THE SEALY CASE.

Lyttelton Times, Volume XLV, Issue 4768, 31 May 1876, Page 3

THE SEALY CASE.

(Continued.) MeXIOEANDUH liß INQUIEY AT TI.MAEU, UELATINO TO APPLICATION POH SECTION No. 24,089. The facts established by tho evidence taken at Timaru are .- 1. That Mr Edward Richardson, junior, being in tho Survey Office at Timaru, on February 1, applied at four minutes past four o’clock for a certain section of land, containing about 140 acres. 2. That tin officer in charge declined to receive tho application because it was after four o’clock, and informed Mr Richardson that it could not bo taken until ton o’clock the following morning. 3. That Mr Henry Sealy was in the Survey Office when Mr Richardson’s application was made, on tho afternoon of February 1, and heard what passed between him and tho officer in charge, 4. That Mr Edward Sealy went to tho Land Oflicoat between ten minute-sand eight minutes to ton o’clock on tho morning of February 2. That ho waited until ten o’clock, and as soon as tho hand of tho office clock was on the stroke of ten applied for about 130 acres, part of tho block applied for by Mr Richardson tho preceding afternoon. 5. That Mr Richardson arrived at tho Land Office at three minutes past ten, and was informed that he was too late, and that tho land referred to had been applied for at ten o’clock by Mr Edward Sealy. 6. That MrHenry Sealy informed his brother Mr Edward Sealy of tho circumstances connected with Mr Richardson’s application on Feb I. Mr Fussell says that this was stated more than once by both the Messrs Sealy, and a letter under Mr Edward Saaly’s signature, published in one of the Timaru newspapers, distinctly admits that this was the case.

There is, at first sight, a difficulty with respect to the .lima at which Mr Kichardson

arrived at the Land Office on tho morning of Fob 2. Mr Richardson had, as ho believed, sot his watch two minutes fast of tho office clock tho previous afternoon, and it was exactly ton by his watch when ho entered the Land Office, tho office clock showing at tho time throe minutes after ton. Supposing Mr Richardson to have actually sot his watch as ho intended, and ns ho believes ho had set it, either tho watch had lost five minutes or tho clock had gained five minutes since the preceding afternoon, that is in about sixteen hours, or they had both gone wrong in opposite directions. But there appears to bo no ground whatever for supposing that the clock, which had for a long time past boon going correctly, had either gained or been altered, and tho probabilities are against Mr Richardson’s watch having lost. Another explanation of the divergence must bo sought for, and tho explanation that suggests itself bb tho most probable is, that Mr Richardson did not actually do what he intended to do. If ho had intended to set his watch exactly by tho clock, ho would in all likelihood have done it correctly, but ho had it in his mind to make it two minutes fast of the clock, and ho had to put tho hands back from five to ten minutes to make it eo. It is suggested that he put it back two minutes beyond, that is, behind tho figure which tho clock at that time indicated, instead of stopping two minntes abort of that figure, this is a class of mistake which surveyors and others habituated to use graduated circles know might easily bo made. If this hypothesis bo accepted, the time difficulty disappears j but whatever may be the tnu explanation of the divergence between the two timekeepers, it must be assumed that Mr Richardson arrived at tho Land Office on tho morning of Fob. 2, at three minntes past ton o’clock. The questions to bo considered are :

