LAW AND POLICE.

New Zealand Herald, Volume XX, Issue 6838, 17 October 1883, Page 3

LAW AND POLICE.

»' " ',- SUPREME COURT.'—Civil Sittings. Tdbsjjat, 16tji OcroßEß.. (Before Hr. Justice Gillies, without a jury ] His Honor took hio seat on the Bench this morning at ten o'clock. Gbiok, a ßsnn, and Others v. Annie Waata and Otheks.—Mr. E. Heoketh for the plaintiff ; Mr. Da Lautour and Mr. Macgregor Hay for the defendants. This was an action brought by the plaintiffs to recover possession of two pieces of land forming part of the Pukekura block, upon which, it was alleged, the defendants had unlawfully entered. The declaration set out that the Pukekura block was grantod to the native defendants (ton in number), the date of the Crown grant being the 4th of | August, 1870; that a deed of leaio was [ given by nine of these natives to one Thomas Douglas, dated July 1871, but ono Wiremu Tureti who did not sign the original lease, executed a deed of confirmation of the original lease. This second deed was dated 2tth of November, 1873. On the 4th of : March, the plaintiff's bought the interest of of this Thomas Douglas in the lease of the Pukekura block, Douglas assigning the original lease, which contained a purchasing clause. The declaration farther set out that the entered possession of the block under these deeds; also that certain natives (the defendants) re-entered and occupied cortsin portions of the land ; that a native named Paul occupied la. Ir. 27p., and four other defendants occupied la. 3r. 32p., on account of which the plaintiff's claimed £25 for mesne profits ■ on account of Paul's ocoopation, and £75 on acccount of the occupation by the four other defendants. The defence was, in effect, as follows :— 'That the original deed was not signed by the majority of natives in value; that the deed of confirmation was not exocuted by the ninonativea whosigned the original deed; that the lease provided that a lessor should not sell without notice to the other grantees; that the ten grantees wore trustees for other natives; that conveyances had been made which' were never under the control of the defendants; that plaintiffs refused and neglected to pay rent; that the natives did not reenter, as alleged, upon the dates named.

Edwin Barnes Walker, of Mona Vale, near Cambridge, examined by Mr. Hcsketh, said: I know the plaintiffs. I was their agent and attornoy. I know the Pukekura block, which is claimed to be owned by the Slaintiffs. The lease'contains accounts for uty up to 1575. I have been in the habit of paying that through an agent. I have made further payments—that in the duty up to the present time. I paid it to Mr. Warren, Deputy Stcmp Commissioner. (Receipts produced.) After getting this lease the plaintiff's entered upon the block. That wa3 about IS7I. Had continued upon the block evor since, cultivating, draining, fencing, building, and kteping sheep and cattle on it. I know the defendants, Annie Waata and others. They came onthe blockafter I entered. Thoy were on the block on the 3rd of May last. They have several houses on the land. Knew also the portion occupied by Paul. Theße natives did not enter with plaintiffs' authority. I have requester! them to go off tho laud. They are still in possession. (Pieces marked A No. 1, A No. 2.) The Elaintoffs claim £25 from Paul since 3rd of lay. That is a low estimate (la. Ir. 2"p). The plaintiffs claim £75 from the four other defendants (la. or. 32p). His Honor ; Do you mean £25 for an acre and a-half?

Witness : It would be very difficult to say what the value of it would be. It would be diffibult to got a tenant for it. Say £10. Then for tho other £70. (Leases tendered.) Mr.. DeLautour: I presume it would be more convenient to my friend to allow exception to these leases to be taken now rather than later.

