The Queen (by Her Attorney-General for New Zealand) v. George Clarke (United Kingdom)

VXZ ~ O O ~ E , 77 REG. 2’. CLBRKE [Is49, l S S l ]

fendants ought to be piaced in the same situation, as if there had been a verdict

for them in the 5rst instalice : and there being no jury a t Calcutta, the Court being

both Judge and jury; it would, tlierefore, be out of all question to grant a nen

trial. The verdict must, therefore, be entered for the Defendants, in both cases.

By Orders in Couucil, bearing date the 30th day of July, 1849, it was ordered,

that the Judgments of the Supreme Court of Fort William io Bengal, be aiid the

same were thereby reTersed, a id that verdicts be entered for the Defendants 111 the

said causes or actions.

[Mew’ Dig. tit. BILLS OF EXCHANGE, C. CAPACITY AND AUTHORITY- OF PARTIE&,

1. Agen t s ; tit. COLONY, 1x1. Awmrds TO PRIVY COUNCIL, 6. Y ~ i n

Privy Cowncil Ack, 6. PmcZice, h. What points rimy 6 e mi%sed; tit. PRIXCIPAL

AND AGENT, 11. POWER OF ATTOXNEY, C. Exteibt of ~ ~ t ~ ~ r ~ ~ ~ C o n ~ e ? ~ ~ e ~ .

S.C. 6 Moo. Ind. Ap. 1.; 13 Jur. 945. On point as to construction of

Power of Attorney, Dist. ~ 0 ~ ~ ~ ~ 7 ~ e 9 ~ ~ ~ ~ C o o d o o v. Ratson, 1884, 9 bpp. Cas. 561,

held not t o lay dovn principle of cons~~.uct~on, Lewis v. ale, 1886, 55

L.T. 180.1

[77] ON APPEAL FROM THE SUPREME COUBT AT ATJCKLAND.

NEW ZEALAND.

The QUEEN (by Her Attorrrey-General for New Zealand),-Az~~elZant; GEORGE

CLARlE;E,-Respofiden2* [July 6, 1849, and May 16, 1SSll.

Eeard EE parte.

~ ~ ~ e ~ e . - ~ r I i e t ~ e r the Governor of the Colony of New Zealand, has, tinder his

general authority, as such Governor, vested in him, SO riiuclz of the preroga-

tive of the Crown, as relates to the making of grants of waste lands within

thx Cuiony? f7 MOO, P.C. 83, 841.

A grant of lands made by the Governor to a land c l ~ i i ~ ~ a n t , founded upon the

r e ~ o n i m e ~ ~ ~ ~ & t i o ~ ~ cox~~~~i i i ed n the report of a Comr~~issioner, such grant em-

bracing a quantity of lnnd exceeding the aruourit prescribed by Ordinanca,

Sess. I, Xo. 2, of 1842. Held, in sti7.e fraezas, void, and judgment given f o r

the Crown [? Moo. P.C. 83, $41.

This was a proceeding in scirre facias, to annul a grant of land, made by the

Governor of the Tslaiids of New Zealand, in the name of the Crown, in favour of

the Respondent, George Clarke, his heirs aiid assigns, by IIer Majesty’s Attorney-

General €or the Coloiiy 04 New Zealand, by virtue of a warrant under the haiid of

the Geveriior and &lomn?ander-in-Ch~~f of the Islands of Nea7 Zealand, and issued

under the public seal of tlie Islands. The writ recited, that by certain deeds of grant,

dated the 16th of May, IS.14, arid signed by Robert Pit2 Roy, Esquire, then Governor,

and signed with the public seal of the Colony, certain por-[78]-tions or parcels of

lalid in the deeds more particularly described, amounting in the whole to 5800

acres. were granted unto the R ~ s p o n d e ~ t , his heirs and assigns: and reciting,

that Her Hajests Pias given to understand that the grants were issued un la~r f~ i l~y ,

and contrary to the provisions of a certain Ordinance, Sess. 1, No. 2 (passed 9th

June, 1841), and tbat the sane ought to be declared void and annulled, and the

Sheriff was commanded to make known to the Respondent, that he was to appear

liefore the Court to show why the deeds of grant so made to him, ought not t o be

declared void, and annulled.