First —Whether Mr Henry Scaly was entitled to inform his brother (Mr Edward Ssuly) of tho application made on Feb. 1 by Mr Richardson. Second —Whether Mr Edward Sealy, having obtained tho information in this way, was entitled to use it as ho did use it. The Messrs Sealy are joint contractors with tho Provincial Government for survey work, and have an office at Timaru. It appears that tbe Provincial Government rent from them part of their office building for a public office, and that people who wish to buy land generally go to this office to see the maps, and then to apply for tho land they desire to purchase. It appears also tho Messrs Scaly work in the public office whenever they please; that they are or may bo present when applications for land are being made ; and that, if present, they can if they please see all the applicants do, and must hoar all that passes between them and the officer whose duty it is to receive tbe applications. It is a well understood rule, applying not only to a Government office but to mercantile offices and business establishments generally, that persons concerned with the conduct of the business of the establishment, whatever it may be, are not at liberty to talk out of doors to persona not associated with the establishment about matters connected with the personal concerns and transactions of clients and customers, and generally that they will regard as private and confidential all such things as may come to their knowledge as are in their nature private, and which the employer would expect them to regard as confidential. It is equally well understood that no employe is permitted to use for his own advantage, to the prejudice or detriment either of his employer or of any client or customer, information or knowledge acquired in connection with the position which he fills, or the duties with which be is intrusted. This rule is generally not written. It is not usual when the person’s services are being engaged, to import this stipulation into the agreement, or to express it in the contract; it is implied as part of the common law of official life. A proviso that the employe is not to violate tho confidence of his employer would bo considered as superfluous, and as anomalous as would be a proviso that he is not to embezzle his employer’s money, or steal his employer’s goods. The transactions connected with applications for land, the particulars of what applicants do, what they may intimate an intention of doing, and generally the communications that pass between applicants and the officers of the Land Office, are in their nature private until fully completed. The employer would certainly expect they would be regarded as confidential, and it would be held as altogether unlawful and improper if any officer or person connected with the Land Office should disclose matters of this kind to persons out of doors, or should use the information he may acquire in in his official position and in connection with his official duties for his personal advantage to the prejudice or injury of the applicant or any other person. If this view be accepted, it follows that unless tho Messrs Sealy have the right to stand in a totally different position, as contract surveyors, from an officer on the Government establishments, unless it be held that they are not amenable to the restrictions which the permanent officer is subject, but are at liberty to disclose as they please anything that transpires in the Land Office—that they are entitled and free to use for their own advantage information and knowledge which they may acquire there without regard to the consequences to others. Unless it is held that they are entitled and free to do this generally, it follows that on this particular instance Mr Henry Sealy was not entitled to convey to his brother the information which ho did convey to him, nor was Mr Edward Sealy entitled to uso this information in the way in which he did uso it. Will it be contended that surveyors who work for tho Government instead of for a salary, and are paid for their services at per acre instead of per annum (and this appears to bo the only assignable difference between their position and that of the permanent officer) are exempt from the obligations and restrictions which regulate the conduct of tho latter, and that such acts which are here referred to, which are not permitted to him, ore permitted to thorn. It is difficult to imagine by what arguments such a contention could bo sustained. There is, of course, no proviso in the contract that confidence is to be observed with regard to business that may bo transacted in the Land Office by tho public in the contract surveyor’s presence or hearing, and that that they are to abstain from taking advantage of, to the detriment of other persons, information which they may acquire there, but the unwritten law before referred to must be held to be implied. Mr Edward Boaly is as fully entitled as any one of the public to buy land, if he buys it as one of tho public would buy it. As incidental to the carrying on of his survey work, ho would become acquainted with the country in detail, and would know better than the majority of other people whore choice spots are to bo found ; there could bo no objection to bis profiting by this knowledge, because it is no more than any one of the public might acquire for himself if he chose to go in search of it. It will also be admitted that Mr Edward Sealy would have boon entitled to apply for the piece of land which Mr Richardson had applied for tho moment tho office was opened on tho morning of Feb. 2, if lie had obtained a ksowledge of Mr Richardson’s intentions from any one not connected with the Land Office. But, as has been shown, this knowledge was not so obtained. It was in tho nature of special information obtained mediately if not immediately from the Lund Office. Ho would not, or at all events should not, havo learnt it from tho Government officer. Ho would not havo learnt it at all if his brother had not been present when Mr Richardson’s business was being transacted,and if ho could not properly have used this information if it had boon acquired by himself in the Land Office, neither could ho use it when acquired there by his brother. It is stated by Mr Fuascll that Mr Edward Sealy had on tho morning of Feb. 1 intimated that he proposed, or thought of applying, for this particular piece of land at some time not named. Does this fact affect the question under consideration ? Apparently it does not. Mr Sealy’s intimation of what ho intended to do at some time hereafter was not an application within the meaning of the law. It could not be taken as conferring upon him a preferential right to the land in question, as against any one who might subsequently apply for it, and if it did not do that it did nothing, and must go for nothing. Mr Sealy stood in an exceptionally

