COURT OF APPEAL, WELLINGTON.

>.V" . TCKSDAY, 313T OcTOTOI?, 1805. -h 3?H3 Court ra-opencd at JO a.m. , •'" -PitBSENT.— Sir G-. Arney, Knt., Chief Justice • JMr. Justice Johnston, Mr. Justice Clresson, and •„ Mr, Justice Chapman. -'- JPQftES Y- TUE CHURCH THOI'F.RTr TRUSTEES (CANTERIIDKI"). This was a ppecial easo staled by consent and by order of His Honor Mr. Justice Gresson, mir•auanfc fco Hide 41-1 of the General Eules of pro>^eedure"of tliis Court. • ' J - •-^Gfe»-pl4mtiff is a gentleman residing at CluistXehurch, in thc I'rovince of Canterbury.

The defendants are a body corporate, incor--1 porated under the name of thc Church Property I Trustees. The Canterbury Association Lands Acts, L6 and 1-1 Vict., cap 70, and 14 aud 15 Vict. cap. 81, shall bo read with and considered to form part of this special case. Tho parcel of land which is the subject ot the question between the plaintiff and defendants is part of thc land described in the schedule to the first of the said Acts of Parliament, and there is no evidence that ifc was reserved under the eighth 1 section of the second of the said Acts. By deed bearing date the 31sfc day of October, 1852, and mado between the Canterbury Association of the ono part and one Charles Berjew Fooks of the other part, the land in question was demised and leased to the eaid Charles Berjew Fooks, his executors, administrators, and assigns, for thc term of twenty-one years, from tho 21st day of November, 1853, at fche yearly rental of Is per acre during tho first two years of the said term ; 5s pcr acre during the next succeeding twelve vears of thc said term; and 7s per acre during "the residue of tho said term, which deed was duly registered in thc Registry of Deeds forthe Province of Canterbury, on the 17th day of October, 1853. _ , By deed dated tho Uth day of March 1856, and made betweon the said Canterbury Association of tho one parfc, and the defendants of fche other part, tho parcel of laud in question was conveyed and assured by the said Canterbury Association unto the defendants and their successors for ever. j The defendants received rent JJunder the said lease to Charles Berjew Fooks for some time after I the date of this conveyance. I In or about thc month of April, 1860, the dc- ' fondants by their agents agreed with the said Charles Berjew Fooks should have an extension of the term of the said lease upon condition that Lhe said lessee should pay an increased rent for the said land from and after fche first day of December, 1859. Under thc agreement the increased rent agreed to was paid by the said Charles Berjew Fooks up fco the first day of March 18G1, but no fresh lease waa ever executed. By dccdKlated the 27th day of November, 1860 and 'made between the said Charles Berjew Fooks of thc one parfc and ihe plaintiff of the other part, the said parcel 'of land was assigned or otherwise assured unto tho said Charles Edward Fooks, his executors, administrators, and assigns for all the 1 rest and residue of the said term i'or whieh the • same was vested in the said Charles Berjew Fooks upon certain trusts (inter alia), for thc benefit of fcho creditors of the said Charles Berjew Fooks, ' with remainder to the wifc of thc said Charles Berjew Fooks for hor separate use. i In the month of August, 1862, tho rent of thc said premises having fallen into arrear sinco the first, day of Mitrch, 1861, the defendants authorised 1 their bailiff to distrain for the arrears due to thorn ' up to tho first day of June, 1862, bufc no distress 1 was found upon the said lands. In thc month of Marcli, 1863 the defendants commenced an action for the recovery of the pos- ' scsion of the property against fche plaintiff for tho > recovery of the possession of the said lands and i the declaration in the said action was in the words and figures following — Between The Church Property Trustees Plaintiffs L And 1 Charles Edward Fooks Defendant s The 27th day of March, 1863. The plaintiffs, by Charles William Wyatt, and William Thomas Locke Travers, their solicitors, say — ■ 1. Thafc by a deed dated the 31sfc day of Oc- , tober, 1852,' and made between fche Canterbury , Association for founding a settlement in New Zealaud, of the one -part, and Charles Berjew Fooks of the other parfc, the said Canterbury Association, demised to the .said Charles Berjew Fooks all that parcel of rural land containing by admeasurement two hundred a;res or thereabouts, situate in fche Christchurch district of tho said Province, and numbered 325, on the map of the said Association, setting oufc and describing the rural land iu the said district with the rights, casements and appurtenances thereunto belonging was demised unto the said Charles Berjew Fooks, his executors, administrators, and assigns, for thc term of 21 years, from the lsfc day of November, • 1852, at the yearly renfc of one shilling por acre during tiie first two years of the said term, and of five shillings pcr acre, 'for lho next twelve years of thc said term, and of soven shillings por acre for the nexfc ' twelve years of the said term, and of seven shillings per acre for the re -sidiie of the said term, and subject to certain covenants and conditions therein expressed or implied, and hy the lessee his executors, administrators, and assigns to be observed and performed. 