The Respondent having appeared to the writ, the Attorney-General declared in

stipe facias agaiiist him. The declaration alleged, that the grant of the 16th of

May, purpisrted to conmy t~ the Respondent, his heirs and assigns, all that allat-

* Present : The Riglit Eon. Dr. L u s h i n ~ o n , the Right Hon. T. ~ ~ i n b e r t o n Lei&,

Sir John dervis, Knt., and Sir Edward Ryan, lint.

PO8

REG. ‘Us GLABKL [1849, 18511 VI1 ~ O O ~ E , 79

ment or parcel of land, said to contain -1000 acres, more or less, situated between

Waimate and Nobianger; that the 4000 acres, comprised in and purported to be

granted by the grant were claimed by the Respondent, as having been purchased

by him from certain of the natiyes of that country, before the proclamation of the

Queen’s sovereignty over the Islands; that the claim of the Respondent was duly

referred for i~~ves t i~a t io i i , pursuant to the provisions of the Land Claims Ordin-

ance, Sess, 1, No. 2, to two Conimissioners, Godfrey and Richmond, who duly

heard and examined the same, and on the 13th of May, 1843, reported upon the

same, for the information and guidance of the officer for the time being adminis-

tering the government of the Colony: that the said Cornmissioiiers Were not [79]

authorised by the Governor in Council to recommend a grant of land to the Re

spondent, exceediiig 2560 acres ; that the Commissioners, by their report dated

13th day of &lay, 1843, recomnniended that a portion only of the land claimed,

namely, 2560 acres, should be granted to the ~espoiident ; that the report -as

confirmed by the Officer a d ~ i i n i s t ~ r i n ~ the Government, for whow infornlaT~o11

and guidance the same report %as made, and that the confirmation of the report

was published in the “Xew Zealand Governnient Gazette.” o f the 21st of June,

1843 ; that subsequently, on the 16th of May, 1844, the grant thereinbefore nien-

tioned was made by Robert Fitz Roy, Esquire, the then Governor of the Colony of

New Zealand, to the Responde~t ; and the ~ t torney-Gener~l thereby further said,

that the Grant of the 16th of May, 1844, ought to be declared void, annulled, and

set aside for the following reasons:--1st. Because the grani, was contrary to the

Comniissioners’ report so made and confirmed as aforesaid ; 2ndly. Because no

greater quantity than 2B60 acres of land could be granted to any claimant under

the provisions o i the Land Clainis Ordinance, except upon the reconmiendation

of the Commissioners who heard and ermniined the claini, in manlier prescribed

by the said Ordinance, being specially authorised thereto by the Governor, with

the advice of‘ the Executive Council.

To this declaration, the Eespondent pleaded, that sL~bse~~ueiit~y to the reference

to, and the report of, the Commissioners, and on the 1st of May, 1844, Robert Fitz

Roy, Esquire, the then Governor, referred the claim of the Respondent to Fitz-

gerald, a Cornmissioner duly appointed under an Ordinance, Sms. 3, [go] No. 3,

intituled ‘’ Land Claims Amendment Ordinance,” wlio, on the 2nd of May, 1844,

sent in to Robert Fitz Roy, Esquire, a report, whereby Fitzgerald reconiniended

that the Respondent should be allowed Crown grants for 5500 acres, less excep-

tions. And the Respondent further said, that the 4000 acres comprised in the deed

of grant, were part of the 5500 acres in the Report mentioned, and that the deed

of grant was made in pursuance of the report of the last-mentioned Commissioner.

