"Greeting—It is a perfect consenting on our part that "Witireia shall be given up to the Bishop for a "College. We give it up not merely as a place for the "Bishop for the time being but in continuation for "those Bishops who shall follow and fill up his place "to the end that religion or faith in Christ may grow "and that it may be as it were a shelter against "uncertain storms—that is against the evils of this "world. This is the full and final giving up of that "place as a college for the Bishops of the Church of "England."

It is in evidence that some of the donors and those the leading men amongst them were converts to Christianity who had been educated under the superintendence of the Right Reverend George Augustus Selwyn, then Bishop of New Zealand, at St. John's Colege, Auckland. That College, founded by the Bishop and named after his own College at Cambridge, was established for the purpose of providing religious education, industrial training and instruction in the English language for Her late Majesty's subjects of all races and of children of poor and destitute persons being inhabitants of islands in the South Pacific. It was a flourishing institution and regarded as a powerful factor in the civilisation of the country. The Bishop, as is well known, had acquired an extraordinary in fiuence in New Zealand. His striking personality, his devotion to his Master's service and his zeal for the welfare of the Maori race had produced a profound impression on the native mind. It cannot be doubted that it was the object of the donors so far as in them lay to imitate the Bishop's example and to make some provision towards the establishment of an institution like the Auckland College near their own homes in the south of the island. The cession is in terms an absolute, unqualified, and unconditional dedication to charity the general purpose or end of which is declared to be "that religion or faith in Christ may grow."

The Governor, it will be observed, sanctioned the proposed cession and undertook to give effect to it without attempting to make any stipulation condition or reservation of any sort or kind. As the law then stood under the treaty of Waitangi the Chiefs and Tribes of New Zealand and the respective families and individuals thereof were guaranteed in the exclusive and undisturbed possession of their lands so 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 lawful for any person other than Her Majesty to acquire or accept land from the natives, 15 and 16 Vict. 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.

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 session was rough land covered with scrub and apparently difficult of access. In order to impose 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 it the neighborhood 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 become unsuited for the purpose of a school or college such as that contemplated by the original donors. In these circumstances the General [unclear: Sy] 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 Office 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 Solicitor-General. 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 necessary hostile" to the interests which the Trustees represented.

In deference to the suggestions of the Solictor-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 [unclear: famili] with the administration of charitable trusts in this country. It is the province of the Crown as parens patriae to enforce the execution of charitable trusts and it has always been recognised as the duly of the Law Officers of the Crown to intervene for the purpose of page 47 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 prima 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 late 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 shewn by the evidence before him that it was impossible for them to establish a useful school in the neighborhood with the funds at their disposal. At the same time he thought it clear that the Trustees were right in their objection to the scheme proposed the Solicitor-General. In these circumstances he reserved the matter for further consideration.

The case was afterwards brought up on further consideration before the present Chief Justice, Sir Robert Stout and Edwards J. Evidence was adduced which satisfied the Court that it would be a waste of the trust moneys to erect a school at Porirua. A fresh scheme was proposed and adopted with some modifications to which the Trustees assented. The Solicitor-General renewed his objections but the Court held that it was bound by the decree made on the original hearing

The learned Judges of the Court of Appeal allowed the Appeal and entered judgment for the Solicitor-General. They did not however adopt or even notice either of the grounds put forward by the Solicitor-General. They were of opinion they said that the land and money had become the property of the Crown for two reasons. In the first place they thought "the grant had become void on the ground that it sufficiently appeared from the evidence that Her Majesty was deceived in Her grant." In the second place, assuming that a school satisfying the terms of the grant had been at one time established, they held that the duration of the [unclear: tra] must have come to an end because the trust was only by last "so long as religious education, industrial training and instruction in the English language should be given to the youth educated therein or maintained thereat." Now as it is common ground that no school was ever established at or in the neighborhood of Porirua, it would seem to follow that the [unclear: occasi] on which the trust, according to the construction placed on the grant by the Court of Appeal was to cease and determine never arose and never could have arisen. It appears therefore hardy necessary to consider the second ground on which the Court of Appeal determined the case in favour of the Crown. It was not pressed at their Lordships' Bar.

The learned Counsel for the Respondent were in much the same difficulty in attempting to support the first ground upon which the Court of Appeal relied. There too the Court had in course to an assumption which has no basis in fact. What [unclear: evide] is there that the Crown was deceived? Absolutely none. The evidence is entirely the other way. The Governor undertook [unclear: image not readable] complete the arrangement proposed by the native donors as [unclear: image not readable] as he received their letter. He did not even wait to [unclear: communic] with Bishop Selwyn. It is not suggested that he communicate on the subject with anybody else. Now it would be absurd to [unclear: fora]a charge of misrepresentation on the letter of the [unclear: nat] donors. But if the native donors were [unclear: innoce] with whom is the blame to rest? The evidence which the Court of Appeal said was sufficient to prove misrepresentation was the covered by them in the introductory recitals of the Crown [unclear: image not readable] But the grant is not a deed inter partes. The statements in it [unclear: an] the statements of the Crown. The statement that a school [unclear: image not readable] "was about to be established at Porirua "is just as consistent with [unclear: image not readable] intention on the part of the Governor to establish the school by the aid of public money, or an expectation on his part that the [unclear: annou]ment in England of the generosity of the native donors [unclear: coup] with the approval of Her Majesty, would bring in ample funds for the object in view, as it is with the supposition of representation made to the Governor by some unknown persons interested in [unclear: image not readable] curing this grant from the Crown. If the representative [unclear: of] page 49 Majesty was unduly sanguine—if he did think that the hopes and Mirations of the native donors would attain a speedy consummation—that is no ground for suggesting that the Crown was deceived. And indeed expectations which may now seem to have been over-sanguine or even unfounded might not improbably have been fulfilled if it had not been for the Maori war and the removal of Bishop Selwyn to an English See before the war was finished.

