CORRESPONDENCE.

Lyttelton Times, Volume I, Issue 49, 13 December 1851, Page 5

CORRESPONDENCE.

To the Editor of the Lyttelton Times. Sir, —Your paper of Saturday last contained an advertisement from Mr. Parkinsou, of Gollan's Bay, stating that he had no connection with me. I know not what could have induced him to take ihe trouble to make this assertion ; for, with the exception of one occasion, when Mr. Parkinson offered me a commission to sell some heifers for him, I can safely say that no connection at all has ever existed between that person and myself, and that I consequently regard his advertisement as utterly unnecessary and uncalled for. . I trust that you will excuse my troubling1 you with this, hut as the advertisement in question is calculated to insinuate something- more than )>- eets the eye, I take the liberty of requesting you to insert this in your next publication. lain, Sir, your obedient servant, W. Packard. Lyttelton, Deo. 9, ISSI.

The following are the particulars of Mr. Ferris's application for an injunction which we noticed in our last number. SUPREME COURT, Nov.lO, 1851. Ferris v. The Canterbury Associaiion. Mr. Hart, in support of the motion, read an affidavit of the complainant, on which he grounded his application. It appeared that, on the 2nd of July, the Canterbury Association advertised certain lands for sale, comprising-, among others, a certain town section of a quarter of an acre, in the port town of Lytteltou. By their regulations they require any intending buyer who desires a particular lot to be put up to pay to the '• deposit account" of the Association with the Union Bank, the upset price of £12 pe.r section. Mr. Ferris accordingly paid in this sum. At the sale, the section or allotment was knocked down to Mr. Ferris for the sum of £30. Befoie completing the purchase, Mr. Ferris demanded of the Association "an abstract of their title," which was refused him, and in lieu thereof a copy of the Act of Parliament 13 and 14 Vie, c. 70, "empowering the Canterbury Association to dispose of certain lands in New Zealand," together with a copy of the Charter of the Association, was handed to his solicitor, Mr. Dampier. A deed of conveyance was then prepared by Mr. Dampier, framed on the assumption that a purchaser from the Association, for his own security, is bound to see that one (at least) of the " conditions" in the Act of Parliament (namely, that one-sixth of the pur-chase-money has been paid to Her Majesty) has been fulfilled by the Association ; the deed wit- • nessing, that " out of which said sum of thirty pounds the said Association have paid to or for the use of Her Majesty, the sum of five pounds, being one-sixth part of such purchase-money, as by the said Act of Parliament required, and as appears by the receipt of the Colonial Treasurer of the said province, or other proper officer appointed by the Secretary of State for that purpose hereupon indorsed," &c. This deed the agent of the Canterbury Association refused to execute, on the ground " that it contains matter which he has repeatedly declared to be, in his opinion, such as he is not bound or empowered to admit." The agent of the Canterbury Association then brought an action in the Resident Magistrate's Court against Mr. Ferris, for the balance of the purchase money, £18, and obtained an adjudication in his favour; and it is to restrain the Association from farther prosecuting that judgment to execution that this application is now made. First, Mr. Hart urges that the Court has exceeded or mistaken its jurisdiction, inasmuch as the sum of £12 cannot be deemed a deposit, because there was no contract or agreement for the sale of any land at the time the money was paid. It is therefore rather a stake than a deposit. Hence the sum in dispute was the whole purchase money, or £30, which is beyond the jurisdiction of 'the Resident Magistrate's Court. Mr. Justice Chapman: On this single point as to jurisdiction, I conceive the complainant has no case. The sum of £12 was paid avowedly to the " deposit account" of the Association with the Union Bank; subject, no doubt, to be returned in the event of no purchase beinsr made. It was not paid to the Bank, or to any officer of the Bank, as a stakeholder. But assuming that it was in the nature of a stake in the first instance, and that the Bank held it—not to the credit of the Association—but as a stakeholder, it clearly became a deposit at the fall of the hammer, and the Associaiion is entitled to treat it as part of the purchase money ; hence the balance was the proper sum to sue for, and was within the jurisdiction of the Resident Magistrate's Court. Mr. Hart continued—The difference between Mr. Ferris and the Canterbury Association, and the point on which we desire to take the decision of the Court arises upon the peculiar wording of that portion of the Act of Parliament empowering the Canterbury Association to dispose of land. It appears by the 2nd section, that the Association is empowered to convey land, "subject to the conditions following;'" then follow six " conditions;" and that to which attention is desired, is the fifth, which is in these words : " That one-sixth part of the produce of such sales * * be paid by the Association to Her Majesty, her heirs and successors, such payment to be made at such times, and to such persons, as one of Her Majesty's Principal Secretaries of State shall, by writing under his

