard to the Otago Association until the revocation of its charter on the 23rd November, 1852, and during that time these Royal Instructions of 1846 had no force there. On the 17th January, 1853, less than two months after the surrender of their charter by the Association, the Constitution Act was promulgated in New Zealand. It was only during that time that the Royal Instructions of 1846 could be operated on for the purpose of dealing with the waste lands of the Crown in Otago. Accordingly, we say that was the time when this movement was initiated, because it began on the 9th December, when in all probability the first intelligence of the surrender of the charter reached the Colony. It shows that the Commissioner had his eye upon the matter, and knew what he was doing. He was advised, no doubt, that the Otago Association powers had lapsed, and that he was to take into his own hands (but only so far as he lawfully could, and subject to any existing contracts and engagements) the lands in Otago. But your Honors will observe that the lands which were purposed to be affected formed part of the Town of Dunedin, and one question which the Court will have to consider is whether in regard to the whole of the town of Dunedin there was not a contract between the New Zealand Company and the Otago Association and its settlers which could not be interfered with by the Crown. We find, in fact, that in the Constitution Act this is specially recognized; and it is singular enough that in the Constitution Act, notwithstanding the failure of the Otago Association to carry out its charter, it was the evident desire of the Crown that it should be carried out. Section 78 says, "It shall be lawful for Her Majesty for that purpose" (that is, for fulfilling the contracts) "to make provision by way of regulations to be contained in any Charter to be granted to the said Association for the disposal of the lands to which the said terms of purchase and pasturage relate, so far as the same are still in force as aforesaid, and for varying from time to time such regulations, with such consent by or on behalf of the said Association as in any such Charter or Instructions shall be specified, and for fixing the boundaries thereof, and for enabling the said Association to transfer its powers to the Provincial Council for the Province of Otago." These are remarkable words, because they of course [unclear: contemplat] the election of a Provincial Legislature, and presuppose the possibility of the Association transferring (as was done in the case of the Canterbury Association) all its powers of dealing with the block to the Provincial authorities. It is perfectly clear that at the time of the surrender of the New Zealand Company's Charter it was not the intention of the Crown to interfere with the Associations of Canterbury and Otago, which were then carrying out the work of colonization, and there was no intention to impose its own regulations with regard to the waste lands of the Crown on any portion of the blocks comprised within the operations of these two Associations. In March, 1853, the Governor proposed to issue land regulations, purporting to do so under Instructions supposed to have been issued to hint under the sign-manual. But the Governor had no power to issue these regulations, and the Instructions on which he relied for that power were kept from the Legislature until the 28th March, 1854, when it was necessary to have them ratified by an Act. These Instructions are absolutely silent as to any power of dealing with the waste lands of the Crown under any power delegated by the Constitution Act. The Governor, however, professing to have this power, issued the Regulations of March, 1853, and these were rendered valid afterwards by "The Waste Lands Act, 1854," mainly because they had been largely acted upon outside the Canterbury Association Block. These large quantities of land were acquired, at 10s. an acre, to the great disgust of page 190the Canterbury settlers, and it was absolutely necessary to validate the regulations, or the title created under them would have been invalid. It appears they were to come into operation over all lands outside these blocks within a certain time. There no mention of the blocks, and the inference is that they were to be excluded. We are remitted back therefore to this, that between November, 1852, and January, 1853, the Royal Instructions of 1846 might have been in operation but for the Constitution Act, the language of which precludes us from assuming that there was any power of dealing with these lands. For although that Act was not promulgated until January, 1853, it had, as I submit, an ex post facto operation, and saved the lands of the Otago Association. Therefore, as I submit, there was no power whatsoever in the Governor, nor was there, as I submit, in Her Majesty, any prerogative to interfere in the slightest degree with any of the lands within the limits of the town of Dunedin as laid down in the agreement between the New Zealand Company and the Otago Association. The declaration shows that the grant is for land in the town of Dunedin, and in the letter of Mr. Domett we have words "granting" to certain Natives who are the habit of visiting the town of Dunedin.

Richmond, J.-But how do we know that the town of Dunedin is within the Otago Association's land at all?

Mr. Travers.—There is nothing in the declaration which shows that the town of Dunedin was within the limits of the Otago Block.

Richmond, J.-Then how do we know that this land may not have come within the Instructions of 1846, as to the waste lands of the Colony?

