IN BANCO.

Dominion, Volume 3, Issue 900, 20 August 1910, Page 14

IN BANCO.

HOROWHENUA BLOCK. APPELLATE COURT UPHELD. : "Horowhenua No. 11 is part of a 'block of land situated near Levin, ■which has been subject to more litigation and consideration by Courts and Parliament than;perhaps any other block of Native land in New Zealand." This remark \yas made by tho Chief Justice (Sir Robert Stout) in a judgment wliich ho . delivered yesterday upon an application for a certiorari to romove a judgment of the Native Appellate Court regarding the land known as Horowhenua No. 11 into the Supreme Court in order that the judgment of the Native Appellate Court should be.quashed. ' The cause of the application, as outlined in yesterday's Dominion, was that ■ in 1898 "the Nativd Appellate Court, purporting to act under Section 4 of the Horowhenua Block Act, 1896, made an order. regarding division 11, and from that .order omitted the names of Natives that it was contended ought'to have been inserted therein. The names; of the persons whose exclusion was'complained of, or their ancestors, were,in the original list' of 143 .persons ■ appearing in schedule 6, of the Horowhenua Block Act/ and the/ question was whether ■by. such exclusion the Native Appellate Court t exceeded , its jurisdiction, and whether a certiorari would lie to > quash'its order. , ' The case was argued on Thursday by Mr. P. E. ''Baldwin, "of!: Palnierston North, who appeared in; support of the motion, and by the Solicitor-General (Mr. J. W. Salmond), who opposed it on behalf of the Chief .Judgo of the Native Appellate Court. ' Other Natives interested were represented by Mr. A. A. S. Menteath and Mr. M. Luckie. '.■■'.-.".' The Chief Justice, in..his judgment, after quoting'tho.sections of the Horowhenua Block Act dealing with the jurisdiction of;thn Court, said that the contention of counsel for the applicants was that, 'as;the' Supreme Court and Court> of Appeal had determined that there was a, trust in Block 11 in favour of the 143 'persons'mentioned in the sixth schedule, the'function of tho Court was not to determine, who were the persons entitled to be declared the. beneficiaries,; but simply; to apportion. l the' estate amongst the .143 persons and. the. 48 persons named in the second schedule; in fact, that'all the function that the Court had ,to c perform was to ascertain'the individual interests of thesel 191 persons; 'fhey would have riad power,-..if this, were' :the proper interpretation-, to give, ptirhapsj a majority of them* duly a square foot each or a square inclv.each; as had been done in some .determinations of Native title, by Native. Land Courts, and in so doing'the .'interests of some of the 143 persons might;.have got 'would .have .been purely nominal. This, was not the view that had been, taken by Mr. Justice Denniston in regard ' to Horowhenua No. .14, and, further, in, his Honour's own opinion, if the function of the . Native Appellate Court had 'been confined to defining the' interests the' Legislature.would.have said so. Hoc held that'the. Native Appellate Court could consider; who were beneficially- entitled to Block -11, and to en- ■ able them j to arrive, at a conclusion they, had a right to consider how the block had; been divided and 'what, interest's the original.owners (that;is the list of 143 V had acquired hi'other parts of tho .original -block..-. As; he stood the, esse, . that,.was exactly .what the 'Cqurt-'.ditl.".'•■'On Wilis', and, other grounds, 'he .was of opinion that on the merits there w.is nothing to show that the Native Appellate Court exceeded its jurisdiction.; That.being so, if was not' necessary : to consider the.: subsidiary;, questions that, had been .raised.. The motion must be. dismissed with six .guineas; costs . for the; clients .of. the Solicitor : General, ..and ; four guineas costs for. Mr.-Menteath's clients.' '■' ; The /question'; .of appeal' was mentioned by Mr..'Luckie, and tho Regis-trar-was directed .to fix security for costs. V '.•'•■';• . ' ■'■' .;.' A SETTLER'S INSOLVENCY 1 /'-• FRAUD. :-. ". A rather, curious case connected with bankruptcy ;law. was investigated . before Mr.' Justice, Chapman, yesterday.' The.Official'Assignee applied, for . an order. (1) setting, aside as'fraudulent, a transfer given in' September, 1906, by. Albert; Edwin Barker, of Waiono, labourer, a bankrupt, ,to _ E. A. Packer, of Horoeka, ;of a lease-in-perpetuity of Section, la, Block 11, Mount Cerberus Survey 'District, and (2) directing E. A. Packer, should be ordered to rotransfcr the. lease'to y 'the Official Assignee. . It. was . alleged, as grounds, for the application, that the transfer by. the bankrupt, was a , fraud under tho Bankruptcy-'Act','and-also that it was a fraudulent transfer or conveyance within _tho' provisions of' statute 13, Eliz., c, 5.'"'.. .-'.", Mr; M., REyers and Mr. T. H. Garden Lloyd, of Danncvirke, appeared, for the Official Assignee, :and 'Mr. C- B. Morison for Packer. Barker, Packer, and other' witnesses j were examined. . . ' .. .' A : ;'■';..'., Frederick Albert Packer;'"inEllis', evidence, said that, when lie-accepted the transfer,from Barker, he did;not kilpw of tho latter's. debts 1 ,, and'.; ho'.did -riot know that .judgment for, debt; had been' obtained against Barker....' lli had'been in partnership with Barker. To Mr. Myers: The partnership was in the land only, not the stock, .but they meant to work the land as a dairy farm. : He knew that the stock on the land were mortgaged to Williams and Kettle. ( There - was a mortgage of £250 on'the land. He valued,the land now at- £8 per acre, total £912. The capital :value of the rent was £235. Deducting this arid the mortgage, his interest, was' £427. He considered he was,entitled to keep this;without paying any of the debts. ' ... . Mr. Myers: And so you would get £400 in return for the. £35 that Barker owed you. ■ . 'Witness said the property was now worth more than when the arrangement was made. • Tho partnership agreement was drawn up by Barker's wife, the partners telling her what to put in.' His 'Honour said it was not clear whether the partnership . arrangement reached the stage of a real agreement. Mr. Myers: Tho only thing that is clear, is that thin gentleman ;has' got the only availablo asset, and is • getting £400 for his £35. His Honour: AccordingMo his own account, he is entitled to takb it, and Barker's evidence ' that. Barker could never claim, even between themselves, that there was an; ulterior trust. - '■. In further reply to Mr. Myers, witness said that the £35 was owed to him by Barker for rent paid by him for the latter, and for work and material. <'■'■' Mr. "Myers submitted that tho mattor was one for investigation; and that the ...course that had been taken was the best way or obtaining such investigation. Looking at all the circumstances, and considering the relations subsisting between the two men just before the transfer was effected, he contended that his Honour should draw the inferences suggested by the plaintiff.' . _ : . '. Mr. Morison argued that Barker's motive in giving tho transfer was not to prefer Packer, but to get quit of tho place. Ho was in a holo, and wanted j 1 bo get another jah and. earn some I

money. Packer did not know what a hole Barker was in. Tho court could not infer fraud if the facts would bear any other construction. Judgment was reserved.