favoured postilion,as compared with tho public through his connection with tho Land Office. That office is advertised as open to tho public at ton o’clock ; tho public had no right to enter it before that hour. Perhops this restriction is not rigidly enforced, but Mr Richardson appears to have believed, and by walking up and down the street near tho office, to havo acted on the belief that he would not bo admitted before ton o’clock. It appears that Mr Sealy was in the Survey Office when Mr Shaw entered at eight minutes to ton. No business could be done until ton, but Mr Sealy wont there before that hour with tho intention of anticipating Mr Richardson if he should bo late. Mr Sealy has soon all the statements which tho Waste Lands Board has before it, and has been allowed to take copies, and ho has put in a written statement in reply. This paper, so far as it relates to the matter heroin referred to, consists chiefly of comments upon the statement made to tho Waste Lands Board by Mr Edward Richardson, sen., and nn enumeration of tho discrepancies between Mr Richardson's statements and those of his son and tho Government officers at Timaru. Mr Richardson, sen., had no personal knowledge of tho incidents connected with the applications made by his son and by Mr Sealy, and tho information presented by him to the Waste Lands Board purported to be, and was distinctly received by the Board as what ho had heard, not what he was able to vouch from personal knowledge. The Waste Lands Board thought it proper to obtain tho direct testimony of his son and of the Government officers at Timaru, who wore personally cognizant of the incidents referred to, and the evidence taken at Timaru confirms the original hearsay statement in all essential particulars. Tho discrepancies Mr Sealy mentions arc insignificant, and do not at all affert the main issue, viz.,—Whether as between himself and the Government he was entitled to do what he did. An answer which fails to establish clearly and beyond question that ho was so entitled, must bo deemed insufficient, and tho answer made docs not appear to do this, nor does it oven allude to tho question. If a person going to the Land Office to transact business finds there in that part of it to which the public are admitted some one in whose presence he would rather not do what he had come to do, he may go away, or ho may wait until this person has gone; but as respects those whom he may find there connected, or ostensibly connected, with tbe office, ho has no such option; he cannot prevent those persons from knowing what ho is doing, and he ought to feel assured that no use other than that which he intends, or would approve, will bo made by anyone behind tho counter of any communications he may make, and that what be may say or do will bo regarded by them as confidential. It is due to him from tho authorities that this assurance should bo afforded to him. It is evident that in the present case that has been done which ought not to have been done, and the Government will no doubt think it right to take stops to prevent its being repeated. The action of the permanent officers of tho Survey Department at Timaru, throughout this transaction, appears to havo been perfectly correct and satisfactory, and strictly in accordance with tho Waste Lands Regulations. There is no room for ths Waste Lands Board to entertain tho least suspicion that the office clock had then, or had on any occasion, been tampered with.