' Mr. Hesketh: It was already discussed between as to these legal questions. Mr. DeLautour : I must take exception now, because tbere is the question as to the duties whioh I could not allow to pass. ' His Honor: Once thoroare in, they are in. Mr. DeLautour : The 58th section of the Native Lands Act, 1865 (reads). The last payment was later than the 28th of August. I His Honor : The admissibility in evidence is one "thing, the validity of an instrument is another.. This rather touches the validity. Mr. - DeLautour: I do riot think my learned friend need detain his witness by proving these payments. The whole question is not as to the payments, but as to tho

time of payment. (Leases and receipts for payment put in.) Mr. Hesketh: Of course, if there is anything wrong in the declaration, I cannot alter it, and it is open to my friaads to dispute it. Cross-examined by Mr. DeLautour : .We entered in IS7I. There were leases before these, which wore cancelled. Our first possession was, I believe, under a former lease. We have paid the rent, except once, when Hori Pua refused to take the rent. He took it afterwards. He said Mr. McDonald had told him not to take it. The paying rent was made according to arrangement, bometimes they would allow it to remain over to get a larger snm. £27 was paid to Hori Pua to buy cattle. Last year there was a sum of £50. I believe I can produce receipts for most of the payments, but I bavo with me only those to Hori. I have purchased the land from some of these natives. I joined in the application for a revision by the Native Lands Court. I have taken conveyances for these purchased lands.

Mr. DeLautour: I shall leave the question of damage to your Honor. Mr, Hesketh : Tho witness is clearly confusing the question of mesne profit and damage.

Mr. DeLautour: We understand that Mr. Walker could not put down the mesne profits of one acre out of 8000 acres, which he holds at s rental of £90 a-year, so as to represent a profit of £10 for tho six months. Mr. Hesketh : The witness evidently confounds the action for possession with the action for trespass. The whole question here is the recovery of possession. Mr. DeLautour : We rely on certain points by which, touching the validity of these leases, we would bo entitled to claim a nonsuit. There are other points which would necesiitate our taking evidence. The statute of 1569, section 14, required that any. alienation of native land being made, assent must be given by a majority in valuo of the grantees. The plaintiffs are claiming possession of two eight-thousandths of a block of land. Bug their claim covers the whole block. The objections I take are :—l. That the non-payment of duty at the time the action was brought is fatal to the lease. 2. That there was no duty paid at all on the second lease. 3. That only nine signed the first lease, who did not represent the majority in value. 4. That the second lease can in no way be conjoint with the first.

Mr. Hceketh contended :—l.That an instrument did not take life on the payment of the first duty, and only possess life until the next payment, then losing its validity. It became valid on the duty being paid, as provided by the statute, and retained its validity, notwithstanding the subsequent non-payment, for which cases the statutes made provision. 2. That this was a lease from the whole ten grantees of the block, because what was called the second lease was simply a confirmation of the first, or method de<M«eil tn enable the tenth grantee to sign. Mr. DeLautour : The 16th section of the Act of ISGo is that six mouths shall be allowed during which psyment may be made after due, and if not so paid then the instrument is invalid.

His Honor: It appears to me that section destroys your contention, for that Act imposes a penalty equal to three times the duty, The moaning of that is not that the instrument shall become invalid, but that three times the penalty shall be paid, and it remains valid.

Mr. DeLautour : There is a similar case to this, "Mona v. Ormond," whioh is reported in the books, where it was held that my contention was law. • His Honor": That case appears to me to be against you. There it Was held that a lease of six-tenths (six out of ten natives) would inure. Here there are nine-tenths.

Mr. Hesketh contended that' inasmuch n3 the whole of these facts constituted one and the same transaction, as there was no second consideration, therefore there was not in effect two leases but one lease.

His Honor: It seems to me that if thero | had been only one lease with nine signatures k then it would be iucumbent oa the plaintiffs to have proved that these nine persona represented a majority in value. But the dacd in the first instance purports to be made by the whole ten, that is, the first deed purports to be made by the whole ten, although not executed by the tenth man; not being able to take effect by nine-tenths in value until the tenth man should have signed. It is clear thiß tenth man might have signed with the other nine, and he might have executed the deed at a subsequent period, for it was reoifced that tho second was merely the equivalent of the original deed. The tenth man recited the agreement with him, giving 1 the reason why ho did not sign at the time. But the consideration for the whole transaction was at the beginning with the ten, andnot with the nine; that this was morely a subsequent execution by the tenth man. We all know the difficulty it ie to get a number of natives who may be required together at the same time. In these cases the deed would have to be executed by two or three at one time, and two or three or four, as the case may be, at another, jast as the grantees could be got together at one time. But that would not invalidate the execution by tho previous two or three, because the whole had not signed. I hold that the execution of the original deed, which is the effect of the second deed by the ten grantees, renders it unnecessary on the part of the plaintiffs to prove the majority in value ; for it is recited that they concurred in the transaction, and thero is no fresh consideration and no fresh duty payable. Mr. DeLautour ; I now wish to show that tho Crown grant is without foundation, and, therefore, voidable. His Honor : If you wish tD attack the Crown grant, you must do it by scire facias. Mr. DeLautour : The 17th section of tho Act of 1867 gave a new remedy, which did not exist before. Mr. Justice Chapman has laid down very definitely the distinction between an instrument that is void and one that iB voidable. (Queen v. Spenser Macassey, 628.) We do not seek to attack tho Crown grant by saying that it is void, but that it is "voidable," and therefore we ask the Court to say that it shall have no effect.

