APPALS OF NEW ZEALAND.   11

NEW ZEALAND.

necessary, to dear away those points before we can determine on what grounds the judgment of the Court ought to rest.

In the first place it must be taken to be assumed on the record that, in spite of the mere opinion of the commissioner, the purchase of the island was in fact made before the proclamation of the Queen's sovereignty in and over these islands. The claim of James Forbes Beattie is mentioned in the declaration without any averment, that the allegation of a purchase amounts to a false suggestion, capable of invaliding the grant. The deed of grant bears upon its face that it is for an "original claim ;" and if it had been intended to impeach it on the ground that there was no valid purchase, or that any other suggestion of the grantee was false in fact, so as to show deceit, I think both on principle and authority it should have been so stated in the writ and declaration. The deed of grant being rant bein regular in form, any matter of

fact intended to be relied on to defeat it should be averred in the declaration, in such a way as to enable the defendant either to demur to its sufficiency or to traverse it. This obvious principle is applied to this class of actions by a case in Dyer : " Where the scire facias," he reports, "issues at the suit of the king, the cause of forfeiture is mentioned in the writ. (which the declaration follows), but not so in other scire facies issued by one patentee against another. (Anon. Dy. 198 b. pl. 50.) Since Sir J. Dyer's time the beneficial part of this rule has certainly not been narrowed, for in the modem precedents of writs by patentee v. patentee, the causes of forfeiture are set out. I think, therefore, we ought not to embarrass ourselves with the correctness or incorrectness of Mr. Commissioner Godfrey's opinion (a mixed question of law and fact), but must take it to be admitted upon the record that the purchase was good, so as to operate to the complete extinguishment of the native title in the Crown's favour, in January 1840, though parts of the purchase-money may have been paid subsequently to the change of ownership.

In like manner we must exclude from our consideration the obviously false recital, that the commissioner's report was in favour of a grant, whereas in fact it was against it. In this colony the grantee does not prepare his own deed of grant. He makes his claim or effects his purchase as the case may be, and after a time it is announced to him that his deed of grant is ready to be delivered to him. He is throughout a mere passive recipient of the instrument. The deed of grant is wholly prepared by an officer of the Government; it is even on a printed form. What the grantee is alone answerable for is the perfect truth of his notice of claim, which is imported into the deed of grant by a number of reference. The other recitals, not being the grantee's,being made without his privity, and not even within his power of correction, if faulty, come within those " mistakes in the Crown's own affirmation or surmises " which are held not to avoid a grant; and not within those " false suggestions of the grantee" which are fatal, as showing deceit. As to this clear distinction it is unnecessary to repeat what was said in Clarke's case by his Honor, or by myself in McDonald's case; it will be enough to refer to Rex et Regina v. Kempe, 12 Mod. 70, Viner's Abr. xviii. Prerog. O. b., and Gledstanes v. the Earl of Sandwich, 4 Mann. and Gr. 995, as cited by his Honor in Clarke's case.

Another point contended for by the learned Attorney-General in argument, but not raised upon the record, is that the power of the governor is altogether limited or restricted by the Land Sales Act, 5 and 6 Vic. c. 36, which at the date of the grant was in force in the colony. No doubt this doctrine was correct so long as the statute was in force, but it cannot new be taken advantage of. So long as the act in question was law within the colony, it hovered over every grant of the Crown, ready to invalidate such as were not in conformity with is provisions, or were not within the saving of the 20th section, i.e., were not in purseance of some previous " contract, promise, or engagement" made with the grantee, or with some assignable class of persons to which the grantee belonged. As to the class of land purchasers before the proclamation of the Queen's sovereignty, the " contract, promise, or engagement" made with and to them, is to be sought for, as I apprehend, in the Land Claims Ordinance, 4 Vic., No. 2 (or for a limited period in the Laud Claims Ordinance, 5 Vie., No. 14).

Hence, assuming that the Crown was wholly unrestrained by the terms of the two Ordinances, yet so long as the Land Sales Act (5 and 6 Vic. c. 36) was law, any departure from the " contract, promise, or engagement" made with or to the "original land claimants," and protected by the 20th section of the statute, would bring the ease within the invalidating operation of its provisions. But the Land Sales Act is law no longer. By the 9th and 10th Vic., c. 104, sec. 11, it is enacted, " that from and after the passing of this Act, the said recited Act (5 and 6 Vic., c. 36) shall not apply to land situate in the colony of New Zealand," This takes away the invalidating effect of the statute, from and after the 28th August 1846, though the Court had not cognizance of the repealing Act until some months later.

This repealing clause is followed by a proviso, which keeps alive the Act for the purpose of validating anything done under it ; but all its restraining and invalidating force ceased from the date of the new enactment, from which time its provisions, as well as those of the 5 and 6 Vic., c. 36, are specifically confined to New South Wales, South Australia, and Western Australia. Even without express words of repeal, an Act which limits and restrains the rights of the Queen is always held to he repealed by the passing of another Act on the same subject matter, unless the limiting or restraining words are re-enacted in the new statute. (Attorney-General v. Newman, 1 Price 438; A. G. v. Le Marchant, 2 T. R. 201, n).

The effect of repealing a statute is thus broadly laid down by Tindal, C. J., in Kaye v. Goodwin, 6 Bing. 583. " I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never passed, and it must be considered as a law that never existed—except for the purpose of those actions commenced, prosecuted, and concluded whilst it was an existing law." The language of Lord Tenterden in Surtees v. Ellison, as well as that of Parke, B., in Steavenson v. Olliver, is to the same effect This