"To his Excellency, To this letter the following answer was returned on the part of the Governor : "Colonial Secretary's Office, Sydney, "June 9, 1830. "SIR,-I am directed by the Governor to acknowledge the receipt of your letter of the 2nd instant, representing that on your renunciation of the land on Wooloomooloo Hill, afterwards given to Dr. Douglas, it was with the understanding that you should receive a portion of the Hyde Park Garden, and requesting, therefore, an allotment at the end nearest the Roman Catholic Chapel. you "In reply, I do myself the honour to inform that his Excellency has been pleased to direct that your application is to be noted, in order to its being considered with those of other applicants, when arrangements may be making for the location of Hyde Park. "Sydney, 13th April, 1831. "SIR,With reference to your letter of 9th June last, No. 30-912, on the subject of my claim for an allotment in the Hyde Park Garden, informing me that my selection of that portion nearest the Roman Catholic Chapel would be noted, being led to understand that some selections of this ground have been made, I have the honour to request my claim to the spot above referred to may be communicated to the Surveyor-General, to prevent its selection by other applicants. (Signed) "I have, &c., "WM. DUMARESQ. "The Honourable the Colonial Secretary." The following reply was sent to the respondent on the part of the Government : "Colonial Secretary's Office, "18th May, 1831. "SIR,-I have had the honour to receive and submit to the Governor your letter of the 13th April, referring to mine of the 9th June, 1830, informing you that your selection of the allotment of land nearest the Roman Catholic Chapel should be noted, and requesting, in order to prevent its selection by other applicants, that your claim thereto may be communicated to the Surveyor-General. In the minutes of the Governor, under the date of 15th October, 1831, the following entry appears : - "As the arrangements have not yet permitted of the persons who were promised building allotments in Hyde Park by Sir J. Brisbane taking possession of those set apart for them, and of others who have beca since authorised to receive allotments at that place, to make the necessary selection, it appears necessary, in order to avoid any misunderstanding with respect to their claims, to place them on record, so that the former may be able to take possession of the ground intended for them, and the latter to select their alletments as soon as the arrangements shall be completel, viz. : "The second class consists of "William Dumaresq, Esq., promised by me, som> considerable time back, that he should receive #2 allotment as soon as the ground was measured and Le should have retired from the service." On the 29th of November, 1831, the Colonial Secretary informed the respondent that the subjet must lie over for the present. Subsequently, understanding that it was not the intention of the Govern to alienate the Hyde Park Garden, and not having received the allotment of land promised him there, the respondent, on the 13th of August, 182, applied to the Colonial Secretary to know if can pensation were proposed to be given to those who had authority to select land there. In answer to this application, the respondent was offered two contiguous allotments in Lacroza Vally "in lieu of the one formerly promised to him in Hy Park." This offer was made subject to certain c ditions and restrictions, quit-rents, expenditure 10007. in buildings, &c. &c., and these allotments were also of less value, and in an inferior positi. These allotments were refused by the respondent, applied for full compensation for the land which expected to receive. The respondent subsequently petitioned the Coler Legislature and the Secretary of State for the Colo and, failing to obtain redress, commenced the present proceedings. The jury gave a verdict for the plaintiff, damages 5000Z. This verdict the defendant moved to set aside on th following material grounds— 1st. That it was against law. 4th. That the Judge misdirected the jury in giving the present value of the land as the measure of damages. This motion was dismissed with costs, and against that dismissal the defendant brought the present appeal. No surrender of a claim would form a consideration, if it was one which could be safely disregarded. The whole transaction was one simply of administrative practice, and was not a fit subject for legal treatment. An understanding had existed between the Governor and the respondent, but it was not sufficiently precise in terms, and had not that reciprocity which alone could make it the foundation of an action. 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, This was that this offer was clogged with conditions as to quit the substantial value of the offer. Besides this, any grant of land would have been accompanied with conditions as to building, and certainly the piece in question had been so qualified in the hands of the present holders. That these were not specified in the original promise, was only a further instance of its uncertain and general character. 1st. 