RESIDENT MAGISTRATE'S COURT.

Nelson Examiner and New Zealand Chronicle, Volume XXVII, Issue 61, 21 May 1868, Page 3

RESIDENT MAGISTRATE'S COURT.

IMPORTANT CASE UNDER THE "LAND LEASING ACT." On Wednesday last, before the Resident Magistrate Sir David Bfonro sued the Superintendent for £17 33. 2d., under the " Land Leasing Acts." which ■was adjourned till Tuesday last. The following were tho grounds of complaint : — " That on the Bth February, 1866, a notice was published in the Nelson Provincial Government Gazette, signed by the Commissioner of Crown Lands for the province, that certain sections of land mentioned in tho application hereafter referred to, would be sold by public auction on the 28th April, 1860, in Nelson. " That plaintiff, on tho 23th of April, 18G6, paid to the Commissioner of Crown Lands the sum of £310, being the amount of deposit payable by the plaintiff in respect of a certain application made by him to the eaid Commissioner of Crown Lands at Nelson, in consequence of such Gazette notice, for leases of certain sections of land in the district of Amuri, in tho province of Nelson, in squares 104, 103, and 83, respectively mentioned in such application, under the 'Crown Lands (Nelson) Leasing Act, 18G6;' and although the plaintifF complied so far as was required or necessary with the provisions of the said 'Crown Lands (Nelson) Leasing Act, 1865/ and although the said Commissioner of Crown Lands would not grant, and never has granted to the plaintiff the leases bo applied for by him, yet the amount of the said moneys so deposited as aforesaid was not roturned to the plaintiff by tho said Commissioner, or any person on his behalf, for a long and unreasonable time, to wit, until the 16th November, 1866, or thereabout ; nnd tho said plaintiff was unfairly and illegally deprived of the use of the said moneys, and suffered damages to the extent of £17 3s. 2d., the sum claimed." Mr. Pitt appeared for plaintiff, and Mr. H. Adams for tho defendant. Mr. Pitt stated tho caso at some length, arguing Unit, in consequence of the action taken by the Government liia client had been forced to apply for leases of tho lands so offered for sale, otherwise ho could not havo been able to preserve tho property which he held under certain depasturago licenses, granted under tho old form fixed by Sir George Grey's Regulations. The action that had beent aken in respect to these applications for leases was not voluntary on tho part of tho plaintiff, but was absolutely nocessavy to preserve- his interests which were threatened by tho course of tho Government, for if the lands had been offered for sale, he, as licenseholder, would have been compelled to have purchased land which was worth only about five shillings per acre, and for which ho might have been run up to 15s. by outsiders. Ho applied for the leases, depositing £310 odd as fees. It was afterwards found that the Government could not sell the land, and tho deposit was returned, but without interest, which ho now claims. Mr. Pitt contended that tho Provincial Government was bound to know that they could not give a title to tho laud, and they should not have therefore taken a deposit. Mr. Adams : Sir D. Monro was bound to know this also before ho took the steps he did. Ho was not legally obliged to apply for a leaso. Mr. Pitt ; Perhaps ; but that had nothing to do with your action in the matter. You advertised for sale, land which you could not sell, and you received on that land money ou deposit which you had no legal right to receive, and on which therefore interest is now sought. Tho particulars generally nppear in evidence, the chief part of which, as given by Sir D. Monro, appears in tho correspondence which wo append bolow : — " To his Honour tho Superintendent. " Siu— l beg respectfully to ask your attention to the enclosed copies of a correspondence between the Commissioner of Crown Lands of this province, the [ Secretary of Orowu Landa, and myself. J?roni that

