SOME IMPORTANT LEGAL DECISIONS

New Zealand Mail, Issue 1746, 23 August 1905, Page 62

SOME IMPORTANT LEGAL DECISIONS

ATTORNEY-GENERAL v. SETH SMITH AND OTHERS. - Their Honors the Chief Justice and Mr Justice Cooper delivered their reserved Judgments on the 15th mst., the OJJ® of the Attorney-General v. Seth Smith, and others, in which, at the hearmg, Mr H. D. Bell has appeared for the AittorneyGeneral, Mr Mormon for Ereni Je P B °?* Mr Chapman for the executor, and Mr Hadfield and Mr Weston for certain evisees under the will. Sir Robert Stout, C.J., mhis judgment, said the case was a very important and. a very peculiar one, Mrs Hannah Field, the testatrix, was a half-caste Maori. She made a will, leaving ter property partly to Europeans, and partly to her Maori relations. She left no property to JEreni Jepson, a married woman who was her half-sister on the father s side; Mrs Field's father was married at different times to two Maori women Mrs Fie a was the daughter of one and Mrs Jepson the daughter of the other. On the application for probate of Mrs Field s willthe Native Land Court granted part ol a parcel of land specially devised to a successor, acording to native custom, as follows“As to mv interest m section No. 7, Ngarara West, containing about 185 acres and in the land called Muaupoko A 'No. 2, containing an area ot about 102 acres, I devise the same to my trustee to be held by him upon trust as and for a public reserve, and I desire ' that under no circumstances shall the bush now growing on the said land be destroyed, for it is my express wish and desire that the said lands may be used as a place of public resort. And I expressly direct that mv trustee shall have power to vest the said land in such manner as may be deemed expedient in order that my desire and instructions may be carried into, effect. And I direct that my trustee shall have power to elect as to the best method to carry my desire into effect." On an appeal being made from the Native Land Court to the Native Appellate Court, the balance of this parcel of land was given to Ereni Jepeon, on the ground that she was the successor according to native, custom,. andwas landless. The authority for this alteration of the will was section 46 of "The Native Land Court Act. 1894,” which reads:—“On every application for the appointment of a successor where the deceased has left a will, and on every ap plication for probate or for letters of administration with will annexed, the Court shall inquire if the testator has devised land to a person other than his successor; and if the testator has bo devised land, the Court, if it shall further Appear on inquiry that such successor has not. without tne land so devised, sufficient land for his support, shall award such successor a part or if necessary, the whole of the land so devised; and the grobate or letters of administration shall e expressly limited to the estate and effects Of the deceased other than the land so awarded to the successor.” It appeared that the land in this case was not. ancestral. and not native land, but had been acquired by Crown grant to the testator. His Honor said that how a halfblood, with a European father, could be A sucessor by Maori custom to such land he did not know. It appeared to him that the Native Land Court," perhaps properly, had had to lay down customs Suitable for the Maoris in their changed conditions. There was no such class of land amongst the Maoris before the Europeans came to New Zealand, and there could have been no such custom, and he understood counsel to admit that half-bloods of the class that Mrs Jepson was. would not be recognised by the Native Lands Court as successors according to native custom to ancestral land. What, his Honor presumed, the Native Land Court had to do, was to incorporate English law and Maori custom together, and from this conglomerated law find and call it according to Maori custom. It seemed to his Honor that the time had cpme when there should be some authoritative definition of what Maori custom or- usagq,. was. It should not be left to Native Land Court Judges to declare what they think is native custom. The time had surely arrived when native custom should be codified and enacted into a law. Property of great value now depended upon laws not appearing in any statute nor m any code nor in any decisions, but depending upon what a Native Land Court might from time to time say is native custom. This was surely a most unsatisfactory state of things. No doubt the Nativ’o Land Court Judges were placed in a great difficulty. They had to adapt Maori ideas to the varying state of Maori civilisation. and to the change of laws affecting Euroiieans.-- But the time was surely ripe when these Maori customs could bo codified and known as iaw. However, that was a matter entirely for the Legislature to consider. His Honor mentioned it as it seemed to him to bo a clamant necessity for Maoris and Europeans alike, to know what Maori law, or, as it was termed, “Maori custom” was. The Native Land Court had made ite order, giving the land to Ereni Jepson. and tho question was whether tho Court had jurisdiction to so determine. There was no doubt the Native Land Court had jurisdiction to take any piece of land devised by a Maori, and grant it to his successor according to native custom if that successor were landless; but it was said that the English “law of abatement” had not been set aside by section 46 of the act of 1894. and. that as the right of granting land to landless natives was in the nature of a charge on the deceased's landed estate, it was the duty of the Native Land Court or the Native Appellate Court to appiy the English “law of abatement,” and to take from the other devisees pro rata so much land as would place the special devisee in no worse position than if this had been a charge \m a European estate. What the Native Appellate Court had done was, no doubt, to deprive one devisee of land devised, and to leave the other devisees xintouclied. This would not be permitted tinder a European will, and counsel for the Attorney-Qeneral had raised the question that the Native Land Court