Mr. Travers.—There is no doubt that on the face of the declaration itself there is nothing to show that the lands set apart for the town of Dunedin did form a portion of the lands in the agreement between the New Zealand Company and the Otago Association.

Richmond, J.—We have now to consider whether this declaration is good. If it does not disclose that this land is on the Otago Block, the Court may be compelled to hold that it came under the ordinary regulations for the waste lands of New Zealand.

Mr. Travers.—There then comes this question—Whether there was in force at the time of making this reserve any power to do so? I shall submit, in the first place, that all the land regulations in existence anterior to the passing of the Constitution Act were absolutely abrogated by that Act so far as they were repugnant to it. Of course, we are remitted to the consideration of that question of repugnance, and no doubt it is one full of difficulty. The real question is—Was there any substantial power, when the Constitution Act came into operation, left in the Governor under any previous regulations to deal with these lands as he wished. I submit that there was not, and that he had no such power under the Constitution Act, nor had he by virtue of any regulations framed under the provisions of that Act. If we have to go to the date of these letters, as the date at which this was supposed to be done, we must assume that the letters were written simultaneously, and immediately submitted for the Governor's approval. We have therefore to consider whether there was at that time any power to make the reserve; and if there was, whether it was properly, exercised. Now all the powers of dealing with the waste lands of the Crown anterior to the Constitution Act were those which were given in the 13th chapter of the Roya Instructions, 1846, section; 17. In considering those Instructions, I would ask your Honors first to look at the charter which accompanied them, sections 14 and 15:—"And we do hereby give and grant to the respective Governors of the said Provinces respectivelv, full power and authority to make and execute in our name and on our behalf, under the public seal of the said respective Provinces, grants of waste lands to us belonging within the same, either to private persons for their own use and benefit, or to any persons, bodies politic or corporate, in trust for the public uses of our subjects there resident or any of them: Provided always that, in the exercise of the power last aforesaid, the respective Governors of the said Provinces respectively shall strictly conform to and observe the rules for their guidance prescribed in and by the said Instructions hereinbefore mentioned." Therefore, the Governor, while there is power given to him to execute such grants, is bound to exercise this power in conformity with the Instructions given to him, and in the Instructions we find that he is prohibited from granting the land gratuitously to any body or for less than a certain price. That the 14th section of the 13th chapter of the Royal Instructions was afterwards repealed to a certain extent by additional Instructions issued on the 7th February, 1850, and the language of the repeal is peculiar: "Now, therefore, we do hereby revoke that part of our said instructions which prohibits the alienation of land gratuitously, so far as regards such naval and military officers, military pensioners, or aboriginal inhabitants as aforesaid." So far, therefore, any restrictions on the power to alienate lands was abrogated, but the Instructions remain in force in regard to the aboriginal inhabitants, because there is no mention of them in the subsequent passage: "And wo do hereby authorize you to allow to such officers all such remission of purchase money, or other privileges in the acquisition of land as they may from time to time be entitled to." Then the Crown goes on to say,—"And we do hereby further authorize and direct you from time to time to make such arrangements as you may be directed by us to make, or on our behalf by one of our Principal Secretaries of State, for the settlement on Crown lands within the Colony of military pensioners sent out as aforesaid, and of any of the aboriginal inhabitants of the Colony." So that, I submit, the proper construction of this is that the only gratuitous grant of land which could be then made was such at would further the settlement upon the waste lands of the Crown of military settlers and aboriginal natives.

We now come to the 17th section of the 13th chapter of the Royal Instructions, and I shall point out that there is no pretence for saying that the reserve here, even if a grant under the Seal of the Crown was given, can be treated as a grant within the modified construction of that section. The Governor, who has no power in himself, but is the creature of the statute, is directed by the charter, in carrying out the Royal Instructions, to observe those Instructions strictly. Now what are these Instructions? The Instructions presuppose the making of maps and charts, and the performance of a variety of acts which are set forth in the commencement of this chapter; and then this particular section says, "The Governor or Lieutenant-Governor of any such Province, with the advice of the Executive Council thereof"—mark that—"shall in such charts as aforesaid cause to be marked out and distinguished all such lands situate within and forming part of the demesne of the Crown as may appear best adapted for the site of future towns," and so on; "or otherwise for any purposes of public page 191utility, convenience, or enjoyment, in which the whole population of the Province, or any large number, of the inhabitants thereof, may have a common interest; all of which lands shall be called and known by the name of reserved lands." That is to say, upon the face of the charts under which the dealings with the waste lands of the Crown are to take place, the Governor, with the advice of the Executive Council, is to lay off towns, and in those towns quays and wharves, and everything that is to conduce to the benefit of the public and the furtherance of trade and so forth, but not to lay off special places for Natives, who may visit the town of Dunedin at times, to build houses upon them. I do not know how my learned friend can contend that the suggestions in the letter came within the instructions in that letter; nor has it been shown that these places have been laid off on the charts. The object is that they should be so laid off for the information of the public, in order that there should be no improper dealing with the lands.