correspondence, your Honour will perceive that the Nelson Land Office took from me (illegally, as I held at tho time) a sum of money of £310, as a deposit upon certain leases which it undertook to issue ; but that ultimately the Land Office found that it had no power to issue tho leases, and returned the deposit to me. The deposit was paid by mo in April, and retained by the Land Office until the month of November. "Upon this deposit, I claim ordinary interest for the timo it has been in the hands of the Land Office. " It is right that your Ilouour should be informed that from tho first I protested against the action of the Land Office in this matter, as illegal ; and onits being persisted in, as was done, with a very high hand, I petitioned tho General Assembly. My petition was referred to a Joint Committee of both llouses, and their verdict was as follows :—: — " ' 1. That in the opinion of this committee, tho action taken by the Nelson Waste Land Board, inputting up for sale a part of Sir David Monro's run, without any application having been made by an intending purchaser, is a breach of the contract existing between the Crown and Sir David Monro, under the Depasturing License issued to him. " ' 2. That Sir David Monro should have his money returned to him, with legal interest, and be placed upon the precise footing ho occupied under his original license, before the land was advertised for sale on tho 25th February, 1866.' " Such was tho deliberate opinion of what must be regarded, with reference to all such questions, as the highest tribunal in tho country. " I now ask your Ilouour to take the matter into your consideration. It may bo answered that the courts of law aro open to mo ; and tho Act of last session may bo pointed to, as offering a suitable mode of proceeding. But, while it is tho evident intention of this Act, that the just claim of the person who has obtained judgment against a province should not be defeated by the action of the provincial legislature, it can hardly bo argued that the General Assembly intended by this Act, to say to a provinco that it should deny all claims but thoao which havo been determined by a court of law. Where a claim is admittedly just, and more especially when it has been pronounced to bo so by a thoroughly competent tribunal, it would certainly appear preposterous to maintain that ifc cannot; be satisfied without the trouble and expense of recourse to a court of law. " I trust that your Ilonour will admit that my demand is one which is perfectly just, and that you may be pleased to take steps to settle it in the manner which will involve the least expense and delay. " I have, &c., " D. Mokbo. " Nelson, Gth January, 18G8." [Enclosure above referred to.] "To Sir D. Monro, Nelson. "Sir— ln reply to your letter of tho 28th ultimo, requesting to be informed as to what steps will be I taken in the matter of your application for leases of certain lands under the ' Crown Lands (Nelson) Leasing Act, 1865/ I have now tho honour to inform you, that the Waste Lands Board having entertained a doubt as to their being able, under the 17th section of the said Act, to give, in exchange for the license surrendered by a runholder, more than ono lease, or to include iv ono lease several isolated blocks taken out of the run held under such license, referred the question to the Acting Attorney-Gene-ral, who gave his opinion to tho effect, that ' tho Waste Lands Board cannot issue to the holder of a pastoral license, in exchange for that license, more than one lease,' and also ' that the Board cannot include different blocks, or isolated sections, in one lease.' " The Board will not, therefore, be ablo to issue a lease, or leases, as requested by you, but are prepaml to return your deposit. " I have, &c, " U. C. Daniell, " Commissioner. " Crown Lands Office, Nelson, " November 14, 1866." " To Sir David Monro, Nelson. " Sir— ln reply to your letter of the 16th ultimo, requesting the payment of interest on the money deposited by you with your application for a lease of land on your run, I have now tho honour to in- ! form you that, having referred the matter to the Secretary for Crown Lands, that officer has instructed me to reply ' that there is no fund at my disposal applicable to the payment of the interest in question.' " I have, &c. "11. C. Daniell, " Commissioner. " Crown Lands Office, Nelson, " December 20, 1866." "Sir D. Monro to the Secretary of Crown Lands Wellington. " Sir — In reply to an application made by me to the Commissioner of Crown Lands of this place for the interest upon a sum of three hundred and ten pounds (£310), that officer writes to mo as follows : — ' Having referred the matter to the Secretary for Crown Lands, that officer has instructed me to reply that there is no fund at my disposal applicable to the payment of the interest in question.' " The circumstances of the case arc these. In April last, being forced into it by the illegal action (as I considered it) of tho Nelson Waste Lands Board, of which the Land Commissioner is one, I applied for several leases under the Nelson Crown Lands Leasing Act, and paid the required deposit. The sum thus deposited (£310) was retained by the Waste Lands Board or Commissioner, until the lGthof last month, when it was returned to me, the Commissioner writing at the same time to inform me that he found that the Act in question did not give him the power to grant the leases on account of which he had received the deposit. I consider myself entitled not only to have my money returned to me, but to be allowed the ordinary rate of interest upon it. It was by no voluntary action of mine that an applicacation for leases was m the first instance made by me, and the Government having taken money from me for a consideration which it found itself unable to fulfil, is clearly in all equity bound to place me in the same position as I occupied before being affected by its action in the matter. " If the liability be a just one, it cannot be a satisfactory answer that tho Land Commissioner has no funds at his disposal. I would respectfully submit that the injury having accrued from the action of the provincial administrative body, the provinco is both equitably and technically liable. And as the Land Fund is paid in the first instance to an officer of the General Government, it is in tho power of the latter at all times to insure that any liabilities incurred by the province are duly met. " Trusting that this course may be taken in the present instance, and that the Receiver of Land Rovenue of this place may be instructed to liquidate a demand which no reasonable man can dispute. " I am, &c, "D. Monro. " Nelson, December 24, 1866." "To Sir David Monro, &c., &c., Nelson. " Sir— With reference to your letter of the 2-ifch ultimo, relative to your claim for payment of interest on a deposit in an application for a depasturing lease refunded by the Waste Lands Board, I have the honour to inform you that I have brought your letter under tho consideration of tho Government, and that it is of opinion that the demand for interest made by you cannot be entertained. " The grounds for this decision appear to be, that the Government has no power to appropriate the Land Fund, except such part of it as is submitted to its appropriation by law. All further appropriation is expressly givon to Provincial Legislatures. A deposit can be returned, becauso (where the transaction to which it is preliminary has not been completed) it is not available Land Revenue ; but additional money in tho shape of interest cannot be paid out of tho Land Revenue or Provincial Revenue without Provincial appropriation, or out of the General Revenue without appropriation by the General Assembly. "It appears from this that your proper course

