Supreme Court.

Star (Christchurch), Issue 125, 6 October 1868, Page 2

Supreme Court.

$K W<.. . This Dat. £??$' is*''S?! 1 &?CBefore Mr Justice Gresson.) '■ft jf •' •Hjs33tonor sat ia the Court Chambers at this morning. '■^'"'' In Banco. Heremaia Montu and Hoani Timara, claicoaats ; her Majesty the Queen, defendant. Messrs Garrick and Covvlishaw for claimants; and Mr Wynn William 9 for defendant. A writ of error was allowed in this case, tried in the Native Lands Court sitting in Christchurch. It is contended that a certaid deed put in evidence on behalf of her Majesty the Queen, whereby certain nntives purported (o convey to Mr Wakefleld, agent of the New; Zealaud Company,, a- large-tract of r qountry including Knitoreti h invalid, illegal, ' and totally, without effect by. .virtue. of they 13th chapter of the Royal Instructions ;of 1846, and that • therefore the, title . pf , the . claimants herein, and the other, natives, had never been extinguished ; that theaaid deed ia void for uncertainty ;• that the deed being illegal, invalid, and; void, could not, extinguish the title of the claimants to the said land ; that no parol agreement by the aboriginal natives of New Zealand to sell their interest in their lands to private individuals other than to her Majesty the Queen, or. to. persons on her behalf, could be valid and legal, and that such an agreement could not be taken out of the Statute' of Frauds by part performance, and could not be ratified and adopted by the Crown so as to be made a legal and valid agreement ; that the acts of part performance of the said parol agreement being payments of money were not sufficient to take the contract out of the Statute of Frauds ; that the said payments of money and receipts and all other acts adduced, in evidence in the Court being, made, given and done under and in pursuance of the said deed could not be used and were not sufficient to create a separate and binding parol contract for the sale of the said land ; that the Court proceeded with and investigated the titles of and interests in the said land, under section 83 of the Native Lands Act, 1865, and section 38 of the Native Lands Act, 1867, and to make orders as to the terms and conditions for the completion of the said deed and agreement without any order of reference by the Governor ; that a certain document purporting to be an order of reference under the said sections was signed by the person signing it (the Hon. John Hall) without any previous authority from his Excellency the Governor ; and that the said document was received ia evidence without any proof of the authority to sign it, or of the signature thereto. Mr Williams moved for a rule nisi, calling upon the plaintiffs to shew cause why the writ of error should not be set aside or quashed for irregularity, on the ground that a writ of error does not lie on a judgment given in the Native Lands Court, and why the defendant should not be allowed to proceed on the judgment appearing by the wrifc of error to have been obtained by Her Majesty in the Native Lands Court, on the ground that the matters stated in the notice of allowance of the writ are insufficient and frivilous— with costs. He urged in support of his motion that error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it, there being no method of reversing an error in the determination of facts but by a new trial to correct the mistakes of the former verdict— (Kerr's Blackstone, vol. 3, p. 428.)— and that a writ of error does not lie on a judgment of a Court of Record which acts in a oourw different from the common law. His Honor granted the rule, returnable on Tuesday, the 17th Not. In Bankruptcy. BE THOMAS BAUCkH. This matter stood over, for the filing of further affidavits, in respect to the rule calling upon Mr Hankins, the trustee, to chew cause why he should not pay the moneys which he collected into Court. His Honor enquired if any affidavits had been filed. Mr Garrick said thit he had filed one, which he would read to the Court. Mr. Wynn Williams said a copy of the affidavit had only been left at his office late on the previous afternoon, and the trustee had not had time to answer it. His Honor said that under these circumstances he would allow .the matter to stand over till Friday next. Adjourned accordingly. SB JOHN BROOK. His Honor intimated that he would give his decision on the question of damages, on Thursday next, during the sitting of the Bankruptcy Court. The Court then rose. •