RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume IX, Issue 70, 23 March 1874, Page 2

RESIDENT MAGISTRATE'S COURT.

[Before L. Broad, Esq., R.M.] Morgan v. Waste Lands Board. This was an action to recover the sum of £64, and interest thereon, being the amount deposited by plaintiff in 1868 on an application lor a lease of the Brunner Coal Mine. Most of the facts of the ccee were admitted, the only question being whether, under Section 61$ of the " Nelson Waste Lands Act, 1863," the plaintiff, having failed to take up the lease, the deposit had become forfeited. Mr Acton Adams appeared for the plaintiff, and Mr H Adams for the defendnntß. The evidence was taken on the 9th instant, but the Resident Magistrate reserved judgment until to-day, when it was given as follows:— The facts of this case are shortly as follows: — On August 11, 1868, plaintiff sent an application to the defendants for. a lease of the Brunner mine, and enclosed £64 by way of deposit. He also stipulated for certain conditions being inserted in the lease. On September 19, 1868, the Waste Lands Board wrote accepting plaintiff's proposals With two exceptions. On October 6, 1868, Morgan wrote to the Bonrd yielding one of the points, but not the other, and stating that on the 28th of that month certain persons would leave Melbourne for Nelson to make final arrangements. These persons never came. On December 2, 1868, the Board acknowledge receipt of Morgan's letter of October 6, and inform him that the parties he mentioned hove not arrived, that an application has been received for a temporary leafe cf the mine, which will be dfalt with forthwith if he (Morgan) does not at once inform the Bonrd of his intentions. On February 11, 2869, the Board having receiving no answer from Morgan entertained another application. Subsequently a letter was received from Morgan dated Ballarat, February 11, 1869, stating absence from home bad prevented him sending an earlier reply to the letter of December 2, 1868, and that certain legal difficulties had presented themselves, but he was using his utmost endeovors to take up the lease at as early a date us poosib!©. He adds he had no objection to a temporary lease of the mine being granted for six months, but required an assurance that the lease to himself can be taken up at the end of that period. On April 23, 1869, the JBoard acknowledged receipt of Morgan's latter of February 11, and refused to make aay promise to keep

the lease open, and stated the; considered themselves at liberty to lei the mine to any suitable opplicnnts, und should no offer be mado in th* meantime an application from Morgan would still be open to bo received. No reply was received from Morgan, nor was anything heard of or from him until 4th December, 1870, when one A. S. Dreyer, acting as his agent, applied to the Waste Lands Bnard for a refund of the deposit. This request was not acceded to, nnd on the 3rd April, 1871, Morgan himself wrote to the Board asking for the money. The Board, by tho advice of the Provincial Solicitor, refused it and this action is now brought to recover it. The plaintiff contends — Ist. That be has had no consideration for his deposit. 2ud, That it is simply held by the defendants in trust for him, and be relies upon the 63rd clause of the "Nelson Waste Lands Act, 1803," in support of this view. That section provides that a deposit of one shilling per acre is to be made with the application for a mineral lease, " which deposit shall be deducted from any future fees, royalty or rent to be paid for or under the lease to be granted in respect to such application." This, the plaintiff contends, means that tho deposit is to be held for the benefit of the applicant; if he takes up the lease he gets value in the shape of rent; if he does not got a lease granted to him, or if he fails to take ono up, he is entitled to get his deposit back. The defendants say, "No, the deposit is made as a guarantee of the good faith of the applicant, and if, after the Board has signified its willingness to grant him a lease, he fails to take it up. the deposit is forfeited." The 55th section of the "Nelson Waete Lands Act, 1863," was mentioned. It refers to applications /or pastoral leases, and provides that if the Commissioners shall not award the run applied for to the depositor, or if the latter shall withdraw his application before any award has been made, the deposit shall be returned. The argument on this clause is that where no statutory provision is made for the return of a deposit under similar circumstances to the present, it cannot be recovered back again, and that the deposit, under clause 63, was iutendod to operate as a sort of fine upon mere adventurers who put the Board to unnecessary trouble, and by lodging applications which they had no intention of carrying through, locking up the public estate from beneficial occupation. I incline to this view, which is strengthened by the iegulaiona for granting mining nnd agricultural leases under the Goldfklds' Act, in which special provision is made for the return of the deposit, or part of it, in the svent of the lease not being taken up, or of iis being refused. On the facts as shewn by the correspondence put in, and by the plaintiffs testimony, I have no doubt tbat Morgan made this application as a matter of speculation, that is to say, if on the strength of his application he had been ablo to form a Company in Victoria, he would have taken up the lease, but being unable to do so, he let the matter drop, for it must be remembeied he made no reply to the letter of the Board of 23rd April, 1869, and the next thing heard of him was the demand made by his agent Dreyer iv December, 1870, to have the deposit returned. It seems then tbat the Board were always realy and willing to grant the plaintiff a loaee on his own terms, with one exception, that one however ia partially wnived by the plaintiff in his letter of the 6th October, 1868, and he intimates that persons are to leave ior Nelson on the 28lh of that month to make "final arrangements." The Board waited in vain for the plaintiffs or hie agents to appear, and finally (after giving the plaintiff notice) entertained another application. The question simply is then, Is the plaintiffs entitled to recover his deposit ? In view of the opinion I have expressed as to the meaning of clause 63, I do not think he is. Judgment for defendants with £3 3s costs. Mr Acton Adams gave notice of appeal.