LAW REPORTS.

Dominion, Volume 4, Issue 1068, 6 March 1911, Page 3

LAW REPORTS.

SUPREME COURT.

IMPORTANT NATIVE CASE,

OKAHUKUKA BLOCK,

An important Native land case, which was argued before the Cnicf Justice (Sir Ualjsrt Stout) uud Mr. Justice Cooper in Banco yesterday, involved tno rignts of a number of Natives in a large area of land, and tlie jurisdiction oi the (Jniei Judge of the .Native Land Court. I'lie plaintiffs 'were I'atena Kerehi and Kecpa i'uataata, of. Tokoanu, acting for themselves and other owners of that part of the Okahtikura Block known as Ukahukura, No. Bm, No. 2. -The defendants were Taitumu Marangataua, Kumeroa Te Aaku, Kino Marangataua, and 28 other Natives, .acting for themselves and other owners of Okalmkura, No. 2, and Papa- ™\> Xo. 2. His Honour Mr. Jackson Palmer, Chief Judgo of the Native Land m? urt ' . was alsa i° ille(l ? - s a defendant, the object of the proceedings was to, obtain a mandamus preventing the. Chief Judge from ordering a rehearing of ; a case that had been decided by the Native Appellate Court.

Mr. JI. Chapman, K.C., with him Mr. S. A. Atkinson, appeared for the plaintiffs, and Mr. IT. D. 8011, K.C., with him Mr. T. \V. Lewis, of Hastings, for the defendants. The history of the case goes back to February 3, 18S6, when the Native Land Court ordered that a certificate of title to __ the Okahukura . Block, containing 82,700. acres, should be issued in favour of certain hapus on a properly-certified plan being deposited'and a list of names handed in. There was then before the Court a pbn approved by the Chief Surveyor showing the outside boundaries of the whole block, but not any subdivisions. Conferences on the subject of subdivision took place between the Native owners present, and Mr. Pollen, Government Surveyor, sketched in upon the plan in Court, without survey, lines of the subdivision of the block?.? suggested by the Natives. Mr. Pollen also approximately estimated the area of the several subdivisions, and marked them on the map. The subdivisions now called Ngapuna, Papakai. Nos. 1 and 2, and Tauhai. were not made at this time. On the following day Te Kecpa applied on behalf of the hapus for subdivision according to Pollen's plan except as to the four new subdivisions referred to, and on February 23 one Wineti Paraniti applied to the Court, for himself fond others, to be included in the list of owners of the whole block. At a subsequent conference tho owners of Okahukura N\ 8m arranged to cut out for their block a definite area of 7000 acres

for the apnlicants, tho area being accordingly awarded to the applicants by the Court, and subdivided into four .areas, named as stated above. Mr. Pollen's lines of subdivision were irregular

in contour, and it was probable that they were intended t'j coincide with natural boundaries such as streams. AVhen the survey was made in 189! i to enable effect to be given to the orders of subdivision, the surveyor, taking what he believed to be tho natural boundaries shown on Mr. Pollen's sketch, laid off an area for Okahukura No. 2, being a piece of land having part of its southern boundary upon the northern branch of a certain stream. This niece of land contained an area of

796 acres, as against the original estimate of 2300 acres. There was also an excess area over Mr. Pollen's calculation in some shbdivisiens and a shortage in others. The total area, mentioned in court was

878G acres, while the area as surveyed was but 7587 acres.

On t:.". order of Judge Scanncll a re-' survey \vas made and the area of No. 2 was made up to 23G0 acres by taking the requisite area from subdivision Bm, a certificate of title then beins issued to this effect. In 1899 the owners of subdivision Bm, tho plaintiffs in tho' present case, made application to the Chief Judge for an afteration of title, alleging error., They contended that tho location flf.tho natural boundaries and not'the estimation, of area was. tho, factor in the arrangement which the Natives present at the court in 1886 made, which Mr. Pollen's sketch appeared to indicate. The owners of No. 2 contended, that..tho esti-. mate of area should be followed in determining their boundaries by the final survey. The Question was refcired to Judgo Johnson" for inquiry and report, and upon it the Chief 'Judge made a recommendation, but no order. Tho matter subsequently went to the Appellate Court, which, after investigation, decided that the area of No. 2 should be put at 1100 acres. The present defendants then applied to tho Chief Judge to reopen the matter, but the present plaintiffs objected to the jurisdiction of his Honour to deal with the matter in any form. The objection was renewed when the . Chief Judge sat at Tauno to hear the application at the end "of 1910, and _ after his Honour had heard the argument and evidence intimated that he would await the result of the present proceedings before i delivering his judgment. The present action was then commenced.