Richmond, J.—That section of the Instructions appears to some extent to solve the questions so often asked, what reserved are, and how should they be made?

Mr. Travers.—To some extent; but the Governor has no arbitrary power to set apart tracts of land for the Natives, and there is no pretence for treating this as land coming within that section, or as coming within any of the clauses of reserves which are mentioned. As my friend pointed out, the 18th section says what is to be done with these reserved lands. With the exception of those reserved for the sites of towns, they may be conveyed to bodies corporate or politic for public uses. But there is no power to convey the sites of towns; and as the major includes the minor, there is no power to convey a portion of the sites. That is to say, a town is to be laid off, and in laying it off for purposes of sale, no doubt portions of the land would be set apart for various purposes, as part of the general scheme; but this particular piece does not come in any degree within the category of lands included in the 17th section. I am now assuming that these Instructions were the law in force in New Zealand from the time of the surrender of the New Zealand Company's Charter to the promulgation of the Constitution Act, and that they extended to the town of Dunedin. Assuming this to be so, there is nothing on the face of the law to authorize the Governor ex mero motu to do what he has professed to do, as we gather from these letters. If this can in any degree be treated as a reserve, within the terms of the 17th section, the declaration is bad, because it does not show that it was made with the advice of his Executive Council. It does not show that in making the proposed reserve he followed the terms of the Royal Instructions, firstly, in obtaining the consent of his Executive Council; and secondly, in laying it out on the charts and plans. Reserves must be for some purpose of public utility to the Province at large, or to some large number of the inhabitants, whereas the object of this reserve is to give an exclusive interest to a certain number, of Natives who were in the habit of visiting Dunedin for certain purposes. Therefore I submit there is nothing to show that the reserve was properly made.

Arney, C.J.—The Court does not think it is necessary to ask you to carry your argument further against the declaration, Mr. Travers. We will hear Mr. Allan in support of it; and if he should show the Court that the writ is even set put, we will hear you further.

Mr. Allan.—I contend that nothing that my friend has urged is an answer to the declaration, because I have argued that if it were necessary to show in the declaration how the reserve was made, the omission has been cured by pleading over. I say that we must look at the whole record as it stands, and any defeats in the declaration are cured by what has been done; because this pleading, being in the nature of confession and avoidance, admits that the reserve has been made. Supposing we took issues on that plea and had gone to trial, and the issues had all been found, there would not be any necessity for one to plead anything, and it would be for the defendants to prove their case. It would not be necessary that the validity of the reserve should be called in question, but it would be for them to show that by a previous contract a duty was imposed upon the Governor to make this grants, and that it had been duly made. The whole question would have to be taken as clearly admitting that the reserve was properly made, but that the Governor had a right, under a previous contract, to make this grant. If they failed in proving that, my declaration must succeed, and all allegations it must be good, and if I had got a contract it could not afterwards be upset in arrest of judgment. I press upon your Honors that in a case like this the whole record must be looked at, and therefore the defect which they say exists is supplied by the pleading over.

Johnston, J.—Their great point is that by law the Governor had not power to make the reserve, and surely the [unclear: mission] to show that power is not cured by pleading over.

Mr. Allan.—I say by their choosing to plead over they admit that the reserve was made; and if they want to show that it was not properly made, they must take the course we have adopted, and apply that the deed should be cancelled, or at any rate that what was done should be set aside. The plea and declaration must be taken together; and I say that, according to the undoubted rules of pleading, if the objection amounts to anything, it is that the title is pleaded defectively, and they supply by their plea what they say is wanting.

Arney, C.J.—We do not know that there is a good title, and therefore we do not know that it is a case which comes within the rule of a good title defectively pleaded.

Johnston, J.—What we ask you to answer is this; Mr. Travers says that, under the condition of things at the time of this alleged reserve being made, the Governor had no power to make reserves such as this, assuming it to be a reserve for the purpose recommended.

