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“If I might be permitted to select, I would beg to “In reply, I am directed by His Excellency to be allowed the north end, nearest the Roman Catholic inform you that when this land is finally disposed of, Chapel.
he will himself order in what manner the several allot. “I have, &c.,
ments shall be appropriated, and that your applicativa (Signed) “ WM. DUMARESQ. shall be taken into consideration. But, in the meat“To his Excellency,
time no one can be considered as having any claim to “Lieutenant-General Darling,
any particular spot or priority of selection, “Governor, &c., &c.".
“I have, &c., To this letter the following answer was returned on
“ ALEX, MCLEAT.
(Signed) the part of the Governor :
“ William Dumaresq, Esq.,
In the minutes of the Governor, under the date of “Sir, I am directed by the Governor to acknow. 15th October, 1831, the following entry appears :ledge the receipt of your letter of the 2nd instant,
“As the arrangements have not yet permitted of the representing that on your renunciation of the land on
persons who were promised building allotments in Wooloomooloo Hill, afterwards given to Dr. Douglas, those set apart for them, and of others who have beca
Hyde Park by Sir J. Brisbane taking possession of it was with the understanding that you should receive a portion of the Hyde Park Garden, and request. since authorised to receive allotments at that place, to ing, therefore, an allotment at the end nearest the make the necessary selection, it appears necessary, is Roman Catholic Chapel.
order to avoid any misunderstanding with respart to "In reply, I do myself the honour to inform you their claims, to place them on record, so that the that his Excellency has been pleased to direct that former may be able to take possession of the grsun! your application is to be noted, in order to its being intended for them, and the latter to select their allotconsidered with those of other applicants, when ments as soon as the arrangements shall be completel
, arrangements may be making for the location of Hyde Park.
“ The second class consists of “I have, &c.,
“William Dumaresq, Esq., promised by me, sam? (Signed) “ALEX, MCLEAY.
considerable time back, that he should receive 22 “To William Dumaresq., Esq.
allotment as soon as the ground was measured and be “Sydney.”
should have retired from the service." To this letter the respondent replied as follows :- On the 29th of November, 1831, the Colonie? “Sydney, 13th April, 1831.
Secretary informer the respondent that the sabe • “Sir, — With reference to your letter of 9th June must lie' over for the present. Subsequently, unverlast, No. 30–912, on the subject of my claim for an standing that it was not the intention of the Gorenika allotment in the Hyde Park Garden, informing me
to alienate the Hyde Park Garden, and not barthat my selection of that portion nearest the Roman ing received the allotment of land promised hina Catholic Chapel would be noted, being led to under- there, the respondent, on the 13th of August, 183, stand that some selections of this ground have been applied to the Colonial Secretary to know if cou made, I have the honour to request my claim to the pensation were proposed to be given to those who be! spot above referred to may be communicated to the authority to select land there. Surveyor-General, to prevent its selection by other In answer to this application, the respondent : applicants.
offered two contiguous allotments in Lacroza Valle; “I have, &c.,
“in lieu of the one formerly promised to him in Hp (Signed)
“ WM. DUMARESQ. Park.” This offer was made subject to certain et “ The Honourable the Colonial Secretary.”
ditions and restrictions, quit-rents, expenditur of
10001. in buildings, &c. &c., and these allotmez; The following reply was sent to the respondent on
were also of less value, and in an inferior possità the part of the Government :
These allotments were refused by the respondent, et *Colonial Secretary's Office, applied for full compensation for the land which
“18th May, 1831. expected to receive. “SIR,- I have had the honour to receive and submit
The respondent subsequently petitioned the Colonia
' to the Governor your letter of the 13th April, referring Legislature and the Secretary of State for the Celozka to mine of the 9th June, 1830, informing you that and, failing to obtain redress, commenced the presen your selection of the allotment of land nearest the proceedings. Roman Catholic Chapel should be noted, and request
The jury gave a rerdict for the plaintiff, damar: ing, in order to prevent its selection by other appli- 50001. cants, that your claim thereto may be communicated This verdict the defendant moved to set aside on tá to the Surveyor-General.
following material grounds
1st. That it was against law.