2. That by a certain' deed dated the 27th day of November, 1860, and madc between the said Charles Berjew Fooks of thc one pai-t, and the said Charles Edward Fooks of the other parfc ; the said hereditaments demised fco tho said Charles Berjew Fooks, by the said deod of the 31st day of October, 3852, wero assigned fco fche said Charles Edward Fooks for the residue of the said term of twenty -one years. 3. Thafc neither of the said deeds is in the poa.-ess.iou of tho plaintiffs. •1. Tlm; by a certain deed dated the fourteenth day of March, 1856, and mach: between the said Canterbury Association of the one part and thc plaintiffs of the other pari, thc said Association granted to Iho plaintiffs and their successors for ever thc hereditaments demised by the said deed of lease of tho thirty- first day of October, 1852. 5. That on the first day of August, 1562, there was actually duo and owing to the plaintiffs by way of rout of (he said lauds and hcredits lho sum of .Cl2O, being rent area of the said laud and hcredits. 6. That fcho plaintiffs on or about- thc 16th day of August, 1862, disliv.inedupon the said land and hcredits in respect of the said rent so due and owing' as albr-waid, but there was no sufficient distress found upou the said hind and hcredits lo satisfy (he said rent, and there remained due and owing in respect of the said rent so due on the said first day of August, 1862, as aforesaid, the sum of £120 being rent in arrear upon thc said land, and thc came is tall duo and owing to the plu nil ills. 1: That Mie said Charley Edward Fooks. the defendant is now in the actual possession of thc said laud and hereditament •«. Wherefore the plaintiffs claim to have possession of the said land and hereditaments. Thc defendant in the said action suffered judgment to go by default- for want of appcai-imco and pica ther.'to, and upon nuch judgment a writ of //. ; -v.-r.-? faci -ts possessionem was issu-jd, and irule;-, mul l*y vir! ne thereof, (lie Chun-h pvop-.-i-fy l: , ti*M.--v* wr-iv p'aced in thc possession uf the said promise,-;, and thoy duly registered a memorial off I lie judgment iu ejectment on thc 21-th dav of ! July, ISC3. 'I The said pl-iin liff having, after the registration of lhe said judgn ent tendered to the defendants : all arrears of rent due in respect of the said premises and all' costs occasioned by the said pro- ■ ceedings iu ejectment, aud (he defendants having refused to accept tho same, the plaintiff, on or ( about the nineteenth day of Augiuf, 1863, coin- * commenced an action in this Honorable Court J against tho defend.ii tB for relief against fche said ] forfeiture and tho ji dgmonfc obtained by the said -J recited action .in rosy eet thereof, and the plaintiff j claims fchat upon paymont by him of all such ] arrears of rent, and of such costs as may bo found < duo and owing (o fcho defendants in respect of the ! said land and action of ejectment, the plaintiff i may be relieved from tho forfeiture incurred by j non-payment .of rent-, and may bc lefc into pos- j session of and retain tlie said lands and premises, x aud thafc the plaintiff nay have auch furfcher and t other reli* l' as the nature and circumstances o i

I this easo may require and to this Honorable Court shall- seem- meet. ' • No memorial of this suit has been registered j under the Registration of Deeds Ordinance. | After thc coinmcnccinent of this suit, the i defendants by dtcd, dated the 17fch day of February, 1861, demised thc said lands to one Henry William Packer for thc term of twentyone yoars, which lease was subsequently surrendered. The defendants then by deed, dated tho 30th day of May, 1864, demised the said parcol of land to one Morice Bing, for the term of twentyone years, at a certain rental, and the said Morice Bing was immediately on the execution of the said lease placed in possession of the said land, and is now in possession thereof. The lease to Packer, and subsequent surrender, and also the lease to Bing, have beon duly registered, pursuant to Registration of Deeds Ordinance. It is contended by the plaintiff that under the circumstances aforesaid he is entitled to relief, and on the other hand, it is contended by the defendants that under the circumstances afore- ■ said the Court cannot give tho plaintiff any relief. Thc question for tho opinion of