Mr. Allan.—I understand the, argument to be this, that the Governor had no power because there was no power given over the lands in Otago.

Arney, C.J.—Mr. Travers took us through the earlier Statutes and Instructions, up to the Constitution Act, in order to show us that under the provisions of these Statutes and Instructions there was no power in the Governor to make this reserve.

Mr. Allan.—We will consider then, first of all, whether the Governor had, or the Sovereign had, or the Sovereign or Legislature delegated to the Governor by any positive acts, the power to make these reserves. We say that under section 17 of chapter 13 of the Royal Instructions of 1846, power was given to the Governor to do so. That section is quite large enough to give him the power—"or otherwise for any purposes of public utility, convenience, or enjoyment, in which either the whole page 192population of the Province, or any large number of the inhabitants thereof, may have a common interest."

Johnston, J.—You will find that, instead of being in terms of that section, this reserve is "for certain aboriginal inhabitants visiting the place."

Arney, C.J.—There is nothing said about the advice of the Executive Council, as required by the section.

Gresson, J.—How do you make out that the requisite formalities have been complied with?

Mr. Allan.—I am entitled to fall back upon the roles of pleading, and say that it would be a title defectively pleaded which is cured by their pleading over.

Johnston, J.—Surely their point is that the Governor had no power by law to make such a condition of things as that you rely on? Surely you cannot say that pleading over will cure that?

Mr. Allan.—I say we are not bound to rely solely on this. We must look at the whole object and intention of the Legislatures of England and New Zealand.

Johnston, J.—But Mr. Travers says "I have brought before you the whole of the law which might give the Governor power to do this; I have shown that it does not give that power, and I challenge the other side to show the contrary."

Mr. Allan.—The Governor may make provision for a large number of the inhabitants of a Province; and assuming for a moment that these are a large number of the inhabitants, then I say I am next bound to show the formalities. I have not set out that the reserves should be made in this way or that, but I say generally that reserves were made. If I can show to the Court in any way that the Legislature has recognized these reserves, or that they can be made under this particular section, then the fact that certain formalities are not shown to have been complied with does not vitiate the title. Will your Honors concede to me that if these formalities were set out, this section would be amply sufficient?

Johnston, J.—Most certainly not.

Mr. Allan.—Then we may consider the case in this way. Does the Legislature recognize that reserves such as this can be made, and have been made?

Arney, C.J.—If you would turn to the language of that section and point out how you would bring this class of lands within those mentioned, then I should feel obliged to you. I have been looking earnestly myself for the source of those reserves, and am anxious to see how they can be brought within the land there described. Assuming this class of land to be for public utility, convenience, or enjoyment, in which a large number of the inhabitants of these demesne lands have a common interest, one cannot entirely disregard the 18th section, which provides for their being made the subject of a trust. However, presuming that these persons constitute a large number of the inhabitants, you may argue that "The Public Reserves Act, 1854, "does appear to acknowledge that reserves for Native inhabitants are equivalent to Native Reserves.

Mr. Allan.—It does not appear from these letters what number of inhabitants there might be. They might be few or large, and I have a right to assume that they were large. If it is admitted that under this section Native Reserves could be made, then I say that the whole purview of this declaration will show the power of the Governor to make these reserves. The contention, as I understood, was that he could not make reserves at all; but if it is admitted that reserves can be made, then a considerable progress has been made in my argument. I say the Natives must be looked upon, and have throughout been looked upon by the Legislature, as the original inhabitants of the place, entitled to be treated with as much favour as those who came and got their land from them. There is nothing on the face of these letters to exclude these lands from the classes of lands treated of in this section. The letters do not show that the number of the Natives might not be large; on the contrary, we are not to suppose that the Governor would be moved by his officers to make accommodation for two or three Natives, or that he would make such provision except for a large number of the inhabitants.

Arney, C.J.—Mr. Travers gives you the largest benefit you can derive from that. He says it means a large number of the general body of inhabitants, but does not mean a particular [unclear: c] to the exclusion of other classes.

Mr. Allan.—It would not make the grant bad because it was a grant for Natives alone.

Arney, C.J.—The argument is, that even if it was for the Natives generally it would be bad,' because it is contended that the Governor has not power to select a particular class.