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. not a case in which specific performance could be awarded. It would be impossible to ascertain what the precise terms of the contract had been. It was a verbal promise to give a piece of land, but neither the place nor the quantity was specified. It could not be said that this was a case where, though no legal obligation existed between subject and subject, there was an obligation between the Government and its subjects. A court of justice could administer no law and enforce no claims except in accordance with established principles of jurisprudence. It was impossible for any tribunal to recognise purely moral obligations, or to enforce rules resting only on official custom or the practice of administration. It may have been usual to make grants to persons intending to settle in the colony, and the Governor may have signified his intention of acting on the practice in the case of the respondent; but unless he had done so in more specific terms than the general promise of giving an allotment, no binding contract could be set up. 2nd. Even if there had been a promise specific enough to be recognised at all, it was not supported by any consideration. Nothing had been received by the appellant. The respondent had received other land in consideration of military services. The land in question had been promised to him on the condition of his permanently settling in the colony, and filling a certain civil post which he was expecting to obtain. He did not obtain this post, and if he ultimately settled in the country it was in no way in performance of this condition. Thus the occasion never arose on which this promise was to be carried into effect, and the original promise of a grant of land was void for want of consideration. The present claim was for land substituted for that originally proposed to the respondent, and which he voluntarily exchanged for it. The claim to it could rest on no higher foundation than that to the original piece. [PER CURIAM. Supposing the promise by the Governor to give the land at Wooloomooloo to rest only on moral obligation, and to be without consideration, and that the claim to this was surrendered at the request of the Governor in exchange for a new allotment, would there not be a good consideration for the promise as to the second piece?] 4th. The damages, if the contract were binding, were excessive. The rule by which they had been assessed was erroneous. There was no reason for departing from the ordinary rule of determining damages for breach of covenant. The only damages which could be here enforced were to be measured by the injury sustained at the time of the breach of contract. The present case differed entirely from those of damages for non-delivery of stock according to contract. This case must be decided according to the ordinary rules of law and equity. The statute under which it is brought points to the entire assimilation of claims between the Crown and a subject to those between subject and subject. No other rules but the ordinary practice of law and equity could apply; and, tested by these, the respondent's case was obviously insufficient. Bovill, Q.C., and R. A. Fisher, for the respondent, contended, 1st. That the objection now taken as to the uncertainty of the terms of the offer and its acceptance had not been taken in the Court below, and could not now be raised. The only question for the Court here was to determine whether, on the pleadings and the evidence as they were transmitted, the judgment of the Court below could be sustained. That the verdict was against law was a point not argued on the application for a new trial. If the objection as to the indefiniteness of the promise had been taken, it might have been cured in the Court below by further evidence. It was a question for the jury to determine, whether it were sufficiently definite or not,-whether the subject of the grant could be ascertained. 2nd. As to the measure of damages, the Court below had rightly taken as the period of assessing them the time of the highest value of that of which the respondent had been deprived. The breach of the covenant was a continuing one, and the only way of 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 have the promise been fulfilled. 17 FEB. 1864. been raised upon the motion for a new trial, nor could it have been so. If the evidence of the contract offered 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 declara LORD CHELMSFORD, who said,— It might be assumed that some rule or order of the Judges of the Supreme Court, made under the 3rd section of the Act (20 Vict. No. 15), rendered this form of proceeding necessary, because the Act provided that if the Governor, with the advice of his executive council, should think fit, the petition itself should be referred to the Supreme Court of the colony for trial by jury or otherwise, as such Court should, after reference, direct. This remark was not unimportant, as it tended to show the untechnical nature of the proceedings contemplated by the Act. Looking to the manner in which the inquiry was conducted, it was impossible not to see that all parties considered it to be a proceeding