No. LXI.
An Act for appointing Commissioners to examine and report upon disputes respecting bounda ries of Kims between the Claimants of Leases under Her Majesty's Order in Council of the Ninth March One thousand eight hundred and
| forty-seven. | [17th June, 1848.] |
| WH E R E A S | and I re land passed in t he n i n t h and t en th year of the re ign of |
| by a n Ac t | of | the | I m p e r i a l | P a r l i a m e n t of | Grea t | Br i t a in |
| H e r present Majesty Queen Victoria in t i tu led " An Act | to amend | an |
| " Act for regulating | the Sale of Waste Lands belonging to the Crown in |
| " the Australian | Colonies | and to make further | provision | for | the |
" management thereof" it was amongs t o ther th ings enacted t ha t it should be lawful for H e r Majesty by any Order in Council to make and establish all such ru les and regula t ions as to H e r Majesty should seem mee t for t h e purposes the re in recited and any such rules and regulat ions again to repeal renew al ter a n d amend and t h a t all such Orders in Counci l should have t he force and effect of law in t he Colonies aforesaid A n d whereas cer ta in ru les and regula t ions were accordingly mack; and establ ished by H e r Majesty by and wi th t h e advice of H e r P r ivy Counci l on t he n i n t h day of M a r c h in t he year of our Lord one t h o u s a n d e ight h u n d r e d and forty-seven to be thence forth observed and to have t he force and effect of law A n d whereas t he said ru les and regula t ions were p romulga ted in t he New South Wales Government Gazette on t he seventh day of October one thousand eight hundred and forty-seven A n d whereas it is expedient and necessary for t h e information of t he Governor for t h e t ime being to provide a mode of inves t iga t ing and repor t ing on disputes respect ing boundar ies of Runs between t h e c la imants of leases under t he above reci ted Order in Council Be it therefore enacted by H i s Excel lency t h e Governor of N e w South W a l e s wi th the advice and consent of t he Legislat ive Council thereof Tha t i t shall and m a y be lawful for t he Governor of N e w South Wales to appoin t from t ime to t ime any n u m b e r of fit and proper persons (not being Commissioners of Crown Lands) to be Commissioners for inves t iga t ing a n d repor t ing on such disputes as aforesaid and each such Commissioner shall have full power and au tho r i t y to hear examine and repor t on all d isputes between c la imants of leases unde r H e r Majesty 's said Order in Council respect ing boundar ies of R u n s beyond t h e Set t led Dis t r ic ts of t he Colony Provided always t h a t i t shall be lawful for t h e said Governor to remove any such Commissioner and to appoint ano ther in his stead
| of t he said Colony as often as H i s Excel lency shall see fit to refer any such disputed claims as aforesaid to any one of t he said Commissioners to the end t h a t all such claims may be duly examined and reported | on |
| as to H i s Exce l lency m a y seem | meet . |
2. A n d be it enacted Tha t every such Commissioner shall before proceeding to act as such t ake and subscribe before any Bench of Magis t ra tes s i t t ing in P e t t y Sessions t h e oa th set forth in the Schedule to th i s Ac t annexed marked A which oath when so t a k e n and subscribed shall be t r ansmi t t ed by the Clerk of such P e t t y Sessions to the office oi t h e Colonial Secretary in Sydney or of t h e Super in tenden t a t Me lbourne as t h e case m a y be the re to be filed and kep t on record.
| 3 . A n d be i t enacted T h a t it shal l be lawful | for t he | Governor |
on for t he informat ion and guidance of t he Governor for t h e t ime be ing and t h e said Commissioner shall proceed to hear examine and repor t on such disputed claims in m a n n e r hereinaf ter men t ioned Provided t h a t n o t h i n g here in conta ined shal l au thor ize any such Commiss ioner to receive or repor t on any such disputed claims b u t such as shal l be referred to h im by the Governor as aforesaid.
4. A n d be i t enacted T h a t whenever and so often as any
d isputed c la im shall have been referred as aforesaid publ ic notification
thereof shal l be made in t h e New South Wales Government Gazette
| or in t h e Port | Phillip | Government | Gazette if t h e land in d ispute be |
| s i tua ted in t he P o r t | Phi l l ip Dis t r ic t and | w i t h i n | s ixty | days | from | t h e |
da te of such notification i t shal l be i n c u m b e n t on the respect ive c la imants to lodge wi th t h e Commissioner to whom such disputed c la im has been so referred a memor ia l in wr i t i ng signed by t h e pa r ty lodging t h e same which memor ia l shal l set forth a t rue descript ion of the p a r t y c la iming and of his usua l residence and of t he l and in respect of which a lease is claimed and a t r u e s ta tement of t h e cir cumstances unde r which such claim is m a d e Provided always t h a t such memor ia l m a y a t any t i m e thereaf ter be amended by leave of t he said Commissioner .