The Attorney-General filed a demurrer to this plea, by reason, that the plea

was insufficient in law, for the following reasons: 1st. That the Commissioner,

Fitxgerald, was not, nor was any single Conimissioner, authorised by the provisions

of the Land Claims Ame~dI~ient Ordinance, Sess. 3, No. 3, to re-hear clainis, or

to reverse reports already duly heard, investigated and reported upon

by two Commissioners. pursuant to the provisions of the Land Claims

Ordinance, Sess. 1, Ro. 2, which he had not heard and esaniined in manner pre-

scribed by that Ordinance. h d l y . That the single Commissioner, Fitzgerald, was

not, IIOT was any single Commissioner, authorised to report upon claims to land

under the Lands Clainiri Ordinance, Sess. 1, 30. 2. wliich he had not heard and

examined in manner prescribed by the Ordinance. 3rdly. That it’ was not

alleged, in the plea, that the Commissioner, Fitzgerald, was specially authorised

by the Governor in Council to recommend a greater quantity than 2500 acres of

land to be granted to the Respondent.

It was admitted by the partics that the report and recommendation of the

Commissioner, Fitzgerald, wcre not preceded by, or made in pursuance of, any

[SI] special authorit,y given for that purpose by the Governor, wiik the advice of

the Executive Council, rn required by the Land Claims Ordinance, and i t was

agreed thak this a d ~ i s s i o ~ should have the same effect in all respect@ as if it, had

been made in the body of tihe pleadings.

The Supreme Court upon the hearing of the demurrer, gave jtidpient for the

Respondent, upon the: following grounds :-First ; that the New Zealand Charter

P.C. 11. 809 26a

TtII ~OORE, 82 REG. 21, CLARKE [1849, 185x1

of 1840 (a) placed in the hands o f the Governor ~ a ~ o I t g other things), so much of

the Royal prerogat~\~e as related to the making of grarits of waste lands. Second.

That srrch p r ~ ~ ~ ~ ~ a t j ~ e could only b taken away or restrained within the Colony.

by the express pvords of an Ordinance or Sta>tutc. Thirdly. That the Land Claims

Ordinance, not oiily coiitained no such express words r e s t r a ~ n ~ i i ~ the exercise of

the p re roga t~~e , so vested in the Goverrior, but cor~tained a clarrse expressly

saving the p r e r o ~ a t ~ v e ; and, ~ o u ~ t ~ ~ l y ~ that a l t h o ~ ~ ~ ~ ~ the o v e r ~ ~ o ~ , Fitz Boy, had

departed from the; spirit of the Ordinalice? in making a graut of more than 2500

acres, upon a report whi& was inconsistent vith the ~ ~ d i n a ~ i ~ e , yet he could,

E821 in the absence o f any false ~ u g ~ e s t ~ o n by the grantee h i ~ ~ e l f , ~ e g a ~ ~ y make

such a grant, arid for these reasons the Supreme Gnnrt held, that 110 sufficient iegxl

grouitd had been disclosed for avoiding thc deed of grant.

The ~ ~ o ~ n e ~ - ~ e n e r a ~ , upon Petition, applied (6th duly, 1849) for leave to

appeal direct to Her ~ ~ ~ ~ e ~ t y in Council, from this judgment, which was granted.

The ~ e s p o n d e i ~ ~ did not tippear, and the appeal now came on for hearing, ex

pan%?.

The ~ t t o r ~ i ~ ~ ~ ~ ~ ~ ~ e r a l (Sir Ale ander G o c ~ b u ~ ~ i ~ , and Mr. W. N. Wekby, in

support of tlie appeal.-The deed of the 16th of May, 1844. granting to the Be-

spondent 4000 acres of land, i s altogether void. It p u r ~ o r t ~ o grant a greater

~u&nt i ty of land than could be granted by law. Section 3 of the Land C~ainls

~ n l e n d m e ~ ~ t Ordinance, Sess. 1, No. 2, expressly p r o ~ ~ d e s , that no grant of land

shall be ~ e c o ~ ~ e n d e d by the Coni~~ssioners, which shall exceed, in extent, 2560

?icres, unless specially authorized by the Governor with the advice of t;tle Executive

Council, In t h i s case it i s adni~tted by the ~ ~ e a d ~ ~ ~ ~ s , that there was no such

authority : but the ~espondent relies upon a ~ ~ b s e ~ L ~ e n t Ordinance, Sess. 2, No. 14.