hand, determine * * and the receipt of any one of Her Majesty's Principal Secretaries of State shall lie a complete discharge to the Association for the moneys paid to him." This gives to the Association, at most, but.a conditional fee, or power to convey a conditional fee; in which case the purchaser is not safe unless he receive some assurance that the condition has been fulfilled. The other conditions, though operating on the Association, do not seem to be such as to affect the estate of the purchaser. The emigration fund, for instance, is properly retained by the Association, because they are the trustees for its expenditure—the purchaser pays his money, and so far as he is concerned, the condition is fulfilled—the proper expenditure of the fund is not the condition. The same remark applies to all the conditions except the fifth; but that condition is entirely different to all others —it is a payment to the Crown, on which the whole powev to convey depends, and the purchased has a clear right to be assured that the " condition" has been fulfilled. The conveyance tendered had no other object than the purchaser's security. There is another very serious difficulty;—the Association may have forfeited its charter in any one of the ways mentioned in the act, or its power to convey may have been determined, and may not exist at this very moment, so that its agents and attorneys may be executing grants long after their power to do so has ceased. It may be urged that the Bth clause of the Act relating to the lands of the Canterbury Association, discharges purchasers from the necessity of enquiring as to the fulfilment of any of the said conditions, or the regularity of any sale made by the Association ; and this is the question which, to solve all doubts, it is the object of the present application to determine. Upon looking further at the clause, it appears that all sales made by the Association shall, so far as the safety of purchasers is concerned, be deemed to be within the " aforesaid power." But it is suggested that a power to sell and a power to convey are distinct and different powers. The owner of land may, by letter, authorize his agent to sell it, but must by deed authorize him to convey it. The sale, pursuant to the letter, is binding in equity only; the conveyance would complete the title. The sale by the Canterbury Association may bind the Association and the Crown to convey, but the purchaser is entitled to have a grant from the Crown, or a conveyance from the Association, with proof that the condition has been fulfilled at the time he pays his purchase money.

The application for injunction is founded on the fact that the Resident Magistrate's Court is not a fit Court to determine the questions involved in this case, and cannot do justice. On Thursday, 20th November, 1851, Mr. Justice Chapman gave the following1 decision, refusing the injunction prayed :— I have looked at the Act of Parliament giving power to the Canterbury Association to dispose of lands, comprised within the " schedule to which the Act refers," ■with special reference to the point now raised, and I cannot discover the slightest ground for this application. Mr. Ferris's solicitor applied to the Agent of the Association for an abstract of the title of the Association to the land which he had purchased. How could the Agent give an abstract of a title which the Association does not possess ? The Association has no title to the land itself; the Act of Parliament does not take the lands themselves out of the Crown ;it gives no estate to the Association ; all that it confers is power to convey, power to make a good and indefeasible title, to creato estates in and over portions of the demesne lands of the Crown with certain limits. The power of the Association is analogous to that of the Governor of the colony, though created in a different, but not less effectual manner. Has it ever occurred to any lawyer to ask a Governor for his title ? The next question is, what is the extent of the power of the Association ? Can that body create "an estate in fee simple," or merely an estate subject to a condition which the purchaser, for his own security, must see fulfilled ? I can see no room for doubt that a grant or conveyance in fee simple to a purchaser, executed as prescribed by the act, affords to such purchaser as perfect and indefeasible a title to the land it purports to convey, as any species of assurance known to the law of the land ; and I come to this conclusion, not merely upon the words'of the last clause of the Bth section (which exempts purchasers from inquiring into the fulfilment of the conditions), but on Jie whole tenour and obvious intention of the act in the first place, the power to convey is thus •Stated; —"The said Association shall have power, i' by instrument under their common seal, to dispose