differing materially from an ordinary action, both in the considerations applicable to the claim, and in the extent to which evidence might be adduced in support of it. The Chief Justice also upon the motion for a new trial, seemed to treat the action as one of an exceptional character; much of the evidence might have been excluded, but it having been admitted without objection, the whole of it formed the materials upon which the judgment proceeded, and it must be dealt this appeal to the same extent as in the with upon Court below. The learned Judge, in summing up, directed the jury that "if the Governor promised to give the plaintiff a piece of land, if and on condition that he would settle in the country, and he afterwards within a reasonable time did so, the promise was binding from that time. If he did so with an intention to complete the contract, he could take advantage of his having done so; but if he did so without reference to the contract, he could not. There was no consideration moving from him." And he put the question to them, "Did the plaintiff perform the condition-that is, did he settle with reference to the contract?" And with respect to damages, he told them that "they were to be estimated according to the present value of the land." The jury found a verdict for the plaintiff, with 50001. damages. The defendant moved the Supreme Court in the ensuing term for a new trial upon several grounds stated in his notice of motion, of which it was only necessary to advert to four. 1st. That the verdict was contrary to law; 2nd. That it was against evidence; 3rd. That the damages were excessive; 4th. That the Judge misdirected the jury in telling them, if they found for the plaintiff, to assess damages on the basis of the present value of the land alleged to have been promised to the plaintiff. With respect to the first proposed objection, that tion, the defendant should have applied to the Judge to nonsuit the plaintiff, and whether he took this course or not it was not competent to him to raise the objection upon a motion for a new trial. And yet, although the invalidity of the contract was not (and could not have been) a point for the consideration of the Court, upon the argument of the rule, it was assigned by the appellant as the first of the reasons for his appeal, and it was insisted upon at some length at the bar. The objections which were urged at the bar, that the contract was without consideration, and that it was uncertain and indefinite as to the extent of the allotment to be granted and the character and cost of the building to be erected. But these objections not being open upon the present appeal, they had been wholly excluded from their Lordships' consideration, as, in forming a judgment upon the case, they hal endeavoured to confine themselves (as they were bound to do) to the questions raised in and determined by the Court below. They used the word "endeavoured," because it was a little difficult to ascertain the exact shape in which the objections to the verdict were presented to the Court. The only points which appeared to have been argued were, that the verdict was against evidence, that the Judge misdirected the jury as to the rule for estimating the damages, and that the damages were excessive. The ground upon which the verdict appeared to have been objected to as contrary to the evidence was, the jury having found that the plaintiff had settled in the colony with reference to the contract; in other words, that he performed the condition upon which he became entitled to the allotment of land. The appellant's counsel, however, objected to the verdict as agains evidence upon another and a wider ground; and as their Lordships had no means of knowing whether the objection was or was not presented in this form to the Court below, they would not leave it unnoticed. The declaration alleged that the Governor promised the plaintiff, as an inducement for him to settle in the colony, to grant him a portion of Wooloomadee that the plaintiff gave up his claim to the fulfilmes: of this promise in consideration of receiving a pr mise from the Governor of a grant of an allotment in Hyde Park Gardens; and that a portion of the land first promised to the plaintiff was Douglas by the Governor. granted to Dr. The appellant's counsel insisted that the respondent had entirely failed in proof of these allegations; thes he never had a promise binding upon the Governor in respect of Wooloomooloo, and that, therefore, his relinquishment of his claim to an allotment in that district could not be the consideration for the promise of a grant in Hyde Park Gardens. And for this they relied upon the terms of a letter written by Dr. Douglas, which was in evidence in the case as a part of the proceedings of the Committee of Legislative Council appointed to inquire into the respondent's claim, in which, with reference to a particular portion of land in Wooloomooloo, he writes : "I should have applied for it before had I not understood it was Captain Dumaresq's intention to have done so. 1 have since learnt from that gentleman that he has abandoned the idea." These expressions, however, were not at