THIS DAY.

Auckland Star, Volume I, Issue 111, 18 May 1870, Page 2

THIS DAY.

(Before His Honor Sir Q-. A. Araey, Knt., Chief Justice.)

His Honer took his seat on the Bench at eleven o'clock.

CADBMi V. O'KBEFFB

Mr. Hesketh appeared for the defendant in this case. A rule nisi had been obtained for a nozasuit. Mr. J. B. Russell appeared for the defendant in the progress of the cause, but owing to certain circumstances which did not transpire, he withdrew from the conduct of the defence. Mr. Hesketh was subsequently consulted by the defendant. He said that the motion was for a rule absolute, but since the last Court day certain basis of arrangement had been come to, and he appeared to announce that fact to the Court. He would, therefore, consent to the rule being discharged. Rule discharged accordingly. IN THE MATThB OF ROBERT GRAHAM V. JOHN LTTNDON AND F. A. WHITAKER. — PROHIBITION.

Mr. Whitakei' was lieavd to-day in his argument in support of a rule for a writ of prohibition directed to the Native Lauds Court to restrain the Judges from proceeding to authorise the issue of a" Crown grant to certain native owners, of the land known as Kaueranga 14. Mr. Whitaker reviewed the heads of his arguments of the preceding day. He said that the whole of the Native Lands Act provided certain relaxation in the strict principle of the Constitution Act. So far as they created an estate, they were also peremptory in setting out certain preliminary proceedings.

His Honor thought that the 47th section gave power to the Governor to give a. grant to the purchase of any land from the native after the certificate of title had been given to such native owner. Query—does a purchaser in such cas3 hold an English title, oi* can he be said to hold under .native usage.

Mr. Whitaker : Your Honor will perceive by the next section—

His Honor: There the effect is to make such

purchase as valid as if a Crown grant. But the position of persons holding under leases from native usage appeal's to be exceedingly strange. The grant given to native owners appears to

contemplate something else to be done before individual right can be ascertained. _It is given to several parties, so that if individual rights were to be made out, a process something like our writ of partition. The Supreme Court could not go into questions of Maori usage. It might perhaps send the case back to be tried by the learned Judge of the. Native Lands Court.

Mr. Whitaker : In the next session your Honor will perceive that where a certificate of title is given to several perspns, they hold as tenants in common.

His Honor : It may be, for anything appears to the contrary, a tenant in communism Mr. Whitaker: We say that whatever interest had been acquired by Messrs. Lundon and Whitaker, that they have a right to. The Act clearly recognises leases. It was not necessary to say what was the particular sights of Lundon anil Whitakor; but whatever rights they had acquired reniuined to them. But the decision of the Native Lands Court was a misconstruction of the language of the several Acts. The Chief Judge treated the question as if no deah'ng whatever would be lawful with a native until after the issue of the Crown grant. His Honor: But the difficulty appearsj;© me to be that when the certificate of title is given to Maori owners to hold in common that may still be land held by natives according to Maori usage. The Constitution Act declares that it shall be illegal to purchase from natives who hold as individual of communities, but when the rights of each individual shall have been ascertained, then the Act of the Assembly gave certain powers. Mr. Whitaker : The argument is that by these various Acts a marketable property is created, that in most cases, the dealing in such property implies several incidents, and the nature of the tenure subject to these incidents is described. But the decision of the Native Lands Court is to the effect that these several Acts have no effect. We say that under these enactments certain rights may be acquired ; that such rights have been acquired, and whatever they may be, they are entitled to the consideration of the Judges of the Native Lands Court, to the extent of not doing anything which would sacrifice the eat ate and interests in them held by the persons claiming. But there were conditions precedent to granting any order which should be complied with before the Court had power to make an order. If such preliminaries were not complied with, then there would be an excess of jurisdiction. (Left speaking.)