SUPREME COURT,—IN BANCO. Wednesday, April G. (Before his Honor Sir George A. Arney, Chief Justice.)

Daily Southern Cross, Volume XXVI, Issue 3939, 7 April 1870, Page 4

SUPREME COURT,—IN BANCO. Wednesday, April G. (Before his Honor Sir George A. Arney, Chief Justice.)

reserved judgments. McLeod and Others v. Brodie and Others. —This was a motion to make absolute a rule for a writ of prohibition to Mr. Warden Davy, sitting at Shortland, from further proceeding m the matter of a plaint relating to a dispute as to a claim within the Coromandel goldfields. The essential facts have been two or thiee times published, in connection with proceedings as to what is known as the Tokatea Claim case. The Chief Justice now delivered an elaborate (written) judgment, in the course of which the facts, and the arguments of counsel, as well as the provisions and scope of the Goldfields Act, and various proclamations as to Wardens' Courts, were reviewed. Anything like amere abstract of the judgment would be useless alike to the general reader and to the profession. Eis Honor's conclusion was that, upon a full consideration of sections 60 and 61 of the Act of 1866. and especially having regard to the policy of the various provisions for the administration of justice on the goldfields, the learned Warden had not jurisdiction to hear and determine the plaint; and that the rule must, therefore, be made absolute. Mr. Whitaker applied for costs, and Mr. Rees was heard on the other side. The Chief Justice said that many of' the questions involved were most important and most difficult of solution ; so that either side might well wish to have the judgment of the Supreme Court. The rul-j would be made absolute, and nothing would be said as to costs. Lacon and Others v. McLeod. —ln this case, Lacon, the plaintiff bel iw, proceeded against McLeod for encroachment, in that McLeod had applie I for a lease of auriferous ground at Coromandel, which it was alleged was held by Lacon and party under miners' rights. The Warden decided in favour of Lacon, and McLeod appealed. The Chief Justice now gave judgment. He said that he saw no reason to interfere with the judgment of the Warden. That judgment appeared to be given on the merits of the case ; and those merits appeared to him (the Chief Justice) to lie on the side on which, the judgment was given. Therefore, the appeal was dismissed with costs. the thames land disputes. The Queen v. Piniha Marutuahu and Oth krs. — This was a demurrer to a declaration setting out a writ of sci. fa. calling on the defendants to show cause why a Crown grant for the Parareka block, Hauraki district, should not be declared to be null and void. The substance of the writ, and of the arguments of Mr. Whitaker, for John Lundon, and of Mr. Kees, for Burnside, in support of the demurrers, was published in the Cross of yesterday. Mr. MacConnick, in support of the declaration, admitted that it was not perfect ; and that there would have been ground for applying to the Court to have the writ, or the declaration —which simply followed the writ —amended. But the question for the Court, on demurrer to pleadings, and especially on demurrer to a declaration, was only whether the pleadings (or tho declaration) were sufficient to support the oass of the party. Tho demurrer was to be taken as an admission that no grounds o£ traverse existed. In looking at the declaration to ascertain whether it was sufficient to warrant judgment of the Court for the Queen, that the letters patent in question be cancelled, the Court would not look with the eyes of a special pleader anxious to discover defects, nor would the Court consider the declaration in detail, If, taken aa a whole, it would support judgment, the declaration would satisfy the Court. The demurrer admitted that the very foundation of the Crown grant which it was sought to annul, was the bad foundation of an erroneous date. The defendants might have denied the statement as to the erroneous date which was made in the declaration; but by demurring they had admitted it." The importance of the erroneous date would be seen from a consideration of the course of procedure in the issue of Crown grants upon certificates of title from the Native Lands Court. That procedure wa3 regulated by the Native Lands Act, 1865, sections 23 to 29 inclusive, After ascertaining the parties entitled, the Court was to order that a certificate of title be made and issued (23), in a prescribed form (20). Either an interlocutory or final order might be made (27). The certificate, duly authenticated and recorded, was to be transmitted to the Governor (29) } and on the receipt of such certificate it shall be lawful foy the Governor to issue, to the person or persons named in it, a Crown grant for the lands described (46). For the purpose of dealing with lands after the issue of a certificate, but before the issue of a Crown grant, the Crown Grants Act Amendment Act, 1867, provides (similarly to the Act of 1866), by sub-section 1, of section 7, that, in the case of grantees of land, the title to which had been decided by the Court, the date of the certificate or interlocutory order shall be the date at which the grantees referred to in section 26, of the Act of 1866, .shall be deemed to have become, or to become, entitled to the issue of Crown grants. The two Acts taken together really provided that the date of the certificate of title should be inserted in a grant as the date at which the grantee or grantees should take estates-at-law in the lands. It had been argued that section 26, of the Act of 1566, did not apply to native lands, but only to Crown lands; but that was arguing ma circle, for any lauds must be Crown lands when they became subject to grants of the Crown. No matter how the insertion of the erroneous date arose ; there was an express allegation that it had, in fact, arisen. The Chief Justice ; In what sense is the word " erroneous" used ? Mr. MacCormiok ; In the sense that the date is not a correct one. The Chief Justice : That it is a date not recognised under any statute ? Mr. MacCormick : Yes. The Chief Justice : The word should rather have been, " illegal.' 1 Mr. MacCormick: The declaration, following the writ, alleged that the Queen had been misinformed and misled to grant, under her letters patent, to Piniha Maiatuahu and the other natives, to hold as from the 15th January, 1869, and that the date should have been 27th January, 186S, which was, in fact, the true date of the certificate of title. Upon the declaration, it must be taken as admitted that the grantees had conveyed, or expressed to convey, subsequent to 27th June, 1868, but prior to 15th January, 1869, interests in land to Graham, Hogg, and others; and that it was with the fraudulent purpose of defrauding those persons of such interests, that the agents of the Crown had bern induced and procured to issue the Crown grant bearing an illegal date-—a date which should, in justice and in right, r.ot have been borne by it, The declaration alleged that what had been done operated to the prejudice and inconvenience of divers persons, and there was an allegation connecting Eobert Graham and Alexander Hogg with those divers persons. The active grantees had no power, as the Grown fjr&nt stood/to demise tneir lands prior to the issue of the grant j and the necessary effect was to deprive divers peraons of interests in those lands, which they would have had if the date in the habendum clauie had been the 27th June, 18G8, which waa really the true date that should have been inserted. Generally, it was submitted that the declaration was sufficient to warrant judgment for the Queen; and that, therefore, the demurrers could not be sustained. The several grounds stated in the two demurrers were based more upon points of pleading than upon objections to the sci. fa. itself. The cases cited on the other side were almost all old ; and they did not bear out the contention as to particularity of setting out, which ib had been sought to base upon them. A general statement of injury suffered was,