No surrender of a claim would form a consideration, 2nd. That it was against evidence.
if it was one which could be safely disregarded. The 3rd. That the damages were excessive.
whole transaction was one simply of administrative 4th. That the Judge misdirected the jury in giving practice, and was not a fit subject for legal treatment. the present value of the land as the measure of an understanding had existed between the Governor damages.
and the respondent, but it was not sufficiently precise This motion was dismissed with costs, and against in terms, and had not that reciprocity which alone that dismissal the defendant brought the present could make it the foundation of an action. appeal.
3rd. The promise had been in effect fulfilled by the
offer of the third piece of land at Lacroza, and this Sir Hugh Cairns and Watkin Williams, for the the respondent had refused. It was useless to say appellant, contended,
that this offer was clogged with conditions as to quit1st. That there was no promise which in the eye of rent, building, &c. These conditions did not affect the law could be looked on as a contract. This was the substantial value of the offer. Besides this, any not a case in which specific performance could be grant of land would have been accompanied with conawarded. It would be impossible to ascertain what ditions as to building, and certainly the piece in ques. the precise terms of the contract had been. It was a tion had been so qualified in the hands of the present verbal promise to give a piece of land, but neither the holders. That these were not specified in the original place nor the quantity was specified. It could not be promise, was only a further instance of its uncertain said that this was a case where, though no legal obliga- and general character. tion existed between subject and subject, there was an 4th. The damages, if the contract were binding, were obligation between the Government and its subjects. excessive. The rule by which they had been assessed A court of justice could administer no law and enforce was erroneous. There was no reason for departing no claims except in accordance with established prin- from the ordinary rule of determining damages for ciples of jurisprudence. It was impossible for any breach of covenant. The only damages which could tribunal to recognise purely moral obligations, or to be here enforced were to be measured by the injury enforce rules resting only on official custom or the sustained at the time of the breach of contract. The practice of administration. It may have been usual present case differed entirely from those of damages for to make grants to persons intending to settle in the non-delivery of stock according to contract. colony, and the Governor may have signified his This case must be decided according to the ordinary intention of acting on the practice in the case of the rules of law and equity. The statute under which it respondent; but unless he had done so in more specific is brought points to the entire assimilation of claims terms than the general promise of giving an allotment, between the Crown and a subject to those between subno binding contract could be set up.
ject and subject. No other rules but the ordinary 2nd. Even if there had been a promise specific practice of law and equity could apply; and, tested by enough to be recognised at all, it was not supported these, the respondent's case was obviously insufficient. by any consideration. Nothing had been received by the appellant. The respondent had received other Bovill, Q.C., and R. A. Fisher, for the respondent, land in consideration of military services. The land contended, in question had been promised to him on the con- 1st. That the objection now taken as to the uncerdition of his permanently settling in the colony, and tainty of the terms of the offer and its acceptance had filling a certain civil post which he was expecting to not been taken in the Court below, and could not now obtain. He did not obtain this post, and if he be raised. The only question for the Court here was ultimately settled in the country it was in no way in to determine whether, on the pleadings and the evi. performance of this condition. Thus the occasion never dence as they were transmitted, the judgment of the arose on which this promise was to be carried into Court below could be sustained. That the verdict was effect, and the original promise of a grant of land was against law was a point not argued on the application void for want of consideration. The present claim for a new trial. If the objection as to the indefinitewas for land substituted for that originally proposed to ness of the promise had been taken, it might have the respondent, and which he voluntarily exchanged | been cured in the Court below by further evidence. for it. The claim to it could rest on no higher founda. It was a question for the jury to determine, whether tion than that to the original piece.
it were sufficiently definite or not, -whether the subject [PER CURIAM. Supposing the promise by the of the grant could be ascertained. Governor to give the land at Wooloomooloo to rest 2nd. As to the measure of damages, the Court below only on moral obligation, and to be without considera- had rightly taken as the period of assessing them tion, and that the claim to this was surrendered at the the time of the highest value of that of which the request of the Governor in exchange for a new allot- respondent had been deprived. The breach of the ment, would there not be a good consideration for the covenant was a continuing one, and the only way of promise as to the second piece ?]
determining the injury done to the claimant was by
estimating the value that he might have received had the verdict was against law, it did not appear to bare the promise been fulfilled.
been raised upon the motion for a new trial, nor coull
it have been so. If the evidence of the contract offeret 17 FCB. 1864.
