OLD ENGLISH LAWS

New Zealand Herald, Volume LXIX, Issue 21253, 5 August 1932, Page 8

OLD ENGLISH LAWS

EFFECT IN NEW ZEALAND ... * THE LEGAL POSITION SAFEGUARDS PROVIDED' From lime to time newspaper readers are reminded by reports of Court cases that pome English statutes of antiquity are still /in force in New Zealand. An instance occurred in Wellington last Week, when a plaintiff in the Magistrate's Court was held to have established his claim, under the Distress for Rent Act, 1737, a statute of George 11., to obtain from his tenant double the value of certain furniture which the tenant Was held to have removed from a house %vhen he knew that the landlord intended to seize it by way of distress for arrears oi rent. The magistrate described the provision fn the A'ct as " a relic of the past," but decided that the plaintiff must succeed upon it. However, he reserved the question whether the. plaintiff was entitled to recover the arrears of rent as well as double the value of the furniture. Because the King's subjects in New Zealand are bound by other statutes than their own, it is not to be supposed that they are at the mercy of the whole mass of antiquated English laws, many of which, to the modern mind, are fantastically unjust and even barbaric. Crucial Date in 1840 The position with regard to English Statute law in the Dominion was explained yesterday by Mr. L. K. Munro, of the faculty of law at Auckland University College. A body of Englishmen settling themselves in unoccupied territory, said Mr. Munro, were de'emed to have brought with them so much of tho common law of Engtend and of English statute law as was applicable to their new situation and the condition of the country. This law became operative from the date of effective settlement. However, no English legislation that was passed after the establishment of a colony aS'ected the latter unless it was expressly extended thereto. Since the passing of the Statute of Westminster, no statute of the United Kingdom could be made applicable to a uelf-governing Dominion except at the request of the Government of that Dominion. In New Zealand, January 14, 1840, was specified as the date upon which the laws of England, as then existing, became applicable in New Zealand. This was the date of proclamations issued at Sydney by the Governor of New South Wales, Sir George Gipps, extending the boundaries of the colony to include New Zealand and appointing Captain William Hobiion as lieutenant-governor. It was specified in the English Laws Act, 1908, which was a consolidation of earlier measures dating back to 1854. A Bequest for Masses This Act laid down that the English laws referred to should continue in force only so far as they were applicable to the circumstances of New Zealand and insofar as they were actually in force in New Zealand on August 4, 1908. The New Zealand Parliament had power to make statutes at variance with the common law of England, and had often done so. It was also entitled to abrogate any English statute ante-dating January 14, 1840. For example, the English Laws Act, 1908, provided that the laws of England relating to usury, existing on that date, should be deemed not to have extended to or to have been in force in New Zealand at any time. In the 'event of any New Zealand statute being in conflict with an old English statute, Mr. Munro continued, the New Zealand statute must of course prevail. Moreover, it was left to the Court to decide whether any old statute was "applicable to the circumstances of New iealarid.'^ An interesting example of this occurred in 1910, in a case heard by Mr, Justice Cooper,, when a bequest of money to the Roman Catholic Church for public masses for the .testator's soul was contested in Court. The Judge stated that if certain statutes of the 16th century were applicable to New Zealand the bequest was unquestionably invalid. His Honor held, however, that they were not applicable to the circumstances of New Zealand, and pointed out, for instance, that the Church of England was not established by law in the Dominion as it was in England. Mr. Munro added that a certain number of old statutes, such as the well-known "13 Elizabeth," relating to fraudulent conveyance, were still of great importance and were being continually invoked. It might be assumed that undesirable provisions in old laws were to a large extent over-ridden by later statutes, were "inapplicable," or had been abrogated by repeal in England or New Zealand. It was a general principle that a law did not become void through disuse, but Parliament had power at any time to wipe out old legislation if it were found necessary or desirable to do so.