NATIVE CUSTOMS.

Dominion, Volume 1, Issue 120, 13 February 1908, Page 5

NATIVE CUSTOMS.

. — ; —» EXPENSES OF A TANGI. .. INTERESTING APPEAL CASE. • Sitting in Banco yesterday, His Honour Mr. Justice Cooper heard argument •in the caso between tho Public Trustee (appellant) and David Pell Loasby, of Greytown, storekeeper (respondent). ■Mr. Blair (instructed by Mr. J. W. Macdonald .-(solicitor to the Public Trust Office) appeared on behalf of tho appellant, and Mr. Bell, K.C.' (with him Sir. Ostler) for the respondent. Tho question at issue was whether tho expenses of a tangi could be taken out of a deceased; Native's estate. Upon tho death of Hamiiera Tamahau Malnipuku, a Wairarapa chief of importance and wealth, his widow ordered from respondent goods of a total value of,£lll 3s. 6d. for tho tangi, tho account running from January 15, 190-1, to Juiie 28, 1901. The goods supplied included, in' addition to various articles of food, a long-handed shovel,' Jeye's Fluid, cartridges, paiv of lady's shoes, soap, rope, chaff, tobacco and; cigarettes.. . ,- "In/ April, 1907, respondent brought an action at Greytown to recover the value of the goods from appellant, who is the administrator in the estate of the-deceased. Chief Judge Palmer,, of the Nativo Land Court, gave evidence in tlio Lower Court, that the ancient custom of the Maori people in regard to expenses of a tangi and the burial accom- . panving' the same was that tho visitors and those attending the tangi • brought presents of food for. the maintenance of those engaged in: the tangi,'and that the deceased's tribe would, also'make presents of .food. Tho deceased's" estate in thoso days was not liable for the, expenses of a tangi. The modern custom was still for the visitors ■ bring presents'. The Government, the Maori Sani-tary-Councils, and tho Nativo Land Court had /endeavoured to prevent tangis lasting for. mora than thrco or four days, as it was not in- the interests of the-estate'.'or of the Maoris that a chief should remain unburiod for-; any length of time, or that the Maoris should remain away from their" homes in idleness' and- squandering money unnecessarily. On i tho, other hand, several, chiefs and the widow deposed that visitors to a tangi sometimes remained a year or longer., If a chief were-buried in ancient times without a tangi there .would have been a tribal war; in modern , times'it would cause onmity between the; Maoris. None of 'thom ever heard of a chief, being buried without a tangi being held.. ,In their opinion the tangi and the burial were inseparable. Thoy nad never heard of' visitors from a distance bringing food. : ,' Sometimes visitors brought mats, etc., to,-place, on the coffin. If they brought food it .would make .the liapu look "small " or "Ibw..", They agreed tiliat when tho estate., co.ulfl' afford it the costs of-'the tangi were paid out of it. The object of the tangi in old,en days was stated by thom to be for- the

purpose'.' of. eating up all the deceased /had left,'.such as cattle, pigs, etc. The tangi, in this; instance, was described as mean when compared with the tongis of other chiefs of Malmpuku's. standing. The. Magistrate (Mr. ■i\V;',;l?. James, S.M.), in , the course of his judgment, held that the. tangi .and funeral ,w«;rq inseparable, and so long as the expenses wprq-rcasonable and suitable,as to deceased's ficgree and circumstances, the costs should be paid, out 1 of the-estate. The evidence went to show, that the tangi, was not on so largo a smlo as was usual, 1 but there were some items in ;. the- account, for instance, tobacco and cigarettes, lyhich must bo disallowed. Judg-ment-would be for the plaintiff for £92 Is. 6a. ind costs.'

