4

But this desire to refer to arbitration was afterwards expressed to Mr. Fox in more general and more urgent terms, in a letter from the Company's Secretary, dated 25th June, 1849, in which Mr. Fox is desired to solicit his Excellency either to lay down, if possible, some general rule by which all such cases (that is, of persons who had not obtained beneficial possession of their lands) may be determined; if that be not practicable, or be deemed inconsistent with justice to appoint persons in accordance with his original intention, as expressed by the letter addressed by Mr. Domett to Colonel Wakefield on 4th September, 1818, to whom esch case may be referred, as it arises, and be decided on at once. The object of the Directors, for the attainment of which they are most anxious, is to put the parties in possession of whatever, by an impartial and competent tribunal, they may be declared to be entitled to, and to close every transaction with the least possible delay. In the spirit of this communication, I cannot but consider that Mr. Fox was justified in referring Mr. Duppa's claim to arbitration; for it was obvious that the Directors of the Company desired all claims against them to be so settled; and although they preferred that Sir George Grey should name some one person to act as arbitrator, they did not tie down their agent to an arbitration to a person so to be constituted. Sir George Grey was to be solicited to name such person. But how if he declined ? or if the parties should refuse 1 Why should not the ordinary and fair course be followed of allowing each party to name his own arbitrator, with power to appoint an umpire? The person by whom appointed would seem to be but a secondary consideration ; the impartiality of the tribunal seemed alone to be regarded, and the principal agent accordingly, in concurrence with Mr. Duppa, referred to the arbitration of the three gentlemen who made the award in compliance with the wish of the Company, in order to close this transaction with the least possible delay. And what is not unworthy of notice is, that the arbitrators are two of the first merchants, as well as some of the earliest settlers of Nelson, and their award has been confirmed as to the amount of compensation by the Commissioners appointed to hear and decide claims to grants (see their report 22nd Nov., 1851.) In answer, then, to the first enquiry, I am of opinion, for the several reasons, and under the several circumstances set forth above, that the award of the arbitrators forms a contract legally binding on the Crown. I think a jury would hold that Mr. Fox had acted within the scope, and according to the spirit of the authority given in the several instructions of the Company. The second point for my consideration, though thus rendered unnecessary, viz., "if not legally binditig on the Crown, it ought, nevertheless, to be carried out on equitable considerations," may perhaps as well be noticed, because it is possible that every one may not concur in that opinion. The fact that Mr. Duppa has new been so much lo iger kept out of compensation under a fair reliance that the act of the Company's agent would be confirmed, gives him at this time a still stronger claim than he even had before; and if this claim should be disallowed, and should he be driven to seek the same remedy that Mr. Beit and others sought and obtained, he would, even if he recovered very high damages, be deprived of the advantage which would have resulted from an earlier appeal to an English tribunal. Again, the proclamation of Sir George Grey of March, 1853, by which rural lands may be purchased at from ss. to 10s. per acre, shows clearly the estimated value of rural lands ot the Colony, so that, if only the same amount were awarded to Mr. Duppa, he might become a purchaser of the same lands he now claims. As far as the New Zealand Company were or may be concerned, it seems that the land so awarded may be fairly regarded as part of their partnership assets ; and that they might pay their debts incurred in the carrying on their partnership business out of lands of theirs without reference to the question whether the person damified had contemplated being a purchaser of lands at Nelson or Wellington. How far they did right in making compensation in any case out of the land is another matter. But in this instance, the particular land claimed was their own (see Mr. Harrington's letter to Earl Grey, dated 10th March, 1843); nor was the case of Mr. Duppa the only instance in which campensation was made out of lands in one settlement in respect of claims arising out of transactions in another settlement, and which received the sanction of the Company ; i allude to the case of Mr. Greenwood, referred to in the last mentioned letter, in which he was awarded by arbitration 4:>o acres (also at the Wairau. in the District of Nelson, for 100 acres Land Order, to be selected at Wanganui in the district of Wellington.) This claim had been referred to arbitration by the principal agent, and was confirmed by the Directors (see Blue Book, p. 102—3,) and afterwards sanctioned by Earl Grey (see latter from B. Hawes, Esq., M.P., to F. C. .Harrington, Esq , dated 20th March, 1848, Blue Book, p. 529.) There were other similar cases in which land purchasers in one settlement were compensated by lands in another settlement, and a ss. per acre, to which no objections seem to have been taken. The only matter now to be noticed is, whether this award was obtained either through fraud or mistake. The report of the Colonial Land and Emigration Commissioners on the subject of this claim, indirectly charges Mr. Fox, the principal agent, with being an intesested party, as being "a partner with Mr. Duppa in his pastoral pursuits;'' and Lord Grey, no doubt, acquiesing in their opinion that the arrangement should, for this reason more especially, be investigated on the