SUPREME COURT.

New Zealand Times, Volume XXVII, Issue 5668, 16 August 1905, Page 2

SUPREME COURT.

IX BANCO. SOME IMPORTANT DECISIONS. ATTORNEY-GENERAL v. SETH SMITH AND OTHERS. Their Honors the* Chief Jnslice an<l Air 1 Ju-dice Cooper delivered their reserved j judgments yesterday in the ot ihe j Attorney-General v. Setli Smith, ami others, in which, at the hearing. Mr U. D. Bell had appeared for the Attorney(general, Mr Morisou for Kreni Jepson, Mr Chapman for the executor, and Mr Madfield and Mr Weston lor cerliiin devispes under the will. Sir Robert Stout, C.J.. in his. judgment, said the case was a very aiul a very peculiar one, Mrs Hannah Field, the testatrix, was a hall'-caMo Maori. She made a will, leaving her property partly to Europeans. and partly to her Maori relations. Sim left no properly to Kreni Jepson, a married woman who was liar half-sister on the father’s side: Mrs Field's father was married at dit'erent times to two Maori women—Mrs I’io.d was the daughter of one and Mrs Jepmn the daughter of the other. On the applicaiion for probate of Mrs Field's will. Ij,o Native Land Court granted part of a parcel of land specially devised to a successor, 'acording to native custom, as follows“As to my interest in section No. 7. Ngarara West, containing about 18") acres, and in the laud culled Milan* poko A No. 2. containing an area of about 102 acres, 1 devise the same to my trustee to be held by him upon trust as ami lor a public reserve, and I desire that under no circumstances shall the hush now glowing on the r>aid 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 «r> 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 .Topson, on the ground that she was the successor according to native custom, and was landless. The authority for this alteration of the will was section -10 of “The Native Land Court Act. 1 &)•!■/* which reads;—“On every application for the appointment of a Riicoessor whore 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 lias devised land to a person oilier than his succcswr; and if the vestal or has uo devised I a ml. the Court, if it shall further appear on inquiry that such successor has not. without the 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 probate or letters of administration shall bo expressly limited to the estate and oflects of the deceased other than the land so awarded to Hie successor/* It appeared that the land in this case was not ancestral. ami not native land, but had been .acquired by Crown grant to the testator. His Honor said that how a halfbiood, with a European father, could bo a sucessor by Maori custom to such land ho did not know. It appeared to him that the Native Hand Court, perhaps properly, line! had to lay down customs suitable for the Maoris, in their changed conditions. There was no such cTasr> of land amongst the Maoris before the Europeans came to New Zealand, and there could have been no such custom, and ho understood counsel to admit that half-bloods of the class that Mrs Jepson was. would not bo 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 succession, and call it according to Maori custom. U scorned to his Honor that the time had come when there should be some authoritative definition of what Maori custom or usage was. It should not be left to Native Land Court Judges (o declare what they think is native custom. The time had surely arrived when native custom should be codified and enacted into a taw. 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. Tints was surely a most unsatisfactory •state of things. No doubt the Native Land Court Judges were placed in a groat difficulty. They had to adapt Maori ideas to the varying state of Maori civilisation. and to the change of laws affecting Europeans. But the time was surely ripe when these Maori customs could be codified and known as law. However, that was a matter entirely for the Legislature to consider. His Honor mentioned it as it seemed to him to be a clamant necessity for Maoris and Europeans alike, fo know what Maori law, or, as it was termed. “Maori custom’* was. The Native Land Court had made its order giving lbo land to Ereni Jepson. and the question was whether the 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 -16 of the act of 1891. and that as the right of-granting land to landless natives was in the* nature of a charge on ihe deceased's lauded estate, it was the dutv of the Native Land Court or the Native 'Appellate Court to apply 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 on a European estate. What the Native Appellate Court had done was. no doubt, to deprive one devisee of laud devised, and to leave the other devisees untouched. This would not be permitted under a European will, ami counsel for the Attorney-General had raised the question that the Native Land Court must follow the principle of the English “law of abatement/* and not destroy Hie 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 ciuse was not an appeal from the Native Land Court on the ground that its decision was contrary to law. it was a motion for prohibition, and unless it appeared that the Court bad exceeded its jurisdiction the motion must be refused. His Honor could not find that the Native Appellate Court had exceeded its jurisdiction by granting tine land to Mrs Jepson. Mr Justice Cooper agreed with the Chief Justice that prohibition could not bo ordered in this, case, as the Native Lind Court had not exceeded its jurisdiction. The motion was dismissed, and judgment given for the defendants. <ik> question or costs to stand over until the following day. A CURIOUS QUESTION OP INTEREST. CLIFFORD AND OTHERS v. THE MINISTER OF LANDS. The Supreme Court—their Honors the Chief Justice and Mr Justice Cooper sitting in Banco yesterday, delivered its reserved judgment in me case of Gem go Hugh Clifford and others v. the Minister •nf Lands, which on n previous day had been argued by Mr Skerrett for the plantiils a:i.J Air 1). A£. Eimllav for Ho deUmlaut. Their Honors said the Minister of Lands, acting under the I.and Settlements Consolidated Act, 19')0, had taken certain land from the plnntiiTs. A Court sat to consider the compensation to be paid, and prior to the silting of the Court; the parties entered into an agreement which provided that in