I according to the majoi'ity of the cases, quit& sufficient ; ami, in some of the cases of sci. fa. to repeal letters patent for inventions, there was nothing directly to connect the complainants with the subject-matter complained of. The principal of the grounds of demurrer wag, no doubt, the one as to the absence of any allegation of false suggestion on the part of the grantees themselves. But although there was no such express allegation, such false suggestion was indirectly alleged. It was by no means a general pro. position of law that, in order to avoid a grant of letters patent, there must be an averment of false suggestion on the part of the grantee^ it was a general proposition that, If theSovereign(or hisagents)has beendficeived, then the grant will be void. It was only where the falseness of suggestion had a technical sense given to it, that, to avoid the grant, it must be shown that the false suggestion had beeu made by the grantee. Of course, a false* suggestion in the nature of a fraud, if made by a grantee, would render void the grant : it was so in eases between subject anil subject, and much more so in cases between Sovereign and subject. But there was no authority for saying that in a case, between subject and subject, of sci. fa. to repeal letters patent, the fact of false suggestion on the part of the grantee must appear. It was shown, by the declaration, that by issuing the Crown grant as it had been issued, with, the date of 15th January, 1869, the Crown deprived certain persons of estates in land which they would be entitled in law to claim, * under the „ assumption that the grant would be issued in accordance with the certificate !of title. This took the case out of the category in which it was necessary to show falseness of suggestion on the part of the grantee : the Crown had been deceived, and had done a wrong therefore. The learned counsel reviewed most of the cases cited pn. the other side ; and lie cited a few others. Mr. WJiitaker, in the course of his reply, ; said that the date of the certificate of title was of no importance, but the date at whick the certificate was issued was of importance. It was assumed on the other side that the date of the certificate was 15th January, but no such thing appeared. Generally, the reply to the case on the other side was, " What you say ought to have been done could not be done, and it would have been useless to you if it could have been done." ! At the time this Crown grant was issued, there was no power to ante-vest the legal estate, under any such grant. Mr. Rees was also heard in reply. The Chief Justice said he would take time to look into the authorities cited. The Court was adjourned.