J. W. Hamilton, Deputy Chief Commissioner Waste Lands Board. John Marshman, Receiver of Land Revenue and a Commissioner of the Waste Lands Board, Alex. Lean, A Commissioner of the Waste Lands Board. Board Room, Christchurch, April 6, 1876. Extract erom Minutes oe Sitting ce Waste Lands Board, April 6, 18 76. 24,089. Monday, February 28, 1876, End to the Hon E. Richardson’s hearsay statement then made to the Board, also to detail notes thereof filed with the Land Office letters and records : The Board deputed one of their number, viz., Mr John Marshman, Treasurer and Receiver of Land Revenue, to make inquiry at Timaru into the facts alleged. Having perused his notes of unsworn evidence taken there, and received his personal statement ; having also considered Mr Ed ward Percy Sealy’s letter to them March 27, commenting on the above notes of unsworn evidence, and on the several statements and papers submitted to the Board, of all of whom he was allowed to take copies. Do now agree to, and have signed a memorandum of the facts ascertained, with their opinion on the matter. This memorandum they now order to be filed with the office records, and a copy thereof to be forwarded by the Deputy Chief Commissioner to his Honor the Superintendent, for such further action to be taken in the case as the Provincial Government may deem necessary and proper. Copy of Statement by Mr E. P. Sealy. I have received a copy of what purports to be evidence taken in Timaru with regard to the charges made by Mr Richardson against Mr Henry Sealy and myself, in connection with the purchase of section 24,089, at Albury. I beg to say that I am at a loss to understand in what way the taking of these statements can be held to constitute an inquiry as between two parties. The statements taken by Mr Marshman, I presume, should load the Board to a conclusion whether there was sufficient on the ex parte examination to justify the Board in affording mo the opportunity of meeting those statements in the usual way by the production of evidence, but it cannot bo taken as part of an inquiry in which I am concerned. I am given to understand that the Board is prepared either to decide upon the merits of the case upon the evidence now placed before them; or, previous to doing so, will receive from mo an answer to statements made by the witnesses examined by Mr Marshman, without my having an opportunity of questioning those witnesses, or calling evidence in reply, la cither case, I must respectfully protest against tho proposed manner of proceeding. I am prepared to show, if allowed an opportunity, by evidence — 1. That on the afternoon of February 1, Mr Henry Scaly did not, as stated by Mr Richardson, draw Mr Fussell’s attention to the fact that the official hour for closing tho office was past. 2. That Mr Richardson's statement to the effect that no one either entered or left tho Survey Office during the period between ten minutes to ton and ton o’clock a.m. is not in accordance with facts. 3. That when I first entered the Survey Office on the morning of tho second day of February, Mr Fussell was already in lion of that office, and remained there until ho and I wont across to tho map room, in tho manner stated by him in evidence. 4. That on the afternoon of Feb 1, Mr Richardson was cautioned to bo present at tho Survey Office punctually at ton a.m. on the following morning. 5. That a similar caution was afterwards conveyed to me. 6. That the road along the northern boundary of section 23,923 was not defined upon the ground until that section was surveyed, and that tho same road was not projected on the map by myself as stated, but by Mr Shaw. I wish further to draw the attention of the Board to tho discrepancies existing between tho original statement laid before tho Waste Lands Board by Mr Richardson, senior, and tho evidence given by Mr Richardson, jun'., as shown in tho following paragraphs taken from the document referred to. The following statements made by Mr Richardson, sen, differ from those made by his son : “ That Mr Scaly, contract surveyor, at about 4h. 6m. p.m., drew Mr Russell's attention to tho fact that tho hour for closing tho office was past.” “ That Mr Fussell, at 4h. 6m. p.m., refused to receive any further applications that day.” “ That Mr Fussell, at 4h. 6m. p.m., warned Mr B. Richardson to bo at the Survey Office at 10 a.m. next day (on Feb. 2).” “ That next morning he (t e., Edward Richardson, jun.) was walking up and down for about ten minutes in front of the Survey Office door, that no one either entered or left that office during tho time until ten o’clock.” 1 wish also to point out to the Waste Lands Boards that the statement to the effect " that Mr Sealy, a contract surveyor, laid out tho road along tho northern boundary of section 23,923, of two acres,” is unsupported by any testimony whatever. In conclusion, I respect-

fully submit for your consideration that in justice to Mr H. Scaly and myself, wo should bo afforded an opportunity of calling witnesses, in answer to the charge made, before a decision is come to by the Board on the evidence of witnesses examined ex parte. EmvAiiD Pisucr Shalt. March 27, 1876. To the Chief Commissioner and Members of the Waste Lands Board. Memo. I have read these papers. The main facts so far as they concern the Government as representing the public are not I think affected cither by discrepancies between Mr Richardson’s statement of what ho had hoard of the facts, and the statement of those who wore actually concerned in them, or by any previous understandings between Messrs Richardson and Sealy as to intentions to purchase. The Government has only to do with the formal application for the land as made in the office, and to determine whether Mr Sealy became the purchaser under other circumstances ond with other information than that of which one of the outside public might have been fairly possessed. In this point I think the decision of the Waste Lands Board is correct. The main facts are for the decision of this point undisputed, and I do not sec that further inquiry can alter or modify them. Both the Messrs Sealy had a right of entree of the office different from that of the public, and the public would naturally look upon them, and they are presumably when working in a public office, in a confidential position. In this instance, it appears that Mr H. Sealy, who was working in the office, and was applied to for the dimensions of a certain piece of land by one of the public (Mr Richardson, junior), and that he by that means became acquainted with the intention of Mr Richardson to purchase. It is admitted that it was throught the disclosure of this information that his brother became the purchaser. Mr H. Sealy should not have disclosed what was communicated to him in an official, or quasi-official position, and his brother should not have taken advantage of the information. The delicacy of his position ns a tenant of the effi-e should also have prevented him from being in the office before ten o’clock, at which hour it is generally understood the public have the right to enter. Had he approached the office as one of the public, by the public street, and at that hour Mr Richardson would have been more likely to have seen him. In the case of an officer under permanent engagement, he would properly bo called upon to make restitution, Mr Sealy’s engagement with the Government has terminated, and I can do no more than express the hope that he will see the propriety of doing this. I think these documents should bo published, and Mr Sealy should bo informed that they will be published, and should be given the opportunity of adding anything to them. Mr Richardson should have a copy. The permanent officers of the Survey Department seem to be entirely free from blame in the matter, W. Rolleston.