His Honor : If you wish to set aside the grant, you must do it by action. Mr, DeLautour : We think, your Honor, that the statute provides a remedy (17th section of the Act of 1867) which is applicable in suoh a case as this.

Mr, Hesketh : I contend, your Honor, that there is no power in the Court upon a proceeding of this kind to set aside or impugn a Crown crant. A Crown grant is a public Act of the Crown and cannot be set aside unless the Crown is made a party. His Honor : I agree that a Crown grant could not bo sot aside unless the Crown were made a party. In any case, I should not admit an attack upon a Crown grant as an incidental proceeding in a suit like this. If the.grant is to be upaot you must do it by scire facias. Would not the counsel for the defence do better by producing their evi. dence, aud then we might consider the legal application of each point as it should arise ? The Registrar of the Native Landß Court produced the certificate of title. Mere Whakatutu, Ani Wata, and other native defendants, ware examined as to payment to them of rent by Mr. Walker. They admitted certain sums, but could not speak to dates or places or other circumstances attending the separate payments. Mr. DeLautour suggested a means by which the litigation might be determined upon tho real issues involved. He would consent to judgment being given for the plaintiffs, if execution should be stayed until January, when a number of cross actions by the natives againßt the present "plaintiffs should be tried. These actions would test the whole of the cases on substantial merits, Mr. Hesketh : I believe my. clients are ready to concur in such an arrangement, but it must be coupled with some condition. I am informed that there are from 60 to SO horsas and other cattle running over this block, aluo 200 pigs., The damage all these animals do is incalculable. I am, informed that a very large sum would" not cover it between this and. January. We have no objection to these people-remaining on so much of tho land as tbey actually occupy, but to allow them to run their horses and. cattle over the whole block, containing the land my clients have purchased, would be asking too much—it would bs asking us to give the natives a veiry large sum of money, (The Court, at the request of Mr. De Lautour, adjourned for ten minutes, to allow a conference between connsel. engaged on each side.] Mr. DeLautour (having returned into Court): I rind, your Honor, that the difficulty is that the parties cannot agree as to the extent to which either should give way. The plaintiffs reasonably enough say, " Xou must not do certain things." The natives, en the other hand, say, •' We have nowhere else to go to." I believe, my clients have very aubutanttol merits on their aide.

Mr. Heaketk : We have offered to give the natives these two pieces oflhnd, and cat

them off. Bat lam informed that there are two thousand acres of the Pukckura block, any part of which these natives might go on. Hi 3 Honor: Ido not see how I can interfere. This matter ha 3 already been before the Court. The present plaintiffs asserted their rights in force, and have suffered for it. They are now asserting their righjs in duo form of law. They have been put to ;large expense. But I confess there is nothing.: that ha 3 come under my notice either on the I present, or on the former occasion, which s affords the slightest grounds for doubting the validity of the Crown grant. ' 1 Mr. DeLautour : Still it is a matter in dis- / pute of which, I presume, the Court would ' have cognizance.

Mr. Hesketh : I am informed that the dogs belonging to these defendants killed over 500 ' sheep. The paddocks contain selected sheep ; and the natives constantly leave the gates of ' these paddocks open. lam informed that ) ' Mr. Walker is willing to give up the lease I of the unsold portion of the Pakekura/ block and retire from it altogether. We" have complied with the law as far aa -we can. i Wo ask the natives now to comply -with the \ law by abstaining from the trespass. The unsold portion of the block contains 2200 acres.