fche Court is whether the plaintiff has any right- to relief either afc law or in equity under the facts herein stated. J If the plaintiff be entitled to relief, then the Court to make such decree as the circumstances of fche case requiro. If nofc, then fche action fco be dismissed with co3t3> . . - i-, Ifc is nofc intended to raiseany question founded ■ on the powers of a Provincial Council. Thc Court to bo at liberty to look at any of tho doou- ■ ments referred to in fche case iu the possession of 1 either party or upon the records of the Court. i Mr. Garrick, with him Dr. Forster, for plaintiff. Mr. Travers for defendants. Mr. Garrick having sfcatcd tho case on tho part of the plaintiff, was about to commence his argument, when — Tho Chief Justice said : Mr. Garrick, ifc appears i to fche Court that there is, prima facie, a ground tor relief. We had better, therefore, hear Mr. Travers first. You, of course, will have tho reply. Mr. Travera said that the claim in this case, so i far as ifc was disclosed, was for relief from forfei- , ture, and founded upon the Statute 4, Geo. 11. , i cap. 28, and in exercising the power of granting 5 relief, this Court was limited to thc same powers 3 possessed by the Court of Chancery in England, 3 inasmuch as this Court derives those powers from ■s a statute, which, in express terms, gives to it thc f equitable jurisdiction of the Court of Chancery , in England. That, therefore, this Court could 3 not entertain an application founded upon thc old doctrines oC tke Court o£ Chancery- in England, i inasmuch as tho application of those doctrines ) had boen expressly narrowed by the statute. The 1 first case decided under tho statute Goo. 11. i which he should refer to was Wadman v. Cal- ? craft, in Vesey, jun. j in which the principlo undor which relief was granted was fully set oufc and s acted upon. The object of the statute was fco - limit tho period within whicii relief could be > sought to six months after execution executed, bufc 1 ifc was questionable whether tho New Zealand Cons veyancing Ordinance, did not substitute something else for fcho relief to be given, under fcho i statute Geo. 11. It was important, moreover, to consider particularly in reference to ihe facts of t this case, that tho above statute does not require that a new lease should be granted, bufc remits 1 the tenant to his original lease. Now, in tliis , case the leaso which formed the foundation of the plaintill's alleged right was void ab initio, inas- • much as ifc was made by the Canterbiuy Associa- ■ tion to the assignor of tho plaintiff, without; any power whatsoever of doing so. The Canterbury Association, under 13 and 14 Viet., cap. 70, had power as delegates or Attornoys of the Crown to sell waste lands of tho Crown, and to cxecuto certain specific forms of assurance, but. had no power whatever of binding thc Crown by any other form of alienation or contract. By the 14 and 15 Vict., cap. 84, they had the further power of making reserves for specific purposes, thc effect of which was to vest the land reserved in them in fee simple, leaving them at liberty to deal with I it in like manner as any other owner in fee simple, bufc in this case ifc was expressly admitted thafc the lands in question had not been so reserved, and therefore tho lease musfc rest for its validity j upon. 13 and 14 Vict., cap. 70, if that statute could be held to supporfc it. The defendants in j this ease purchased from the Crown, subsequently to the date of thc granting of the lease, and rcreceived a complete title under the last mentioned Btatute, and inasmuch as the lease was void as against them, they might at onco have ejected the plaintiff. But they received rent, and thus established the relation of landlord and tenant between themselves and thc plaintiff. This, however, could not bc held to sot up fcho lease, because ifc was void, and nofc merely voidable. It is admitted, howevei 1 , by thc case, that an agreement was made between tho defendants and the original lessee for an extension of the term at an increased rent, and this would have entitled lho plaintiff to call for a specific performance of that agreement, more particularly as, afc the time ifc was mado, ho was in possession, and it became immaterial to consider under what title ho held thafc possession when it wns -recognized by the defendants. Although therefore they might say that the leaso of 185'J w.is void, (hey could nofc rofuse lo acknowledge the .right fnl possession of fcho plaintiff claiming under lhe subsequent agreement, if he could shew thafc he was an assignee of (he contract. It would be observed that, this war, not admit led by thc oase, and if would bo found -in effect that plaintiff was assignee only of fcho original leaso. If might be urged thafc undor tho general words in thc