LAW REPORTS.

Dominion, Volume 1, Issue 49, 21 November 1907, Page 5

LAW REPORTS.

COURT OF APPEAL,

AN AUCKLAND CASE. A sitting of tho Court was held yesterday morning.- The Court comprised His Honour tho Chief Justice (Sir Robort Stout) and Justices Cooper and Button. Argument'was heard relative to'an application for leave to appeal to the Privy Council in : tho Auckland case, Turia Paki and others v. Kenneth Finlayson and another. Plaintiffs in this case prayed for a decree declaring that they aro tho owners of an undivided. fifth part iof a block called Nukutawhiti, containing 12,168 acres, in the Whangcrei district, or in the alternative that they are the owners of 2433 acres awarded to them under a partition order made by tho ■Nativo Land Court on May 15, 1904; and, further, that the defendants bo restrained from proceeding with their application for a certificate of title under tho Land Transfer Act. : i Defendants deny that plaintiffs have ev?r Jieen - in adverse possession of the, land uquestion, which is valued at several thousand, pounds. ' Tho caso originally came before Mr. Justicp.,Cooper on June 3, 1907, when the questions of law stated for argument were:—

(1), Whether upon the proper construction of-, a; Crown grant a joint tenancy was-created by. it,?.. (2; What effect has a Crown grant issued without an anti-yesting clause to a number- of Natives, one of whom had died before -the Crov/n grant was issued, where the limitations is to the named . grantees, including the dead man and their heirs and assigns? (3) Whether under such : a grant issued to a number of Natives, one of whom was the deceased, at the time of the issue pf the grant, the Native Land Court had power to appoint, successors to the deceased Native in respect of any interest in tho land so . granted and subsequently to partition the'land and to award a specific portion to such successors? The judgment of Mr. Justice Cooper, which' was upheld by.the Appeal Court (Hig Honour tho Chief Justice dissenting),, was as followsr(l) The land granted to the five Natiyes was held by them in joint tenancy as from the date they becamo entitled to the grant; (2) this question is answered by the answer to 1; (3) the Native Land Court had lio power to award to the successors of tho deceased Native any part of the block, tho whole block having,been convoyed in November, ' 1863, by . the surviving joint tenants to one Aitken. Plaintiffs could not, therefore, proceed with their action without attacking the Crown grant, and for that purpose they must comply with the provisions of tho Titles Protection Act,'l9o2.

Mr. Skorrett, K.C., who appeared in support of-the motion, said-the application now hbfore ,the Court was for leave to appeal to the . Privy.- Council on the usual terms. Counsel contended that the Court had ample jurisdiction' to grant the application. . t was. clear that it was most convenient thatthe appeal should procecd forthwith, because the. action must procecd on . tho assumption that' the judgment which it was sought to appeal from was correct. • Mr. Neave appeared with Mr. Skerrett. ■ Mr. M. G. M Gregor (of Auckland) opposed .the |motion. In his ; opinion, the proper course was for appellants to apply for leave to appeal direct from the Suprome Court to the Privy Council. I His Honour, tho Chief Justico, held that leave to appeal should bo granted. In his opinion, the judgment of the Court of Appear decided tho case so far as tho main cause of action was concerned. It was true that it was not a final order, in torn) because judgment had yet to be entered for one or other of tho parties. Even if itwere an interlocutory order it- was, in liis opinion, a' proper case in which' to grant leave to appeal. He might mention that .Vlr Justico Cnapnian, who was absent, was of the same opinion. Mr. Justice, Cooper said he thought the Court had amplo jurisdiction to grant the appeal. Ho pointed out that-, if there was any doubt as to whether the Court Had jurisdiction, the other side could apply in the Privy Council to discharge the order. Mr. Justice, Button concurred. Leave to appeal was accordingly granted. The Court then adjourned until 10 a.m. on Wednesday next when, if it is ready, reserved judgment will be delivered in the caso between Annie Quayle Townend and tho Commissioner of Stamps.