By this ~ r d i I ~ a n c ~ , so much of Ordinance, Sess. I, No. 2, as restricts grants of land

to 2560 acres, was repealed. This Ordinance, however, ca~inot be relied upon by

the ~ e s p o ~ ~ d e n t , as authorizing the grant, as it newr had the effect of law in the

Co~o~iy, not having beta allowed by the Queen in Counc~l in ~ n g ~ a n d , as was neces-

sary to gim it the force of law. C # I o ~ ~ a l Acts are not vaIid til1 allowed by tbe

Queen in Council. 1831 The eonsequei~ce of the disallo~ance of this- ~ K , d ~ n a n ~ e ,

was the reTival of the Ordinance, Sess. 1, No. 2. A grant, to be wlid, nmst bo

made upon the report of two ~ o ~ i ~ ~ s s i o i ~ e r s . R re, it was made upon the report

of a single G o ~ n i ~ s s ~ o ~ i e r , ia p ~ ~ s ~ ~ a n c e of the p r o v ~ s ~ o ~ ~ s f O r d i ~ ~ ~ n c e , Sess. 3,

Bo, 3. That, O s d ~ n ~ n c e bowever does not au~horize a single ~ o ~ ~ i i s s i o n e r to re-

hear cLainiR, or to reverse reports already beard and reported by two ~ o ~ ~ ~ ~ ~ s ~ ~ o ~ ~ ~ r ~ ,

pursuant to O ~ ~ d ~ ~ i a n c e , Sess. I, Bo. 2, which Iiad not been heard and detesniined

in the manrier p r ~ s c r i ~ ~ e d by this latter Ordi~ance. A deed of grant upoii such B

report was an exercise of a power which the law did not allow. The recamnienda-

tion being illegal, it follows, that the grant founded upon it, was also ilhgaI and

void, It i s not preter~ded that the ~ o m ~ i s s ~ o n e r was ~pec ia~ ly authorized by the

Governor, with t he advice of the Executive Council, to ~ ~ o n i ~ e n d a greater quan-

tity of land than 2560 acres, to be granted to the Respondent: the Respondent

rests his title upon the ~rdii iance, Sess. 3, No. 3. It is clear, that upon these

grounds this j ~ ~ d ~ r ~ ~ e ~ i t cannot stand.--[Dr. ~ u s ~ i ~ x I ~ ~ n : The j ~ d ~ ~ ~ i ~ n t of the Court

below, proceeds upon the ground, that the Governor ~,epi.esent~ii~ the Crowx1, had

authority to n i ah this grant, ~ i i d e ~ e ~ ~ d e n t . ~ y of the Ordinances.]-He has no such

power. A Govermr af a Colony i s not ~~ivested with all the p r e r o ~ ~ ~ ~ v ~ of the

Crown, The power of ~ s a n t i i i ~ land i s part of the ~)rerogative of the Crown. The

(a) The Charter of 1840, so far a~ it relates to *be powers coilferred on the

Governor of Sew ~ e a ~ a n d , i s as follows:--" And we do hereby give and grant to

the Gvverizor of our said Coloriy of New ~ e a ~ a i ~ d tor the time being, full power

and a ~ t h o r i t ~ in our name and on our behalf, but subject, uever~lieless, to s u c l ~

p r o v ~ s ~ ~ n s 8s may be in that resptxt c o i i t a ~ n ~ ~ 1x1 any instruct~ons which may

from time to time be addressed to him by US f o r that pilrpom, to make and execute

in our name and on our behalf, under the pubXic Seal of the said Colony, grants of

3vaste land us b ~ ~ o n ~ i n g within the same to private persous, for their oawn use

betiefit, or to any persons O r bodies politic Or corporate in trust for the ~ ~ i ~ l j G

uses of our subjects there resident, or any of them."