The grounds of tho appeal were as follow:—(1) That the decision was erroneous in-point of fact ; and (2) that the. decision , was erroneous in point of law upon tho fol--5 lowing grounds:—(a) That tho-subject- niat--1 ter of the action was for goods supplied for ' a .tangi,. and according to Native custom the expenses, of a tangi are homo by those " participating in it; (b) that there is no law, ' oither express' or implied, that . the rcpre- '• 'sejitatives of the deceased at whose burial ; ai tangi is hold will pay the , costs and ex- • penses , attendant upon the holding of such : tangi; (c) that even if there was, such Na--1 tive custom, it,"wa's, an unreasonable custom, 1 and not binding in law; (d) that the. defen- ' dant,. as ropresqntativo of tho. deceased, ■ gave no. authority, either- oxpress or implied, with respect to the incurring of tho debts; 1 (e) that tho defendant, was only the administrator 'of the personal estate of deceased, which was insolvent, and 'therefore the debts wcro not a proper charge.against the estate; ' (f) that the person or'persons who actually ordered tho goods were personally liable for thb^paynient; (g) that neither at law nor in equity' are tho representatives in any manner'liable' for the tangi expenses. Mr.' Blair asked for leavo/to put' in evidence showing that tho estate, as far as tho ■land is concerned, was solvent, but so far as the other assets are concerned was insol- ' vcht,' also' that tho . Public Trustee, as ad- , ministrator', was concerned only with deceased's, personal assets. , . ... '. VMr. Bell explained,, howoyor, that it had Mentioned,; during the hearing of the case, that sufficient moncj, had been placcd • in''the'hands of'tho Public.Trustee to meet the' debts so that, for tho purpose of the c'a.so,the estate" was' treated as a solvent one.' \ Mr. Blair said ho did not'deny that it waSi a "usual thing to hold a tangi. If there had not'been a tangi it woull-nofc have been a usual Maori funeral. ...His Honour: 'I'hare heard of a case whore lost " the land to which they were oiititled to succeed because they omitted to hold a tangi. 1 i.' ' Counsel, continuing, said that the extent of 'a tangi depended on the name and position of; the deceased chief. .'He would submit.first of all that the Magistrate had not found whether a custom existed that the cost; of'the tangi was a charge on a deceased Nativo's'-est.ite, or should bo borne by-'per-sons'who attend it.' : -.His -.Honour:-The! weight of evidence goes te.show .that, the cost does not fall on tho visitors. M 1 " ' - ■V;., Counsel- Chief Judge. Palmer, of the Native' Land Court, who', was a witness, holds 'the 'opposite' view. : His Honour: The widow, in her evidence, said -it would not bo considered right for Visitors to bring food to a tangi. , .' Continuing, counsel stated, that tho widow of a'chief could spend as little or. as much as"_ she' liked on"'a tangi. If there was any obiei-tion as to tho amount so spent, the l'filection wou'd hoc be. on the deceased's estate, but on tho tribe to which the deceased "belonged. His Honour: There was a.consensus cf .opinion' on the part of the Maori witnesses t'hat .ths! widow and relatives should provide - everything. Am I to tako! tli'o acquired kn'piyledge 'of .'Cinef : Judge Palmer against thd evidenco on that point'of four chiefs and a.'.oliieftainess of hign rank? ./.Counsel: I submit that you will. v .His,. Honour: Chief Judge Palmer ovidtSnc'e as an expert. With all due respect ! to. ;)iim I' can't take his. opi.-iion as the judgmo'nt-of tho Native Land Court on the point,'but only as that of a gentleman who presides over tho Court, and has had oppoiy , t-unitie.s ,of studying- tho customs- of the Natives. '. . ... . . Mr. Bell, K.C.: I think the Chief Judgo must have been referring to - modprn times only. , . , : ; Counsel, continuing,, said that it had been dccided that, cognisance must be ; taken of 'Native custom. ; . His Honour: You will observe that tho Chief. Judge mado no distinction between ancient and modern custom. ' Counsel:,ln ancient times there could not have'been any means of pledging the credit of a deceased's estato. The evidcnco of Chief Judge Palmer goes to show that a person could stay as long as ho or she liked at a tangi. The duration of a tangi dopends oh-how long tho visitors caro to remain. ■ His Honour: Is it not a question of how long the food lasts? . Counsel: The food supplies in this case covered a .period of over five months. The custom is not a rcasonablo custom, and as an unreasonable custom, even if it does exist, it will not, I submit, be sanctioned by the Court. , . Continuing, counsel submitted that Areti, the'widow, who gave the orders to Loasby, was hot at the time tho administrix in the estate, and never -became the administrix. The deceased died on January 14, 1904, and

on June 7, 1901, letters of administration were granted to ,Areti and others. On .July 15 Aret-i asked for the exclusion of 0110 of the administrators; Henare Parata, and subsequently, tho Public Trustee was appointed solo administrator. There was, ho submitted, a great difference between the positions of an administrator and an executor. It was tho duty of the cxecutor to bury" the deceased, and if he declined to do that someone else would and charge him with the cost. An administrator had nothing whatever to do with the estate until lie was appointed. His Honour: A widow usually buries her husband before letters of administration are applied for. Do you mean to say that she could not- recover from the estate? Counsel: What I submit is that the debt is a personal debt. Loasby should be paid by the person who' ordered the, goods, and that person should be re-imbursed out of the estate to a reasonable extent, provided that it was found that , the charge was a proper one. I may mention that- there are other claims of this nature, and 'that other cases hinge on the decision, given in this caso. The question is—Can the cost of u tangi bo said to bo portion of the funeral expenses?. His Honour: Tliero may bo many subsidiary questions, but it appears to mo that tho main one is—Can these goods be said to bo funeral expenses? Counsel: Another question is whether the Public Trustee can be sued by Loasby. I submit that the tangi is just as much severable. from th'o funeral expenses of a Native as a tombstone is from ■ the funeral expenses of a European. . ■" Mr. Belj," in reply, contended that the only question raised by tho proceedings was whethor tho cost of a tangi formed part if the expenses of a funeral. After quoting several cases on Wie'point, he remarked that in ancient times 'visitors could not , have brought, say, pigs; a long distance as tlioir portion of'tho food supply. It was mora probable that the|' tribe to which' tho deceased chief belonged made a raid 011 their neighbours' goods. 1 # His Honour: I noticed recently that His Excellency the Governor. and the Premier wero invited to a tangi. '• Mr. Blair:' Oil,_ tlioy would not bo expected to take anything with them. I Mr. Bell, continuing, mentioned that the claim in respect of a number of articles, for instance, tobacco, had been disallowed by the Magistrate: 1 Numbers of- visitors from a distance arrived days after tho death. It was hot the riilo to conduct tho burial for somo days after death had taken place. His Honour:'l imco attended a tangi and the body which wis in. a colfin- was still unburied, notwithstanding tho fact that death had taken place "threo weeks before. Mr. Bell, resuming, held that what was ncccssary and proper in the way of expenses in connection 'with'" tho. funeralof-a Native chief varied according' to the position and wealth of the deceased, just as was tho case in regard to deceased' Europeans. Mr. Ostler (who : ' appeared with Mr. Bell) also addressed the! Court. His Honour said lie would take time to consider his' judgment.