ADANA
PUBLIC RECORD OFFICE
C.O.
Reference →
885
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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from the 1st of March, 1849, of such sum as, taken together with all sums paid previously thereto, should yield an average yearly sum of not less than 50,0001.
The Association were accordingly bound, under that provision of this clause, to sell lands on or before the 1st of March, 1832, which should realize a sum of not less than 100,0001., of which one-sixth, or 16,6661. 138. 4d., would be due to the Crown.
Under the. 8th section of the Act last mentioned, on the failure of the Association to comply with the conditions of the Act, power is given to one of the Principal Secretaries of State to determine the Association's power of dispo- sition over the lands reserved for them.
One of the provisions (No. 2) of the Arrangement between the New Zealand Company and the Association was, that the Association were to sell land to the amount of 100,0001, on or before the 30th of April, 1850. This provision was subsequently relaxed by the Company, with the assent of Her Majesty's Govern- ment; and, in consideration of that relaxation, a guarantee, of which a copy was sent, was entered into by four individual members of the Association binding themselves separately to the amount of 3,7501., making in all 15,0001, to make good to that extent whatever proportion of a sum of 100,0001, might, on the 31st of December, 1851, be due to the Company under the Agreement of the 1st of December, 1849, those proportions being—
1st. Under head IV, one-sixth of the total amount received in respect of land-sales;
2nd. Under head V, specified proportions of the amount so received in repayment of certain advances, amounting to upwards of 25,000, which had been advanced by the Company to the Association on account of preliminary expenses, with which, however, Her Majesty's Government have no concern, as those advances were not made with the consent of Her Majesty's Commissioner for the affairs of the New Zealand Company.
The sum of 4,2157. 3., which the Association now decline to pay, would complete the amount of 16,6661. 18s. 3d., being the whole of the one-sixth of the 100,000 worth of land which the Company were required to sell before the 1st March, 1852, and the payment of the former amount, now would, as far as the Government is considered, release the signers of the guarantee.
1. Whether, under the circumstances above disclosed, has the Secretary of State power, under the Act 13 & 14 Vict., cap. 70, sec. 8, to declare, by writing under his hand, that the power of disposition of the Canterbury Association over the lands specified in the Act has terminated?
2. If the Secretary of State should not exercise this power, what steps ought Her Majesty's Government to take to enforce the payment of the sum of 4,2151. 38. Od., duc as aforesaid, and of any further sums which have accrued, and may accrue, in respect of the one-sixth payable to the Crown on Canterbury land sales?
3. If the Secretary of State should exercise this power, and the powers of the Canterbury Association consequently determine, would ller Majesty's Government be, in that event, able to enforce from the Association the payment of the sums mentioned in the question?
4. If Her Majesty's Government should be unable to recover those sums from the Canterbury Association, would they still remain liable (regard being had to the opinion of the late Law Officers therewith communicated, if we concurred in it) to pay the same sums to the New Zealand Company?
5. Could Her Majesty's Government take any, and what, steps against the four signers of the guarantee, in respect of the aforesaid debt of 4,2157. 38. 0§d. ? And that, with reference to the latter question, he was directed to annex an extract of a report of Mr. Shaw Lefevre on certain questions pending between Her Majesty's Government and the New Zealand Company, and also a copy of a case and opinion taken by the New Zealand Company as to the effect of the guarantee and remedies upon it.
And that he was directed further to state that you are informed that the Directors are commencing proceedings against the signers of the guarantee under that opinion.
We have the honour to report that, having fully considered the circum- stances of this case, we are of opinion—
1. That the payment of the one-sixth part of the produce of sales being
the
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one of the conditions to which the Association is subject, upon its non-payment power of disposition over the lands mentioned in the Schedule to the Act may be terminated. Before the Secretary of State can adopt this course, it will be necessary for him to determine. by writing under his hand, the time at which, and the person to whom, the money is to be paid, and notice of these particulars should be given to the Association, and they should be required to pay accordingly.
2. If the Secretary of State should not exercise this power, the Crown may institute proceedings against the Canterbury Association to recover the sum of 4,2151. 38. 04d., and any further sums which have accrued, and which may accrue, in respect of the one-sixth payable to the Crown on Canterbury land sales.
3. Even if the Secretary of State should exercise the power, Her Majesty's Government will be able to enforce from the Association the payment of the sums in question, which may have accrued prior to the determination of their powers.
4. By the 20th section of the 10 & 11 Vict., cap. 112, upon the reversion to Her Majesty of the lands belonging to the New Zealand Company, a certain sum is to be paid to the Company out of the proceeds of all future sales of the demesne lands of the Crown. By the 7th section of the 13 & 14 Vict., cap. 70, notwithstanding this provision, five sixths of the produce of the sales are to be retained by the Canterbury Association, leaving the other one-sixth liable to the operation of the provision. There is nothing to exempt the Crown from pay- ment of the amount to which the New Zealand Company is entitled out of the proceeds of the sales, whether received or not; and therefore, concurring in the opinion of the Law Officers of Her Majesty's late Government, we think that the Crown is bound to pay over to the New Zealand Company the one sixth of these sales, although it may be unable to recover the amount from the Canter- bury Association.
5. We are of opinion that Her Majesty's Government can take no steps against the four signers of the guarantee,
The Right Hon. Sir J. Pakington, Bart.,
&c.
&c.
&c.
We have, &c. (Signed)
FRED. THESIGER, FITZROY KELLY.
No. 83.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Sir J. PAKINGTON.
Temple, December 27, 1852.
No. 85.
SIR,
WE were honoured with Mr. Merivale's letter of December 20, in which he Canterbury Asso stated that, with reference to his letter of the 16th of October, enclosing a draft ciation, questions notice to the Canterbury Association, and our answer of the 20th of the same regarding their month, approving of this notice; he was directed by you to transmit to us the liability to the
Crown draft of an instrument which it is proposed to issue under your hand, in pur- suance of the provisions of the Act 13 & 14 Vict., cap. 70, section 8, and to request that we would advise you whether this instrument, with any amend- ments which may occur to us, would be sufficient in law to put an end to the Association's power of disposition over the land in the Schedule to the Act.
And that he was directed further to request that we would advise you whether this instrument should be served on the same parties, or any of them, on whom the former notice was served. And that he was further to request our attention to the provisions of the Act to amend the first Canterbury Act, 14 & 15 Vict., cap. 84, especially section 8, and that we would inform you whether, assuming the Association to have appropriated any lands in the manner therein described, the property therein for the purposes of the Act will remain vested in the Association, after the termination of their power of disposal over the land by