COURT REPORTS.

New Zealand Times, Volume XXX, Issue 6494, 14 April 1908, Page 8

COURT REPORTS.

MONDAY, A Dili L Hi. COURT OF APPEAL ri‘ llhOr Menu's ./ur.tices Wi 11 ia:ns, ' Deuiiistoii, Edwards, . 111 <I Chapman.) IiKLIGTOUS EDUCATION IN SECULAR SCHOOLS. Tfio case of Ilrucn and others (the Wanganui School Committee; v. the W.iaigiieui KVlueatioii Hoard and Henry M-urioll, Payne, headmaster of the (Ineeu's Park School, Wanganui, u hich bud been commenced on Friday last, iiii,s continued. 'ibis won an appeal from the Judg;je nt of hhi Honor Mr Justice hooper. Mr M. Myer.- appeared for Hie appalI;i it t- and .Mr (■• P. SkerroU, K,('., him Mr E Hutton, tor the re pomlmi to. ') ne fii.-c on appeal hn.s already keen '-.1 in our column:;. M r 11. Mstrnnlj P.ivne is the headnia.-ter o( the Qacm',; IMik School. In the Court, hf lew toe phiintdj committee (now Ihe tippeJlanlM hud proceeded again.';?, the V.rimal ion Hoard and (he head teacher :now the j• .spondiuita; claiming an injcneti”U t' icstr-tir. the defendant Hoard from over-niiing tho plaintiff emmineo’s clcoisirn ns to the .schod In uts in Queen's Park School, or from pi event ing car lorhidding tin 1 masUr*, Mr Payne, from ohr-y ing the cominii-le-e’:! instruction", ami an order was also claimed cm,joining .Mr Payne to obey Urn Hoards in.st-nictkni' : . The fichcc-l committee. had decided to set apart a portion of the .school hours for tho purpose of giving religious instruction to the children. 'I he Education Jloa.nl avert uled this proposal and directed tlm headmaster to disobey the instructions of the school committee end refrain from curtailing the ordinary school hours for the purpose of impa.i ting religious instruction. When the case crime before the Supreme Court Ids Honor Mr Justice Cooper paid he had a bare .legal question to determine—whether the committee or

tlm Board was the paramount authority, ami in his opinion the , question admitted of but one answer, viz., that thr- Board had the legal right to supervße and control educational mutters within its district, and therefore the Heard had the right to overrule the i? si j notions given by the committee to rJie head teacher. The Hoard having refused to ratify those instructions, and having overruled them, had acted within its legal powers, and the motion for -an injunction and mandamus was i and ,judgment given for ‘.he •defendant Education Hoard, with £lO 10s costs and Court fees. Against this decision the committee appealed. Mr Myers continued and concluded hin argument in support of the appeal.

Mr Skorrott submitted on behalf of the respondents that the definition of a public school was a school under the oonbrol and management of the Education Hoard, and that definition, read into section 124 of the Act, made it clear that all schools were under the control and aupervision of tho Education Board. It w%n further contended ■that the Board had power and authority to establish and maintain schools; to establish and define school districts; to provide funds for the schools and to pay, appoint, and dismiss teachers. The result, if the 'argument for tho appellants was held to bo correct, would ho that although tho Board possessed all these powers, they had no power to interfere in tho management of the schools except in a few' special instances. On tho elusion of counsel's arguments tho Court .reserved its decision. NATIVE LEASES IN DISPUTE. DONNELLY AND OTHERS v. MEINERTZIIAGEN. {Before their Honors Justices Williams, Donniaton, Cooper, and Chapman.) This wan a case on appeal from the judgment of his Honor Mr Justice Edwards delivered on March ICth last. Tho caso which has already been stated at length in our columns is a peculiar one. Tho plaintiff, Gertrude Ellen Moinertahagen, and her predecessors in title had for many years prior to May 19th, 1907, been in possession under leases which expired on that date of 18,495 acres, being parts of the. Hawke's Bay blocks known as Wannarama and Okaihau. On thoao lands aho carried on and still carries on tho business of a sheep and cattle farmer. Her flock of sheep numbers about 32.000, and was, as the result of careful brooding, of great value. Prior lo tho expiry of tho lenses Mica MeincrtzhadCTi obtained from a large majority of tho native owners of the lands in question the execution of a number of documents purporting to be renewals of tho leases. Consequent upon tho provisions of section 16 of The Maori Land Settlement Act, 1905, it wns necessary to the validity of those instruments that the plaintiff should obtain tho approval thereof by the Tkaroa District Maori Land Board. This approval was refused because the plaintiff had not, prior to tho execution of the leases, lodged witTTthe Board tho declaration required by section 26 of tho Maori Lands Administration Act, 1900 The Court of vAppnnl in tho case of Higgins v. Ikaroa District Maori Land Board held that the Board was right in refusing its approval. . It was not therefor© contested that the instruments in question were good ns lenses; but it was contended that they wore as good as contracts. Counsel for the defendants hnd contended that all the •native owners of the land in question (Wnimarama, No. 3a) remained tennuts in common of tho whole of that block and that consequently the natives, declared by tho Native Land Court and the Native Appellate Court to tho owners of Waimarama, No. ■3a, No. 6, could not put the plaintiff into exclusive possession of that block of land. His Honor Mr Justice Edwards hold that there had been a series of definitive final judgments on the partition of Waimarama No. 3a, and tnat all that could bo said was that the record of such judgments had not been formally completed. In his opinion tho plaintiff had established her right to the exclusive possession as aganst the defendants to this parcel of land, and except in so far as her remedy had been taken away by the Impounding Act, 188-1, section 5, could maintain an action for trespass if that right wns interfered! with. In his Honor's opinion the leases executed to tho plaintiff (Miss Meincrtzhngon) were good as contracts though Invalid as leases, and

