A.—2

50

respective families and individuals thereof were guaranteed in the exclusive and undisturbed possession of their lands as long as they desired to possess them, and they were also entitled to dispose of their lands as they pleased, subject only to a right of pre-emption in the Crown. It was not until 1852 that it was made unlawful for any person other than Her Majesty to acquire or accept land from the Natives (15 and 16 Vict., c. 72, s. 72). The founders of the charity therefore were the Native donors. All that was of value came from them. The transfer to the Bishop was their doing. When the Government had once sanctioned their gift, nothing remained to be done but to demarcate the land, and place on record the fact that the Crown had waived its right of pre-emption. That might have been effected in various ways. The course adopted was to issue a Crown grant. That, perhaps, was the simplest way, though the Crown had no beneficial interest to pass. After all, it was only a question of conveyancing, as to which the Native owners were very possibly not consulted. In accordance with the Governor's suggestion, the land intended to be included in the cession was marked out and surveyed. It was found to comprise about 500 acres. On the 28th December, 1850, the arrangement was completed by the issue of a Crown grant with a plan annexed. The Crown grant contained the following introductory recitals : — " Whereas a school is about to be established at Porirua under the superintendence of the . . . Bishop of New Zealand, for the education of children of our subjects of all races, and of children of other poor and destitute persons being inhabitants of islands in the Pacific Ocean : And whereas it would promote the objects of the said institution to set apart a certain piece or parcel of land in the neighbourhood thereof for the use and towards the maintenance and support of the same, which piece or parcel of land has by a deed from the Natives been ceded for the support of the said school." The grant was expressed to be made to Bishop Selwyn, to hold to him and his successors " in trust nevertheless to and for the use and towards the maintenance of the said school so long as religious education, industrial training, and instruction in the English language shall be given to the youth educated therein or maintained thereat." In the year 1859, under the provisions of "The Bishop of New Zealand Trusts Act, 1858," Bishop Selwyn conveyed the charity land to certain trustees nominated by the General Synod of the Church in New Zealand in communion with the established Church of England. The present appellants are their successors in the trust. The land at the date of the cession was rough land covered with scrub, and apparently difficult of access. In order to improve it and make it available for pastoral purposes (the only use to which it could have been put at the time), Bishop Selwyn spent out of his own moneys a sum of about £200, which is said to have been more than the then value of the land. No school or college has as yet been erected on the land or in the neighbourhood of it. The land has been let from time to time as grazing land, and the trustees have invested and accumulated the rents and profits. In 1897 the accumulations amounted to a sum exceeding £6,000. The land had increased in value, but owing to the falling-off of the Native population the neighbourhood had besome unsuited for the purpose of a school or college such as that contemplated by the original donors. In these circumstances the General Synod of the Church resolved that an application should be made to the Court for directions as to the administration of the charity. In the first instance the trustees communicated with the Law Officers of the Crown, sending them a copy of a proposed statement of claim and draft scheme. The office, of Attorney-General was then vacant. The matter came before the SolicitorGeneral. After a delay of three months he returned an unsatisfactory answer. He said that Ministers desired to consult Parliament on the general subject of such trusts during the coming session, and that he was therefore precluded from approving the proposed scheme. He suggested that the trustees should defer proceeding further for the present, adding, by way of encouragement or warning, that " the position now taken by the Government " was " not necessarily hostile " to the interests which the trustees represented. In deference to the suggestions of the Solicitor-General, the trustees waited until the end of the session, and then, as nothing had been done in Parliament, they applied to the Court for the approval of the proposed scheme. The Solicitor-General, in the absence of the Attorney-General, was made a party. He put in a defence. In his defence he took a line which must seem somewhat strange to those who are familiar with the administration of charitable trusts in this country. It is the province of the Crown as parens patrice to enforce the execution of charitable trusts, and it has always been recognised as the duty of the Law Officers of the Crown to intervene for the purpose of protecting charities and affording advice and assistance to the Court in the administration of charitable trusts. The Solicitor-General, however, adopted a very different course. He seems to have thought it not inconsistent with the traditions of his high office to attack a charity, which it was primd facie his duty to protect. He suggested that the Crown was or might be entitled to the property. In the event of his failing on that point, which was the principal ground of his defence, he submitted a scheme in which the original trusts of the charity were apparently ignored altogether. The case came on to be heard before the Chief Justice, Sir James Prendergast. That learned Judge rejected the Solicitor-General's contention that the endowment had reverted to the Crown, and declined to allow an amendment proposed at the hearing by which it was sought to impeach the validity of the Crown grant. He decided, with more hesitation than the case seems to have required, that the general purpose of the foundation was charity, and that the doctrine of cy-pres was applicable. He did not, however, approve the scheme proposed by the trustees, as he thought it was not shown by the evidence before him that it was impossible for them to establish