AUCKLAND SUPREME COURT.

New Zealand Herald, Volume XLIV, Issue 13455, 4 June 1907, Page 7

AUCKLAND SUPREME COURT.

CRIMINAL SITTINGS. :Mr. Jcstice Dexxistox presided over yesterday's sitting of the Supreme Court. The Hon. J. A. Tolo was Crown Prosecutor. MAORI BOY SENTENCED. Tamo Tawhi, a Maori boy, 18 years of age, committed at Wliakatane for breaking and entering and theft of articles valued at £15, was brought up for sentence. Bis Honor said that the probation officer had given accused a bad report and character. If he appeared again before the Court on, a like charge he would bo severely punished. As to the present- offence, be would take into consideration, the ago of r the accused, and the fact that it was his first appearance before the Court. He would be sentenced to six months' imprisonment. ■■.."■

KAWHIA CRIMINAL ASSAULT CASE. John Bennett, a middle-aged man, was ! charged with a breach of the age of consent |in respect to a Maori girl, and also with criminal assault. Mr. J. R. Lundon dej fended. A number of witnesses were called j for tho prosecution. The girl said that she lived with relations in the Kawhia district, i closo to the prisoner's whare. She had [been riding the prisoner's horse, when ho asked her into the whare. It was then, that the offence was committed. Constable McCarthy, of Kawhia, gave evidence of arrest. The accused had said to him that he was innocent. Dr. Jenkins, of Kawhia, also gave evidence. • The accused, on.oath, said ho had been at Kawhia three years. Ho absolutely d©nied the trutb of tho charges. He gave a full "- account of his doings on tho day in question (February 23). His horse was turned out, and he did not give the girl a ride on it. However, another man and Bella were in his wharo that day, but they came find left together. ■ "*■ The doctor, being recalled, said he would have thought that the girl was between 13 and 15 years of age. ■ His Honor: She is said to be 10 years of a &- v ' >.■ ■ ' , V Mr. Lundon, -in his address, referred to the statement sworn by the girl at the Police Court that the accused had improperly known her last December. He emphasised the fact that she had in this trial admitted that was wrong. The jury, after a retirement, returned a verdict of " guilty," and prisoner was remanded for sentence until ten o'clock this morning. - _~

CIVIL CASES.

A sitting in Chambers was field by Mr. Justice Deniiiston for the purpose of ascertaining what cases set down for hearing at the civil sessions were ready. His Honor said in regard to the claims for damages against the Harbour Board, arising out of the ;Calliope Dock accident, that if the parties did not agree to have the general liability tested in the action of the Shaw, Savill, and Albion Company against, the Harbour Board, ho could not. hear . any. of the other cases during the sitting. Ho would not even have time to try the cases for_ assessment purposes. The ; principal action would commence on June .17. . Mr. ,1. R. Reed said that tho Mamari had specially como to Now Zealand, so that the officers could ; give evidence, and ho hoped that their statements might be used in tho other cases. _ , . Mr. T. Cotter, for the defendants, said that they were agreeable to this course. , The following cases ; were by agreement adjourned until next sessions:—Patrick and Margaret .Lynch v. Patrick and Margaret Gleeson ;'Grey Lynn Borough Council v. Assets Realisation Board ; and Elizabeth Kelly v. Harriett Edge. •

