CO885-(10-11) — Page 51

8554.

PUBLIC RECORD OFFICE

C.O.

Reference :-

885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

10 PUBLIC RECORD OFFICE, LONDON

SIR,

No. 31.

(NEW SOUTH WALES.)

TREASURY SOLICITOR to TREASURY.

Tawell's Escheat of Lands in Sydney.

Treasury, August 22, 1860.

I HAVE considered the Despatch of Sir W. Denison of the 1st March 1860, trans- mitted with the letter from the Colonial Office of 1st June instant.

The Governor of New South Wales draws attention to certain difficulties attendant on the perfection of an intended grant to trustees of lands in Australia the property of the above-named convict for the benefit of his widow and child for the immediate completion of which instructions have been sent to the present and former Governors of the Colony.

These relate (1st) to the proper form of the grant, whether it should be made by Her Majesty or the Colonial Governor, and (2nd) to the proper description of the land to be inserted in the grant.

+

With regard to the first objection, I have to report that in 1851 the then Law Officers of Her Majesty Sir John Romilly, the present Master of the Rolls, and Sir Alexander Cockburn, the Lord Chief Justice of England-were expressly consulted as to the objections then mooted by the Law Officers of the Colony, now again raised by their successor, and they wrote an opinion which, with the case, was sent to my Lords in the usual manner.

In pursuance of this opinion a draft warrant from Her Majesty was prepared and approved by the Law Officers of Her Majesty, and a copy thereof was transmitted from the Colonial Office to the then Governor of the Colony with directions to cause the requisite inquisition to be taken, and the grant thereupon to be perfected and passed under the Great Seal of the Colony, by means of which the Law Officers had advised that Her Majesty's gracious intentions in favour of the widow of the convict and her children would be legally carried into effect

It appears that this inquisition has been duly held, and the title of Her Majesty found to certain lands therein expressly described, but the completion of the grant has been suspended owing to the claims of certain parties who have purchased the lands under the circumstances alluded to by Sir W. Denison in his last Despatch, which claims were considered by the Colonial Law Officers to be preferable to those of the convict's widow and family.

These opinions of the Colonial Law Officers, and their reasons for them, wer submitted on two different occasions to the Attorney and Solicitor General of Her Majesty, who have made elaborate reports upon them, which have been already transmitted to my Lords.

It will be seen that the Law Officers advise that notwithstanding all that has taken place in regard to the sale of the lands in the Colony, the intended grant should be completed; and "that it will be competent to the purchasers to take steps to enforce "their claims either for a conveyance of the lands or for repayment of the purchase

money as they may be advised in a court of equity."

14

Under these circumstances, I would humbly submit that the Colonial Governor (who requests that he may be furnished with explicit directions for his guidance as to the settlement of a question which, as he states, has been standing over undecided for so many years) may be directed forthwith to cause the draft deed of grant sent herewith, after filling up the blanks left for the recital of the proceedings under the inquisition, to be engrossed and perfected under the Great Seal of the Colony and to be then delivered to the trustees.

The description of the lands intended to be granted should be in the words of the finding of the inquisition, which ought to have described accurately the property of which the felon was owner from the several deeds of conveyance under which he held

it.

It is stated in the Governor's Despatch that it had been discovered that a portion of the land included in the boundaries given by the inquisition had been sold by Tell previous to his conviction, and this appears to have been one of the reasons why the grant has not been completed.

0 16978-533. 95.-2/86.