After all what dees the statement in question come to? The Crown grant says that "a school is about to be established at Porirua." That does not imply that the school was to be established within any fixed and definite period of time. The Governor must have known the circumstances as well as anybody. He knew that so far nothing whatever had been contributed towards the establishment of this school but a piece or parcel of land for the present wholly unprofitable. How could he have been deceived into thinking that the school was to be established in the immediate future. Suppose someone at his elbow with more sense and foresight than he seems to be credited with had pointed out with effect, that many hindrances might arise—that there might be a native Ear—that the Bishop might be removed and that the school might not be established for 50 or even 100 years—would that have altered the action of the Governor? It might have modified the language of the Grant. It might perhaps have led to the omission of the word "about" or to the substitution of the expression "intended to be" for the words "about to be" or to the adoption of some other phrase not obnoxious to hypercriticism. But the substance of the transaction would not have been altered The attitude of the Governor would have remained just the same. What the Governor was looking to when he welcomed the offer of the native donors was not the immediate establishment of a school hut the effect that the action of the natives would produce in the Colony and above all in England. Why should the Court attribute to a Government of the past more than childlike simplicity in order that the Government of today may confiscate and appropriate property which never belonged to the Crown and which the Crown encouraged the rightful possessors to dedicate to charity?

The learned Counsel for the Respondent feeling that they could not support the Judgment of the Court of Appeal on either of the reasons assigned fell back on the argument suggested by the 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, 1 B. C. C., 444, page 50 and The Incorporated Society v. Price, 1 J. and L., 498. [unclear: Coun] also dwelt on the length of time which has elapsed since the [unclear: da] of the original gift without anything having been done in the [unclear: va] of establishing the proposed school. But it is well settled, as state in Tudor's Charitable Trusts, 3rd ed., p. 53, that where there is any immediate gift for charitable purposes the gift is not [unclear: rende] invalid by the fact that the particular application directed cannot immediately take effect or will not of necessity take effect [unclear: with] any definite limit of time and may never take effect at all. [unclear: In] support of this proposition the learned writer cites a number at authorities, the latest of which is Chamberlayne v. Brockett (8 [unclear: image not readable] 206) before Lord Selborne, L.C.

So far their Lordships have treated the case as if the [unclear: Ord] under appeal had been made on a proper application and in a [unclear: su] properly constituted. In fact however the application was entirely irregular and the suit was not one in which such as Order as that obtained by the Solicitor-General 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 [unclear: cas] for setting aside the settlement or having it declared null and [unclear: vo] he must attack it openly and directly in an action or [unclear: count] claim in which he comes forward as Plaintiff. Any other [unclear: co] would be inconvenient, embarrassing, and unfair The [unclear: prese] 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 a Plaintiffs. The Solicitor-General put in a defence. He submittal 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 [unclear: cla] 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 Append asserting that property of which the Crown was never possessed [unclear: ha] "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 [unclear: eviden] adduced on behalf of the Crown. There was no one put [unclear: forwa] 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 [unclear: alternat] magnified and ignored by the Solicitor-General were not [unclear: represe] either directly or indirectly. Then on the hearing of the Append the Solicitor-General applied for and obtained leave to [unclear: amend] defence. A formal order for the amendment was [unclear: afterwards] page 51 tained 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 tinder some undefined and undisclosed obligations to the natives. The Court seems to think that this assertion must place the Court "in a considerable difficulty." Why? Why should Court which acts on evidence 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 appeal's from the Government Minute of the 7th of 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 very different complexion. There may be in existence evidence which has not yet been disclosed. But if the Crown seeks to recover property and to 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 case into which it may be difficult, if not impossible, for the Court to enquire, even though that claimaint 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 page 52 "executive Government has determined * * * that any [unclear: dep] "ture from the precise terms of the grant by the application [unclear: cy-pa] of the * * * land paid 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 [unclear: learn] Judges, "in holding that in such circumstances the Court [unclear: coul] "or ought to interfere." The proposition advanced on behalf of the Crown is certainly not flattering to the dignity or the [unclear: ind]pcndence of the highest Court in New Zealand or even to the intelligence of the Parliament. What has the Court to do with the Executive? Where there is a suit properly constituted and [unclear: rip] for decision, why should justice be denied or delayed at [unclear: the] ding of the Executive? Why should the Executive Government take upon itself to instruct the Court in the discharge of its [unclear: propa] functions? Surely it is for the Court, not for the [unclear: Executive], determine what is a breach of trust. Then again what has that Court to do with the prospective action of Parliament as [unclear: shadow] forth by the Executive? No one disputes the paramount [unclear: author] of the Legislature. Within certain limits it is omnipotent. But why should it be suggested that Parliament will act better if [unclear: it] in the dark and without allowing the Court to [unclear: decla] and define the rights with which it may be asked to deal? [unclear: Th] present Chief Justice, who was not a party to the judgment of the Court of Appeal, took a truer view of the situation when he sail that the approval of a scheme could not "in any way [unclear: hamp] "either the Government or the Parliament in dealing with their "trust."

In the opinion of their Lordships the Respondent has been wrong in every step from first to last. Their Lordships will therefore humbly advise His Majesty that the Order of the Court of Appeal should be discharged except as to the direction [unclear: there] contained for payment of the costs of the Trustees; that any costs paid under that Order to the Solicitor-General should be returned; that this Appeal should be allowed with costs to the paid by the Respondent, and that the Trustees should be at [unclear: libert] to retain any extra costs incurred by them as between solicitor and client out of the trust fund in their hands.