at the trial showed that it was invalid for some reason The opinion of the Committee was delivered by which was not apparent upon the face of the declaraLORD CHELMSFORD), who said,
tion, the defendant should have applied to the Juice It might be assumed that some rule or order of the to nonsuit the plaintiff, and whether he took this Judges of the Supreme Court, made under the 3rd course or not it was not competent to him to raise the section of the Act (20 Vict. No. 15), rendered this objection upon a motion for a new trial. And yet, form of proceeding necessary, because the Act pro- although the invalidity of the contract was not card vided that if the Governor, with the advice of his could not have been) a point for the consideration of executive council, should think fit, the petition itself the Court, upon the argument of the rule, it was should be referred to the Supreme Court of the assigned by the appellant as the first of the reasons colony for trial by jury or otherwise, as such Court for his appeal, and it was insisted upon at some length should, after reference, direct. This remark was
at the bar. The objections which were urged at the bar, not unimportant, as it tended to show the untech- that the contract was without consideration, and that nical nature of the proceelings contemplated by the it was uncertain and indefinite as to the extent of the
allotment to be granted and the character and cost of Looking to the manner in which the inquiry was the building to be erected. But these objections net conducted, it was impossible not to see that all being open upon the present appeal, they had ben parties considered it to be a proceeding differing wholly excluded from their Lordships' consideration, materially from an ordinary action, both in the consi- | as, in forming a judgment upon the case, they ha
! derations applicable to the claim, and in the extent to endeavoured to confine themselves as they were bound which evidence might be adduced in support of it. to do) to the questions raised in and determinel by The Chief Justice also upon the motion for a new the Court below. They used the word “endesroured,” trial, seemed to treat the action as one of an excep- because it was a little difficult to ascertain the esact tional character; much of the evidence might have shape in which the objections to the verdict were per been excluded, but it having been admitted without sented to the Court. The only points which appeared objection, the whole of it formed the materials upon to have been argued were, that the verdict was against which the judgment proceeded, and it must be dealt evidence, that the Judge misdirected the jury as to the with upon this appeal to the same extent as in the rule for estimating the damages, and that the damazs Court below.
were excessive. The learned Judge, in summing up, directed the The ground upon which the verdict appeared to hara jury that "if the Governor promised to give the been objected to as contrary to the evidence was
, the plaintiff a piece of land, if and on condition that he jury having found that the plaintiff had settled in te would settle in the country, and he afterwards within colony with reference to the contract ; in other words, a reasonable time did so, the promise was binding that he performed the condition upon from that time. If he did so with an intention to entitled to the allotment of land. The appellant's complete the contract, he could take advantage of counsel, however, objected to the verdict as auiss his having done so ; but if he did so without refer- evidence upon another and a wider ground; ani s ence to the contract, he could not. There was no their Lordships had no means of knowing whether consideration moving from him.” And he put the the objection was
was not presented in this question to them, “Did the plaintiff perform the form to the Court below, they would not leave it condition—that is, did he settle with reference to the unnoticed. contract ?” And with respect to damages, he told The declaration alleged that the Governor promisel them that “they were to be estimated according to the plaintiff, as an inducement for him to settle in the present value of the land.” The jury found a colony, to grant him a portion of Woulooraveis verdict for the plaintiff, with 50001. damages. The that the plaintiff gave up his claim to the fulfilme? defendant moved the Supreme Court in the ensuing of this promise in consideration of receiving : term for a new trial upon several grounds stated in mise from the Governor of a grant of an allotment at his notice of motion, of which it was only necessary Hyde Park Gardens ; and that a portion of the best to advert to four. ist. That the verdict was contrary first promised to the plaintiff was granted to P to law; 2nd. That it was against evidence ; 3rd. That Douglas by the Governor. the damages were excessive ; 4th. That the Judge The appellant's counsel insisted that the respondent mis lirected the jury in telling them, if they found for had entirely failed in proof
of these allegations ; the the plaintiff, to assess damages on the basis of the pre- he never had a promise binding upon the Governer in sent value of the land alleged to have been promised respect of Wooloomooloo, and that, therefore
, bits to the plaintiff.
