THE APPEAL COURT OF NEW ZEALAND.

New Zealand Times, Volume XXIX, Issue 4288, 17 December 1874, Page 3

THE APPEAL COURT OF NEW ZEALAND.

*. THE EECEIVER OP LAND REVENUE OF SOUTHLAND, APPELLANT, AND THE QUEEN (BELL, RELATOR), RESPONDENT. J UDGMENT. Mr. Justice Richmond delivered the following as the judgment of the Court, consisting of Mr. Justice Gresson, himself, and Mr. Justice Chapman. The question before the Court was whether about 10,000 acres of land in the province of Southland, applied for by the relator, Mr. Bell, were purchasable at the price of, £1 per acre, or whether the price had been legally raised to £3 per acre before the application was complete. The case thus involves a question of £20,000 : This is an appeal from the judgment of the Supreme Court (Otago and Southland District) making absolute a rule for a mandamus commanding the appellant to receive the purchase money of twenty-six parcels of land, computed at the rate of 20s. per acre,. under the following circumstances :

On the 7th of July, the relator, Bell, filled up applications in printed forms, supplied by the land office, which forms are headed, " Application for Rural Land." These forms are then sealed up, and are not made known to the Waste Lands Board until the name of the applicant is called on for hearing. On the same day that the forms were filled up the name of the applicant was entered in a book in accordance with the 12th section of the Act. This book is, called "The Application Book," and the order in which the names are entered determines the order in which the applications are called on. These applications owing (it is alleged) to a press of. business before the Board, were not heard before the 10 th of July. In the meantime, namely, on the 9th of July, an Order in Council was made by the Governor (in accordance with a provision to that effect in the 26th* section of the Southland Waste Lands Act,. 1865,) raising the price of land from 20s. to £3 per acre. The Waste Lands Board granted all the applications on the 10th July; but the form of application on which the word "granted" was written does not express the price; and when the amount, computed at 20s. per acre, was tendered by the relator, the Receiver of Land Revenue declined to receive it. , The question which this Court has to determine is, whether the relator's application was complete by the fulfilment of all conditions imposed upon applicants by the statute, before the Order in Council came into force. The learned Judge below considered that the filling up of the form of application with a description of the land applied for, accompanied by the entry of the name in the application book, constituted the application. He was impressed by the language of the 12th section, which in one or two places seems to treat the entry of the name as in itself constituting the application. But this section is invoked by the respondent as being conclusive in his favor. It requires personal appearance by the applicant or his agent, and it is contended that this personal appearance, together with what then takes place, constitutes the application; that the form filled up is neither required nor authorised by the statute ; and that the so-called application book is no more than a list of the names of those who desire or intend to apply. There is a preliminary rule or principle which has been frequently acted upon, and which seems sound. It is that when any application is complete—that is when the applicant has complied with all conditions imposed upon him by statute—his right to the land as the first applicant is recognised by most of —perhaps all—the Waste Lands Acts. In the ca3e of Roberts v. The Waste Lands Boai'd of Westland the Supreme Court had to consider the effect of the following proviso : " Provided that if any town sections put up within a defined block as specified in the section be not sold, they may be purchased at any subsequent sitting of the Board at the upset price."

It was held that the enactment amounted to a statutory offer of all sections within the proviso to the first applicant. In the case of O'Kane v. The Waste Lands Board of Otago certain surveyed allotments of land had been advertised in the Gazette as open for selection and sale. O'Kane sont in an application for one or more at the upset price of 20s, per acre ; and he paid a deposit of ton per cent, as required by the Act or regulations. The Waste Lands Board refused the application, on a ground not within the statute. It was suggested that O'Kane's application was no more than an offer, which required acceptance by the Board, but the Court considered that the advertisement in the Gazette was the offer, of which the application should be deemed the acceptance, and that such " offer constituted a statutory engagement which the Government ought to carry out, except for some reason to be sought for in the statute." The same principle is implied in the judgment recently delivered by this Court in the case of Kussell v. Seealey. Tho question was whether the plaintiff's application had been completed on a certain day, by fulfilment of tho statutory condition of "payment in cash." The Court considered that payment by a marked, i.e., accepted, cheque on the bank legally recognised as.the deposit bank of the Government, satisfied the statute, and that payment in cash did. not necessarily mean in specie, but was used as opposed to credit. What theso cases decide is this : That when an application warranted by tho statute is made, and the applicant has complied with all the conditions imposed upon him by the statute, his claim to have the land comprised within his completed application is only to be defeated upon some express ground to be found in the statute, and that the Board has no other discretion than to examine into such grounds. Any other discretion would degenerate into arbitrary will or caprice. In tho case now before us the difficulty is in determining what constitutes the application, or in other words when tho application was complete. The learned Judge treated the filling up of the form, and the entry of the name in the application book, as the application : the counsel for tho appellant contend that there