was in lawful po-scMon under these contracts, and was co-owner with the d“f, ndants in .Waimarama, No. 3a, No, 5.

(I was alleged in the plaintiff’s statement of claim that the dofwul-i-ntfl intended to force live stock on to the lauds in the occupation of the plaintiff, and that the result would ho that if the defendants put live stock on their own lands within the hound!life s occupied by the plaintiff, such live stock must inevitably trespass upon laruD in which the defendants hat! no interest, and of which the plaintiff was in possession. It was further alleged th it in that case the live .lock of the defendants would mix with the live stock of the plaintiff, to the grout detriment or the plaintiff. Tin, damage suggested at the argument was (a) the lots of herbage, tb) risk of conlamination of tho plaintiff’s flock of sheep, (c) loss arising by reason of the mixing of inferior jams with the plaintiff's breeding owes of a superior quality. It was further alleged in the plaintiff's statement i f clai n> that a.s the pi tin: jfFs houndaHei could not at present ho fenced, her oruy remedy, if an. injunction was not granted, was to drive* tho live slock oi tlm defendants trespassing upon her lands to Hie nearest public pound, which was distant over twenty miles fiom Waimarama, and that such pound could not accommodate tho live stock which tho defondants intended to put upon the land in tho plaintiff’s po-session. These facts wore not disputed but tho defendants contended that to grant an injunction in the circumstances would bo an invasion of their legal rights. Mr Justice Edwards reviewed the circumstances of tho case and tho arguments of counsel at considerable length, and by his judgment found generally in.favour ct Hie plaintiff, and made an order r*f*nnting an injunction ns against tho uospass the defendants’ live stock upon certain specified conditions. Mr H. D. Hell, K.C., and Mr C. P. ttkerrett, K.C., with them Mr T. Leuds. appeared for the appellants: and -Mr -xartin Chapman, X.C., with him Mr 0. B. Morioon, for the respondents.

Mr Roll, arguing in support of the appeal, *;aid that Mr Justice Edwards’s amdng in granting the injunction n'lp.at have (he effect of infringing the legal right of the defendants, Mrs Donncilv and others, to use their cnVn Ends, and it was a new-thing to learn that-a man could be restrained from using his own lands as a sheep-run simply because his neighbours’ lands happened to bo unfenced. His Honor Justice Edwards had said he was ri tidied that tho real object of the defendants was not to establish for the first time, upon these lands and carry m> Hie compel the plaintiffto vie’d to whatever demands they might choose to make as tho price of tlm preservation of her rwn husintyas. Mr Bell contended that there was no evidence of suoh motive, and that no Court had tho right o-i the duty to take that matte- into consideration except as regarded the person claiming the equity. There was no* question of native land law arising in tho matter. If Mr Justice Edwards’s finding was correct it woulti como about that persons who were now regarded as without titles would find themselves in possession of them. His contentions were —“ (1) That no question referred to or decided by Mr Justice Edwards relating to native law is for the decision of the present ease. That there is no a«tberity for the interference by a Court of T>pn‘tv with the legal right of a freeholder to enter upon his own land nt his own will; and that ‘a fortiori’ this is so against a freeholder entering upon lands demised by him after the determination of his lease. (3) That it is without precedent for tho Court to interfere to prevent an alleged wrong where the person sneing is committing the same alleged wrong. (4> That the motive referred' to hy Mr Justine Edwards did not exist was not nrov<vl, and was entirely immaterial, (o) That the condition imposed upon the rer.pnndents was illusory, inasmuch as it took effect only if the defendants abstained from exercising their legal rights. (6) The injunction under this fVcreo is to the same effect as tho interim injunction which it discharges.” Mr Hell’s argument was not concluded -when the Court adjourned for tho day.