Mr. Allan.—I say that argument is not tenable. I say these words will not bear that interpretation because they are for any large number. Now, although they may be all Natives yet their number may be considerable.

Arney, C.J.—Section 18 goes against such a proposition, for it says the land may be conveyed to a body politic or corporate for public uses.

Richmond, J.—There is no doubt that it might be of the highest public interest, even if a few Natives only visited the place. It might be of the highest interest to the whole Colony, and especially to the North Island, that the Natives in the extreme South should be decently treated; but the difficulty in your way is, that where there are clauses in Acts or Royal Instructions enabling the Governor and Executive Council to make reserves, those provisions should be complied with. It has been urged here that this is for particular individuals, but I confess that makes not the slightest impression on my mind at present. I do not think that it should be considered as for certain persons; and I think that, looking at the whole series of letters, the fair construction is that it was a general Native Reserve which was intended to be made. But the main question pressing upon the majority of the Court is as to the actual existence of the power, and, if that existed, as to its having been duly exercised.

Mr. Allan.—I contend that there would be power to make these reserves under that section, and that the letters of Mr. Mantell and Mr. Domett are sufficiently ample to show that such reserves might be made within that section. No particular names are specified, nor is the number limited. If a list of names was set out, no doubt their argument would be stronger, but such is not the case. Then page 193comes the question as to the necessity for pleading that section, and I say it is not necessary. It is not necessary to plead the law.

Johnston, J.—But supposing the law has given A. B. with the consent of C. D. power to do a certain thing, which power A. B. had not got, surely you would allege that A. B., with the consent and approval of C. D., did it?

Mr. Allan.—In that case I fall back upon my old argument, that the defect is cured by pleading over. I say they admit by implication here, that the formalities were complied with, because throughout their pleading they admit that the reserve was made, and was really a valid reserve. But they try to get rid of it in this way, that through some previous contract, or some mistake in the recommendation of Mr. Mantell, the reserve should not have been made. They say, "We quite admit that the Governor has the power to make it, if something has not occurred before; but something has occurred, because by a previous contract between the Otago Association and the New Zealand Company, the land has been taken in a certain way, and therefore the Governor should not have made this reserve." They do not say that the Governor has no right to make a reserve at all; they clearly admit his right to do so in the 11th paragraph of their plea. But supposing this case would not come under the 17th section, I go further and say, we must look at what has taken place since. In the 74th section of the Constitution Act there is a clear admission by the Legislature that reserves can be made for aboriginal natives. Then comes "The Public Reserves Act, 1854," by which it is expressly provided that the Governor shall have power to deal with the lands belonging to the Crown and convert them to every purpose "except such of the said lands as shall have been and now are or may hereafter be reserved for purposes of military defence," &c., "or for the benefit of the Native inhabitants of said Colony." We have next the Native Reserves Act, which recites that reserves have been made, and provides for the management of those reserves; and then we have the Native Lands Act expressly saying that the Native Reserves shall mean lands appropriated by the Governor for the use of any aboriginal natives. Now what can all these separate clauses and recitals mean? They must mean that there was some power somewhere to make reserves for Natives; they must mean that the Governor, even if he had no direct power under an Act, thought it for the benefit of the aboriginal natives that reserves should be made, and could make them. I say it was clearly the intention of the Imperial Legislature, and of the Legislature here, that such reserves should be made.

Johnston, J.—Are you now suggesting that the Governor or Crown was some authority in regard to the matter beyond the law?

Mr. Allan.—I am suggesting this, that if the Governor chooses to appropriate these lands in trust, his power to do so is recognized by the Legislature, and it is law.

Johnston, J.—He can do as he likes with what lands? With waste lands? Then cui bono all these Instructions?

Mr. Allan.—Then what is the use of these Acts? Are we to suppose that the Legislature was so ignorant or neglectful of the public interest as to pass Acts recognizing the Governor's power in that respect when he had not got it? The Legislature says, "If you choose to give the Natives these reserves, they will be given, and they can be administered in a certain way and cannot be alienated."

Johnston, J.—Then it amounts to this, that anything the Governor did, without any authority whatever, is ratified by the recitals in these Acts?

Mr. Allan.—But these recitals must have had some meaning, or they would not nave been put in.

Johnston, J.—They might apply to such reserves as were made properly under the 13th chapter of the Royal Instructions, 1846, namely, with the advice of the Executive Council.

