SUPREME COURT.

NORTH AUSTRALIAN COMPANY
v. BLACKMORE.

COMMON LAW.

and such offices respectively shall remain open for the receipt of such applications, as aforesaid, for twenty-eight days after the first day named for receiving such applications, subject to the list being closed at an earlier period, in accordance with the regulations hereinafter authorized to be made; and, immediately after the expiration of such periods, such officers shall, in manner hereinafter provided, proceed to allot to the persons applying the land so applied for, at the price of seven shillings and sixpence per acre; and, on compliance with the said Regulations as to the terms and conditions of payment, or otherwise, shall issue to such persons preliminary land orders, which shall state the number of acres and town lots sold and authorized to be selected." Inasmuch as one of the objections of the defendant was that the Act and Regulations were not complied with in the making of the contract sued upon, he would point out the steps which were taken, and the steps which it was necessary should be taken under the Regulations. It was said that the application was not "for 160 acres of country land and one town lot, or for some multiple thereof." The letter, it was true, applied for the balance after private demands had been satisfied; but inasmuch as every one of those applications must have been for 160 acres, or some multiple thereof, the Court would see that the letter of the plaintiffs was in fact an application for a multiple of 160 acres. Then with regard to the purchase-money. The application was to be accompanied by "a deposit receipt for £20 for each and every lot of 160 acres.' This was not accompanied by a deposit receipt; but the payment was made direct to the Agent-General, who was the officer for receiving applications. The provision respecting a deposit receipt was made for convenience, and was merely directory and not mandatory

Sedgwick on Statutory and Constitutional Law, 368.

All that was required by the Act to be completed within the twentyeight days for which the office was advertised to be open, was the application, and the plaintiffs' application was made within that time. Then afterwards the Agent-General was to allot the lands; but the allotment was only in case a larger number of applications were made than the 125,000 acres would satisfy. If not he would give each person what he applied for. In the declaration every

SUPREME COURT.

NORTH AUSTRALIAN COMPANY )·
V. BLACKMORE.

}

COMMON LAW.

thing was alleged to have been done that was required to be done by the Act-regulations were made, an office was opened, an officer appointed, an advertisement published, an application made, money paid, and the allotment made and the land orders issued. But it was then said that the application was made on behalf of a nonexisting Company which could not confirm a contract which was made before it had any existence, and therefore the contract under which the Government had received £19,000, and held it for more than five years, was altogether void and of no effect. Of course the Court were not sitting to consider the question of the credit of the colony, and matters of that sort, except so far as they might have a bearing upon the legal aspect of the case; but, if there was any doubt in the construction of the Regulations, he thought they would resolve that doubt in such a way as to prevent fraud, whether on the part of the Government or any one else, because a denial of the right of the plaintiffs under the contract which they entered into could be nothing less, and would uphold the validity of a solemn document, executed by a public officer, affecting to give the persons whose names appeared in it the right to select a large quantity of land, and, as alleged and not denied, the allotment having taken place with the express assent and acquiescence of the Government. The defendant's counsel had attempted to establish a false analogy. The rule of law, as he understood it, was that if a man affected to enter into a contract on behalf of a Company having no existence, the subsequent incorporation of a Company and their willingness to take the liability upon themselves could not relieve him from liability upon the contract, which in point of law was constituted between himself and the other party, unless with the assent of that party. But that did not apply in this case. It was the Company's money which was paid to the Agent-General. There was an assignment of the right which the persons had who paid the money, so that the right of allotment was given to their nominees. They would in another view be trustees. When the Company was formed they asked that the contract should be made with them, and it was so made with them. Where a contract was made for the purchase of land, the vendee might assign his interest. (GWYNNE, J.-I take it whatever interest there was would be assignable, because now even the right an heir-at-law has to an

SUPREME COURT.

NORTH AUSTRALIAN COMPANY
v. BLACKMORE.

COMMON LAW.

inheritance is assignable.)