all inconsistent with the existence of a right at one time in the respondent to select an allotment in Wooloomooloo if he chose to exercise it; and the evidence seemed to be quite sufficient to have justified the jury (if this question had been submitted to them) in finding that there was a binding promise of an allotment in Wooloomooloo, and that it was relinquished for the promise of a grant of a portion of Hyde Park Gardens. Both those points appear to be fully established by the letter of the respondent of the 2nd of June, 1830, and the answer of the Colonial Secretary, on behalf of the Governor, of the 9th of June, 1830. Those letters and the official minute were amply sufficient to prove the allegations in the declaration; and if the case had been left to the jury upon this proof, and they had found for the respondent, their verdict could not have been disturbed. But, as already observed, the question seemed to have been presented to the jury upon a marrower and different ground-viz., whether the plaintiff had performed the condition upon which he became entitled to the allotment. It appeared that the learned Judge who tried the cause directed the jury that it was necessary for the plaintiff to prove that he had settled in the colony "with reference to the contract." But he afterwards agreed with the Chief Justice that the only material portion of the allegation in the declaration was that after the promise or offer the plaintiff, in fact, became resident, and that by so doing he performed the condition, and that it was not necessary to show a performance because and in consideration of the contract. The perplexity upon this part of the case seemed to have arisen from the want of precision in the statement of the plaintiff's cause of action, and from a misapprehension of the real nature of his claim. If it were necessary in this proceeding in the nature of a petition of right to state the claim in a technical form and to allege a consideration for the promise of an allotment, it was obvious that the true consideration was not the settling in the colony, but the agreement to settle if a grant were made, and if this had been thought of at the trial an amendment of the declaration might have been made which would have obviated all difficulty. It was not easy to understand how the actual settling in the colony could be made a condi tion precedent to a grant of this description, because no proof of its performance could possibly be given; the utmost that any declaration, or act of the grantee prior to the grant, could amount to, being an intention to settle when the grant was made. Even, therefore, if Mr. Justice Milford (the Judge before whom the action was tried) was right at the trial in saying that it was necessary for the plaintiff to show that he settled in the country with an intention to complete the contract, there was ample evidence to establish that fact. But Mr. Justice Milford was of opinion, that if his mode of presenting the case to the jury was correct, they were not warranted in finding that the plaintiff had performed the condition, unless his settling in the colony was solely with a view to the contract, and to the exclusion of all other motives. But as he agreed with the Chief Justice, that a residence in fact, after the promise, was all that it was material for the plaintiff to establish, he thereby admitted that he had left the case improperly to the jury. It might, therefore, be considered unnecessary to examine his opinion, that, in order to show performance of the conditions upon which the promise was made, it was necessary for the plaintiff to prove that it was his sole motive for settling in the colony. But in order that no part of the case should appear to have been omitted from their Lordships' consideration, a few remarks might be made upon this opinion, and upon the opposite view of the Chief Justice. It might be asked, if the opinion under consideration should be held to be correct, in what way could a person holding a permanent official appointment in the colony, who was promised an allotment, or a person who had already one allotment and was promised another, show that he had performed the condition in the strict and exclusive manner required? It seemed only necessary to consider the nature of these grants to be satisfied that such a rigid rule could never properly be applied to them. When an application was made to the governor for an allotment of land, and a promise was obtained, the application always implied a promise on the part of the applicant to settle in the colony, because the grants invariably contained a condition to that effect. A continuance in the colony, therefore, till the grant of the allotment was made, was necessarily connected with the promise, as, without remaining, the applicant could never be entitled to the promised grant. In every way, therefore, in which this case either had been or might have been presented to the jury, the evidence was sufficient to warrant the verdict. The only remaining questions related to the damages; whether the proper rule for their estimation was given by the Judge, and whether they were excessive. Supposing