assignment this interest passed, but it was submitted that this would be giving to the assignment, an operation which tho language would not f ustatn, on looking to the context. Assuming, , however, that the assignment did pass fcho interest of t'ao lessee in that contract, it could only confer upon him (he same right, of specific performance which was possessed by the assignor, audit- would become a question how fav that right was controlled or affected by the laws relating Lo registration in forco in the Colony. The case thereforo in reference to fche position under fche leaso and admitted contract, presented two aspects on the parfc of the plaintiff, viz., cither fchafc he was, (undar statute Geo. II if relieved from the forfeiture) to hold under lho original leaso, set up by force of a decree or entitled fco specific performance of a contract affirmed by the defendants acceptance of rent. In cither cit3o piaio.iiff's right- to relief was barred as against King, and if this were so fcho Court could nofc | grant relief l'ro:n fcho forfeiture fco the extent cither j of setting up tho old lease or granting specific I pcrformauco of tho contract, inasmuch as the decree must he abortive as against- Bing, and fcho j Court would not, make a decree which it could 1 not carry into effect. Now fcho position of the ■ parties in this aspect was at follows : — Tho plaintiff claimed as assignee of a void leaso, but (if the \ Court should be of opinion fchafc tho assignment • carried tho contract) of a valid contract. Tho void lease was between fche plninfciff and the defendants as admitted to have beon duly registered, bufc fchis admission could nofc affect Bing ns against whom tho lease was not duly registered, and tho contract not registered at all. The defendants claimed under a deod duly made, and as against whicii tho leaso waa void, and Bing claimed under a deed duly made and regis-, gistcred. Ifc would bo observed in looking at tho i Registration of Deeds Ordinance, that no deed could bo registered so as to givo to the grantee tho advantage to bo derived from the J provisions of tho ordinance, excopt such as was mado subsequently fco fche date pf the grant from fcho Crown to the purchaser of the land, and ifc woidd also bc obsorved that the lease to tho \

assignor of the plaintiff wa3 anterior in date to ', the conveyance from tho Canterbury Association, ■ which was ' practically equivalent under the Aet I 13 and 14 Tic, cap. 70, to a grant from tho i Crown. JNor was thc plaintiff helped in any degree |by the Registration of Deeds Amendment Act, ' I 1860, clauses 7, 8, and 9 of which alono boro upon tho question at issue, and in no degree disturbed the position under the original ordinance. Looking therefore to fche fact that the decree if made in accordance with the prayer of the plaintiff must be abortive it was submitted that the Court would nofc grant the specific relief sought, and tho plaintiff must be remitted to some other form of relief, relying in all probability upon the Court conceding te him a claim to damages. Tho ( position of the plaintiff therefore was that ho claimed either to be reinstated under the original ■ lease, or thc specific performance of the subse- J quenfc contract, or an issuo of quantum damnifi- • cattts. The learned counsel then proceeded ■ to state thafc he would endeavor to show that tho j reliof given by tho Statute Greo. 11., could not bo ' granted in fchis country under fche cirenmstancos ■ stated in the case, because the statute law of tho ; Colon} , in his opinion, opposed a bar to such • relief. Tho foundation of the relief in England ( was, that the Court of Chancery controlled tlio , contract of thc parties so far as to prevent a land- J lord from taking advantage of a forfeiture for non- ■ payment of renfc, because it looked upon compen- ( sation in the nature of interest as sufficient to j placo the landlord in a propor position, treating the 1 \ right of re-entry merely as a furiher security for [ the payment of rent. But this doctrine was only . applicable to cases of contract inter partes, and , could nofc oxtend to conditions in law or condi- ,' tions imposed by statute. In support of this, ho j would cite the judgment of Lord Macclesfield in \ Peachy v. Duke of Somerset, 1 Strange, p. 417, com- j mented upon in 2 Tudor's Equity Cases, and to the case of Sloman v. Walter, and ho would farther | cite the case oi Keating v. Sparrow, 1 Ball and 8., ; p.p. 367, 373, aiid 374 ; the principle of which j was thus quoted by Mr. Tudor :— j "Tho principle' applicable to cases of contract j between fcho parties, is nofc applicable fco fcho pro- j visions of an Act of Parliament, or conditions of law. For although, as we have seen in caso3 of contract between parties, equity will often relievo against penalties and