REGINA v. McLEAN.

New Zealander, Volume XIX, Issue 1759, 5 January 1863, Page 3

REGINA v. McLEAN.

(From the “Canterbury Pisss,” December 13.) ■' n Thursday this celebrated ease, the Jarndyce and Jarndyce cause of New Zealand, came on for trial in the Supreme Court before Mr. Justice Richmond. This case has been pending in one form or other before the courts for eight or nine years. It has occupied the attention of almost every lawyer in the colony, including successive Attorney-Generals; and yet the case is a sufficiently simple one; nor did anything transpire in the course of the trial which could explain the long delay which has existed in settling it Messrs. McLean took a ran in 1833 under Colonel Campbell, then Commissioner of Crown Lands. Colonel Campbell’s licences were declared by the Government to be invalid, were called in and quashed, and the Commissioner removed from office. Fresh licences were issued under fresh applications by the succeeding Commissioner, Mr. Guise Brittan, and the whole country was redistributed. Mr. McLean, however, held on under the old licence notwithstanding us declared illegality, against the new claimant Mr. Hall, and in spite of every attempt to oust him has held the country ever since. , . . c The"present action was for the issue ot a Writ ot Intrusion on the part of the Crown against Mr. McLean, and for damages done to the Crown by his occupation of the run illegally for eight oi nine " C Mr. Travers led for the Crown, and Mr. Dampier for the defence. Mr. Travers having simply stated the pleadings, saying that the onus lay on the defendant to show his title to occupy the Crown Lands Mr. Dampier opened the case. His address was rather a conversation with his Honor the Judge, than a speech, so frequent were the interruptions on the part ot the Court. But as the Counsel was laying down the law throughout, in a manner which appeared to the Judge to be incorrect, Mr. Justice Richmond stated that it would be his duty to direct the jury as to the law very differently from the Counsel for the defence, and that it would" save time, and prevent the Counsel being taken by surprise, if he stated so at once. Long before Mr. Dampier sat down it was sufficiently clear that Ins case had broken down in law. . On one point the ruling of the Judge was ominous. The Counsel was arguing that the license was issued under the Crown Lands Ordinance passed by the old Legislative Council and Sir G. Grey. Mr. Jus ice Richmond said he was not prepared to say that that Ordinance was legal, and that the Legislature of that day was competent to pass such an Act at all. 1 hope,” we understood his Honor to say “ the pom will not be raised; we must all accept our lot; but I hope I shall not be called upon to decide in this Nisi rims Court upon the validity of that Act, because the result might be very inconvenient.” . , This ruling seemed very naturally to astonish the Counsel, who evidently had not contemplated arguing his case before a Judge who assumes to sit, and is bound to sit in judgment on the validity of the colonial laws themselves. The plain course open to the defendant was to put in his application for the run, and Ins license to occupy it. The application however-.was no forthcoming, if it ever existed, and the defendant was not present to swear that he had ever made one. The greater part of the day was wasted in successive efforts on the part of Mr. Dampier to prove the contents of the “ application” by secondary evidence. But he was foiled at every turn, the Judge insisting that no secondary evidence of the document could be admitted, until it was proved that such a document had ever existed, and had been lost or destroyed. _ But this proof was not given, and an informal application was put in by Mr Allan McLean, and, though, only a copy of which the original had been lost, was admitted as secondary evidence by the Court. This was the mam point of interest in the case the first clay. The Licenses to the runs were put in and read, but objection was taken to them by Mr. Travers on the ground that they were not in the form required by the schedule to the Ordinance. Colonel Campbell had made some private regulations of his own, and had added to all his licenses the words that they were issued “ subject to any laws or any regulations which might thereafter be issued by the Government,” or words to that effect Mr. Dampier argued that this addition to the statutable form did not make any material difference to the document. Mr Travers argued that it altered the whole nature of the tenure to one which was not that prescribed by the

a One other point of interest occurred. Mr. Dampier asked Mr. Brittan, the Commissioner, whether any other license had been issued for the same run. Ihe judffe instantly stopped the question; penetrating the motive, which was to set up the defence that the Crown having parted with its interest, was estopped from the proceedings; but Mr. Justice Richmond refused to allow such a defence, it being beyond the record, and having been already cut out of the pleadinrrg Mr M’Leau could *not attack the title of the Crown which was admitted in the pleadings. Some evidence was put in as to the value of the run, and the profits which might have been made out of it, which was not disputed. ~ On Friday the proceedings opened by a very able speech from Mr. Travers. He reviewed every objection to the licenses ; the invalidity of the law under which they were issued ; the fact that they ought to have been sealed by the seal of the colony as required by the Royal Instructions, which the Local Act could not set aside. . , , ~ The Jud (r e, on this point, interrupted the Counsel by the remark, “You may depend on it, Mr. Travers, I shall not rule that all Pasturage Licenses ought to be issued under the seal of the colony, if I can help it. But this point was not specially decided by the Judge at all. Mr. Travers argued that the Governor s regulations of 1851 being illegal, the licenses would be mvalid even if issued in accordance with those regulations. But the license was also bad because the precedent conditions had not been complied with. No application had been made, as required by the Act, or Mi. M‘Lean would have been put in the witness box to swear that ho had made one. The application put m was no application at all; not fulfilling any of the conditions required by the Act. It was bad again because the law required that three months should elapse between the date of the application and the issue of the license. But the date of the application—the only one which was put in—was on the 17th August 1853; the necessary publication of the claim was dated the 27th September; and the license was dated Ist September, and issued the Ist November. It was bad a train, because it was signed by the Commissioner, and not as required by the Regulations, by the Colonial Treasurer. Again, the run was not stocked m the time required, and was liable to be regarded as having been abandoned on that ground. Mr Dampier followed for the defendant. The Jud're told him at starting that he need not trouble himself to argue the points raised on the part of the Crown as to the validity of the Regulations of 1851, nor as to the necessity of licenses being issued under seal He might address himself solely to the points raised as to the validity of the license on the face of it, and as to the signature by the Commissioner instead oi the Treasurer. We confess we failed to comprehend the arguments by which the learned Counsel endeavoured" to refute the objections raised by the Crown, It would, therefore, be an act of injustice to Mr. Dampier to pretend to report them. They certainly did not appear more satisfactory to the Court than to ourselves. . Mr. Justice Richmond in summing up said the main | questions were entirely questions of law, and that he would not waste the time ot the Jury by going into long legal arguments to explain the reason for the iiiling he was about to give. It was his duty to laj down the law, and “ on some or all of the grounds stated by the Counsel for the Crown, Ins decision was that, the" licenses were null and void.” It was for the Jury to determine the amount ot damages. His Honor then directed the Jury as to the principles on which the damages should be assessed, and left them to find a verdict accordingly. The verdict was shortly given for the Crown, with damages at £2,000. This is a very important case. In the old files of the Lytt-lton Times, may still be read the warning of the press of those days against the consequences of placing iu the hands of incompetent officials powers so laro-e as those claimed and exercised by the Commissioner. The law is a slow but a sure avenger, and the time has arrived when those warnings have been fully justified.