There was nothing in the Act which rendered it necessary that the persons who purchased should have the land. The Act and Regulations had been substantially com plied with, except that the money was sent instead of a deposit receipt, and that regulation was only directory. It was a question whether a document such as the land order, which almost passed from hand to hand as money, and which did in fact so pass by a mere form of assignment, should be dependent for its validity upon proof of a strict compliance in London with regulations preliminary. (GWYNNE, J.-And a compliance at the time considered satisfactory to those invested with authority over the matter; it would be a gross injustice if such were the law.) The whole title to land in the Territory would be dependent on the possibility at any future period of proving that all these directions in the Regulations had been literally or strictly complied with. (GWYNNE, J.-Except in the case of fraud, I think the Court would be very indisposed to look behind the land order.) If the Court decided otherwise, every land grant in the colony might be defeated in the same way, because there is no provision in the Waste Lands Act that a land grant shall be proof of title. Then there were the matters connected with the performance of the contract, and the objections which were taken to the allegation of breach. It was said the time within which purchasers must select was limited, but not the time within which the Government must survey. It was almost sufficient to state that, and leave it. (HANSON, C.J.-You say the Government contracted you should be at liberty to select out of surveyed lands before the end of five years—that when they had done what they contracted to do you should be allowed to select.) That is the broad point. The manner is most singular in which it is stated that the time to select is limited, but the time to do that which is preliminary to selection is not limited. They say this was not an ordinary contract, but a State expedition. But there really is nothing in that point on which an argument can be raised. Another point was, that the Regulations did not form part of the contract. He treated them as if they did. If they did not, all that he had said upon them was immaterial, and the land order was the foundation of the plaintiffs' right. The remaining questions were as to the effect of the Northern Territory Amendment Act.

NORTH AUSTRALIAN COMPANY

SUPREME COURT.

V. BLACKMORE.

}

COMMON LAW.

(WEARING, J.-It expressly declares that it shall not affect the rights of parties under the former Act.) It says "Whereas under the provisions of the Northern Territory Act, preliminary land orders have been issued," &c., "and whereas the purchaser of such preliminary land order or land orders respectively, or the transferees or nominees of such purchasers may not have an opportunity within such period of five years of exercising their rights thereunder in selecting from and out of the surveyed country lands," &c., "it is therefore desirable to extend the time. within which such purchasers, transferees, or nominees may exercise their right of selection as aforesaid, and it is also desirable to compensate them for the delay," &c. Then the plaintiffs demurred to the defendant's 3rd, 4th, and 6th pleas. The first of those alleged that Messrs. Elder, Anstey, and others were not promoters and directors of the plaintiffs' Company; but that was merely description, and so long as the application was signed on behalf of the Company, it did not matter whether it was signed by directors or promoters or not.

Way followed on same side, contending that the amending Act was really an admission by the Legislature of a right having arisen ex contractu in those who had paid their purchase-money for land; and with regard to the Regulations, he cited from Sedgwick, 368, the following passage: "When Statutes direct certain proceedings to be done in a certain way or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the Statute is disregarded or disobeyed. In these cases, by a somewhat singular use of language, the Statute is said to be directory. In other cases the Statute is held to be imperative or mandatory." In respect to the application, the persons making the application and using the money of the Company would have been bound to execute a transfer; the case with regard to ratification did not apply, because the Government had chosen to issue the land grants in the name of the Company, who were the persons beneficially entitled

Browning v. Great Mining Central Company,

5 H. & N., 856

SUPREME COUNT. NORTH AUSTRALIAN COMPANY

v. BLACKMORE,

COMMON LAW.

Bedford and Cambridge Railway Company v. Stanley,

2 Johns. & H., 746

Gibbs v. Penhallow, L. R., 1 C. A., 93.

The provision of the Act that the moneys received should be expended in the government of the country referred only to moneys rightly received, and would not in any circumstances justify the Government in not carrying out a contract which they had made. (HANSON, C.J.-The Government had a commission of ten per cent. That is sufficient consideration to make them liable, I should say.)

Ingleby, in support of the rule, said the learned counsel for the plaintiffs had not endeavoured in any way to answer the argument which he adduced that the land orders were the execution by the Government of a statutory power in which the Act and Regulations had to be followed absolutely. That was decided by the Privy Council in the case of Regina v. Hughes with regard to mineral leases. The only way in which the plaintiffs could have maintained their position was by leaving out entirely all the Regulations and commencing with the land grant. The whole scope of the Act was to give persons who applied before a certain day, namely, the 29th of March, certain preferential rights. The plaintiffs clearly did not apply before that time, and could not avail themselves of the fact of their being applicants after the 29th of March. It had been attempted to show that Messrs. Elder and others having made an application within the time, on behalf of an intended Company, the intended Company afterwards founded might be taken to be the assigns of the persons who made the application. The answer to that was that the case made out in the declaration was a different one altogether. The declaration is that the Company themselves were the original applicants. (HANSON, C.J.-The declaration sets out the application in hæc verba, and then it says the parties who signed that did so on behalf of the Company then in process of formation.) And that it is decided would be bad in law by the case of

Kelner v. Baxter, L.R., 2 C.P., 174.

That decides that ratification can only be by a person in existence, either actually, or in contemplation of law. (HANSON, C.J.-What