Provincial Secretary's Office, Christchurch, April 13, 1876. Gentlemen, —I am directed by his Honor the Superintendent to forward to you the enclosed copy of a memorandum by the Waste Lands Board, relative to Mr E. P. Sealy’s purchase of section No. 21089. In accordance with his Honor’s minute, the previous documents and evidence, together with this memorandum, and the minute attached, will be published for general information. In case you wish to add any statement, I am to request that you will forward it at once. Please return the copy of memorandum, I have the honour to be, gentlemen, your obedient servant. —A Blakibton, Assistant Secretary, Messrs E. P. and H. J. Sealy, Timaru. Superintendent’s Office, Christchurch, May 10, 1676. Sir, —I have the honour to forward herewith the reply which I have received from the Messrs Sealy to my communication relative to the purchase of section 24,089. I shall feel obliged by your informing me by telegraph whether you wish to add anything to the correspondence before it is published. I forward also the evidence taken by the Waste Lands Board in case you wish to refer to it, I must ask you to return this at your convenience.—l have the honour to be, sir, your obedient servant, Wir. Rolleston, Superintendent, The Honorable Edward Richardson.

[A letter was afterwards substituted by Messrs Sealy for the reply here referred to, but bearing the same date. The following paragraph, at the close of their original letter as forwarded to Mr Richardson, is therein omitted: —“ That since by the nature of the inquiry held by Mr Marshman we were precluded not only from hearing the evidence against us and questioning the witnesses, but also from producing any evidence or making any statement in our own defence, the ‘Report ’ of the Waste Lands Board is obviously based not upon an impartial consideration of facte, but upon an ex parte statement only. For this reason, Mr E. Sealy, whilst readily admitting his entire confidence in his Honor’s impartiality and sense of justice, regrets, that unless the Government should yet see fit to hold a fair and unprejudiced inquiry into this matter, he cannot accept or entertain the suggestion contained in his Honor’s memorandum.”] His Honor the Superintendent of Canterbury. Sir, —I have the honour to acknowledge the receipt of ycur letter of 10th instant, enclosing copy of evidence taken in the inquiry held by the Waste Linds Board in the matter of the complaint made by me in connection with the Land Office, Timaru. As I informed the Waste Lands Board, I made the complaint as regarded the particular section No. 21,089 from what I remembered of statement made to mo by my son, and generally from what I saw myself when making application subsequently to the application for No. 24,039. The Waste Lands Board have taken their own course in the inquiry they have deemed it right to hold, and I am glad to observe that your Honor has approved of the res alt of that inquiry. Messrs Sealy Brothers ask for further inquiry ; I trust your Honor will see your way to assent to their wishes, as, from the evidence given by Mr Fussell, of the Timaru Land Office, there can be no doubt that on publication of this case (which I hope will be done in full) those who have to appjy to that office will have good reason to do so in fear of receiving very unfair treatment at the hands of the officials they find in the office, till they are assured that a radical change has been made in the method of conducting the business there. Thanking your Honor for the trouble you have taken in this matter, I have the honour to be, Sir, your obedient servant, EnwAiiu Ricuahdson, Wellington, May 15, 1876.

Christchurch, May 16, 1876. His Honor W. Rolloston, Esq. Sir,—l am desirous of consulting my brother with a view to reconsider our statement in reply to your memorandum, and should feel greatly obliged therefore if you would reservo the same from publication for a day or two, and wo will send in a fresh reply. Yours truly.—H. J. Sbaly. [To be continued.]