NATIVE LANDS JUDGMENT. The judgment of Mr. Justice Cooper upon questions of law submitted to him for decision in the civil case Turia Paid and others v. Kenneth Finlayson arid Annie Elizabeth Finlaysdri was read. In giving his judgment, His Honor said that the matorial facts in this case upon which the questions of law arose were, the following: Oil May 10, 1867; an order of the Native Lands Court was made under, the Native 'Lands ..Act, 1865, /that a certificate of title be issued to , certain aboriginal natives named Hire Te Awa, To Kau Hupana, Paratone Te Taurua, and PaJceripi, certifying that they were the owners according to native custom of a block of land consisting of 12,316 acres, and Called Nukutawhiti. On Juno 27, 1867, a certificate in accordance with such order was issued. On November 6,-1867, Pakenpi died. On November 16, 1867, a Crown grant was issued to the natives abovenamed, including Pakeripi: "To hold unto the said Te Kau Hupana, Paratene To Taurua, Huia Te Awa, and Pakeripi, their heirs and, assigns for ever." On August 28, 1863, Huia To Awa died. On November 3, 1868, the three surviving owners conveyed the block to one Win. Aitkeh.. On August 11, 1897; Win. Aitkcn conveyed the land to tho, defendant Kenneth Firilaysori . and one Donald Finlayson, as tenants, in common in equal shares, and on.May 29,..1904, .Donald Finlayson conveyed his i; interest in .. the block to the defendant Annie Elizabeth Finlayson. , On September 15, 1871, a native named To Paki was appointed by the Native Land Court successor to Pakeripi, To Paki having since died. The Native Land Court on June 21, 1902, appointed tho plaintiffs as his successors, and on May 15, 1904, a partititioh order was made by the Native Land Court, purporting :to award the plaintiffs 2433 acres of the original block, this being the one-fifth- interest which the plaintiffs claim to have vested in thorn as successors through To Paki to Pakeripi, one of the original,owners. . The plaintiffs had brought an action against the defendants, praying for a decree that they (the L plaintiffs) are owners of one undivided fifth part of the original block, or, in the. alternative, that they are the owners of the 2433 acres awarded to them under the partition order dated May 15, 1904.' The "question of law stated for argument were: (1) Whether upon the proper ;. construction of tho Crown grant a joint tenancy was created by it? (2) What effect has a Crown -gran,t issued without an ante-vesting clause to a number of natives, one of whom had died before the Crown grant -was issued, . whore the' limitation is to the named parties, 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 deceased at the time, of the issue of the grant, the Native Land Court had power to appoint successors to the deceased native in respect of any right, in the land so granted, and subsequently to partition the land, and to award, a specific portion to such' successors?

His Honor said that Mr. ¥.■ Earl had adduced an exceedingly able . argument for the purposes of establishing his contention that a grant of land under the Native Land Act, 1865, to a, number of natives did not create a joint tenancy, but ought, taking into consideration the manner in which the natives held lands at the time of the passing of.the Act, to he construed as a tenancy in .common. If the question were as stated, he (His Honor) should have felt very groat. difficulty in coining to a conclusion upon this question, but Mr. Earl's argument, in his opinion, necessarily involved a contention that the decision in Karaitiana v. Sutton was w'rong. The Court (Judges C. J. Prendergast,, J. Johnston, and J. Williams) held unanimously that the grant was to the nine natives in joint tenancy. The legislation subsequent to the Act of 1865 was also based upon . the same conclusion. The original title of the five natives to this block of land was based upon the order and certificate of the Native Land Court. The grant was issued in pursuance of that order and certificate, and in His Honor's opinion the effect was that they took under the grant as joint tenants from the date of the certificate issued by the Native Lands Court, and which was the foundation of the grant. The conveyance by the survivors to Mr. Aitken was before the Act of 1669 was passed, and, therefore, operated as a conveyance of the whole block. The answers to the three questions must, therefore, be—(l) The land granted to the five natives was held by them in joint tenancy as from the date they became entitled, to the grant. (2) This question is answered by the answer to question 1. (3) The Native Land Court had no power to | award to Pakeripi's successors any part of | the block, the whole block having been conveyed in November, 1863, by the surviving joint tenants to Aitken. The plaintiffs could not, therefore, proceed with their action without attacking the Crown grant, and for that purpose they must comply with the provisions of the Titles Protection Act, 1902. „ The plaintiffs were ordered to pay the costs of and incidental to the judgment, which the Court fixed at £10 10s and Court fees. :\" >'■/ :-..■•■';-■,' ". : :-\' , '•' -v;