relinquishment of his claim to an allotment in this
: With respect to the first proposed objection, that district could not be the consideration for the promise
of a grant in Hyde Park Gardens. And for this they tion precedent to a grant of this description, because relied upon the terms of a letter written by Dr. no proof of its performance could possibly be given ; Douglas, which was in evidence in the case as a part the utmost that any declaration, or act of the grantee of the proceedings of the Committee of Legislative prior to the grant, could amount to, being an intenCouncil appointed to inquire into the respondent's tion to settle when the grant was made. claim, in which, with reference to a particular portion Even, therefore, if Mr. Justice Milford (the Judge of land in Wooloomooloo, he writes :
before whom the action was tried) was right at the “I should have applied for it before had I not un- trial in saying that it was necessary for the plaintiff derstood it was Captain Dumaresq's intention to have to show that he settled in the country with an intendone so. I have since learnt from that gentleman tion to complete the contract, there was ample evidence that he has abandoned the idea."
to establish that fact. These expressions, however, were not at all incon- But Mr. Justice Milford was of opinion, that if his sistent with the existence of a right at one time in the mode of presenting the case to the jury was correct, respondent to select an allotment in Wooloomooloo they were not warranted in finding that the plaintiff if he chose to exercise it; and the evidence seemed had performed the condition, unless his settling in to be quite sufficient to have justified the jury (if the colony was solely with a view to the contract, this question had been submitted to em) in find and to the exclusion of all other motives. But as ing that there was a binding promise of an allot- he agreed with the Chief Justice, that a residence in ment in Wooloomooloo, and that it was relinquished fact, after the promise, was all that it was material for the promise of a grant of a portion of Hyde Park for the plaintiff to establish, he thereby admitted Gardens.
that he had left the case improperly to the jury. It Both those points appear to be fully established by might, therefore, be considered unnecessary to exthe letter of the respondent of the 2nd of June, 1830, amine his opinion, that, in order to show performand the answer of the Colonial Secretary, on behalf of ance of the conditions upon which the promise was the Governor, of the 9th of June, 1830.
made, it was necessary for the plaintiff to prove Those letters and the official minute were amply that it was his sole motive for settling in the sufficient to prove the allegations in the declaration ; colony. But in order that no part of the case and if the case had been left to the jury upon this should appear to have been omitted from their Lordproof, and they had found for the respondent, their ships' consideration, a few remarks might be made verdict could not have been disturbed. But, as upon this opinion, and upon the opposite view of the already observed, the question seemed to have been Chief Justice. presented to the jury upon a narrower and different It might be asked, if the opinion under consideraground – viz., whether the plaintiff had performed tion should be held to be correct, in what way could a the condition upon which he became entitled to the person holding a permanent official appointment in the
colony, who was promised an allotment, or a person who It appeared that the learned Judge who tried the had already one allotment and was promised another, cause directed the jury that it was necessary for the show that he had performed the condition in the strict plaintiff to prove that he had settled in the colony and exclusive manner required? It seemed only “with reference to the contract.” But he afterwards necessary to consider the nature of these grants to agreed with the Chief Justice that the only material be satisfied that such a rigid rule could never properly portion of the allegation in the declaration was that be applied to them. When an application was made after the promise or offer the plaintiff, in fact, became to the governor for an allotment of land, and a proresident, and that by so doing he performed the con misc was obtained, the application always implied a dition, and that it was not necessary to show a per- promise on the part of the applicant to settle in the formance because and in consideration of the contract. colony, because the grants invariably contained a con
The perplexity upon this part of the case seemed to dition to that effect. A continuance in the colony, have arisen from the want of precision in the state- therefore, till the grant of the allotment was made, ment of the plaintiff's cause of action, and from a mis- was necessarily connected with the promise, as, without apprehension of the real nature of his claim. If it remaining, the applicant could never be entitled to were necessary in this proceeding in the nature of a the promised grant. In every way, therefore, in which petition of right to state the claim in a technical form this case either had been or might have been presented and to allege a consideration for the promise of an to the jury, the evidence was sufficient to warrant the allotment, it was obvious that the true consideration verdict. was not the settling in the colony, but the agreement The only remaining questions related to the to settle if a grant were made, and if this had been damages ; whether the proper rule for their estimation thought of at the trial an amendment of the declara- was given by the Judge, and whether they were extion might have been made which would have obviated cessive. Supposing the rule for the measure of damages all difficulty. It was not easy to understand how the properly given, they did not appear to have been exactual settling in the colony could be made a condi- cessive. The committee of the Legislative Council
selected to investigate the respondent's claim reported
Re THE WESTMINSTEE that he should be allowed to purchase land at auction Lord Chancellor.
