1884 FORSYTH

v.

WRIGHT.

the Minister to discharge his duty. It may be that a third course was open to the plaintiffs, namely, to set out all the facts, that they gave the notice required by sec. 129, and waited a reasonable time until after the expiration of ninety days, and that there was an admission of liability by the Minister, but no tender of compensation. In such an action, if the plaintiffs obtained a verdict for any amount, they would be entitled to their costs. It is unnecessary, however, to express an opinion as to whether such an action would lie, but such a course might possibly be open to a claimant under circumstances such as these. I think that, so far as this case is concerned, an answer to arguments of that kind is, that the plaintiffs have not brought such an action. They have misconceived their remedy. They thought that they were entitled to disregard the proceedings prescribed by the Act, and to bring their action independently of it. The cases adduced by counsel for the plaintiffs, on examination, do not apply. No doubt these cases establish that where a wrong is done in the exercise of powers conferred by an Act of Parliament a Common Law remedy will lie by way of indictment, but the same principle will not apply to a claim for pecuniary compensation, the right to which is expressly provided for by the Act.

Rule absolute, with costs, to enter verdict for defendant.

Attorney for plaintiffs: J. Williamson.

Attorney for defendant: Williams, Crown Solicitor.

HOUGH v. WHITTY.

1884

Conditional purchase of part of measured portion containing improvements- Aug. 11, 12. 39 Vic. No. 13, sec. 16.

Faucett, J. and

Windeyer, J.

Plaintiff applied to conditionally purchase 68 acres, part of a measured portion Martin, C.J., of 208 acres. The Commissioner for Crown Lands suggested that if the plaintiff applied for the remaining part of the measured portion as an additional selection to the one already made by him, no survey by way of subdivision would be required. This the plaintiff did. This part contained improvements to the value of 741.

Held, that the plaintiff's additional selection was bad. He could not select the whole measured portion, because it contained improvements to the value of 40l. ; and supposing that the facts proved amounted to an authority by the Minister to make a subdivision, section 16 of the "Crown Lands Acts Amendment Act of 1875" does not give the Minister power to subdivide a measured portion so as to allow of the conditional purchase of land containing improvements to the value of 407. Semble, that the subdivision by the Minister must be made before any application to select part of a measured portion containing improvements.

DECLARATION:-1. For breach of an agreement under seal made by and between plaintiff and the defendant, that if and when certain lands of the plaintiff then claimed by him as his conditional purchase, and consisting of about 140 acres should be duly vested in and legalised to the plaintiff by the Government of New South Wales, the said lands should be held by the defendant as tenant to the plaintiff thereof for the term of seven years from the 18th August, 1880, and that the defendant should pay the plaintiff rent. Averment, that the said lands were duly vested in and legalised to the plaintiff within the meaning of the said agreement; that rent was due under it, and that all conditions, &c., were fulfilled. Breach: That the defendant did not pay the rent. 2. Money payable for use and occupation.

PLEA, as to the 1st count, non assumpsit. 2. That the said lands were not duly vested in and legalised to the plaintiff within the meaning of the said agreement as alleged. 3. As to the residue of the declaration, never indebted.

The plaintiff on 5th September, 1878, applied to conditionally purchase 68 acres, being the eastern part of measured portion 90 containing 208 acres, and situate on the defendant's run. In a minute indorsed on plaintiff's application signed with the initials "F. W. R," it was stated:-" The measured portion (of which the

1884 HOUGH

V.

WHITTY.

eastern part is applied for) is numbered 90; the subdivision of which it will not be necessary to make if an additional area is applied for of the remaining area." On 26th April, 1879, the Chief Commissioner (Mr. Moriarty) wrote to the plaintiff that the land applied for by him was part of measured portion 90, and added, "the subdivision of it will not, however, be necessary if the remaining area is taken up by you under additional selection."

On the 15th May, 1879, the plaintiff applied to select the land in question in this action as additional to his selection of 5th September, 1878, the description being "140 acres lying west of my conditional purchase of 68 acres taken up 5th September, 1878, and forming remaining portion of allotment 90." The defendant having protested against the plaintiff's selection, on the ground that the land taken up by him on 15th May, 1879 contained improvements sufficient to bar selection (and the defendant claiming to have purchased the land by virtue of improvements) an appraiser was appointed by the Secretary for Lands, pursuant to regulations, who found that 104 acres were improved by ringbarking to the value of 77. 18.; 110 acres improved by gathering timber and burning off to the value of 271. 10s.; and 61 chains 60 links log fence valued at 40l. 1s. Total value of improvements on the 1403 acres, 74l. 12s. The appraiser also reported that the log fence was the only improvement in virtue of which any area of 40 acres could be measured so as to embrace improvements to the value of 11. an acre, and such area could not be measured so as to comply with the regulations as to frontage. In December, 1881, a memorandum was signed by "T. M. G." setting out the above finding, and submitting whether, under recent decisions of the Supreme Court, the selection must not be declared void. The Under-Secretary, Mr. Charles Oliver, recommended, "if the decision of the Supreme Court in Moore v. Bernholdt is to be in any way considered in connection with this case, it would be well to defer final action until the Full Court decides." This was approved of by the Secretary for Lands, Sir J. Robertson. In March, 1882, the memorandum being re-submitted, the Chief Commissioner wrote "I do not think there is any sufficient

