NEW ZEALAND.

recommendation, or contrary thereto. I formerly entertained, at least, a suspicion, that the framers of the drdinance might perhaps have intended to bind the governor, but that they had failed to employ language apt for their purpose. The passage cited by Mr. Bartley, from Sir George Gipps' Despatch, effectually removes that suspicion, and shows conclusively the Ordinance is skilfully framed to effect the intention, and no more than the intention,of the Legislature. That is, that the intention, as capable of being deduced from the words of the Ordinance itself, to which all judicial interpretation is necessarily confined, is equi-pollent (so to speak) with the real intention of the framers. Referring to the Ordinance of New

South Wales, of which the 4 Vic. No. 2, is almost a verbatim copy. Sir George Gipps in his Despatch to Lord John Russell, May 30, 1840, says, the commissioners are, in no case, to recommend a larger grant. than 2,560 acres to any individual, though this, of course, cannot limit Her Majesty's prerogative of granting more should circumstances require it. I thought it of importance to introduce the restriction into the Act, if only to serve as a sort of index of the intentions of Government." (Parl. Paper, 11th August 1842). The "circumstances" alluded to by Sir George Gipps are, of course, such as might be presented to the mind of the governor, acting for the honour of the Crown; such as a large outlay of capital, occupation in a way beneficial to the public, or any other matter of which the commissioners could not take notice. What these " circumstances " may have been in any particular case, we are not

petent to inquire.

In favour of the larger interpretation of the governor's authority embodied in the demurrer to the second issue, Mr. Bartley cites section 2 of the Land Claims' Ordinance, which declares that "all titles to land in the said colony of New Zealand, which are not or may not hereafter be allowed by Her Majesty, her heirs, and successors, are, and the same shall be absolutely null and void ;" from which he deduces the converse proposition, namely : that all titles which may be so allowed are good and valid; and that the Crown grant under the colonial seal, being the instrument by which such allowance by Her Majesty is executed, must be deemed conclusive evidence of such confirmed and allowed title. I must own I am much impressed with the force of this argument in favour of any grant otherwise good upon its face, made to an original land claimant. His houour, in the Queen v. Clarke, seems to have considered that the words cited " naturally suggest the inference that the Legislature intended all titles so confirmed to stand good, unless indeed the grants in themselves were contrary to law."

(Clarke's Case, p. 13 of printed copy). And after much consideration I am of opinion that, apart from the Australian Land Sales' Act, the true interpretation goes to that extent. Pending the operation of that Act, I incline to the opinion, that the "contract promise or engagement " contemplated by the saving clause of that Act, is embodied in the schedule of the Land Claims' Ordinance, which stops short of the extreme interpretation contended for on the part of the defendant. So far, however, does this reasonable inference from the cited words impress me, that had this Court been called upon, while the Act was in force, to choose between the two interpretations, i. e., to say whether the " contract," &c., was embodied in the schedule, or whether the allowance by Her Majesty executed in the grant, was not, in fact, itself that contract, or conclusive evidence of it—I should certainly not have decided in favour of the schedule without very great hesitation ; knowing as I do, how jealous our law is of any restriction on the prerogative without the clear and express words of a statute, and how much disposed the highest Courts in the realm are to support the prerogative by every reasonable construction to the Queen's honour, and the subjects' advantage.

The conclusion to which I come, therefore, is, that the present grant was within the power and authority of the governor to execute in July 1844.

The only point which remains to be considered is, as to the legal effect of the misdescription of the quantity of land which the island of Kawau contains. The deed of grant states it as " said to contain 2,560 acres ;" the declaration avers that the actual contents are 4,630 acres.

There can be no doubt that if a claimant describe the land to contain less, or, at all events, materially less, than the real contents, and the grant is made on the faith of that suggestion of quantity, it would come within the same rule as a false suggestion as to the annual value; and on proper averment of the deceit, a grant would be voidable on that ground ; but it is clearly otherwise in a case like the present. In such a case, it comes within the rule as to " a mistake in the Crown's own affirmation or surmises," as already laid down. The misdescription of quantity appears to have been an expedient resorted to by the officers who filled, up the printed deed of grant, to bring it within the supposed restriction of the Land Claims Ordinance—an expedient which was, under any view, wholly unnecessary; for if the restriction upon the commissioner—not. to recommend more than 2,560 acres—had been binding on the Crown, no such contrivance would have enlarged the governor's power.

In support of the principle above stated, we have the clear and direct authority of a judicial decision, completely in point. The case of Brand v. Tod in Noy's Reports, p. 29, is to this effect :—" Note the difference agreed to by the Court. If the king grant to A all the waste in D, (after an ad quod damnum returned) and that the waste contains 120 acres ; yet if it contains 300 acres all pass; for the grant is general, and the ad quad damnum was to inquire of the damage and not for the quantity of the waste. But, if the king grant 120 acres (part) of his waste in D, and the ad quod damnum returns that it is not to his damage, and that the waste contains 300 acres, there nothing passes; for it is uncertain which 120 acres was intended, and the party shall not have any election against the king."

Now here the grant is not 2,560 acres of (or part of, or out of) the island of Kawau ; but, ingeneral, " the island of Kawau." Moreover, " said to contain 2,560 acres," is less strong than " contains 120 acres ;" and the excess here is not so great as in the case in Noy. Hence, I think, all passes. It is not often that a decided case can be found so completely in point ;is to the facts as well as the principle, as the case cited is with the case before us.