was no application until personal appearance. There are difficulties inseparable from both hypotheses, arising out of the several sections of the statute, and after very careful consideration, we think the only intelligible solution which is warranted by the statute is this, that personal appearance is a condition without which the previous application is inchoate and incomplete. That is, we regard personal appearance before the Board as a statutory condition, quite as imperative as " payment in cash," under the regulations in force at Hawke's Bay, and as payment of a deposit of 10 per cent, under the Otago Act ; and that although it may be correct—and we think it is correct —to call the formalities which took place on the 7th Jxily " the application" for certain purposes comprised within the Act, such application is inchoate and incomplete until the condition comes to be complied with. This view seems to us to get rid of many difficulties. In the face of sections 12 and 34, we cannot ignore what was done on the 7th of July. Con sidering that as the inchoate application, conferring a vested right, not indeed as yet in the land itself, but to a certain priority of audience as an applicant for the land, it disposes of the difficulty felt by the learned Judge below; it leaves something capable of being dismissed. It also - brushes away the difficulty, and apparent inconsistency, pointed out by Mr. Smith as arising out the 34th section. That section refers to "the description of the land given by the purchaser in his application;" terms which naturally suggest, if they do not import, a written application. The written specification of the land applied for, lodged by the relator in the land office on the 7th of July, is such an application as seems to be referred to. The construction we adopt does not treat this document as wholly ineffective. On the personal appearance of the applicant or his agent before the Board, it may well be considered as becoming a part of the application ; as it certainly is the most convenient evidence-of .what the application includes; since it.is, generally speaking, impossible, without writing, to define any parcel of land. But in our opinion, whatever may form part of the application, it dates as of the day when the application is complete ; and this is not until the appearance before the Board of the intending applicant, or some person duly authorised on his behalf, when called in his turn;

One question remains to be considered—■ When i 3 the condition of personal appearance complied with ? We think that there is sufficient upon the face of the affidavits to show that the agent of the relator was in attendance when the Board first met on the Bth of July, but we think that such attendance was not the personal appearance contemplated by the statute. There is no provision for entering an appearance. There is nothing before lis to show that the applicant can demand that the Board shall take notice of his presence as an appearance. Until the applicant's turn comes, as determined by the order in which his name stands in the so-called " Application Book," there is no appearance. The application, until the applicant's turn comes, is unknown to the Board. The reference to the application book, the calling of the applicant's name, his appearance when called, and the opening of the sealed application are, if not simultaneous, at least immediately consecutive . acts. When all these things are done, then it is and not until then that the application is complete. Hence we think that the agent's mere attendance from day to day, until his turn came, (until which time he was a stranger to the Board,) cannot be taken as an appearance in fulfilment of the condition required by the statute. This, including all that we have described, took place on the 10th of July. But the Order in Council is expressed to take effect " from" the day of its date. . "Prom," according to Lord Coke, expresses the terminus a quo, and is to be taken exclusively of the day named. This makes the Order in Council take effect from the earliest moment of the 10th of July. The price of land, therefore, was effectually raised to £3 per acre, before the applications of the relators were completed. We are, therefore, of opinion that the Receiver of Land Revenue was warranted in refusing the amount tendered, which was computed at the lower rate, and that his appeal must be allowed with costs. The judgment of the Court below is consequently reversed. ■■••. ■