of and convey all or any part of tlie]«id7ta~| 111 the said schedule * * ] )y way of . c , ed sale to purchasers for estates in fee simple " Tp6 power is made subject to certain conditions -mrlT the terms of purchase ; but the subsequent VnvtL of the Act show that these conditions are Cn to affect the power only, and in a particular mil ncr, and not. to affect the estate of the purely' "l The introduction of the word "but" before tl I sentence, "subject to the following conditions''] has the effect of making it relate, grammatical^ to the word " power " rather than to the word "es tates " and " licences." If they were to have been made subject, &c, the word 6k!! would have been omitted. Moreover, though called conditions, the, are not in the nature of conditions annexed t» til fee, (and from the very terms of the fifth condition it is not even precedent to the creation of the pur chaser's estate), but are merely conditions to be performed by the Association, in order to secure to that body a continuance of their "power and disposition," and subject to a prescribed remedy in case of breach ; namely, revocation of the power, If it had been intended that the condition should be annexed to the estate, and imposed on the purchaser,' we must presume that the legislature would have employed words apt and proper for the purpose—words at least as clear as conveyancers employ in-similar.cases. (Litt. 328 et seq.) The Crown does not reserve any right to re-enter for any condition broken, because no condition is imposed on the purchaser ; and because (except as to lands conveyed to the purchaser) the lands comprised in the schedule remain in the Crown; but the Act provides, that " if the Association should at any time, &c. * * omit or neglect to observe or perform any of the conditions aforesaid, one of her Majesty's Secretaries of State may, if he shall think fit, by warrant under his hand, declare that the power of disposition over the land in the said schedule hereby given to them has determined." This, then, is the peril which the Association lies under, and none other; for, expressio unius exchtsio est alterius. The same section then goes on further to provide, that •' no purchaser shall be bound to inquire as to the fulfilment of any of the said conditions." Thus the remedy, in case of breach, being made a question solely between the Crown and the Association, and the purchaser not being bound to inquire as to the fulfilment of any condition, I think he has no right so to inquire. I must further add, that the. view taken by Mr. Ferris involves so inconvenient a dilemma, as in itself to show that it is quite untenable. The condition is that one-sixth of the whole produce of such sales shall be paid to her Majesty. How can the Association pay out of a particular fund, before they have received it ? The Association cannot fulfil the condition until Mr, Ferris fulfils his contract, yet Mr. Ferris contends he ought not to fulfil ns contract until the Association has performed the condition. It cannot be contended that the Association ought to pay one-sixth of the whole purchase money out of .the deposit, because that would be to moke an unwarrantable inroad upon the emigration and other funds chargeable upon the deposit. As to the suggestion that the power of the Association may beat an end at this moment, no alarm need be felt by any purchaser on that score, conveyances made by the Association in the colon) after such determination, and before notice is received in the colony, will be good and valid in la*. This rule, as applied to a far more solemn act than a grant of land, is stated with great force and clefflness in an opinion given in 1732 by the Attoiney and Solicitor General of that day, Yorke and laiboi.both of them lawyers of great eminence <> afterwards took the woolsack. The case was tUB. —Carolina had before that time been under a pi prietary Government; the lords proprietors ap pointed the Governor, who, with a Council and v sembly, made law in the proprietors "all^ s- th the rights of the proprietors were transferred i Crown by sale. After the sale, the Gove nor. Council and Assembly continued to raaße « the names of the proprietors-a "^.^Sent longer. «We are of opimoir" said those an lawyers, "that laws passed by the G^^ pointed by the lords proprietors, and mtneu after the sale, and before notice thereof «m««( d province, are of the same validity as such w* have been if they had been passed in iims before such sale ; but that any laws pass*' proprietors' name, after the notice ot tneu conveyed their interest to the Crown, are au^ null and void (Chalmers' Opins. of ii^miw yers, vol. 1, 238). So in a great numb* where Commissions are determined oy , suC li of the Crown acts done at distant places nu commissions after the demise, but bej Vev . have been held to be good and valid, oi" 1 y ern _ non, Cro. Car, 97, Biirch v, Mary Lowaei^ 400; Thompson's case, 3 P. . Wins. IJ, -^ by appointment of a new Governor in » & u , e commission under the great seal rteu &oW former Governor's commission, but j^ ic ; a ] noby the former governor, before notice " jin)) j sS ion ( tice, not mere rumour—of the new _ all d have always been held to be gooc 1 »»| l. '. w i uC h this rule extends to the highest function

Governor takes part, namely, the making of •/laws. The rule is also applicable, and may be ilJustrated by the case of the New Zealand CompaHny. Their powers were determined on the sth July, -'fIBSO. Any act done by the Company in London that date (with the exceptions stated in the I'Jkct of Parliament) would be null and void ; but jriotice was not received here until the end of Octo/alfcer, 1850, up to which date the principal Agent's *A\uthority lasted ; but on the day on which notice iKwas received by him here his functions also ceased, vrt-ns for the above reasons the injunction prayed must '♦jpl» RKrusED.— Wellington Spectator. L~-<. - : , -—~