NEW ZEALAND

10   FURIHER PAPERS RELATIVE TO THE

claimant. (Compare the printed claim in " Government Gazette,' 12th Apri11843.) If then a false recital—a direct and distinct statement of matter not true—does not render a grant void, provided the grantee be blameless ; neither can such an effect be given to a false description, incidentally introduced and capable of being rejected without impairing or affecting the force or operation of the sentence of which it forms a part. Moreover, it has been very fairly urged by the learned counsel for the defendant, that this is not strictly to be called even a description but rather an allegation of common report and repute as to the description. The words are, " said to contain 2,560 acres, more or less." It is true that the variance, in this case, between the supposed extent and the real extent is very considerable. But it has never been laid down that such a variance is fatal to a grant, even where the error has been matter of distinct and positive averment on the face of the grant. The legal test is to be found not in the largness of the error, but in the source of it ; or, in other words, in the answer to the question whether the misstatement proceeded from the mistake of the grantor or from the suggestion or fraud of the grantee.

Upon the whole then I conclude, that the reasons urged on behalf of the Crown against the validity of this grant are insufficient in law ; and that the same is a good and valid conveyance from the Crown to Beattie and his heirs, not of 2,560 acres only, but of the whole island of Kawau.

Judgment of Mr. Justice Chapman.—The Queen v. Taylor.

This is a suit upon a writ of scire facias, brought by the Attorney-General against the defendant, to annul a grant made under the colonial seal to one James Forbes Beattie (from whom the defendant deduces his title) in July 1844, aad witnessed by the late governor, Robert Fitz Roy, Esq.

It appears by the pleadings that the land, which is the subject of the grant, being the island of Kawau, was claimed by the said James Forbes Beattie, of Sydney, as having been purchased by him from the native owners "before the proclamation of the Queen's sovereignty over these islands." In due time Mr. Beattie preferred his claim in accordance with the provisions of the Land Claims Ordinance (4 Vic. No. 2). The claim was referred by the governor, under Land Claims Ordinance, 5 Vic. No. 14, to Mr. Commissioner Godfrey, who on the 1st day of July 1843, reported as follows : " No grant of the above described land can be recommended to the claimant." To this report a note of explanation is appended, to the effect that the usual compensation is not awarded, "as it is very evident that no real purchase was made from the natives until the last payment on the 3rd March 1841 took place." This report was afterwards confirmed by Mr. Shortland, the officer administering the Government, and the confirmation was announced in the official Gazette of the 25th day of October 18-13. In December 1843, his Excellency Captain FitzRoy assumed the Government; in the following year Mr. Beattie's claim was re-opened ; and without any further reference to or report by any commissioner so far as appears, on the 15th July 18-14 a Crown grant of the whole of the island of Kawau was issued to the claimant under the public seal of the colony. This instrument recites that, " Whereas one of our commissioners appointed to hear, examine, and report upon claims to land obtained by purchase from the aboriginal inhabitants of the colony of New Zealand, has reported that James Forbes Beattie, of Sydney, is entitled to receive a grant of (2,560) two thousand five hundred and sixty acres of land particularly mentioned and described in claim No. 445 of James Forbes Beattie."

The operative part of the grant is as follows Now know ye that we, of our special grace, for us our heirs and successors, do hereby grant unto the said James Forbes Beattie, his heirs and assigns, all that allotment or parcel of land in our said territory, said to contain 2,560 acres more or less, situated in the gulph of Hauraki, and of which the boundaries are reported to be as follows : being the island of Kawau, in the frith of the Thames or gulph of Hauraki, and lying abreast of Tawaranui."

The declaration, after tracing a title from the grantee to the present defendant, proceeds to state the grounds on which it is sought to avoid the grant in the following terms

"1. Because the said grant was made contrary to the said commissioner's report, made and confirmed as aforesaid, and (contrary) to the provisions of the aforesaid Ordinances.

"2. Because, at the date of the said grant, Governor FitzRoy had no power or authority to make a valid grant of the said island of Kawau to the said James Forbes Beattie and his heirs, in manner and for the considerations in the said grant set forth and described.

" 3. Because the said grant is not a good grant of the whole of the island of Kawau to the said James Forbes Beattie and his heirs, the said island containing, in fact, 4,630 acres or thereabouts, and the said James Forbes Beattie being in the recital of the said grant alleged to be entitled to receive 2,560 acres, and the said island being stated in the said grant to be said to contain 2,560 acres, more or less."

To the sufficiency of all that is averred in the declaration to avoid this grant the defendant has demurred, contending in effect that the power of the late governor to make the grant in question was not restricted, either by any direction in the said Ordinance binding on the com missioners, or by any other clause ; and that the grant conveying specifically "the island of Kawau" ought not to be defeated, either by the recital or by the words "said to contain 2,560 acres, more or less."

It is impossible to approach this anomalous case, even aided by all the light thrown upon it by the learned counsel, without feeling painfully embarrassed by the irregularities which pervade it, as disclosed by the pleadings as well as by the deed of grant itself. With some of these irregularities we have nothing to do and as some points have been brought forward in argument which are not raised upon the record, it may be useful, and is perhaps even