must follow the principle of the English "law of abatement,” and not destroy the devise to one person and leave the other untouched, and that section 46 did not purport to repeal this principle of English law. His Honor was of opinion it did not. The question was. whether there was not a specific and special jurisdiction granted to the Native Land Court, and. if so. whether its jurisdiction had been exceeded. This case was not an appeal from the Native Land Court ou the ground that its decision was contrary to law. It was a motion for prohibition, and unless it appeared that the Court had exceeded its jurisdiction, the motion must be refused. His Honor could not find that the Native Appellate Court had exceeded its jurisdiction by granting this land to Mrs Jepson. Mr Justice Cooper agreed with the Chief Justice that prohibition could not be ordered in this case, as the Native Land Court had not exceeded its jurisdiction. The motion was dismissed, and judgment given for the defendants, the question of costs to stand over until the following day. J A CURIOUS QUESTION OF INTEREST. CLIFFORD AND OTHERS v. THE MINISTER OF LANDS. The Supreme Court—their Honors the Chief Justice and Mr Justice Cooper—sitting in Banco on the 15th, delivered ite reserved judgment in the case of George Hugh Clifford and others v. the Minister of Lands, which on a previous day had been argued by Mr Skerrett for the plantiffs and Mr D. M. Findlay for the defendant. Their Honors saia the Minister of Lands, acting under the Land ter Settlements Consolidated Act, 1900, had taken certain land from the plantiffs. A Court sat to consider the compensation to be paid, and prior to tbe sitting of the Court the parties entered inte an agreement which provided that in the event of no award being made by the Court iu the month of December, 1904, the plantiff should give up possession on March Ist, 1905. They had power, however, to continue in possession, rent free until March 31st 1905. There was a provision in the agreement that if the Court did not give an award and possession was given up, the Minister was to pay interest on the amount eventually awarded to the plaintiffs. It was contended by plaintiffs that in computing the interest both the first day of April and the day on which the compensation was actually paid—the 26th 'of May—should be included, and conseauently that the correct number of ays for which interest should have been paid was fifty-six and not fiftyfive. The defendant contended that either the Ist of April or the 26th May should be excluded from the computation, and the correct number of days was fifty-five and not fifty-six. The question for the Court was whether interest was payable both on the first and last days of the period over which it ran. Their Honors said there were many cases dealing ivith the question of time. but. it appeared that there \A r as no fixed rule that could be laid down. In this case, however, the agreement incorporated the statute the words being “that the Minister shall pay interest at the rate fixed by the C6urt . . ... • • • ih manner provided by section 28. That section said that interest Avas payable Avhen the compensation money Avas not paid on.the date Avhen it became payable; and interest was payable then “for the period elapsing between that date and the date when the money is duly paid or satisfied.” Assuming that the money Avas payable on the 31st March, it was clear that the period Avhich elapsed between that date and the 26th May—the date on Avhich it Avas paid Avas only fifty-five days, and interest AA r as paid for, fiftyfive days. Their Honors held that it was not necessary to consider whether if possession Avere given at the close of the day of the 31st March that Avquld have been an “effectiA r e occupation in the meaning of section 27 of the statute. If not “effective occupation” the money would not have been payable till the next day. Following section 28 their Honors were clearly of opinion that the. Minister of Lands had paid the proper amount of interest, and that judgment must be given for him Avith £7 7s costs and disbursements. ANOTHER NATIVE APPELLATE COURT CASE. Judgment was given uy ■their Honors tho Chief Justice and Mr Justice Cooper in tho OBißo of Httkopfl- v. Sotli Smith Jiud other# oil tho 15th T-lio m&ttor hod. been argued by Mr Skerrett lor tho plaintiff and Mr 11. D. 801 l for the defendants. The plaintiff Avas an aboriginal native, and tho defendants, other than tho members of the Native Appellate Court, Avere also natives Avithin the meaning of the Natives' Land Acts.. Ail application Avas made by the native defendants to a Native Land Court that they should bo declared the successors to the interest of a native named Hiraam te Hoi. deceased, in a block of land knoAvn as Awarua. 4c, No. 11. Tlio Court made this order, holding that the applicants nad been adopted as children by Hiraani to Ilei. From this decision plaintiff appealed to the Native Appellate Court, and that appeal Avas alloAved. An application Avas made by the native' defendants for a rehearing of the appeal, and on June 30th the Court Avitlidrew its judgment, and ordered the appeal to be reheard by the Native Apellate Court. Application was now made to their Honors the Chief Justice and Mr Justice Cooper, sitting in Banco, for a prohibition, on the ground that the Native Appellate Court had no power to order a rehearing before members of a Native Appellate Court that had not heard the appeal. In giving judgment, their Honors said they Avere of opinion that the control of the Native Land Court was vested in the Native Appellate Court by sections 57 and 58 of the act, and taut section 59 gave supreme jurisdiction in the question in dispute in these proceedings to the Native Appellate Court. So long as a Native Appellate Court was “seized" bf a dispute between natives and natives affecting the title t.n native