Mr. Allan.—I will refer your Honors also to "The Waste Lands Act, 1858," section 11, which clearly recognizes the Governor's power to fulfil engagements. This is an engagement and even more, for it is a trust of which there is evidence, and under that Act it must be complied with. Then there is another point which I suggested early in the argument, and which I must press again here. In all the cases in reference to Crown Grants, there is an admission that the Crown clearly intended to give away what it did, but by some previous deed or instrument the right to do so was taken away from the Crown. Then the allegation is, that the Governor made these reserves, and that he afterwards, by mistake, not intending to grant them, granted them; that I say, clearly enough upsets the grant. I do not care whether the Governor had the right or not to make the reserves. I say that it is clearly slated by the Crown in this record that a trust was made, and it is not necessary to show that the actual instrument was a valid one, and not to be impeached. As the declaration is put before the Court, there is enough to upset their deed, whether I show that this reserve is made validly or not. It was never the intention to give this land to the people of Otago; but by mistake it was given, and therefore the grant which gave it is invalid.

Arney, C.J.—The Court [unclear: ider] it better to dispose of this at once, because we are of opinion that the declaration is bad. Assuming that there was power in the Governor to make reserves of this description for the use of the aboriginal inhabitants, and that this particular reservation comes within the powers that he possesses, and assuming that those powers are referable to the 17th clause of the 13th chapter of the Royal Instructions of 1846, it is my opinion that the declaration ought to show that the Governor was acting legally, and that the reservation was made within the law. The declaration merely sets out certain facts, which are to be treated as assisting the allegation that these lands had a trust fixed upon them, and showing that the Governor had authority to make reserves. I think the declaration is defective in regard to the making of the reserves, and that defect is not aided by the general allegation that the reserve was "duly" made, nor does it show that it was impressed with a trust These are mere allegations in law, and no more. Then it is said that the defect is cared by the pleading over. That might be the case if in the pleas there was any express averment that supplied the defects, but I fail to find any such averment. The averment in the 11th paragraph of the plea amounts simply to this, that the recommendations of Mr. Mantell were made in ignorance. I cannot see how such an averment can be said to supplement the defective allegations in the declaration, and make the averment of "duly" page 194made equivalent to an averment of the reserve having been made in accordance with the requirements of the law.

