1906. WHITE H. C. OF A. vides that the evidence taken in such an inquiry shall be forwarded by the Justice before whom the inquiry was held to the Governor, or to the Judge who directed the inquiry, to be THE KING, disposed of " as to the Governor on the report of such Judge, or otherwise, shall appear to be just." The prisoner is thereby O'Connor J. enabled to get a finding of the magistrate in his favor, and V. upon that to induce the Crown to exercise its right of pardon. It seems to me that the attempt to initiate such an inquiry comes within the principle of all the cases, and that an attempt to pervert the course of law and justice was committed when the prisoner endeavoured, by producing false evidence to the Chief Justice, to bring about that inquiry. It is very like the case of Omealy v. Newell (1). These false affidavits of death were made in order to initiate a proceeding to hold a prisoner to bail. Lord Ellenborough C.J., at the conclusion of the argument, said (2), that he had not the least doubt, that any person making use of a false instrument in order to pervert the course of justice was guilty of an offence punishable by indictment." The perverting of the course of justice in that case was initiating a proceeding to hold to special bail. Here the perverting of the course of justice is the initiation of a proceeding on which an inquiry may take place which may result in a pardon for the prisoner. Under these circumstances I think the first and third counts are good on demurrer, and therefore as to both those counts the appeal should be dismissed. Appeal dismissed. Conviction on first and third counts affirmed. Solicitor, for the appellant, H. E. McIntosh. Solicitor, for the respondent, The Crown Solicitor for New 1906 Contract ·Specific performance — Agreement for lease — Illegality — Intention of H. C. OF A. parties-Conditional lease under Crown Lands Acts-Breach of condition - Sublease for other than grazing purposes-Crown Lands Act (N.S. W.), (48 Vict. No. 18), secs. 96, 98-Timber Licenses Act (N.S. W.), (No. 22 of 1902), Regulations February 1902. Sec. 96 of the Crown Lands Act 1884 provides inter alia that every lease under the Act shall be liable to forfeiture upon breach of any condition annexed to the lease. Sec. 98, sub-sec. (1.) provides that no such lease other than a special lease shall confer any right to sub-let the leased land for other than grazing purposes or to prevent the entry and removal of material by authorized persons; and sub-sec. (III.) provides that no lease shall prevent any authorized persons from cutting or removing timber from the land under lease, conditional leases being excepted from the sub-section as regards taking or removing timber or other material for building purposes. Sec. 133 provides that any person cutting timber other than firewood not for sale from any Crown lands shall be liable to a penalty, and that no lessee under the Act shall obstruct any authorized person from entering them. Regulations made under the Timber Licenses Act provide for the issue of licences or permits to cut and remove timber from Crown lands, subject to the proviso that in the case of land under conditional lease a special authority from the Minister or Forest Officer is necessary. The respondent, the holder of certain conditionally purchased and conditionally leased lands, entered into an agreement to lease to the appellant the lands so held, with the right to cut and remove timber, and the right to construct a tramway across the lands for the removal of timber. In a suit by the appellant for a specific performance of this agreement; SYDNEY, May 3, 4, 7, 14. Griffith C.J., Barton and O'Connor JJ. H. C. OF A. 1906. LANGLEY บ. FOSTER. Held, following Bank of Australasia v. Breillat, 6 Moo. P.C.C., 152, that, even if the agreement were unlawful or invalid or incapable of enforcement as to the conditional lease, the appellant would have been entitled to specific performance as to the conditional purchases; but Held, further, that the agreement, so far as it related to the conditionally leased land did not necessarily import any illegal action, but was capable of being construed as an agreement by the respondent to give, so far as he lawfully might, consent to the appellant's cutting timber and laying a tramway across that land, and not to offer any objection to the appellant's obtaining a licence or permit for those purposes, and to do or concur in any acts necessary for either purpose, and, in the absence of any evidence of intention to break the law, should be so construed, and the appellant, therefore, was entitled to have it specifically enforced. The agreement to allow timber to be cut and tramways to be constructed on the conditional lease was not a breach of a condition annexed to the lease rendering the lease liable to forfeiture under sec. 96; and, though by virtue of sec. 98 it in itself conferred no rights upon the appellant as against the Crown, yet it was not an idle stipulation, inasmuch as without it the authority of the Minister to cut timber might have been withheld, and the appellant could not have conveyed over the land any timber other than that cut upon the land. Decision of A. H. Simpson C.J. in Equity: Langley v. Foster, (1905) 5 S.R. (N.S. W.), 678, reversed. APPEAL from a decision of A. H. Simpson, C.J. in Equity, New This was a suit by the appellant, W. Langley, saw mill proprietor, for specific performance of an agreement by