SUPREME COURT.—IN Banco.

New Zealand Herald, Volume XXI, Issue 7000, 24 April 1884, Page 3

SUPREME COURT.—IN Banco.

Wednesday, April 23. [Before Sin Jmttca Gillies.]

The ordinary weekly sitting, of the Court in banco was held this morning. .■• ■ -

THE EOTOEOA LEASES : APPEAL. DANIEL AUSTIN TOLB (APPELLAST) V. GEOKGE cozEss (bespondkst). •-..-..■

Sir Fredk. Whitaker and Mr. Button for the appellant; Mr. E. Hesketh and Mr. T. Cotter for the respondent. :

This was an appeal from a decision of the Jadge of the District Court delivered on tho 16th of January, in a cause in which the present appellant, Commissioner of Crown Lands (the person appointed under tco Thermal Springs Act to sign leases on behalf of the natives), was plaintiff, and the respondent, a lessee under that Act, wae defendant. The defendant in the Court below was sued for rent (£22), and judgment'was given against the plaintiff and in favour of the defendant. The present appeal came before the Court upon the. case, as stated by the learned Judge, to the • following effect:— That out of a large number of-objections taken to the lease, the following were the most important: (1) That the execution of the leaae waa not properly attested; (2) that the lease had not baen duly executed in accordance with the statute; (3) that the" Ngatiwhakaue tribehad no corporate capacity which wohld enable them to execute a deed according to English law; (4) that the tribe oould not hold as » quasi corporation, and no "arrangement" had been proved by which the natives were to lease.

The above objections.with the others were raised in the Court bslow, upon a motion by the defendant's counsel, that the plaintiff should.be nonsuited. .

Sir Fredk. Whitaker, in opening tho case for the appellant, said. that there were two points decided in favour of the plaintiff in the Court below (the present appellant), one, the principal one, against him, and the other point was not at all. The position of the case, as stated, was somewhat uncertain, and the Court might see fit to send it back to the learned Judge for amendment. ,'

His Honor : It is probable that the Juilge of the Court below, having come to the Conclusion that there was one-point fatiJi did not think it necessary to give.any opinion of the others. It was assumed that tho'other points were' of minor importance. Does the respondent accept that view ? 7 Mr. Hecketh : Oh, no, your Honor ! We aay that there is one very important point which, the learned Judge never touched at all. That is the point.marked t>—" That no arrangement with the native proprietors had been proved"—that is, that t'iere was no evidence as to whether there was an arrangement or not. - .

Hie Honor : But are you not estopped by the lease with its recitals .? ;

Mr. Besketh : That would depend upon the lease being valid. Here ths validity of the lease is in question. We' say that no evidence was adduced to show' any arrangement. Aβ that point was not dealt with, the case is imperfect, and might be sent baok for amendment. ..■-/.... .

His Honor : But we can hear Sir Fredk. Whitaker on the third point. . Sir Fredk. Whitaker : Tlie decision in the Court below turns upon the question whefchei the Ngatiwhakaue, being ','• a native tribe," have a corporate capacity which would enable them to lease. The wordi'" native tribe" bad a clear signification, a/ad were used in the language of Parliament aid of the New Zealand statutes for nearly SO years—in an Act of the Legislature passed in 1856, to set apart lands for th* natives, and which enabled the Governor to appoint persons to manage for nativien; by the Territorial Kights Act of 1853; by the Native Lands Act of 1865, Native 'LaHds Amendment Act, , 1867 ; .Native Lauds Act .Revision Act of 1882. • In_ passing: , the" Thermal Springs Act the intention of the Legislature wag clearly indicated in the preamble. It was enaoted for a fleolared object :■ certain powers were given to the Governor to be exereisedon behrjf of the pativas, and a power of appointment was given to the Governor by which he Whs enabled to appoint a person bo sign leases for and on behalt of the native proprietors (Thermal Springe Act, section 5, subsection 2, seotion 12). Where 7 the intention of Parliament was clear, that intention should hav/j effect given to it, as far as the language of any other partu of theAot wonld permit. In the present case there could be no doubt as to the intention of the Legislature. .''['■ ■

His Honor : But we must gather the intention from the language of the statute itself—that is, from the words of the Act.

Sir IVedk. Whitaker: The Legislature might declare its intention in any form or manner it pleased. In this case it appeared very clearly from all the surrounding circumstanoes, and the preamble of: the Act showed that the object of the Act was to enable these natives to derive certain advantages -from. their land. There'was no question that Mr. D. A, Tole was the" person appointed to nign, "not in the name of," but "oh behalf.of the Ngatiwhakaue."•• His Honor: Does it not appear to be an attempt to introduce a new power of conveyancing by authorising those persons who cannot make a lease themselves to authorise some other person to de for them what they cannot do for themselves.

