A.—2

52

Solicitor-General, that there was no general purpose of charity, but only an intention to erect " a specific school on a specified site." But that is a very narrow view of the transaction, at variance in their Lordships' opinion with the express terms of the gift, and opposed to principles laid down in recognised authorities such as The Attorney-General v. The Bishop of Chester (18.C.C. 444), and The Incorporated Society v. Price (1 J. and L. 498). Counsel also dwelt on the length of time which has elapsed since the date of the original gift without anything having been done in the way of establishing the proposed school. But it is well settled, as stated in Tudor's " Charitable Trusts" (3rd. cd. p. 53), that where there is an immediate gift for charitable purposes the gift is not rendered invalid by the fact that the particular application directed cannot immediately take effect or will not of necessity take effect within any definite limit of time, and may never take effect at all. In support of this proposition the learned writer cites a number of authorities, the latest of which is Chamberlayne v. Brockett (8 Ch. 206) before Lord Selborne, L.C. So far their Lordships have treated the case as if the order under appeal had been made on a proper application and in a suit properly constituted. In fact, however, the application was entirely irregular, and the suit was not one in which such an order as that obtained by the SolicitorGeneral ought to have been made. It is contrary to the established practice of the Court to permit a defendant to an action for the administration of the trusts of a settlement, not void on the face of it, to impeach the settlement in his defence to that action. If he thinks he has a case for setting aside the settlement, or having it declared null and void, he must attack it openly and directly in an action or counter-claim in which he comes forward as plaintiff. Any other course would be inconvenient, embarrassing, and unfair. The present case affords a good illustration of the propriety of the rule. The Solicitor-General declined his proper duty and refused to bring an information. The trustees were compelled to come forward as plaintiffs. The Solicitor-General put in a defence. He submitted that the Crown might be entitled. The case of the Crown was launched in a half-hearted fashion. The point was suggested rather as a difficulty in the way of administration than as a claim to property. In argument before the late Chief Justice, the Solicitor-General seems to have become rather bolder, but his contention was disregarded. Then he appealed to the Court of Appeal, asserting that property of which the Crown was never possessed had reverted to the Crown. But the validity of the charitable trust was not in issue in the suit. There could be no issue in that suit between the Crown and the charity. There was no evidence adduced on behalf of the Crown. There was no one put forward by the Crown who could be cross-examined on behalf of the charity. The Native donors, whose claim would at any rate be superior to that of the Crown, and whose interest is alternately magnified and ignored by the Solicitor-General, were not represented either directly or indirectly. Then on the hearing of the appeal the Solicitor-General applied for and obtained leave to amend his defence. A formal order for the amendment was afterwards obtained on the ground that such amendment was necessary "to more clearly define the grounds of defence of the Crown." But the amendment only made the confusion worse. It was a medley of allegations incapable of proof, and statements derogatory to the Court. But the Court accepted it and treated it with extreme deference. The learned Judges intimate pretty plainly that, if they had not been able to find satisfactory reasons for deciding in favour of the Crown, the amendment would of itself have prevented their making an order in favour of the trustees. The amendment divides itself into two parts. In the first place it asserts that the Crown has come under some undefined and undisclosed obligations to the Natives. The Court seems to think that this assertion -nust place the Court in a considerable difficulty. Why? Why should-a Court which acts on eviuence and not on surmise or loose suggestions pay any attention to an assertion which, if true, could not have been proved at that stage of the proceedings, and which the evidence in the cause shows to have been purely imaginary. According to the evidence, the only obligation which the Crown undertook was to waive its right of pre-emption. The view of the Court of Appeal is to be found in a passage towards the end of their judgment, which runs thus : " What the original rights of the Native owners were, what the bargain was between the Natives and the Crown when the Natives ceded the land, it would be difficult if not impossible for this Court to inquire into, even if it were clear that it had jurisdiction to do so." Their Lordships are unable to follow this observation. The land was part of the Native reserves, as appears from the Government minute of the 7th October, 1848. . At the date of the cession to Bishop Selwyn the rights of the Natives in their reserves depended solely on the Treaty of Waitangi. There is not in the evidence the slightest trace of any cession to the Crown or of any bargain between the Crown and the Native donors. Of course, if the Crown comes forward as plaintiff the transaction may assume a different complexion. There may be in existence evidence which has not yet been disclosed. But if the Crown seeks to recover property and oust the present possessors, it must make out its case just like any other litigant. All material allegations must be proved or admitted. Allegations unsupported go for nothing. Notwithstanding the doubts expressed by the Court of Appeal, it is perfectly clear that the Court has jurisdiction to deal with a claim to property made on behalf of the Crown when properly brought forward. It has no right to decline jurisdiction, still less has it a right to stay its hand at the instance of a claimant who may present a ease, into which it may be difficult if not impossible for the Court to inquire, even though that claimant be the Crown. The second part of the amendment, to which also the Court seemed disposed to yield, is more extraordinary still. It asserts that the executive Government has determined . . . that any departure from the precise terms of the grant by the application cy-pres of the . . . land and funds without the assent of the Parliament of the colony would contravene the terms of the . . . cession, and be a breach of the trust thereby confided in the Crown." "We see great difficulty," say the learned Judges, "in holding that in such circumstances the Court could or ought to interfere." The proposition advanced on behalf of the Crown is certainly not flattering to the dignity or the independence of the highest