which the respondent, A. W. J. Foster, who was the registered proprietor of three conditional purchases, numbered respectively 28, 37 and 97, and a conditional lease numbered 43, at Coff's Harbour, agreed to lease to the appellant those several portions, comprising about 702 acres, for ten years, on the following terms and conditions:"Rent to be £24 per annum to be paid in advance; any further increase of rent rendered necessary by the Government Regulations to be borne by the said W. Langley. The aforesaid W. Langley to have the right to construct and use tramways on said land for the purpose of removing timber, and to have the right to cut and remove timber on said land at a royalty of sixpence per hundred super feet for all mill logs, and the same royalty for all hewn timber as now charged by the Government on timber 1906. LANGLEY v. FOSTER. off Crown lands; royalty to be paid every three months, but H. C. OF A. monthly accounts to be rendered to A. W. J. Foster aforesaid. Provided that the whole of the marketable timber be removed from one place at a time in a systematic manner so that the land may be cleared and put under grass, which right may be exercised from time to time by the said A. W. J. Foster and his servants. The said W. Langley to have the use of tramway only for a further period of ten years at the price agreed upon aforesaid." Then followed provisions for the payment of rent and for cancellation of the lease and re-entry by the lessor on failure by the lessee to carry out his part of the agreement, and the agreement concluded thus:-"Nothing in this agreement shall authorize the said W. Langley to draw timber from across the land mentioned except by means of the tramway herein before mentioned. All fences to be repaired and kept in repair, and claims of adjoining holders for erection of boundary fences to be met by the aforesaid W. Langley." The defence was that, by virtue of the Crown Lands Acts and the conditions and provisions of the conditional lease, that lease was liable to forfeiture upon breach of any of the provisions or conditions thereof, and that, by virtue of the Crown Lands Acts and the provisions and conditions of the lease, the defendant was prevented from removing any timber from the lands comprised in the conditional lease and from sub-letting for other than grazing purposes, and that consequently he was unable to grant a valid lease of those lands in terms of the agreement, and therefore ought not to be ordered to specifically perform the agreement. The defendant, however, by his statement of defence offered to specifically perform the agreement so far as it related to the conditional purchases, and to grant a lease for grazing purposes of the conditionally leased lands upon the terms of the agreement so far as the Crown Lands Acts and the provisions and conditions of the conditional leases would permit, and to allow the plaintiff any abatement of rent that the Court might think. proper, and to pay the plaintiff's costs up to the time of perusal of the statement of defence. The plaintiff replied that he did not claim to be entitled to a lease valid against the Crown for other than grazing purposes, H. C. OF A. and that he had applied for a special lease from the Crown to 1906. LANGLEY v. FOSTER. construct a tramway over the lands in the conditional leases; and that the intention of the parties was not to provide for cutting timber on those lands but to permit the plaintiff as against the defendant to construct the tramway upon them, with a view to an application by the plaintiff for a special lease from the Crown. For the rest the plaintiff joined issue. On the suit coming on for hearing the defendant made another offer to compromise on terms somewhat less favourable to the plaintiff than the offer contained in the statement of defence. This was refused, and after argument, A. H. Simpson C.J. in Equity, decided that the agreement was illegal and dismissed the suit, but without costs. As regards the offer contained in the statement of defence, he held that the plaintiff, having brought the suit to a hearing, was not entitled to regard the offer as a continuing one, and he therefore refused to make a decree in terms of that offer: Langley v. Foster (1). It was from this decision that the present appeal was brought. Further reference to the facts, as they appeared from the evidence given at the hearing of the suit, will be found in the judgments. Gordon K.C. and Lorton (Clive Teece with them), for the appellant. The agreement in this case is similar to that which was in question in Hutchinson v. Scott (2), which was held by this Court to be capable of being legally performed. In order to avoid an agreement on the ground of illegality it must be shown that it is incapable of being performed in a legal manner, or that it was the intention of the parties that it should be performed in such a way as to break the law: Haines v. Busk (3); Sewell v. Royal Exchange Assurance Co. (4); Waugh v. Morris (5); Hallam v. Harvey (6). The agreement is for a lease with an incidental licence to remove timber. Sec. 98 does not prohibit the making of such a lease as this, it merely makes it invalid as against the Crown to the extent to which it is in excess of the powers of the grantor. A sub-lease conferring powers (1) (1905) 5 S. R. (N.S. W.), 678. (2) 3 C. L.R., 359. (3) 5 Taunt., 521. (5) L.R. 8 Q. B., 202. (6) (1901) 1 S.R. (N.S.W.), (Eq.), 155. (4) 4 Taunt., 856. |