3

Mr. Fox also, in his evidence, alludes to the destruction of Mr. Duppa's goods as a reason why Mr. Duppa had claimed compound interest, and that the surrender of any claim for this loss was one reason for its being allowed. That which appeared to me the worst feature in the case is, that Mr. Duppa was allowed compound interest for the sums paid for his land, and for the losses sustained in property destroyed through the improper conduct of the Company's servants, but that allowance seems, on further consideration, to have been merely a mode of calculating what should be allowed to him, which was more easily ascertainable in that manner than by calculating the actual loss sustained; and i am convinced that the difference between the price given in England for his implements of husbandry and other property so destroyed, and what he would have had to pay to replace them in New Zealand, would have been far greater than what was proposed to be allowed to him in giving him compound interest. Again, the loss of time by his not having the means of cultivating his land at so important a period as the first arrival of settlers here, was also one that would be ill compensated by the allowance of that rate of interest. On referring, however, to the approximate calculation I find that compound interest was allowed only on the amount of his land purchases, though the' above considerations had their weight in adopting this mode of estimating the compensation to be allowed. But I find, in the Colonial Land and Emigration Commissioner's report to Earl Grey, dated May 28 1851 they say, —" We are aware, from the enclosures to Mr. Harrington s letter, No. 4-7, that compound interest was awarded by the arbitrators, in other Nelson compensation awards, though the amount is not statedand they conclude with a recommendation (alter assuming that Mr. Fox was a partner with Mr. Duppa in his pastoral pursuits, and commenting upon that circumstance as if it were an ascertained fact) " that Governor Grey should be requested to institute an enquiry into the case, and to report his opinion as to the justice or expediency 01 confirming or disallowing it." Having thus gone into several particulars which I deem necessary for the full and fair understanding of the nature of the claim, I propose to consider the first point submitted for my opinion, viz., whether the award of the arbitrators, which, by the terms of the reference, might be made a rule of the Supreme Court, forms a contract legally binding on the Crown. Mr. Fox. it is admitted, was the principal agent of the Company within New Zealand, and he entered into the agreement to refer, on the behalf of the Company. The principal agent was appointed by a Power of Attorney from the Company, dated 30th June, 1849, by the 11th clause of which, power is given to him (subject to the proviso next thereinafter contained) "to state, settle, and adjust all accounts, reckonings, claims and demands whatsoever depending, or to depend, between us or the New Zealand Land Company or the said New Zealand Company, prior to its incorporation as aforesaid, &c., and if our Attorney shall think proper to refer any such matter, to enter into, subscribe, execute, and perfect any agreement of reference, or arbitration bond in respect thereof, &c." And the proviso set forth in the next and 12th clause, thus:—" Provided always that nothingin these presents contained shall authorise our said Attorney to refer to arbitration, or otherwisee to deal with and determine any claims or demands made upon us in respect of contracts for the conveyance or sale of lands by us, or by the said New Zealand Land Company or New Zealand Company previous to the execution of these presents, except only with our previous expessed sanction and direction in writing." As this award was in respect of other matters besides the conveyance or sale of lands, it would seem not to come strictly within the proviso. Mr. Fox, however, from time to time received written directions from the Company how to act; and as it was necessary that all the transactions of the Company in New Zealand should be wound up, in order to enable the Company to settle their acconnts with the Government and with the shareholders in Great Britain on the oth of April, 1850, they were very urgent in 1849 with their agent to get them closed with as little delay as possible. In adjusting the differences between the Company and the purchasers of land at their different settlements, the Company had, through Lord Grey, requested Sir George Grey to act as their arbitrator ; but this he had declined doing (see letter of C. Cox, Esq., Secretary to the Company, to H. Merrivale, Esq., under Secretary of State for the Colonies, dated 18th September, 1849). The Directors had previously to this (in a letter addressed to Col. Wakefield, Mr. I'ox s predecessor in office, dated 3rd March, 1848,) adverted to this request to Sir George Grey; and in full expectation of his compliance, they had observed, "under that arrangement, the decision l? in every case to be left to the sole discretion of Governor Grey, restricted only by the condition that the award shall be made exclusively in land." but, they observe, "on the principle ot reserving to such persons as may remain dissatisfied with the arrangement (that is, certain proposals for cr-distributing the Town and Surburban Lands by means of re-selections,) or its results, a power of having recourse to arbitration there can be no question.