would bo to petition tho General Assembly for redress in this matter. I make this remark merely as an indication of my own opinion, and not of the mind of the Government with respect to your claim. " I have, &c, "Alfred Domett, " Commissioner of Crown Lands. " General Crown Lands Oflieo, Wellington, " January 15, 18C7." " ITonry Cooper Danipll, sworn : I am Commissioner of Crown Lands, Nelson. 1 received the application of Sir D. Monro, dated April 27, 18GG. About that timo I instructed Mr. Catley, as receiver of land revenue, to receive the deposit of Bd. an acre. This is the usual custom. I havo granted leases under the Act of 18G3. The receipt for the deposit is all that is given until tho leases aro made out. Applications aro gazetted, but not when a runholder is applying for ,a portion of a run then occupied by him. In October, 18G6, the Attorney-General gave his opinion upon the "Crown Lands Nelson Leasing Act, 18G5." No application was ma<lc to the Attor-ney-General, through the Secretary of Crown Lands, before this time. In July, 1866, 1 referred the question to the Provincial Solicitor, whether the Government had power to grant certain leases. I never applied to the Provincial Solicitor or AttorneyGeneral for any advice on Sir D.ivid Monro's application. On the Gth July, 1868, I wrote to the Provincial Solicitor, asking his opinion on the 17th section of the Act of 1805. I got his opinion on the same within a week from that time. I did not forward Sir D. Monro a copy of the Provincial Solicitor's opinion. Shortly after Sir David Monro niado his application ho went to Wellington and remained there until about October, and I had no communication with him in the meantime. In the meantime, a draught of a lease was made out, and the plan put on it of all tho land applied for except one block of 862 acres. About 8,300 acres were included in this draft. When Sir David returned from Wellington, I believe I showed him the draft lease. I remember seeing him and telling him what I intended doing. One lease Avas intended to be made out for 8,000 odd acres, and this Sir David Monro could have had, but ho objected to it, as he wanted separate leases." The case was adjourned till Tuesday last. Tuesday, May 19. Hoaring resumed before J. Poynter, Esq., R.M. Mr. Adams, for the defence, argued that the plaintiff must be non-suited, because, in the first place, he did not think that it was a case which came under the " Provincial Law Suits Act," as the officers to whom the money was paid were not officers of the Provincial Government ; and, if it did, the provisions of that Act had not been complied with, inasmuch as that Act required notice of action to be given, and the action to be commenced within six months after the wrong had been complained of. Now the notice had been given, but tho action had not been commenced within six months of November, 1866, the time when the deposit was re-paid, and the interest refused. It had been urged that, as the deposit was received, tho Government was bound to grant the leases; but it must be remembered that the persons who received the money were not the persons who had to decide upon the granting of the leases. It was also argued that the Commissioner should havo known that tlicro was no power to grant more than ono lease, but the plaintiff was also bound to know the law, and if he chose to apply for four leases, ho had no right to take advantage of it. A lease had been offered him of nearly the whole of the land applied for, which he had refused to accept. There was no occasion for him to apply for a lease. If the Government was unlawfully offering his run for sale he might have applied for an injunction, or let the land be put up for sale, and then have secured compensation for any loss sustained. lie had, however, made an application for four leases without in any way refering to tho land being put up for sale, or making any protest in tho application. The money had not been made use of, nor paid to the Provincial Government, but had been regarded merely as a deposit, and when tho plaintiff wished for it, it was at once repaid to him. Under these circumstances, he did not chink Unit the plaintiff was entitled to receive interest. Mr. Pitt having addressed the Court in reply, The Resident Magistrate non-suited the plaintiff.