BRIDGE ACTS. for 50001., a sum apparently fixed with reference to
29 MAY, 1863, land granted to Sir F. Forbes, which was sold by
Ex parte THE VICIE OF ST. 17 FEB. 1864.
SEPULCHRE's. auction, in 1842, for that sum. It was contended, on the part of the appellant, that the land of Sir F. 9 & 10 Vict. c. xxxix. s. 49—Costs of Conreyance Forbes had buildings upon it, and was therefore
-Lands Clauses Consolidation Act, &. 1, 82. an improper standard of the value of land which the respondent was to receive under an obligation
The 9 & 10 Vict. c. xxxix. (The Chelsea Bridge Ad!, to build upon it. But it appeared very clearly by empowers certain Commissioners to take land for the the evidence, that Sir F. Forbes's land had never purposes of the Act, and, in the case of land held as been built upon, and that even at the time of the trust, or belonging to persons under disability, diritts trial it remained in its original unimproved state. the purchase-money to be paid into Court, and sulst If, then, the present value of the land was the quently, on the petition of the persons interested, to the proper criterion of the measure of damages, no
invested in the purchase of substituted lanıl, or in other objection could justly be taken to the amount awarded specified ways. The Act provides that, wherever it skall by the jury.
be necessary to pay the purchase-money into Court, the But upon what ground could it be alleged that the Court may order the expenses of “all purchases fra Judge was wrong in telling the jury to find their time to time to be made in pursuance of the Act," or so damages upon the present value of the land? The much as it shall deem reasonable, to be paid by the cases which were cited as to the measure of damages Commissioners :upon contracts for delivery of goods and for the re
Held ( following Re Strachan's Estate, 9 Hare, 185), transfer of stock had very little application.
that these words do not authorise the Court to orda is!
The distinction between these two classes of cases was said Commissioners to pay the costs of the sale or conceyance to be that in the former the damages should be only
to them. the value of the goods at the time when they ought to
But, inasmuch as the Act was passed after the have been delivered, because the purchaser had his Lands Clauses Consolidation Act, 1845:money in hand, and might go into the market and
Held, that the 82nd section of the latter Act, aut home purchase similar goods ; but as to stock, that the bor- excepted from or inconsistent with the provisions of the rower who neglected to re-transfer at the time agreed former, must
considered as part of it, and that upon held in his hands the money of the lender, and therefore the Commissioners were rightly ordered to por
these costs. prevented him from using it. The principle upon which damages were estimated
Re Cherry's Estate, 10 W. R. 305, explained. upon the breach of an agreement for the re-transfer
By the Westminster Bridge Act, 1853, the Cosof stock was more applicable to the respondent's claim missioners of her Majesty's Works and Pubiz than that which was applied to contracts for the sale Buildings were empowered to take, for the purpose and delivery of goods, but the right of the respondent of making Westminster Bridge, the hereditamenes to the highest value of the land which he had not re- specified in the 2nd schedule. ceived in performance of the promise made to him pursued in relation to them was defined by certain seemed to be even stronger than that of the lender of incorporated sections, among which were the 28th
, stock upon the borrower's omission to replace it. The 44th, and 49th, of The Chelsea Bridge Act (9 & 10 owner of the stock might have the means of purchas- Vict. c. xxxix.) ing other similar stock at the day, but the allotment
By the Westminster Bridge Act, 1859, the hereditaof land promised to the respondent was a thing which ments specified in the schedule thereto were put in the he could not obtain except by the performance of the same predicament as if they were comprised in the promise. If he had received his allotment as he 2nd schedule to the Act of 1853. ought to have done, he would have had it, with the
The 28th section of the Chelsea Bridge Act em benefit of the increased value which it might have powered trustees and feoffees in trust for charitesia acquired while in his possession. Of this the other and other purposes to contract for, sell, and content party had deprived him by the breach of his promise; hereditaments required for the purposes of the 44 and whether he had obtained the benefit himself, or and the 44th section directed that the purchase-mozet
, had hindered the respondent from enjoying it, it if more than 2001., should with all convenient span seemed to be equally just and reasonable that he should be paid into Court, to be applied in the purchase of pay the full value of the property to the person from hereditaments to be settled to like uses or trusts, or whom he had wrongfully withheld it.
to such other purposes therein mentioned as the Court, Minute. --Appeal dismissed with costs.
upon the petition of the persons who would have beza entitled to the income of the property taken, should direct.
The 49th section provided, that wherever it should
The course to be