Johnston, J.—As far as I understand the case, the only two grounds on which it has been suggested that this reservation could be valid are—First, that the making of the reserves might come under the 17th section of the 13th chapter of the Royal Instructions, 1846; and secondly, if not, that inasmuch as other statutes bearing on the subject have spoken of "reserves" as reserves made by the Governor, it must be assumed that he had power to make them. I need hardly refer to the argument of the learned Counsel for the plaintiff in error as to the construction to be put upon the recital in the Constitution Act, that therefore the power must be taken to exist; but I may say, that even if the learned Counsel had shown that the Governor had such power, it cannot for a moment be contended that the Governor had unlimited license to do what he liked with the waste lands of the Crown. The learned Connsel being asked to support the declaration, does so by saying that the allegation of reservation is supportable under the 17th section of the 13th chapter of the Royal Instructions, 1846, and I for one should be very sorry to say that such a grant could not be so supported. I can very well understand that the granting of land to Natives at European towns (possibly to Natives resident in the neighbourhood who necessarily would have business in the town), might be not only for their advantage but for the advantage of the community generally. Therefore I do not for a moment doubt that it would be possible to make a grant to a body of Natives (not merely particular Natives, but a body of Natives inhabiting the district) for some such purposes as those alleged, and that such a grant might come within the spirit and language of the 17th section; but in order to bring it within that cection it must be shown that the title was conveyed by those who had a right to convey it. The power to do so is not given to the Governor alone, but it is to the Governor or Lieutenant-Governor of the Province, with the advice and consent of the Executive Council. Therefore, should it be alleged in pleading that there was a title, it certainly would be necessary to show that the making of the reserves was by the Governor, with the advice of the Executive Council. Now there is no allegation that it was so done, and it is only contended that it is not inconsistent with the reserve having been made with the advice of the Executive Council. The declaration does not say that this was submitted to the Council, and that they approved of it. It is merely stated in the letter of Mr. Domett which is set forth, that His Excellency the Governor approved of the reserve being made. That I consider to be a substantial omission, showing a defect in the title under the 17th section. That is to say, supposing it might have been done by deed or otherwise, if it was de facto done by the Governor without the consent of the Executive Council the deed would be void. Therefore there ought to have been an allegation that such consent had been obtained. It is then contended that there are some allegations in the plea which would help to cure the omission. I am not prepared to say that this is a kind of omission which could be cured by plea, although it might be by verdict; but granting for a moment that it is, I am clearly of opinion that this is not' merely a formal omission, as not stating a good title, but it is a substantial defect in setting up a title which has not been proved to be good. Then, giving the fullest respect to the few authorities that can be cited on the subject, and which all relate to old times, a plea or any of its allegations can only be appealed to if there is an express allegation, as for example in this case, that the thing was done by the Governor, with the advice of his Executive Council. No such allegation exists, and it is very doubtful whether there is any ground for the contention in the declaration that the reserve was made. Again, looking at the terms of the 17th section of the 13th chapter of the Royal Instructions, 1846, I see that the mode of making the reservation is indicated. That probably ought to have been set out in the pleading, although it may be that the doctrine of pleading over would be a good answer to some extent, at all events. It may be said also that it was not so essential a matter as to make it absolutely necessary to state it in the title. The subject having arisen in the early part of the argument, I put a question to the learned Counsel on the matter, but have failed to receive an answer. I find it now answered to a considerable extent in the 17th section, for that shows what making a reserve is. It shows that the act of reservation is the particular mode of setting apart for the benefit of the public: "The Governor or Lieutenant-Governor of any such Province, with the advice and consent of the Executive Council thereof, shall, in such chart as aforesaid, cause to be marked out and distinguished all such lands situated within, and forming part of the demesne of the Crown as may appear best adapted for the site of future towns, Ac., &&, or otherwise for any purposes cf public utility, convenience, or enjoyment, in which either the whole population of the Province or any large number of the inhabitants thereof may have a common interest; all of which lands shall be called and known by the name of Reserve hinds."We have therefore the act of reservation necessary under the section, namely, the marking and distinguishing on the statutory charts. Now, it may be that if the objection taken to the declaration had been that this mode of statutory reservation ought to have been set out and was not, then I think it might fairly have been argued, within the scope of the authorities cited by the learned Counsel for the plaintiff in error, that the allegation in the plea that the reserves were made de facto might have been sufficient to show that they were made according to law. However it is not necessary to decide that point now. I am only drawing attention to the distinction between that which is a formal omission in the setting out of a good title, and the substantial omission which omits to show the operation of the acts done. Under the circumstances the Court has no option but to hold that the declaration is bad. I do not think it follows that the result pointed out by the learned Counsel is likely to take place, namely, that by holding this declaration to be bad we should be affirming that the Governor has no power to make such reserves, or that there are no reserves made by law such as were contemplated by the recital to the Constitution Act, by the Public Reserves Act, and by the Native Reserves Act.

Gresson, J.—I merely have to say that I concur in the opinion expressed by His Honor the Chief Justice, and by my learned brother Johnston, and also in the proposition laid down by the learned Counsel for the defendant in error. I think it was incumbent on the plaintiff to show that the Governor had power to make this reserve, and, if he had that power, that it was duly exercised. I consider that he has failed to show both, and I do not think that the defect in the declaration is cured page 195by the pleading over. I concur with my brother Johnston that it is quite possible that these reserves might have come within the character of reserves which, under the 13th chapter of the Royal Instructions, 1846, it might have been open to make, assuming that the Governor had the power. I do not see that the fect of the words" certain Natives" being used in this first letter set out here, when the word "Natives" is used in the subsequent letter, would have shown that the purpose was of a character for which a reserve could not be made, but I think that upon the other branches of the case the plaintiff has wholly failed.

Richmond, J.—I have only to observe that in this case the Court has necessarily assumed that the power of the Governor, with the advice of the Executive Council, to make such reserves as these depended upon the Royal Instructions of 1846. I believe I express the opinion of the whole Court when I say that, although we have necessarily pressed upon that point, wo have, in the course of the argument of which we could take no notice, felt that the Royal Instructions, 1846, did not regulate the matter. But we are obliged to consider the declaration upon the assumption that the Governor's power in the matter would be derived from those Instructions. There is no allegation upon the face of the declaration showing that the lands in contest formed part of the Otago Block. Had it anywhere appeared upon that part of the record which we have had to consider that such was the case, then, no doubt, the case would have been open to a different construction. It is not likely, however, that that would have profited the plaintiff in any way.