At the hearing before the Chief Judge counsel for the present defendants tried ito nrove a case for his clients different from that nut before the Appellate Court in 1909, which, in effect, w;as that the present defendants were entitled to the 1360 acres because the area was awarded 'to them by the Court in 1860. It was contended that the ancestral boundary of the owners of Okahukura \No. 2 was to the south of the southern boundary of tho block so marked by Mr. Pollen, and therefore that tho boundary adopted by the Appellate Court was not an ancestral one. "It was also contended that the only agreement was that tho owner of No. 2 should have an area of approximately 23G0 acres in a locality roughly indicated on the flan. Counsel for the present defendants admitted that in view of the irregular contour and the boundaries marked on the map he could not contend that the Court intended to award certain fixed areas without regard to boundaries, but ho did contend that the areas stated in tho orders rather than the lines marked in the map were to be followed, as the former wero certain while it was impossiblo to ascertain what, if an} - , agreement had been mado as to tlie latter. The present plaintiff asked to have the application refused upon the grounds that if evidence was to be allowed at all the present defendants must prove the grounds of their application by evidence, and that in fact no evidence was given by them except on two points. The Supreme Court was now asked to decide whether tho investigation by the Appellate Court was a proper and complete investigation, and whether the Chief Judeo had jurisdiction under the Native La"nd Act, 1909, Section 50, to order a rehearing of the matters determined by the Appellate Court under tho Maori Land Claims Adjustment and Laws Amendment Act, 1907, Section 37. In- the event of such jurisdiction being affirmed, the Court was further asked several questions as to the admissibility of evidence before tho Chief Judge.

Argument for the plaintiffs had not been concluded when the caso was adjourned to 10 a.m. to-day, ■

KARORI TRAMWAY LOAN, THE JUDGMENT.. The Chief Justice (Sir Robert Stout) delivered on Saturday his judgment in the case of tho Karori Borough Council v. tho Australian Mutual Provident Society, in which- the Court has been asked Ijy way of originating summons, to determine the legality or otherwise of a certain proceeding connected with n tramway loan raised by the plaintiff council. His Honour stated in his judgment that a poll of the ratepayers of Karori was taken on July 26, 1909, and at that poll the Borough Council was authorised to raise a loan of J527,5(10 for tramway construction and the purchase and erection tit stone-crushing machinery, etc. A special order was made levying a special rate to .secure the payment of tho loan and interest. Tho council, being thus authorised to raise a special loan, proceeded under Section 25 of the Local Bodies' loans Act, 190 S. That Act says that pending the raising of any loan the local authority raising tho loan may borrow any sum or sums of money not exceeding tho "whole amount authorised to be borrowed, by 'the hypothecation or mortgage Df any debenture thereby authorised to be issued." The council obtained an advanco whether by.hypothecation, mortgage, or pledge did not clearly appear. They then made application to the defendants for a loan, and they had obtained a loan for a certain number of years and at a certain rate of

interest. Before they had obtained this loan, however, thev" had prepared ' debentures for different terms and at a different rate of intcie.-t from that which they had arranged with the defendants, the question was, having prepared these debentures, could thev cancel them and. issue new debentures,' to the defendants on the terms arranged ? "There is no provision in the Act regarding this matter," continued his Honour, "and it seems to ine that the whole power under the Act will turn upon the meaning of the words 'mortgage' and 'hypothecation': Now, if a per.-.oii or corporation mortgages or hypothecates debentures the possesion of'the debentures is not thereby given to the mortgagee or to the por.s.on to whom they are hypothecated. If the possession of the debentures were parted with, then the transaction would not be iv hypothecation or mortgage, but a pawn or' pledge. The distinction between a hypothecation and a pledge is that possession is given in the one, but not in the other. It appears, therefore, by Section 25 that the section did not contemplate a giving of the debentures to the person who .'lent the money pending the raising of the oan, and this being so, if the statute has been complied with, there does not seem to me any objection to the company s destroying anv debentures it may have issued and issuing the debentures in terms of the loan that is raised. It is said in Paragraph i of the case that the bank insisted on the debentures being left with the bank. 1 doubt very much if the corporation had any power to do anything of the sort. That means pawning or pledging them and this being so if the corporation has done something that Section 25 did not authorise it to do this will not prevent its doing what it could lawfully do under Section 25, namely, issuing, now the debentures for the loan that they raise. There docs not seem to me any power given bv the statute to deposit debentures with 'the bank. That would be pledging the debentures." His Honour thought, therefore, that the corporation would be within its nights to create new debentures for the loan that was to be raised. Clearly no debentures had been issued for the special loan that they were authorised to raise, because they were not agreed on the terms ot the loan. It seemed to him that by mortgage and hypothecation there was still retained in the corporation the power to change the debentures so long as the amount and interest which was authorised by the vote under the statute were notexceeded.

:, **'"•, A- . ( ' e M- Brandon appeared for the plaintiff, and Mr. M. Chapman, K.C., and Mr. b. A. Atkinson for the defendants. RIVAL BUTCHERS. AN INTERIM INJUNCTION. . Judgment was given by Sir Robert Stout, Chief Justice, on Saturday, in a case arising out of tho salo of a butchery business at Foxton. William O'Brien, butcher, of Foxton, had applied for an interim injunction restraining George Reay from carrying on pr being concerned or interested "in any butchery business within ten miles of tho Borough of Foxton. Plaintiff alleged that the defendant was now carrying on such a business in breach of an agreement mado on February 26, 1910, whereby tho defendant sold a butchery business to plaintiff and covenanted not to-.set up in opposition for at least two years within ten miles of Foxtail. Tho defendant denied breach of agreement, and said that he was simply employed as manager of his father's butchery business at Foxton, a position which he claimed to bo fully entitled to take.

His Honour granted the injunction asked for pending the hearing of the case which is expected to come before the Court in May next, and directed the plaintiff to give security to the amount of ,£25 for damages in the event of the case being decided against him. The question o' costs was reserved.

Mr, W. 11. D. Bell appeared for plaintiff and Mr. T. N. Holmden for defendant.