IN BANCO.

Evening Star, Volume VII, Issue 1995, 27 September 1869, Page 2

IN BANCO.

REGINA V. MACANDREW. His Honor delivered judgment in this case as follows : In this case a depiurrer had been put in to the plea on the part of the Crown; and on the part of the defendant certain objections had been raised to the declaration. It was understood that th , case would be taken to the Comt of Appeal; but counsel having refused to make it a case reserved for that Court, it therefore became necessary for him to decide at all events on the objections raised to the declaration. By the declaration it was alleged that a Crown grant of certain lands situate in the City l- of Dunedin was, on the 11th January, ISiiS, issued to the Superintendent of Otago, hut that this grant was void and of no effect in law, on the following grounds :—That the laud in question was ceded with other lands to the Mew Zealand Company, and that it was agreed at the date of such cession that certain lands (being part of the said lands so ceded) shall be set apart as a reserve for the aboriginal natives ; and that letters passed between Alfred Domett, the then Colonial Secretary, and Walter Mantell, then Crown Lands Commissioner of < dago. [ The letters were here read.] It was also alleged that the reserves mentioned in the said letters were duly made. With regard to the first ground, it was to be observed that the a'leged agreement must be taken to mean that certain lands, styled ‘ certain,” as having been definitely a-ctr-tained at the date of such agr-ement. were to be set a cart for the aboriginal ceders by the New Z. aland Company. Th re was nothing on the record lo connect the land now in question with the .“certain” lands above referred to, beyond the fact that they were

included in the cession. He could not therefore assume that this land was necessarily identical with the certain lands referred to ; or, consequently, that any trust in respect thereof was, by virtue of the alleged agreement, ever imposed on the New Zealand Company, or on the Crown, in whom the land ultimately became vested. Moreover, it was to be observed, that as the cession to the New Zealand Company, and their agreement with the coders, must, if valid, have b en in writing, the material parts thereof should have been sot out in the declaration, in accordance with rule 76. Divesting the case, therefore, of the alleged agreement, it remained to he seen who.her sufficient grounds were left to form a clea>' basis for the present application. By the letters quoted, it appeared that in 1852, Mr Mantell, then Commissioner of Crown Lands for Otago, applied to the Governor to grant to certain native- 1 , then in the habit of visiting Dunedin and Port Chalmers, a small portion of laud for the erection of houses for their .■ eeommodation ; that plans of the land selected for that purpose, were sent up by him ; that Mr Domett stated that his Excel ! ency approved of til j reserves being made. It was th'ii allog- d that these reserves were duly made, and of course it must be understood that they were made for the special purpose mentioned in the first quoted letter of Mr Domett, viz , for (he election thereon of iiouses for certain natives then in the habit of visiting Dune din. It w>s not disputed that the Governor had no inherent power by virtue of his office to grant this land in fee ; it remained to be seen what power he had to make it a reserve in manner stated. The only authority he possessed on the subject was conferred by the 17th clause of the Royal instructions of 1846. It was clear from that clause that every reserve made by the Governor under those instructions should have been for purposes of public utility, convenience, or enjoyment; and not, as in the present instance, for private accommodation. 'Phis reserve therefore, being made for the latter purpose was ultra vires, and void ab initio. It was contended, however, that inasmuch as that reserve was alleged on the record to have been duly made, it muso be taken to be legal and valid though no authority he shown for making it, and that whether it were originally legal or not, when taken in conjunction with the letters quoted, it constituted a contract or engagement within the terms of the 11th clause of the Waste Lands Act 1858. On the first point he had to remark, that the validity of the CT-wn grant was presumed, until the contrary be clearly shown ; and and that in pleading ambiguous intendments would be taken of its validity. Moreover, by the record itself, it appeared that the reserve was one which could not be valid. On the second point he entertained scions doubts whether the 11th clause of the above mentioned Act of 1858 was intended in any way to refer to native reserves. But assuming that the reservation, coupled with the letters, afforded some evidence of a contract, the question then arose, what was the contract thereby implied; and here he had to observe, that any contort in favor of which it was sought to avoid a grant must he construed in favor of the power of the Crown to make such grant in case of ambiguity. The original request was for a grant of land to certain natives, then in the habit of visiting Dunedin, for the erection of houses thereon lor their private accommodation during their visits. Assuming as he must, that the 1 uid was reserved for that special purpose, it appeared not neassari y to import more thru a mere temporary use thereof for the erection of huts by certain natives who were in the habit of visiting Dunedin seventeen years ago. Nothing appeared on Ihe record to show that any one of those natives was now living or visited Dunedin, or that any houses or huts were ever erected by them or any of them on the land in question, and he could not therefore presume such to be the case—the presumption being omnia rite fitisse acta at the time of the Crown grant. The temporary user being at an end, there would be no objection to the issue of the Crown grant, or to its validity when issued, ft was argued by the counsel for the Crown that the first section of the Public Reserves Act, 1864, forbids any grant to issue to any Superintendent of lands reserved for the benefit of na'ive inhabitants of (he Colony, and that consequently this grant must be void. But he took it that the above Act referred only to reserves leg a ly made, and did not legal e illegal reservations. This reserve being shown on the record to he illegal and void, did not in his opinion come within the scope of that Act. For the foregoing reasons it appeared to him that tl.e objections to the declaration must be sustained. He had not touched on all the grounds argued by counsel, but merely upon those which appeared to he sufficient to carry a decision. The case would no doubt be fully argued in the full Court, and it may he arranged by counsel to re-argue the demurrer before them.

His Honor observed that he might take for granted that Mr Cook intended to appeal. Mr Cook replied in the affirmative. The Court then adjourned.