lands the Native Appellate Court might deal with it as it pleased. It might proceed contrary to what was called natural justice. It might also adopt a procedure that an English Court, or the . Supreme Court or Court of Appeal of this colony, would not adopt, and if it did so their Honors said they could not interfere. The Legislature had, in fact, clothed it with more power than it had given to the Supreme Court of New Zealand, and though thousands of pounds might be involved the interests of natives were left to it unhampered by appeal, or by the control of the Supreme Court or tne Court of Appeal of New Zealand. This, in their Honors opinion, was the law, and it was not for them to inquire whether the law was wise or not. The Court must administer the law. Their Honors therefore held that the motion must fail. A TINAKORI ROAD LAND SLIDE. ’ judgment FOR DEFENDANT. His Honor Mr Justice Cooper on the 15th inst., delivered his reserved judgment in the case o& William Jay v. Arthur Hall, in which evidence was taken nt considerable length a Aveek or tAvo ago. The plaintiff and defendant are neighbours, residing on adjoining sections on Tinakori road, and plaintiff claimed <£soo damages for injuries alleged to have been caused to his property by the action of defendant in removing soil from his allotment, and thereby causing plaintiff s land to lose its natural support. His Honor, having described the circumstances of the case in detail, found that the hill, of which the plaintiff's land was a part, was of a treacherous and unstable character, and that slips of more or less extent had from time to time taken place in the past. The defendant's alterations up to 1897 had not interfered with the natural support of the hill to any appreciable extent. The' slips that had continued up to the present time were due to a variety 1 of causes, and his Honor was satisfied from the evidence, and from personal inspection, that the work Avhich the defendant did had not acted as a producing cause, and the slips would have taken place had no such work been done. In his Honor's opinion the plaintiff could not succeed in this action, and he therefore gave judgment for defendant, with costs on the middle scale as on a claim for <£soo, with an allowance of <£ls 15s a day for tAvo extra days. THE WANGANUI RIFLE RANGE. His Honor Mr Justice Cooper gave his reserved judgment yesterday in the matter of certain claims for compensation by native owners and others for lands taken for the purposes of a rifle range at Wanganui under the Public Works Act of 1903. This was a case stated by the Native Land Court Avith regal'd. to the alienation of the lands in question, to their oivnership, a-nd the manner of assessing the compensation to be paid. The matter was originally heard at Wanganui, but was recently reargued in this city. His Honor's ans Avers to the questions put were practically a repetition of those formerly given, but Avith a fuller statement of the law and, of what, in His Honor's view, are the correct rules for ascertaining the whole amount of compensation payable and the respective sunns to be awarded upon each set of claims.