Sir Fredk. Whitaker: It appears to me that the intention of the Legislature was to give an enabling power where it had not before existed. ■ ,

His Honor: The tribe includes men, women, and ohildren of all ages and conditions who could not be capable of leasing. The Legislature cannot " create" a le»se. • A new mode of conveyance cannot be a lease in the ordinary legal sense.

SirFredk. Whitaker : It has been declared that it shall be a lease by the Legislature, and it has been held on high authority that the Legislature can do anything except make a man a woman, or a woman a man. If the Legislature wished to say your, house was mine they could do it, and in law it would be mine; It would be absurd, but they could do it.

Hia Honor : But would the lease be the lease from the native owners or a lease from Tole, who was authorised in their behalf. Assnming it to be true, as you have argued, that the Legislature has empowered a native tribe to receive Crown grants of land, the land is vested in that native tribe no doubt. But the tribe not being a corporation, has no power, to deal with it in regard to leasing. ' In order to obviate that diffioulty an Act of the Legislature says that the Governor shall have power to administer in regard to leasing. And it farther provides that the Governor', shall have power of appointing a person who-shall have the power of executing leases on -behalf of the tribe. That, I take it, is what is said here. Still the tribe, would not have the power of leasing. There is a statutory power given to an individual to execute- the lease for them. Would not that be the lease of tho person so appointed ; not the lease of the'tribe. Put an illustrative oase : Suppose the Governor to grant a paddock in the neighbourhood of Auckland to the batchers of Auckland. Jho butchers of Auckland could hold the land bat they could not lease it. But if it wore provided that the Governor might appoint one person to lease on their behalf, instead of the lease being the lease of the butchers of Auckland, would it not be .the lease of the person so appointed ? ' ' , ..

Sir Frodb. Whitaker: In the Act of 1856, lands were to be set apart for the natives, and persons wero appointed to administer them and for the effective management of the same; power waa given to the Government to appoint a commissioner for the management of such lands; the commissioner might appoint, with such limitations aa hu thought proper, a person to manage, and even sell and dispose of these lands. But if the Court did not hold with the appellant on this point, the respondent was estopped by the lease which he had obtained ; he was estopped as a tenant from disputing hie landlords title ; moreover the covenant to pay rent was a covenant in gross, which wa3 valid, even though no estate passed under, the lease itself. (Authorities cited—on the lease ; Smith's Leading Cases, vol. ii., p. 879, Estoppal; Flemingy..Wooding, 10, Bingham, 949; Bringlow v. Goodson, 5, Bingham, N.C.; Rees v. Lloyd, 1, Whitwick's Keport, p. 130 ;. Horton. v. The Westminster Improvement Commissioners, 8, Exchequer 780; Pilbrow y. Pilbrow, 5, Common Bench). . • :

Mr. E. Hesketh was heard for the respondent, contending that if the" Ngatiwhakaue had no power to lease, theis dQuld.be no lease. If they had no contractual power, no lease could be created. The statute provided that certain arrangements might bu made'with the natives. One of thes ' arrangements was that the land nvght be leased. . The leasing: only came withia/yiew when such, arrangement was made. Sec.

;tion 12 was to" carry out the arrangement, and only came into-operation when the arrangement was made. .■•-.. . , ,'v ,v vfi Sir Fredk.' VThitiker was heard in reply. Eia Honor reserved his decision. .He was afraid he could not deliver judgment before leaving town. ~'..,-, .Land Transfsb Act.—ln. the mattero£ tho petition, of. Jonathan Brown":—Mr. E. Hcaketh.and Mr. Quintal, in support, of the petition. This was an application to compel the Distric.t Registrar to register transfer of certain lands from the natives to the petitioner. It appeared that "the petitioner had purchased and leased from the natives several parcels'of land (in all about 6000 acres) from the natives as Tauranga. The transfer from the natives was lost in thf wreck of the Xaranaki in IS7S. The natirew at first refused to execute a second transfer. Objeotiocs were taken that among the names of natives to the first transfer were' eleven persons who. were minors. Bat two of these were since dead, one was not yet of age, bnt assented through her father, anC the seven other persons withdrew theie objections. It was shown the petitioner had complied with tho Transfer Act (section 3), that he had paid the, money that the natives had not disturbed hie olaim, that the deeds were in existence, that only the transfer was lost in the Taranaki, that the lease was duly executed and stamped, that all necessary notices had been duly given. Mr. Alexander and Mr. Moss repre-' sented the objectors, but offered no opposition. . - ■ - •

. Hie "Honor: I am of opinion that thi« deed was intended to convey the whole of the interests of the grantees to the petitioner. I therefore declare that the whole of the estate and interest in this land has passed to the appellant, and that the District Regis-. trar should register the applicant as ttb» ablate proprietor thereof.