,

.-- --

810

EAST INDIA CO, 21. ODITCHURN PAUL f1649J VI1 MOQRE, 84

Governor’s power is limited by his Co~niission, and tbe Eoyal instr~~ctions. In

this case. nioreover, the Ordinance expressly limits the Governor’s power, for it says,

that all titles to land, acquired by purchase from the natives, shall be wholly void,

except such as are @4] allowed in virtue of proceed~ngs i~~s t i tu ted under the

Ordinantes, and in conformity l o them. The Respondent in his answer to the

declaratioil does not rely upon the grant, as emanating from the Governor by virtue

of any authority inherent i n him in h i s capacity as Governor, he expressly justifies

under Ordinance Sess. 3, No. 3.

Judgment was delivered, as follows, by

The Right Hon. T. Beinberton Leigh (May 15, 1851).-Their Lordships have

looked carefully t ~ ~ r o u ~ ~ i the papers in this case, and they tire of opinion, that the

judgment cannot be supported.

This i s a case, in which a grani has been made by the Governor of New Zealand,

under an Ordinaiice passed Go give effect to the report of a C o ~ ~ ~ ~ i i s s i o i i issued in

pursuance of a previous Ordinance. That report mas admitted by the Judges to

be incorrsisteqt with the Ordinance under which i t was made, and that so far, there-

fore, as the grmt professed to be in coi~firniation of that report, it woutd necessarily

fall to the gronnd. They were of opinion, that i n a s ~ L i c ~ ~ as there is a provision in

the Statilte, 3 and 4 Vict., c. 62, under which the Charter of I840 was granted, that

i t shall not, affect the prerogative of thd Crown, the grant rniglit take effect under

the general authority on the part of the Governor to make grants ; but we are clearly

of opinion that, Tvhatever the authority of the Goveriror might be, this is not a grant

professing or intended to be made, as a niatter of bounty or grace, from the Crown,

but it is only intended as a confirmation of that report, which was niade under the

a u ~ h o r i ~ y of the Ordinance. The, grant i s founded upoii the report, and the report

is [$SI founded upon the Ordinance, It is clearly contrary to the ternis of the

Ordinance, and, therefore, tile grant must fall, and the jud,menl upon the sei7-e

fac ias must be for the Croi.in.

[&Xcws’ Dig. tit. ~ R O ~ ~ ~ ; D. crC-0. i~~ GRANT. As to propriety of proceeding by

scire facias to annul grants of Crown Laadj., see IE. v. ~~~~~~~~~ 1865, L.R. 1

P.C. SI; 3 bXoo. 1°C. N.S. 439.1

ON APPEAL FROM THE SIJPREME COUBT O F J‘CIDICATURE AT FORT

WILLIAM, IN BENGAL.

The EAST INDIA COMPANr,---dpz~cUalat~; O ~ I T C ~ ~ R ~ P A U ~ , - ~ ~ S ~ O ~ ~ ~ ? Z ~ . *

[Dec. 5, 6, 18491.

The Statute of L i ~ i t a t ~ o n s , 21 Jac. I., e. 16, extends to India [? &loo. P.C. 1001,

The Statute 9 Geo. IV., c, 14, (eJrtended to India by the Iridian Act., KO. XIV. of

1840,) held to apply to an action pending in the Supreme Court at the tinie of

its i n t r o d u c t ~ o ~ ~ into India I[? Moo. P.C. 1133.

In assumpsit, tlie breach of a contract is the cause of action, and the Statute of

Limitations runs from the time of the breach, and not from the fime of the

refusal to perform the contract [? Moo. P.G. 1111.

In 1522, A. purchased at a Government sale, at Calcutta, a quantity of salt,

part of a larger portion then lying in the warehouse of the vendors (the

Government) where the salt was to be delivered. By the conditions of sale,

it was declared, that on payment of the pu rchase -~~o~~ey th purchaser

should be fu r~ i~shed with permits to enable him to take possession of the

salt ; there was also a stipulation that the salt purchased, should be cleared

from the p l s e of delivery mithin twelve months from the day of sale, other-

* Present : Lord Langdafe, Lord Campbell, the Right Eon. Dr. Lushington, and

the Right Hon. T. Pembertorz Leigh. Assessor-Sir Edward Ryan, Knt,

811