His Honor : I can only pronounce judg« ; ment according to law. It appears to ma / that the plaintiff having proved his title founded upon Crown grant, and having proved the unlawful occupation by the .' defendants, and the defence" set up by the defendants having failed I have no alternative than to give judgment for the plaintiff, with • mesne profits, say 20s for the- smaller area and 30s for the larger area. It appears to be ad. nutted that the amount should be nominal. trespass. ) The action for trespass was nest tried..' Mr. E . B. Walker, Mr. Thornton Edward Tripp, and other witnesses deposed to < the damage whole and in detail.—His Honor* gave judgment for plaintiffs, wjth damages' £•250, costs to be taxed. ' -

PUAHOI BLOCK. ' The same parties brought an action against,Waata, Wiremu, Tureti, Mara, Hana, Mere,! Tapen Rachel, and Kawata. Messrs. B. 8.1 and T, Walker and E. Tripp gave evidence* as to damage from the same kinds of trespass." ; Damage was laid at £250. j The Court, at twenty minutes past five, adjourned to Wednesday at ten a.m.

BANKRUPTCY.

Re Samuel Wilson.—A meeting of credi« 1 tors was appointed to take place to-day in ' in this estate. The debtor was described as formerly a-butcher, now a labonrer, at V Kopuru. The liabilities were set down at ( £156, and the assets at £85. There was no attendance of creditors, and the meeting stands adjourned to "Wednesday, the 17th instant.

POLICE COURT.— TcESDAT. .'•'

(Before H. G. Seth Smith, Esq., E.M.J Dbunkknness—Two persons were fined for this offence.

Licensing Act.—David Dunningham was charged with a breach of the Licensing Act by allowing the game known as "muff pool " to be played on a billiard table between the hours of midnight on the Ist and six o'clock on the 2nd October at tae Governor Browne Hotel. ' fie admitted the offence. The charge was laid under the 150 th section of the Act. The constables found Mr. Dunningliam and another gentleman playin<* after twelve. Sergeant White said that there never bad been any complaint against Mr. Dunningham, who always conducted his home well. Mr. Dunningham said he was under the impression that people staying in the house were permitted to play after the usual hours. A fine of 5s and costs was imposed.

Railway P.egdlatioxs. — Mary .'Brown was charged with travelling on the Auckland and Helensville Railway train without having previously paid her fare. She was further charged under the Public Works Act with being drunk in a railway carriage; She denied intending to evade payment of her fare. She cot into the wrong carriage, and was taken miles out of her way. Samuel Burns, railway guard on the Kaipara railway.' deposed that the defendant got into a secuni , class carriage. At Mount Albert be asked defendant for her ticket, but she had not one, and, as she refused to pay, he gave her in charge to the stationmaster. When be asked for her ticket at Mount Albert, she said, she was on the wrong lino—that.she wanted to go to Onehunga. James Leech, stationmaster, Avondale, gave corroborative evidence. The defendant said she had an, Onehunga return ticket, bat got into the wrong train. She ploadod guilty to the second charge, and said it was through this she got into the wrong train. A fine of 10s and costs was imposed. City Br-LA\v.s.—Samuel Bright, charged with allowing his horse and cait to remain across the carriage way in Victoria-street, thereby causing an obstruction on the 3rd instant, pleaded guilty, and was fined 10a and costs. Thomas Cain, charged with riding furiously in Albert-street, pleaded guilty. He was further charged with riding at other than a walking pace round the corner of Queen and Quay Streets. Sergeant White asked that both cases might be dealt with as one. He was fined 20s and costs. Simon Milliean, charged with neglecting to keep a hoarding in Rutland-street properly lighted, pleaded guilty, and was fined 5s and costs.

. Disobedient Seasun.— William Bryant, articled seaman of the Anna Bell, was charged with being' absent without leave, and assaulting the mate. He pleaded guilty to being absent, but said, in answer to the second charge, that the mate struck him first. This was disproved, and after hoaring the evidence, defendant was sentenced to 21 days' imprisonment.