the event of 110 award being made by the Court in tho month of December, IDul. the planriff should give up sion on March Ist, 1905. They had jx>wer. however, to continue in possession, rent fne until March 31st 1905. Th<*ro was a provision in mo agreement Unit if the Court did not give an award and 1 twsiwsion was given u;i. the MinivUt was to pay interest on the an.mint

eventually a warded t.> tee plaintifF. U| was contended by plaintiiu that in com-! pining the interest both the lirst day <»i i April and the day on which the eon;-' palliation was actually paid—the tMthoC May—should bo included, and consequently that the correct nuii'ber o"' days for which interest should have been paid was fltly-six and not inlyjive. The defendant contended tha* either the Ist of April or the ’Jtlth Mav simuld lie excluded I‘iom the compmalioa, and the correct number of days was httv-fivc and not fifty-six. 'J ho question tor" the Court wins whether interest wot? payable both on the first and last f days ol 1 lie period over whieh it ran. Their Honors said there were many eases dealing with the queslion of time but it appeared dial there was m> fixed rule that could be bid down, in this case, however, the agreement incoi poiated the statute the words being “that the Minister shall pay interest at the rale fixed

by the Court 111 la;ul " uer provided by section 28.- j iat section said that inteiest was payable when the compensation money was not paid on the date when it became payable; and interest was payable then tor the peiiod elapsing between that, date and the date when the money is duly paid or satisfied.” Assn mine that the money was payable on the 31st -March, it was clear that the period which elapsed between that date and the 20th May—the date on which it was paid was oak httydne days, and interest was paid for hitviive 'davs. Their Honors held that it was not necessary to consider whether if possession were given at the close oi the dav 01 the 31st March that would have been an •‘effective occumHion in the meaning of section 27 ot the statute. If not “effective occupation” the money would not have been payable till the next day. Following section 2S their Honors wore clearly ot opirion that the Minister of Lands had paid the proper amount of intevcot, and (hat judgment must be given for him with Jii <s costs and disbursements. ANOTHER NATIVE APPELLATE COURT CASE. Judgment was given by their Honors die Chief Justice and Mr Justice Louper in the case of Hnkopa v. Soili bnutli and others yesterday. Tho mat ter had been argued by Mr Skerrctt lor the idttiiitill’ anti -Mr H- H. liell ior the duIcnd inls. 'Dio plaintiff was an aboriginal native, and tho defendants, other : Uan tlie members of the Native Appel lale Court, were also natives within the inean.ng of Clio Natives'Land Acts. An application was made bv the native deletniaius to a Native Land Court that they .Humid bo declared the successors to the .merest ot a native named flrraam tu liei, deceased, in a block of land known as Awama, 4c, No. 11. The Court made this order, holding that the applicants iinil been adopted as children oy Hiraani te liei. from this decision plaintiff appealed to the Native Appellate Court, and that appeal was allowed. An application was nutde by the native doletiduuus for a rehearing of the appeal, ami on June Stltli the Court withdrew its judgment, and ordered tho appeal to be reheard by the Native Apellate Court. Application was now made to their Honors the Chief Justice and Air Jttslico Cooper, silting in banco, for a prohibition, on the ground that the Native .ippellalo Court had no power to ordet a reheating before members of a Native Appellate Court that had not heard the appeal. In giving judgment, their Honors said they were of opinion that the control of the Native Land Court wag vested in tho Native Appellate Court by sections 57 and 58 of the act, and tuat ejection 59 gave supreme jurisdiction m the question in dispute in these proceedings to the Native Appellate Court. So lung as a Native Appellate Court was “seized” of a dispute between natives and natives affecting the title to native lands the Native Appellate Court might deal with it as it pleased. It might proceed contrary io what was called natural justice. It might also adopt a procedure that an English Court, or the Supremo Court or Court of Appeal of this colony, would not adopt, ana if it did so their Honors said they could not interfere. Tho Legislature had, in fact, clothed it with nioro 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 onlrol of the Supremo Court or me Court of Appeal of New Zealand. This, in thoir 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 therefor© held that the motion must fail. A TINAKORI ROAD LAND SLIDE. JUDGMENT FOR DEFENDANT. His Honor Mr Justice Cooper yesterday delivered his reserved judgment in the case of William Jay v. Arthur Hall, in which evidence was taken at considerable length a week or two ago. The plaintiff and defendant are neighbours, residing on adjoining sections on Tiuafrori road, and plaintiff claimed JEW) damages for injuries alleged to hqve been caused tp his property by the action of defendant in removing soil from his allotment, and thereby causing plaintiff s iand to lose its natural support. His .ionnr, having described the circumstances of the case in detail, found that tho 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 io 1897 had not interfered with the natural support of the hill to any appreciable extent. The slips that hail continued «P to the present lime were due to a variety of causes, and his Honor was satisfied from the evidence, and from personal inspection, that the work which the defendant did had not acted as a producing cause, and the slips would have taken place had no micu work been done. In hia Honor 1 * opinion the plaintiff could not succeed in this action, and he therefore gave judgment lor defendant, with costs on the middle scale as on a claim for JCSOO, with an allowance of *EIS 15s a day for two extra days.

