Murdoch to Elliot (Assistant Under-Secretary)
Emigration Office
16 July 1862
I have to acknowledge your letter of 12th instant with a despatch from the Governor of Vancouvers Island reporting on the application of Mr Irving to be allowed to surrender certain land which he had purchased in that Island and to receive back his deposit.
2. In 1859 Mr Irving purchased 159 Acres in Vancouver Island at £1 an Acre and paid a deposit of £50. In Feby 1861 the price ofManuscript image Crown Land was reduced from £1 to 4s/2d an Acre. Mr Irving in consequence applied to have his purchase cancelled and to receive back his deposit, on the ground that the value of his land had been depreciated by this Act of the Government. In a report from this Office of 3rd October last it was pointed out that to comply with Mr Irvings application would be to admit a principle which would unsettle every purchase of Crown Land in the Colony—that purchasers must be assumed to take theirManuscript image land subject to the contingencies legitimately attaching to it—that one of those contingencies is an alteration of price—and that if that alteration had been in the direction of increase instead of reduction Mr Irving would have received the benefit of it.
3. The Duke of Newcastle concurred in this view of the case, but directed the Governor to consider whether purchasers who had paid a deposit only might not be permitted to select Land at £1 an Acre to the extent of their deposit, and to abandon the rest of their Contract. The Governor answers that such an arrangement had upon consideration been found impracticable from the difference in the value of Land in the same section or group—that some of it being valuable and other worthless, the worthless would be left on the hands of the Government while the better would be selected—and he observes that if such a privilege were conceded to those who have not completed their purchase it could not be refused to those who have. He adds that the amount of unpaid instalments having increased he had been compelled to forfeit the Land on which they were overdue—but had abstained from taking that step with reference to Mr Irvings land pending the correspondence with the Colonial Office.
4. It cannot be denied that if the change in the price of land is to entitle those who have paid deposits only to a relaxation of their Contract it would make it more difficult to resist the claim of those who have paid their whole purchase money to consideration on the same ground. There is however the essential difference that in the former case the Government would have to deal with transactions still in progress—but in the latter with those that are absolutely completed. The question has, however, been concluded by the forfeiture and sale of all lands except Mr Irvings on which instalments were overdue. There is no ground for an exception in Mr Irvings case—and it is clear that in every case where the instalments paid do not exceed three fourths of the whole purchase money it would be to the advantage of the purchaser to forfeit his instalments and buy at the present price. In the case of Mr Irving the allotment which he received of 159 Acres would at 4s/2d an Acre cost £33.2.6 which added to his forfeited deposit of £50 would make in all £83.2.6 offering therefore a premium of £75.17.6 on the abandonment of his Land and its repurchase under existing regulations. Even if he had paid three fourths of the purchase money or £119.5 he would obtain a benefit by abandoning the Land and repurchasing it. It is not surprizing that under these circumstances the majority of those who have paid deposits only should prefer to forfeit their deposits rather than complete their Contracts.
5. Upon the whole I would submit that it would not be possible with due regard to public interest to interfere between the purchasers of Crown Lands and the Local Government, and I would recommend that the Governors proceedings should be approved and that he should be left to deal with Mr Irvings land in the same manner as with other Land similarly situated.
I have etc.
T.W.C. Murdoch
Minutes by CO staff
Mr Elliot
There cannot, I think, be any doubt as to the proper course to be taken on this case of Mr Irvings.
ABd 17 July
Follow Mr Murdoch's suggestion in the concluding passage?
TFE 17 July
CF 18
N 20
Other documents included in the file
Elliot to John Irving, 30 July 1862, advising that it would not be possible for the crown to interfere in the dispute and that the Governor would be left to deal with the situation "in the same manner as with other Land similarly situated."
Draft reply, Newcastle to Douglas, No. 113, 29 July 1862.
Murdoch, Thomas William Clinton to Elliot, Thomas Frederick 16 July 1862, CO 305:19, no. 7057, 406. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria.

Last modified: 2020-12-02 13:40:34 -0800 (Wed, 02 Dec 2020) (SVN revision: 5008)