12   FURTHER PAPERS RELATIVE TO THE

NEW ZEALAND

rule has been applied by the Courts to a vast number of dissimilar cases. In Miller's case

1 W. Bl. 451, it was held that a proceeding, commenced under an insolvent act, but not completed at the time of its repeal, could not be continued after such repeal. So in the case of the Bankrupt Act, 6 Geo. IV. c. 16, which repealed all former Acts, and contained no continuing clause, it was held that an act of bankruptey committed under the former Acts would not support a commission under the new statute, and that no proceeding under the old Acts could be continued or acted upon after their repeal ; and in one case even enrolment of completed

proceedings, merely so as to make them evidence, was refused. (Surtees v. Ellison, 9 13. and C., 750; Phillipps v. Hopwood, 10 B. and C., 39 ; Maggs v. Hunt, 4 Bing. 212 ; Kaye t. Goodwin, 6 Bing., 576; Worth v. Budd, 2 B. and Ad., 172.) The rule has been appleded a felony at common law, made liable to an aggravated punishment by an Act of Parliament ; which last punishment, it was held by all the judges, could not be inflicted after the repeal of the Act, though the offence was committed while it was in force. (R. v. McKenzie, R. and R.'s C. C., 429.) The Court of Exchequer also refused an application for costs upon certain proceedings, under a statute repealed after the proceedings were had, but before the application (Charrington v. Meatheringham, 2 M. and W., 228; and Warne v. Beresford, 2 M. and W., 848). Most of the cases where the rule has been applied, are reviewed by the Court of Queen's Bench in the Queen v. Inhabitants of Mawgan, 8 Ad. and Ell., 496, in which case the Court arrested judgment in certain proceedings against the defendants for the non-repair of a highway under an Act of Parliament, the Act having been repealed pending the proceedings.

There are two cases coming within quite another class, which engraft an apparent exception upon this rule ; but they scarcely amount to what a very able writer has called "an opposing stream strong enough to stem the older currents (of cases that for years have flowed on in a particular direction), and to make it doubtful what direction they (the cases) will hereafter take." (Ram. Assets, Pref. v.) The cases I allude to relate to certain illegal contracts, contrary to the provisions of certain statutes against gambling and usury, in which statutes such contracts are declared to be absolutely void. Such void contracts (generally made so for the protection of the unwary against the crafty and designing), are not set up and made valid by the subsequent repeal of the Acts making them void. Such contracts are treated as nullities from the beginning. (Jacques v. Withy, 1 H. Bl. 6.5, and Hitchcock v. Way, 6 Ad. and Ell., 943.) In the first of these cases this distinction was taken: that though the contract once void remained for ever void, yet the penalty against the wrong doer could not be inflicted after the repeal of the statute. And Lord Abinger has since recognized this distinction in more general terms, by intimating that a right to protection under a statute may be continued after its repeal, though all penal consequences cease. (Charrington v. Meatheringham, 2 M. and W., 228.) And even Hitchcock v. Way limits Jacques v. Withy in this, " that the law as it existed at the time the action commenced, must decide the rights of the parties to the suit, unless the Legislature express a clear intention to vary the relations of the parties to each other." (Per Lord Denman, C. J.) It would seem, therefore, that even if beneficial provisions may be kept alive after the repeal of a statute, though only by an action commenced before the repeal, yet all penal consequences cease by such repeal at any moment before final judgment. After carefully considering the effect of these two cases in modifying the general rule, I cannot discover that they have anything in common with the case before us. They both disclose an illegal contract, which under a statute was void from the beginning—a mere nullity which the Courts could not lend their aid to set up anew. Whereas the present grant is good upon its face, and ejectment against a wrong doer might have been brought upon the title it discloses. Voidable perhaps it might have been, but not primâ facie void; and until formally cancelled and vacated by a judgment upon scire facias it remains good. This suit, therefore, is not to set up, and will not have the effect of setting up, a contract originally and incurably void, but is to procure a forfeiture of an instrument primâ facie good and valid, and is. more analogous to a penal proceeding than the two cases I have thought it necessary to examine. I would further observe that the language of the repealing clause in the 9 and 10 Vic., c. 104, is even more sweeping than a simple enactment of repeal. It is enacted not merely that the 5 and 6 Vic., c. 36, shall no longer be applicable to sales of land, but that it " shall not be applied to land situate in the colony of New Zealand." I think, therefore, we are now precluded from looking at the repealed Act, though we must undoubtedly have done so before the 26th of August 1846, and possibly might have done so had this writ been sued out before that day, but even this I doubt. I therefore state the effect of repealing the 5 and 6 Vic., c. 36, thus: That except as to rights acquired, things done and completed, and suit, commenced and concluded (or perhaps under Lord Denman's dictum commenced only) under it, between 22nd November 1842 and 28th August 1846, and except also as to the validating effect of the proviso, the Act must be considered to be as effectually swept away as if it had never had any existence: and this even if the declaration had contained a count formally raising the point upon the record, as was done in Whitaker's case, but is not done here.

Another point taken by the learned Attorney-General in argument relates to the supposed effect of royal instructions in modifying or limiting the power and authority of the governor under the Charter of 1840. The distinction taken by hint is certainly ingenious and may hereafter require careful consideration at our hands; but, although important and interesting as a general principle of colonial law, it does not come into question upon this record. The grant is not sought to be set aside on (the ground that it is contrary to any such instruction. To raise the point, the instruction should be pleaded according to its supposed legal effect ; and unless admitted as so pleaded by demurrer, would require strict legal proof. This might be a matter of some difficulty. Not being of record, we could not get the instruction Court Court by The same means as are available in the case of instruments duly recorded. The