forfeitures, where compensation can be granted, reliof against the provisions of a statute can never be given." Unfortunately, nofc possessing Bull <fe B's reports, he was unable more fully to illusfcrato tho position, but he would refer to the commentaries of Lord Coke upon tho text of Littleton, in relation to estates upon condition. And ifc would there be observed, thafc tho learned commentator treats conditions annexed to estates bystatuto with recovery as stronger, in many cases, than conditions without recovery.' The conveyancing ordinance of New Zealand, directed in express terms, that in erery leaso there should be implied certain covenants on fche parfc of the lessee and powers in the lessor, and among others tho following powers were set oufc: — " And there ahall be implied the following powers in thc lessor, his heirs, executors, administrators, or assigns : — That ho or they may by himself or themsolvos, ' or his or tlieir agents, afc all reasonable times, enter upon the demised property, and view tho sfcato of repair thereof, and may serve upon tho lessee, his executors, administrators, or assigns, or leave at liis or their last or usual placo of abode, a notice in writing of any defect, requiring him or them, within "a reasonable time to be therein prescribed, to repair the same. That whenever the vent ro3erved shall be in arrear for twenty one days, ho or they may lovy the same by distress. That in case the rent, or any parfc thereof, shall bo in arrear for the space of six calendar months, or in easo the ropairs roquired by such notice as aforesaid shall not havo been completed within three calendar months after the service or leaving thereof, ifc shall be lawful for him or them to re-enter upon tho demised property, and to determine the estate of fcho lessee therein, bub without releasing him from his liability in respect of fche breach of any covenant therein expressed or implied." It was true that the Ordinance gavo authority to modify or negative these covenants and powers, bufc in thc absence of suoh negation or modification, they became purely statutable conditions, and -as such, liable to strict enforcement. He would contend that against conditions of this nature tho Court could not relieve, inasmuch as to do so would be to alter tho legal relations of thc parties as established by statutable contract, ! distinguished from relations arising out of a mere contract. The whole of fcho cases illustrative of the relief from forfeiting for non-payment, of rent were fully commented upon in the notes to Duppa v. Mayo, reported in Williams' Saunders — and it, would be found, on a careful consideration of those cases, and particularly from several judgments of Lord JEldon — fchafc this particular equity, though sinco confirmed by statute, had a vory unsound foundation, lie would, therofore, submit that where as under the provisions of thc Conveyancing Ordinance there was given to fcho tenant, so long a term as six calendar months after ventdue, beforo ejectment could bejbrought, fcho Courtwould scarcely feel itself justified in extending relief irrespective of the question whether thoy had power to do so looking fco tho terms ot the statute. Assuming, however, that tho Court should not hold thafc they wore barred from giving relief by (lie terms of tho Conveyancing Ordi- j nance, and assuming aho, thab fchey'Vould uot, for tlw reasons before adduced, remit 'the plaint id' to his position under tho base or the contract, he would still submit thafc thero could be no right lo an ismc of quantum dainnifioaliis, because fchaL right could afc most, only arise in a case j where the right lo relief was established ; f bufc it was urged that fcho possibility of| fchat relief was rendered nugatory by tho wrongful acfc of fcho defendants. Thc priiioiplo involved in thc cases iu whieh such relief was granted by thc English Court of Chancery had its origin only in such a state of faots, but before thafc principle (assuming ifc to be one which would bc recognised by this Court, although disavowed by Lord Eldon in Todd v. Gee 17 Vesey) could lie applied ifc musfc bo clearly established thafc the plaintiff would have obtainod relief bufc for tho wrongful and voluntary acfc of tho defondtmfcs. Assuming that the Court; cannot set up fcho original void lease, the only rolief which plaintiff could obtain wouldbo to restore liim to the right, of possession vo-sfced in his assignor as a tenant from year to year under thn implied tenancy, created by his payment and tho defendunts acceptance of rent ; but it was quest ionable whether tho plaintiff himself, who had nofc paid the rent could in any case claim this reliof, and it would bo observed that the statute of George II ouly gavo relief iu cases of tenancy under a loaso for years. Thc Court then rose. . +- ,