the rule for the measure of damages properly given, they did not appear to have been excessive. The committee of the Legislative Council selected to investigate the respondent's claim reported that he should be allowed to purchase land at auction for 50007., a sum apparently fixed with reference to land granted to Sir F. Forbes, which was sold by auction, in 1842, for that sum. It was contended, on the part of the appellant, that the land of Sir F. Forbes had buildings upon it, and was therefore an improper standard of the value of land which the respondent was to receive under an obligation to build upon it. But it appeared very clearly by the evidence, that Sir F. Forbes's land had never been built upon, and that even at the time of the trial it remained in its original unimproved state. If, then, the present value of the land was the proper criterion of the measure of damages, no objection could justly be taken to the amount awarded by the jury. 9 & 10 Vict. c. xxxix. s. 49—Costs of Conveyance -Lands Clauses Consolidation Act, s. 1, 82. The 9 & 10 Vict. c. xxxix. (The Chelsea Bridge Ad), empowers certain Commissioners to take land for the purposes of the Act, and, in the case of land held on persons under disability, directs trust, or belonging the purchase-money to be paid into Court, and subsquently, on the petition of the persons interested, to be invested in the purchase of substituted land, or in other specified ways. The Act provides that, wherever it shall be necessary to pay the purchase-money into Court, the Court may order the expenses of "all purchases from time to time to be made in pursuance of the Act," or so much as it shall deem reasonable, to be paid by the Commissioners: Held (following Re Strachan's Estate, 9 Hare, 1851, that these words do not authorise the Court to order the Commissioners to pay the costs of the sale or conveyance to them. But upon what ground could it be alleged that the Judge was wrong in telling the jury to find their damages upon the present value of the land? The cases which were cited as to the measure of damages upon contracts for delivery of goods and for the retransfer of stock had very little application. The distinction between these two classes of cases was said to be that in the former the damages should be only the value of the goods at the time when they ought to have been delivered, because the purchaser had his money in hand, and might go into the market and 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 upon held in his hands the money of the lender, and prevented him from using it. The principle upon which damages were estimated upon the breach of an agreement for the re-transfer of stock was more applicable to the respondent's claim than that which was applied to contracts for the sale and delivery of goods, but the right of the respondent to the highest value of the land which he had not received in performance of the promise made to him seemed to be even stronger than that of the lender of stock upon the borrower's omission to replace it. The owner of the stock might have the means of purchasing other similar stock at the day, but the allotment of land promised to the respondent was a thing which he could not obtain except by the performance of the promise. If he had received his allotment as he ought to have done, he would have had it, with the benefit of the increased value which it might have acquired while in his possession. Of this the other party had deprived him by the breach of his promise; and whether he had obtained the benefit himself, or had hindered the respondent from enjoying it, it seemed to be equally just and reasonable that he should pay the full value of the property to the person from whom he had wrongfully withheld it. Minute.-Appeal dismissed with costs. But, inasmuch as the Act was passed after the former, must be considered as part of it, and that therefore the Commissioners were rightly ordered to pay these costs. Re Cherry's Estate, 10 W. R. 305, explained. By the Westminster Bridge Act, 1853, the Conmissioners of her Majesty's Works and Public Buildings were empowered to take, for the purpose of making Westminster Bridge, the hereditaments The course to be specified in the 2nd schedule. pursued in relation to them was defined by certain incorporated sections, among which were the 28th, 44th, and 49th, of The Chelsea Bridge Act (9 & 19 Vict. c. xxxix.) By the Westminster Bridge Act, 1859, the hereditaments specified in the schedule thereto were put in the same predicament as if they were comprised in the 2nd schedule to the Act of 1853. The 28th section of the Chelsea Bridge Act powered trustees and feoffees in trust for charitable and other purposes to contract for, sell, and convey hereditaments required for the purposes of the Ath and the 44th section directed that the purchase-money, if more than 2001., should with all convenient speed be paid into Court, to be applied in the purchase of hereditaments to be settled to like uses or trusts, or to such other purposes therein mentioned as the Cour, upon the petition of the persons who would have been entitled to the income of the property taken, should |