5. A n d be i t enacted Tha t a t any t ime after t he expi ra t ion of t h e per iod for lodging t h e memor ia l s as aforesaid it shal l be lawful for t h e Commissioner to appoin t t h e t i m e and place a t which he wil l proceed to hea r t he case so in d ispute Provided always t h a t t he place
| of hea r ing shall be wi th in t h e l imits of | the dis t r ic t where t h e l and | in |
d ispute shall be s i tuated and provided fur ther t h a t t h e said Commis sioner shall cause a notice in wr i t i ng to be left a t or directed to t he usua l place of residence of each c la imant who by his memor ia l shal l have signified t he same a t least one ca lendar m o n t h previous to t h e day fixed for t he hea r ing of t he case appr i s ing h im or he r of t he t ime a n d place so fixed Provided also t h a t t h e said Commissioner shal l have power to en large t he period so fixed and to ad journ any such h e a r i n g from t ime to t i m e as t he jus t ice of the case m a y seem to h i m
| 6. | A n d be | i t | enac t ad | T h a t in | h e a r i n g and | i n q u i r i n g | in to | al l |
c laims to leases of H u n s or any p a r t of a H u n as aforesaid every such Commissioner shal l be guided by t h e rea l jus t ice and good conscience of t h e case w i t h o u t r ega rd to legal forms a n d solemnit ies and shall
| direct himself by t h e best evidence t h a t h e can procure | or t h a t is laid |
| before h im whe ther t h e same be such evidence as t he law would requi re |
| i n o ther cases or n o t a n d in case he shal l be satisfied | t h a t t he person |
| or persons so c la iming a lease of t h e l and in d ispute is or are ent i t led | in |
equi ty and good conscience the re to or to any por t ion thereof he shal l repor t the same to t h e Governor accordingly and shall set for th t he boundar ies by which t h e said lands m a y be described in every such lease Provided always t h a t a view m a y be t aken by t h e said Com
| missioner of | t h e land in d ispute a t | t h e ins tance of | ei ther p a r t y | P r o |
| vided also t h a t | n o t h i n g | here in | conta ined shall be | held to oblige t h e |
| Governor to m a k e and | deliver a n y such lease as aforesaid unless H i s |
Excel lency shall deem it proper to do so.
7. A n d t h e be t te r to enable t he said Commissioners or any of t h e m to set for th t he boundar ies of any lands so in dispute Be it enacted T h a t it shall be lawful for every such Commissioner to call t o his assistance any Surveyor duly appoin ted by H i s Excel lency t h e Governor in t ha t behalf and i t shall be t he du ty of such Surveyor to survey m a r k and describe t he boundar ies of t he said lands according to t h e direct ion of t he said Commissioner Provided always t h a t t h e expense of any such survey m a r k i n g and descr ipt ion of such boundar ies
shal l
| shal l he pa id by t h e pa r ty against w h o m the said Commissioner | shall |
r epor t and in default of such p a y m e n t wi th in twen ty days from t h e date of a n order to be made by the said Commissioner in t h a t behalf t he a m o u n t so directed to be paid shall be levied by w a r r a n t unde r t h e h a n d of t h e said Commissioner by distress and sale of so m u c h of t h e goods and effects of t he pa r ty so failing to pay as may be necessary to satisfy t he same.
8. A n d be i t enacted Tha t it shall and m a y be lawful for every such Commissioner to issue summonses r equ i r ing all such persons as shal l t he re in be named to appear before h i m a t a place and t ime to be t he re in appoin ted to give evidence as to all m a t t e r s and t h i n g s k n o w n to any such person respect ing any claim as aforesaid and to produce in evidence all deeds i n s t rumen t s or wr i t ings in the possession or control of any such persons which t hey might by law be required and compelled to give evidence of or to produce in evidence in any cause respect ing t h e l ike m a t t e r s depending in t he Supreme Cour t of th is Colony in so far as t he evidence of such persons a n d t h e product ion of such deeds i n s t r u m e n t s and wr i t ings shall be necessary for t h e due invest igat ion of any such claims as aforesaid depending before t he said Commissioner and t h a t all such evidence shal l be t aken down in wr i t ing in presence of t h e witnesses respectively giving t h e same and shall a t t he t ime be signed by t h e m or in case of thei r refusing or be ing unable to sign by some competen t witness and t h a t all such evidence shall be given on oath or affirmation which oath or affirmation it shall and m a y be lawful for every such Commissioner to admin i s te r to every person appear ing before h i m to give evidence and t h a t any person t a k i n g a false oa th or m a k i n g a false affirmation in any case wherein an oa th or affirmation is requ i red to be t a k e n by th i s A c t shall be deemed gui l ty of wilful and corrupt per jury and being thereof duly convicted shall be liable to such pa ins and penal t ies as by any laws now or hereafter in force any person convicted of wilful and corrupt per jury are or shall be subject and liable to .