Christ Church, Nelson. — Divine service will be held this day (Ascension Day), with Holy Communion, at eleven, a.m. ; aud in the evening at halfpast six, p.m. West Coast Rait/way. — Tho Lyttelton Times, oi the 15th instant, notices favourably the proposal to construct a railway between Nelson and the "West Coast. HOKITIKA SUPREME COURT SITTINGS.— The Lifttelton Times, of Saturday last, has the following telegrams from Uokitika: — "The Crown Prosecutor, O'Loughlin, has been severely censured from tho Bench for carelessness in framing the indictments. Great sensation was caused in consequence of tho prisoner Douglass, charged with tbe murder of his mate, being convicted of manslaughter only, after a circumstantial confession of murder. The Crown Prosecutor suggested the option to the jury." Otago Champion Riflemen.— Taylor and Robertson, since their return to Dunodin, have been presented with silver badges by their company. Mr. Busby's Land Claims. — Tho arbitrators appointed to inquire into tho merits of Mr. James ' Busby's land claims — lands alleged by Mr. Busby to have been purchased from tho natives in 1839, and at other times— have awarded him some ten thousand acres of land, and land scrip to the value of between £30,000 and £-10,000, the land to be chosen from the provincial waste lands of the province of Auckland. Mr. Bucklvnd's Seized Cattle. — The cattle belonging to Messrs. Buckland and Firth, which were seized some weeks ago when being taken from Tauranga to Waikato, have been delivered up again by the kingites. Discovery of Gold at Raglan.— A correspondent of tho Southern Cross writes that a native having brought into Raglan the intelligence of a large quartz reef being on the Hakarimata range, about 12 miles from the township, a prospecting party, consisting of fifteen of the settlers, was to start on Wednesday, the Gth instant, to test the locality. Dr. Mueller on Red Rust. — At a time when the subject of rust has been regarded by tho South Australian Government as of sufficient importance to justify the appointment of a Commission of Enquiry, if; will be well, in the interests of general information, to mention some results of the investigations of Professor De Barry, of Halle, which are now the subject of examination and comparison by our Government Botanist, Dr. Mueller. These stated very briefly arc, that at one stage in the cycle of changes that tho rust fungi undergo— that of the autumn spores (puccinia) — they will not again grow on tho wheat-stalk, but the globules must find another plant on which to germinate, and on doing so assume the form known as accidium spores. Having taken this form the fungus produces a large number of minute globules, which are spores of the original form, ready for attacking the wheat stalk or whatever may bo the kind of grain subject to its in that form. Of the intermediate plans needful for the sustenance of the rust in passing through its changes, a certain number have been' discovered. Tho common streaked rust., after passing through its changes on tho wheat-stalk, reaches its accidium stage by germination on the various kinds of berberries, which partly goes to explain a current instinctive belief amongst farmers, in some places, that tho berberry plants cause rust. At the same stage, tho spotted rust attacks the various plants of the borrage class, and the crown rust goes to tho English buckthorn. No doubt tho inquiries now being made in Europe will extend the list of plants forming tho habitat of the rust at this stage, and Australian inquirers might usefully turn their attention to find what aro tho native plants to which

the rust resorts to pass its acculium development. It would then become a question whether anything could bo done to restrict the ravages of rust, by extirpating, if possible, these species of plants. But, in tho meantime, knowledge* of these changes and conditions is always so much gained towards the elucidation of the ultimate question, if ever that assumcß a practical form. — Argus.