MAGISTRATES’ JURISDICTION {Before Mr W. G. Riddell, S.M.) For drunkenness. George S, Schofield was fined £l, in default seven days’ imprisonment. William McKay was fined XO-i. in default forty-eight hours. Henry Titshall pleaded guilty to committing a grossly indecent act in Lambton quay. He was fined £2, in default fourteen days’ imprisonment. John Finlay, who was charged with having been found without lawful excuse in a railway carriage, elected' to b© tried by a jury, and was remanded until April loth. ALLEGED THEFT. Elizabeth E'lford pleaded not guilty to a charge of theft of a leg of mutton, valued at 3s 6d, the property of Frederick James Mann. The facts, as outlined by ChiefDetective McGrath, were that the defendant had gone into the informant’s shop in Molesworth street. She made o mirchaso, and when she left tho shop she also took a log of mutton which was in a parcel on tho counter for another customer. Tho informant rang up the police, and Detective Williams found the log of mutton in possession of tho defendant at her residence. Mr Ayson, for the defence, stated that the defendant had gone into Mann’s shop with a number of parcels. She placed these parcels on the counter. and when she left she accidentally took tho leg of mutton away with them. His Worship held there was an element of doubt about the case, and dismissed tho information. CHARGE OF CRUELTY.

George "Wilkinson, mate of the ater-mer Blenheim, was charged with cniellv ill-treating pigs while discharging them from his vessel at Wellington. Mr Herdman appeared on behalf of the defendant, and Sub-Inspector O’Donovan conducted the prosecution. Constable Jones said that he had seen the pigs unloaded from the Blenheim. An inch rope was passed round the pigs’ bodies, and they were hoisted up into the air. The rope round the pigs was in the form of a running noose, which contracted with the weight, One pig fell out of the noose into the water. The witness considered that by the way the pigs were squealing they were suffering pain. The defendant was in charge of the unloading. For the defence it was contended that the method of unloading which had been described was not' cruel. Evidence was called to show that it was the method usually employed by shipmasters. His Worship held that the proseou-

tiou had failed to sliow that there had been crueUVj and dismissed the ca»o.

HR EACH OF COMPANIES ACT. The Uannevirke Co-operative Hairy C- rnpaiiT. Eld., was charged with failing lo forward to tho Registrar of Companies its annual list and summary f r the year 1007. Mr Fell, who appeared on behalf or the defendant company, said that. In \ Jrvr of his Worship’s decision, deliverfd on S'turday la.it, ho could only plead girfity. He asked his A\ or-hip 1 1 inflict tho same penalty as ho had dr no in tho case of tho Goar Company, a lino of Is. His Worship inflicted a fine of LI, with costs, LI ISs Od. M.A [NTf'.NANTF CASES.

George Duncan pleaded guilty to disobedience of an order for the. maintenance of his wife. His Worship adjourned the ease until May 11th, tho defendant in the meantime to pay d-s a week off the arrears, which amounted to £1 15s. .A rother charge against the same defendant in respect to an order for tho support of a child, was dismissed, the case not being properly before the (Hurt. Thomas Montgomery. ’ v ’ lr f C ‘ K ‘ " n appear, uas adjudged pula Live father of an unborn illegitimate child, ana was ordered to find security in his own bond of CAO, with two sureties of £2-> each, or one of £SO, that he. will provide for tho child when born. The penalty in default was fixed at two months’ imprisonment. Mr Kelly appeared for the complainant.'