CORRESPONDENCE.

Lyttelton Times, Volume I, Issue 51, 27 December 1851, Page 7

CORRESPONDENCE.

To the Editor of the Lyttelton Times

Sir, —"When a public Journalist takes upon himself to vituperate individuals for earnestness in the discharge of their duties, and in terms so personal as those you have assumed in your leading article of the 13th inst., they have a right to expect that what he states, he will state at least correctly. The Judgment reported, was that given in the case / '■■'" Ferris v. the Canterbury Association," and „>-not iutMr. Dampier's case. The application to the Supreme Court was made by Mr. Ferris for an injunction to restrain Mr. Godley and the Canterbury Association from levying upon the plaintiff the balance which the justices (acting under the Resident Magistrate's Court Act), had adjudged Mr. Ferris | to pay, although as he alleged, the Association had \ not performed their part of the contract. The In- * junction was moved ex parte, in order to obtain the opinion of the Court at the least possible expence and delay upon two main points ; the first, wiiether the justices had jurisdiction in the matter, the second, whether the Canterbury Association could, —without performing the acts, and complying with the conditions in the performance of which the powers of their act of parliament were rendered operative,—make a perfect and legal conveyance as against the crown. The object of the plaintiff in making the application to the court ex parte was rather to remove than create embarrassment to the Association, and therefore neither the plaintiff nor

his solicitor were, I think, entitled to the ill-natured observations you have been pleased to make.

If your readers will be kind enough to adopt your suggestion and place my former letter side by side •with the judgment, they will see that it strictly bears out the opinion previously expressed by me upon the Association's title, if it may be so called, except upon that question which, to a certain "extent, is still a moot point. They will find that I did not "question the power of the Association to give any title at all," but that the point intended to be raised, and on which the main question depends, was whether actual payment to the crown in performance of the conditions imposed by the Canterbury Lands' Act, was necessary to the due exercise of the Association's power of conveyance, by which the Crown's tights) were to be bound,^ for if so, the Association was not, at the time of the adjudication, entitled to the purchase money, because they were not then in a position to convey or to compel specific performance of the contract by the purchaser, for want of compliance with their own obligations.

Upon this question his honor the Judge is stated to have said, " This power is made subject-to certain conditions and the terms of purchase, and such conditions affect the power only, and not the estate of the purchaser." It ■would seem, however, that if the power were affected by the conditions, so, at law, must be the estate also, which was derived under the exorcise of such power, for it would seem that unless the conditions were duly performed, there could be no due exertise of the power given them by the Act.

It is admitted on all hands that the power to sell was well exercised, (all the conditions required at that time having been performed), but the power intended to be submitted to the Court, was the power of conveying (as distinct from that of selling), and that it was contingent in point of fact and of time, on performance of the condition requiring actual payment to the Crown of its portion of the purchase money. The reasons reported to have been assigned by the learned Judge for his conclusion that the condition was an impossible condition, and not a condition precedent, do notseem (I speak with every possible respect) to be borne out, for every day's practice in conveyancing in England provides the remedy, viz., that such part of the purchase money as should be payable to any other party, should at the time of such conveyance be paid to such party, (or in the present case to the Crown) by the purchaser under direction from the vendors, and so become a payment by the Association to the Crown. This was the course which I proposed to adopt in the conveyance tendered to the Association in order that, for that part of the purchase money which was payable to the Crown, the purchaser might obtain a proper discharge and evidence on the face of the title, that the condition had been performed on which the legal title, by conveyance and the Act of Parliament conjointly, was to pass to iiim.

It would seem by the cases, to which however it does not appear that his Honor's attention was called, that the conditions upon which the exercise of a power at law are to be performed, render it imperative that they be complied with so far as the conditions are in their nature precedent, or are at the time to be complied with in order to give legal operation to the exercise of a bare naked power, such as the powers in this case ; and that without such performance the legal estate would not pass.

In reference to the condition being a condition precedent, the learned Judge is reported to have said, " 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; Mr. Ferris contends thathe ought not to fulfil his contract until the Association has performed this condition." The answer to this has already been given, and the common practice in conveyancing provides, as above stated, a remedy for this apparent anomaly. I think therefore I may be permitted to say that the condition was not shown to be an impossible condition.

It is not, however, my desire to question the soundness of his Honour's judgment, but rather to jioint out clearly, if the abstruseness of the subject wiil permit it. the turning point on which a decision was sought; whether the question may now be considered as set at rest, or whether the Association wiil think it necessary for protection of their numerous Land-Purchaser's titles, that their Act be amended, or the grants made under it, without previous xjaymont to the crown, confirmed, remains to be proved, and will probably depend on the view conveyancers and the Association's legal advisers in England may take of the subject, (the decision pronounced hero in an exparte application for an injunction being without appeal), that they may feel themselves without doubt of having redeemed the pledge given to the colonists, so emphatically stated in your journal of the 13th inst., " That if upon laudiug in the colony the settlers had found the powers of the Association (in recard to their giving to the colonists a good and complete title to the lands, without hindrance or delay of any kind whatsoever, and which has been rendered the more important by the New Zealand Company's failure in that respect,) could not be fulfilled, the Association would have been guilty of a gross breach of faith, aud a cruel fraud would have been practised on those who had purchased land."

Requesting you will excuse me for thus trespassing upon your columns,

I am, Sir, yours very obediently, Chris. Edward Damfier.

Lyttelton, Dec. 17, ISSI

[Mr. Dampier is very angry with us—to the extent of accusing us of mis-stating facts. We are not aware of having done so. We did not say that Mr. Dampier had appeared as plaintifFia the case recently tried at Wellington, or that he had incurred the expences of that trial. Every one knows that Mr. Ferris was the public benefactor who sacrificed himself in order to quiet the minds of his fellow, colonists as to the security of their titles. What Mr.Dampier did was this. Having been a defendant before the magistrates in a case exactly similar to that of Mr. Ferris, he wrote a long letter in our columns, laying down the law, peremptorily, and rather incautiously for a law* er, upon the case at issue ; and he treated with discourtesy and contempt those who differed in opinion from himself. 13y

that letter he made the case his own, no matter who was the plaintiff at Wellington, and became his own. counsel; and he is, no doubt, a little annoyed at having unwittingly exemplified a popular proverb in his profession. But we do not wish to prolong this discussion, and therefore leave Mr. Dampier to gather from it, that if " earnestness in the discharge of his duties" compels him to adopt so peculiar a style of stating his opinions, it also justifies,' and is sure to provoke, a hard measure of public criticism. Mr. Dampier's arguments, now re-stated al great length, throw no additional light on the case. If any of our readers are in doubt as to their weight, we can only recommend them again to read Mr. Justice Chapman's charge.—Ed. L.T,~\