9. A n d be i t enacted Tha t whenever any person who being duly summoned to give evidence before any such Commissioner as aforesaid his or her reasonable expenses hav ing been paid or tendered and no t h a v i n g any lawful imped iment allowed by the said Com missioner shal l fail to appear at t h e t ime and place specified in such s u m m o n s or after appear ing shall refuse to be sworn or m a k e affirma t ion as t h e law in each case may requ i re and to answer any lawful
| ques t ion or t o produce any deed i n s t r u m e n t or wr i t ing which he or |
she m a y lawfully be requ i red to produce or wi thout leave obta ined from t h e said Commissioner shall wilfully wi thdraw from fur ther examina t ion t h e n and in every such case t h e said Commissioner shall certify in wr i t ing unde r his h a n d such default or refusal or wilful w i thd rawing and the reupon it shall and m a y be lawful for t h e person at whose ins tance or on whose behalf such summons as aforesaid was issued to t ake ou t t h e process of t he Supreme Cour t at Sydney or Melbourne as t he case may be for s u m m o n i n g such last ment ioned person to appear before t h e Cour t from which such process shall issue a t t he t ime the re in specified summar i ly to shew cause why he or she should no t be a t tached lined or imprisoned for such default refusal or wilful wi thdrawing as aforesaid and if such person hav ing such last ment ioned summons duly served upon h i m or he r shall at t he t ime the re in specified fail to shew cause for h is or her said default refusal or wi thdrawing to t he satisfaction of such Cour t it shal l and m a y be lawful for such Court on proof by t h e r e t u r n of t h e officer serving the same or by affidavit of t h e due service of t h e said s u m m o n s to give evidence and of t he said summons to shew
cause a n d on produc t ion of a copy of t h e said certificate unde r t h e h a n d of t h e said Commissioner to g r a n t a w a r r a n t t o apprehend t h e person so failing to shew cause and to commit h i m or he r to pr ison the re to r ema in w i t h o u t hai l u n t i l h e or she shall submi t to be sworn or to m a k e affirmation as aforesaid a n d to answer all such quest ions a n d to p roduce all such deeds i n s t r u m e n t s or wr i t ings as aforesaid in
| so far as shal l lawfully be requi red of h i m or he r and fu r ther | to set |
such fine u p o n such person as t h e Cour t shal l t h i n k mee t and unless t h e same shal l be for thwith paid to g r a n t process for levying t h e a m o u n t thereof u p o n t h e p roper ty of such person and every such fine
| or t h e a m o u n t thereof which shall be levied shall for thwi th be paid | to |
| t h e | P r o t h o n o t a r y | of | t h e | said | Cour t | a t | Sydney | or | D e p u t y | Reg i s t r a r | of |
| t h e Supreme Cour t | a t | P o r t Ph i l l ip | as t he case m a y be and | t h e | said |
P r o t h o n o t a r y or D e p u t y Reg i s t r a r shall for thwith out of t h e a m o u n t of such fine pay to t he person at whose ins tance the sentence impos ing t h e fine was obta ined t h e expenses incur red in s u m m o n i n g the person so fined as aforesaid and in ob ta in ing such sentence as t axed by t h e said P r o t h o n o t a r y or D e p u t y Reg i s t r a r and shall account for a n d pay over t h e residue of such fine in l ike m a n n e r as he is by law requ i red and directed to account for a n d pay over fees or fines received b y h i m as P r o t h o n o t a r y or Depu ty Reg i s t r a r of t he said
10. A n d be i t enacted Tha t t he re shall be paid to t h e Commis sioners for and on behalf of H e r Majesty H e r H e i r s and Successors by every c l a iman t a n d opposing c la imant as aforesaid before t he case is hea rd t h e several fees specified in t h e Schedule he r eun to annexed m a r k e d B and t h e said Commissioners shall duly account for all fees so paid t o t h e m as aforesaid and shall pay t h e same in to t he Colonial Treasury a t Sydney or Melbourne as t he case m a y be at such t imes a n d in such m a n n e r as t h e Governor m a y b y any regula t ions in t h a t behalf appoin t and all such sums so received shal l be applied as here after directed to t h e purposes of th is Ac t and t h e overplus if any to t h e pub l i c uses of t h e said Colony and in suppor t of t he Governmen t thereof as b y any Act of t h e Governor and Legis la t ive Counci l m a y be directed.
