LAW REPORTS.

Dominion, Volume 2, Issue 487, 21 April 1909, Page 4

LAW REPORTS.

0 — . COURT OF APPEAL. LEASE OP TOTIRA BLOCK. OPPOSITION BY THE NATIVES. . Argument 'was heard by the Court of Appeal yesterday with respect to the caso of To Roera Tarelm (appellant) versus - the Ilvaroa District Maori Land Board and Wra. Horbert Guthrie-Smith and Anne Lindsay Smith' (respondents). Mr. Skerrett, K.C. (with, him Mr. Lewis), appeared, for appellant,: and . Mr. M'Lean (with him Messrs. Myers and Ostler)' for respondents other than the board.' This was an 'appeal and a cross-appeal from a judgment of Mr. Justice Cooper! When the matter was brought in the Supremo Court, plaintiff claimed that he was. one of tho owners of the Tutira Block, situated on the Wairoa-Napier. Road, and, containing 2Q,490 acres. On September 10, 1884, tho Native owners leased tho whole of the block excepting 3000 acres to Messrs. GuthrieSmith and Cunningham for 21 years. Ten years later tho lessees, now Messrs. GuthricSmifch- and Stuart, obtained a renowal of the lease .as to 9500 acres for. 21 years, from September 21, 1894. Since that "date Mr. GuthrierSmith, who subsequently acquired tho whole, interest in the lease, had also occupied tho balance of the block under a verbal agreement :with tho Native owners.' .On August ,5, 1007, tho Native.: Lands Commission ■recommended ,-that. 13,420 ..acres. be leasad. to Mr.-.Guthrie-Smith for thirty years at. a jearly rental of £1355, that 5570 acres be leased to his sister. Miss Guthrie-Smith,, for the same period, at an annual rental of £70; .thau the_ Native owners in addition to tno ■rent Receive half tho royalty on the,flax grown on tlio 'swamp lands at the western end of ;the lake; and that in oi'dcr to enable the. ;Natives .'.to start sheep-farming . • 500 ■' -.'acres adjoining the Native reservo of 1000 acres be taken out of the lease. Tho whole or a great majority of the Native owners objected to'Uie proposed leases being executed. It had been decided by-the Ikaroa Maori Land Board that tho leases should dato from April 1, 1908. Plaintiff therefore claimed that the board; be prohibited from executing the proposed- leases.' "... . .- . ■

Defendants denied - that the -board had no authority to execute the ( proposed, /.leases excopt so far as it was s able to do so for arid on. behalf, of\and with the consent of the Native owners.. A sitting of-tho;board was held-for tho purpose of consulting the Native owners' as \to. ( whether they were . satisfied jvith the provisions of the propo&sd leases. Ihe- only objections taken by plaintiff' and a largo number, of other .Natives present were . of/th-o Native reservp ajid to the omission of provisions .. giving .the Natives the right'of fishing for. wis in . the lake. . It- was; also .stated ; that,' tho rents stipulated by the commission were* arrived at, not by ascertaining the" exact areas, but by investigating -the carrying' capacity of the whole of the lands.