THE WANGANUI RIFLE RANGE. His Honor Mr Justice Cooper Rave bis 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 rango at Wanganui under tbo Public Works Act of 1903. This was a case staled by Hie Native Land Court with regard to the alienation of the lands in question, to their ownership, and the* manner of assaying the , compensation t > bo paid. The matter, was originally heard at Wanganui, but was recently redargued in wiis city. His Honor’s answers to the questions put were practically a repetition of those formerly given, but with a fuller statement of the law and, of what, In His Honor’** view, are tlie correct rules for ascertaining the whole amount of compensation payable and the respective sum's to be awarded upon each set of claims. WHAT ARE "ACCOUNTS STATED”? A COMMERCIAL QUESTION. The case of the Wellington Loan Company, Limited, v. Francks Loudon, which came before the Chief Justice, silting without a jury, in the Supreme Court y::tenlav, d /-closed a point in commercial law of some little interest. Mr Gray, who appeared for the plaintiff company, briefly stated the case, and Mr I. O'ii Louphnun, vrho was for the d- feudant, agreed in his description >f it* G-ay said the claim was for A 164 17s £d upon accounts staled. The company wa.s a financial institution in this c ly which dealt largely in bill discount:?ig, _and in lending money. It had dealt with the

defendant for a number of years, and accounts were taken some time ago botween tho parties, after which a fr<y»K start in their business relationship wax made. On the ITtli of July last the company made out Loudon p a account, and found there was a balance owing by hi nr. to them on that date of TlGt 17s 3d. indud ng interest at the rate he had agreed l * pay them, and had been paying them for a number or years. A letter was written io defendant by the secretary o? iho comp.my asking him for a c.heqno for the amount slated, and intimating that unless it was paid by a certain d«U* the matter would be placed in a ooiici* t. r’s hands. In answer to that letter the d.’fondant wrote a day ortw>late.r: ** X have your letter of the 17th. and in reply 1 am prepared to give you my bill at thiee month* from the date hereof for tlie amount, of your claim without uny lurthcr interest, and if that is not satm fart >ry, you can go on with the music.” That, said Mr Gray, was Hie whale of the plumtifTs case, and the only question was whether the defendant’s letter was sufficient for ” accounts stated,” which h' maintained St was. His 'Honor: And 1 suppose you say the oiler of a bill is not the amount ow. tug. Well, the elementary rule is that thete must bo au admission of a debt due to buppju-t a claim for “accounts staled’; and you say that the offer to give a bill i? an admission that tlw amount is duo? i Mr Gray tqi d that was the cose. The 1 defendant had written another letter gta- | ting that if the company had a»ked for j ATH) lO.s Iffd they would have had n far i better chance of getting it, and adding I** As the legal profession is a necessary : evil, 1 have no objection to tqibtndisiny, it.” (Laughter.) Mr Lough mm moved for a non-suit o* the -evidence (the letter put in). He maim tamed that au “account slated” must ;be an “unequivocal admission of a debt I due.” He jK>inted out that the" only amount the defendant referred to as be. iug duo by him was ,£MO UXs IIM, which., ho said, they would have had a far bettor chance of getting had they claimed it. His Honor: 13ut that is not the letter which plaintiffs rely upon—it’s the letter of the li)th they put forward. MrLonghnan: Yets; but this letter throws some I ght upon the whole trans. action. In the letter of the 19th the do fondant said in effect, “I am prepared ta give you something less than you claims 1 don’t admit that I owe it; and if you* don’t think that a satisfactory arrangement, then I shall dispute it. Your claim is for hlGt 17s 3d, and I’ll give you a bill for that amount at throe months, bull without, any further interest.” That wuft to say he would give them something very much less than their claim; thin would be better fur him because he would have the use of their money for thre« months, and not at 30 per cent, interest, which wore tho company's rates, but “ without further interest.” Mr Lough, nau argued that this offer was tauUi. mount to u refusal to pay tho am-nint claimed, and a statement that if they did not like his proposal the defendant would d epute the whole thing. Coeisks. quently there was no “unequivocal admission of a debt due.” • Mr Cl ray replied that what the defend.* ant did say in that letter was in effect: “ 1 cannot' give 3’ou cash for the amount of your claim, but IT I give you my promissory note,” and that wjw a full admission of the debt due. His Honor said he would take time consider the matter. It was many year* since the cases cited by counsel during tile argument had been before him, and he wished bo road them again; but hiii impression was that “accounts slated” must bo a clear and explicit admission of a debt due.