| 1 1 . A n d | be i t enac ted T h a t each of t h e said | Commissioners |
shal l a n d m a y receive for h is own use for every final repor t made by h i m in m a n n e r aforesaid upon a d isputed claim to a lease t h e s u m of
| fifteen pounds and it shal l be lawful for H i s Excel lency t h e Governor to order and direct by w a r r a n t unde r his h a n d t h a t every such s u m |
shal l be paid from a n d ou t of t h e Pub l i c Treasury of flu; said Colony.
S C H E D U L E S
| S C H E D U L E S | REFERRED | TO. |
A .
| C O M M I S S I O N E R ' S | O A T H . |
| I | do | s o l e m n l y | s w e a r | t h a t | f a i t h f u l l y | d i l i g e n t l y | a n d | i m p a r t i a l l y | t o | t h e |
| b e s t | of | m y | a b i l i t y | I | wi l l | e x e c u t e | t h e | d u t i e s | a p p o i n t e d | u n d e r | a n d | b y | v i r t u e | of | a | c e r t a i n | A c t |
| of | t h e | G o v e r n o r | of | N e w | S o u t h | W a l e s | w i t h | t h e | adv i ce | of | t h e | L e g i s l a t i v e | C o u n c i l | of t h e | sa id |
| C o l o n y | m a d e | a n d | pas sed | in | t h e | e l e v e n t h | y e a r | of | t h e | r e i g n | of | Her | M a j e s t y | Q u e e n | V i c t o r i a |
| i n t i t u l e d | "An | Act | for | appointing | Commissioners | to | examine, | and | report | upon | disputes |
| " respecting | boundaries | of Runs between the Claimants | of Leases under Her Majesty's | Order |
| " in Council of the ninth March one thousand | eight hundred | and forty-seven | " a n d t h a t 1 will |
| n o t | m y s e l f | d i r e c t l y | or | i n d i r e c t l y | take; o r | r ece ive | or | k n o w i n g l y | p e r m i t | a n y | o t h e r | to | t a k e | or |
| r ece ive | a n y | fee | or | r e w a r d | for | a n y t h i n g | d o n e | or | p e r f o r m e d | u n d e r | a n d | b y | v i r t u e | of | a n y | of | t h e |
| p r o v i s i o n s | of | t h e | sa id | A c t | o t h e r | t h a n | a n d | e x c e p t | s u c h | a s | is | a u t h o r i z e d | by | t h e | sa id | A c t . |
| S w o r n | before | u s | t h i s |
B.
| F E E S | T O | B E | P A I D | B Y | C L A I M A N T S . |
| A m o u n t to b e p a i d | by e a c h | of | t h e | c l a i m a n t s | before | t h e | case | is |
| For | e v e r y | s u m m o n s | for | w i t n e s s | e a c h | s u m m o n s c o n t a i n i n g | n o t | m o r e |
| t h a n | four | n a m e s | b y | t h e | p a r t y | r e q u i r i n g | t h e | s a m e | . . . | . . . | 0 | '2 | (i |
| F o r | e v e r y | w i t n e s s | e x a m i n e d | or | d o c u m e n t | or | v o u c h e r | p r o d u c e d | in |
| e v i d e n c e | b y | t h e | p a r t y | on | whose | beha l f | e x a m i n e d | or | p r o d u c e d | 0 | 2 | () |
| F o r | t a k i n g | down | t h e | e x a m i n a t i o n | of | a n y | w i t n e s s . . . | . . . | . . . | 0 | '2 | (> |
| F o r | e v e r y | 1 0 0 | w o r d s | a f t e r | t h e | first | 1 0 0 | a d d i t i o n a l | 0 | 1 | 0 |
| F o r | e v e r y | cer t i f i ca te | g r a n t e d | by | a | C o m m i s s i o n e r | of | d e f a u l t | refusal |
| t o | a n s w e r | or | wi l fu l | w i t h d r a w i n g | of | a n y | w i t n e s s | . . . | . . . | 0 | 5 | 0 |