,-His-Honour; told, inter alia, that' it was the duty of the board', to 'execute,- tho ■ leases; that tho reserve to bo exempted from the «5? M Actual Native reserve; that the 500 acres adjoining tho reserve had been duly defined-by survey; that the acres to-be leased wero : sufficiently'defined before the fijjjiraission and tho.: board; that tho to' be executed should bo two jiTiVv Viz.. a lcr>-so to , Miss G.uthrie-Smitb of w7O acres, and to Mr. Giitlirie-Smith of ,a If -.-thoTK«ttue of tho. whole block exceptii '.ho two reservo areas of. 800 and .SOO' acreS 'r'iid.jiho term; of both leases should, commonco from the date of the report of -the commission, viz.,' August 5,, 1907.- Plaintiff appealed from' tho whole of tho judgment and defendants, cross-appealed from that portion of tho: judgment .fixmg the date of .the commencement of the lease3.fi, ~i On behalf of appellant, -Mr. Skerr'ett •' said '■ that the whole question turned on the- meaning of Section w iof 'tho Maori .Landv.Clflims, iVdjustmcnt'and:Laws. Amendment Stripped. 6i ■ all material,-.the sec-, 1 ; effect was', .authorised ..to act for, and on .behalf\of, $©' Native owngrs of. the'block, arid to give effect to certain-proposals of,the 'commission by .executing -leases of the portions ,of' the'pro-, party proposed to be leased •according to\its recommendations. The. qxiestioh at 'issue was whether the. statuW.forced.thoJNatiyo' owners to . lease; their lands to 'certain' specified .Europeans on terms, fixed, by' the commission;' or whether the section was not merely statutory/authority to, .the .board to executo the leases as agent for, 'and on heh|>lr of, the Native owners/ and that'tho'assumption at the. root/of. the statute;was/that ; tho lessors and; lessees were! to, continuo to .bb : : williiig one tri lease, a nd 1 the other to accept .a lease of .the block. -.His:submission was ; that the- statute' did not bind this lessees' to' accept' the lease, nor ,were they- bound by■;any contract"to accept the leases in 't-erms of the' statute. Tho result, Hherefore; : wasV'that, the-'Statufb,^'''if'it were compulsory .could only be exercised effectively at. the ,instigation of tho ■'because they were neither bound by tho statute* nor by. contract' to accept, the-lease. . . Argument had not concluded' when the Court adjourned until 'this morning. ■ FULL COURT. ' THE DIVORCE LAW. "~t~~ — - ' ,:^-V ..: POWER TO ENTERTAIN A SUIT. '. Decision was 'given by the 'Fnll,-Co&r£ ; yei-' terday witli to a novel'question arising out of tho ;case.of Ellen BlakeiPoing-de-stro' (petitioner)' versus . Charles ' Edward Grant I'oingdestro (respondent). The ground on which the proceedings for divorce had been instituted was that of desertion. ; As respondent' had. been- absent from theDomrtibn for a number of years directions a.B. to service -, were sought. ; When the motion was brought by Mr. Treadwell before the Supreme Court at/Wanganui, Mr. Justice ■ Chapmaii thought it ..advisable that the question of jurisdiction in sucli a',ease should be decided by tho Full Court. • '■ The president of the Court (Mr. justice Williams) said that it appeared., that respondent's 1 domicile of origin was the Island of Jersey. He came to New Zealand,: married, aaid settled.here for a. number,of. years. There could -be -ho doubt that heiacquired a domicile of .choice in : the Dominion. Then ho went away with the consent of his wife in l|?96'to Seattle, in the United States. Up till; 1898 he continued to communicate with petitioner., His whereabouts since had not been. known. It seemed,' to' him', that the domicile of respondent 'until he' ceased communicating with petitioner, was New Zealand, .and-; petitioner's'domicile would be, of ' bourse, the Dominion. Thfe desertion, in his opinion,', commenced immediately -' aftbr : re- 1 'spondeat ceased communicating . with petitioner. ' Now, subsection .3 of Section 21 of the Divorce Act read as under:—"A deserted wife, who was domiciled in New Zealand at the time of desbrtioA, shall be deemed, for tho purposes v of. this Act, to have 'retained I her. New. Zealand 'notwithstanding that her husband may have, since the desertion, acquired any foreign domicile.". It would bo seen that the set of circumstances contemplated by the faction had, therefore, nrisen, - .The Constitution Act gave the Legislature power : to make laws, for the. pehce, order;and' good'government of New Zealand, provided that no such laws shuld be repugnant to the'law of England. A subsequent statute provided that, in order to bc : !' repugnant," a law must be repugnant to somo special statute. ' That 'was not the case in the present instance. .The object of the section was -to 'give parties, .who' were domiciled m New. 'Zealand, the right to\relief if tho - matrimonial offencc commenced at tho time ' that such parties were so domiciled. It might be that tho effect of granting'a divorce nn- : dor the - st/ituta would bo that the parties i would be held not to be divorced -in , country."-That, however, did not, i in his opinion, conclude the matter at all. , Tlie Legislature .had already , passed - laws ■ which had the effect of giving .a,matrimonial ; status in/Now Zealand, and .which would' i not Jiavo .the'effect of giving a. like status I outside.,/j'That. was -the caso, for' instance/. ! whqra,the law here authorised: the marriage i of a ' wo'tnnn with : her .deceased - .-''husband's • brother. If parties came here and entered into such a marriage, tho marriage wpuld [ 'not be recognised in England. At any rate, - siicli a marriage Vould not be ,recognised in f /England unless the parties at the tiran tlicy contracted it wore actually domiciled in, tho

Dominion. lli3 opinion was that ..the.'. suit could bo entertained. A similar view was held; by tho other members of the Cmirt. It was decided.that personal service should be dispensed with, and that. tho. matter should be referred to a Judge of the. Supremo Court, who would givo the necessary directions. . . ■ ■ ■ ; >■ SUPREME COyRT. , IX CHAMBERS. MOTION FOR INTERIM INJUNCTION. 1 Sitting in Chnnihers yesterday, Mr. Justice Cooper dealt with a' motion brought by Mrs. Lydia Somervilie to restrain George Lambert from selling a property in Newtown under, a mortgage) given to him. to secure £136. J ' . ■■ '' It was alleged by paliritiff that part of the money had not been ■ advanced. Therefore defendant was not entitled to exercise his power of sale as mortgagor. Plaintiff sought an interim injunction : restraining tlie sale of the property (which was advertised for April 22), pending the hearing-of the action. ' . Oil condition that plaintiff lodged £30 as security, his Honour granted an injunction until tho determination'of the action. Mr. A. Dunn appeared, for plaintiff and Mr. Levvey for. defendant.