ground for the cancellation of this purchase, the land not being improved to 17. per acre wholly or in part. But if the selection is allowed to stand, it should be on the clear understanding that it will be at the holder's risk, should any proceedings be taken against him by the lessee, consequently upon the decision of the Supreme Court as to improvements on measured land." This memorandum was approved by the Secretary for Lands.

This action was tried on 5th June, 1884, before Mr. Justice Windeyer and a jury of four. Verdict, by consent, for the plaintiff; damages, 421. 68., leave being reserved to the defendant to move to enter a verdict for him; the Court to be at liberty to draw inferences of fact from the documents put in, which consisted of a parliamentary paper containing correspondence and minutes relating to the plaintiff's selection, from which the facts above set out have been gathered.

A Rule nisi having been obtained, pursuant to leave reserved: Salomons, Q.C., and A. H. Simpson (11th August) moved to make the Rule absolute.-The measured portion No. 90, having been found by appraisement to contain improvements to the value of 40l., could not have been selected: Blackwood v. Dobbin (1); Moore v. Bernholdt (2); and the plaintiff cannot evade these decisions by selecting part of a measured portion, and then making an additional selection of the remainder. Besides, there was here no subdivision by the authority of the Minister.

Pilcher, for the plaintiff, showed cause-The letter of Mr. Moriarty amounted to a subdivision by the Minister. There is no evidence that the sixty-eight acres first selected by the plaintiff contained improvements of a value sufficient to bar selection. Before making our additional selection, we had the authority of the department to select the remaining part of allotment No. 90.

Salomons in reply.

On 12th August the following judgments were delivered :—

1884

HOUGH

v.

WHITTY.

SIR J. MARTIN, C.J. Whitty, the defendant in this action, Martin, C.J. was the lessee of a run, on which there was a measured portion of

(1) 1 S.C.R., N.S. 75.

N.S. W.R., Vol. V., Law.

(2) 3 N.S.W. L. R. 9.

V

1884

HOUGH

v.

WHITTY.

land known as No. 90, containing 208 acres and 3 roods. The
plaintiff made a conditional purchase of sixty-eight acres, part
of this lot 90, which was a measured portion.
On it being
pointed out or ascertained that this conditional purchase of sixty-
eight acres was a portion of a larger measured piece, the plaintiff
was informed that the selection could not be upheld, as being in
contravention of the terms of an Act of Parliament. An applica-
tion was also made by the defendant, the lessee of the run, to be
allowed to purchase by reason of the improvements he had made
upon this and other land, about which it is not now necessary to
make any observation, but the application was not granted.

There was considerable correspondence, in which Hough en-
deavoured not only to prevail with the Minister by reason of
some supposed right which he had, but also tried to work upon
his feelings as a person coming from the same English county or
town, but notwithstanding this attempt to work upon the kindly
feelings of his compatriot, he did not succeed in getting what he
wanted. There was, however, a suggestion made by the Under-
Secretary for Lands that, inasmuch as the plaintiff's selection would
not stand good, being in contravention of the law, he might make
application for the remaining portion of the 208 acres 3 roods, in
which case it would not be necessary that there should be any
survey as required in the case of an application for part of a
measured portion, and in that way he would be able to acquire
a right not only to the sixty-eight acres, but to the whole of the
208 acres 3 roods. That was the suggestion made by the Under-
Secretary for Lands, coupled with some remarks about some
judgments of this Court in Blackwood v. Dobbin (3); and Moore
v. Bernholdt (4), which evidently did not find much favour with
the officials of the Lands Department. Although the Lands
Department must have been perfectly well aware of these decisions,
yet it affected to treat them—or one of them, at all events-as
not having been finally settled by the Court. The law, however,
was not only clearly laid down there, but it had been settled and laid
down a very considerable time before in another precisely similar
There could, therefore, be no question as to what the law
was-that is to say, that where improvements are made upon a
(3) 1 S.C.R., N.S. 75.
(4) 3 N.SW. L.R. 9.

case.