THE SUPREME COURT.

Dominion, Volume 5, Issue 1416, 17 April 1912, Page 3

THE SUPREME COURT.

PUBLIC WORKS. "SLIP IN PASSING ISM ACT." HARDSHIP OF IT. Whether land for a road enn be taken without compensation under tho provisions of Section 389 of the Native Land Act, 100!), and Sections !)3 and 05 of the I'ublic Works Act, 1008. through the lands of the plaintiff, such lauds being originally vested in certain aboriginal Natives of New Zealand under memorial of ownership dated Vobruary 8, 1870, under the •Native Land Act, 1875, but now comprised in certificate of title in lieu of Brant under lh» Lund Transfer Act. 1884? Such was tho (|Wstion answered in tho allinnativo by the Chief Justice (Sir lioixirt Stout) yesterday, in a reserved decision in tho 'jriginating summons, Fyve Louisa Smith, Alfred Owen Williams, and Edgar Clnirton Smith, all of Wnnganiii, plaintiffs, and tho Solicitor-General, defendant.

At tlio liearins, Mr. W. .T. Trcmlwoll (Waiißuinii) appeared fur the plaintiffs, nrnl the- Solicitor-General (Mr. J. W. Siilmonri) appeared in person. "■■ In the oour-e u! his jmlKinenr, liis Honour said Hint tlio |io»'«r given io the Govcrnnr by Section '18!) is thai, when nt tlio commencement of Hie Act of 100!) any Native or I'iuroiwan land is subject to any right to tnko nny part thereof for roads under the authority of Sections !12 to % of the Public. Works Act, IMS, etc., the Governor may, by proclamation, at any time while- that riijht would havo continued to exist if these sections were still in force, Iα? out and take such roads

upon that kind ns he thinks fit. The position of the lands belonging to the plaintiffs is that the land was Native land, and a memorial of ownership was issued on February 2.5, lS7il, under the Native Land Act, '1573. Three of tho Natives under the memorial sold to James Smith in ISSO, and on January 30, ISSS, tho other Native owners sold their laud to the sumo purchaser. Ju ISSi Jaiiifs Smith had acquired all tho land. No Crown grant of the laud was, however, issued, «iul n-J. certificate, of title, and not until October 11, ISfIS, did the purchaser get his transfers registered. Tho certificate of title was not issued until November 2S), ISJIB. His Honour, after reviewing the law on the question and quoting authorities, was of opinion that the Governcr had power to issue the proclamation taking tho roads. "No doubt," concluded his Honour, "this is a very hard case, seeing thnt the land has been purchased so long ago as ISSO, but the Act gives tho Governor power, and any hardship created by his action must be remedied by either tho Legislature or tho Executive. This Court must interpret the statute as it I finds it." SIMILAR ACTION. •"THIS SEEMS A VERY HARD CASE." Practically the same question was involved in the originating summons between the Solicitor-General (plaintff) and Henry Bernard Cave, Aubrey Oldknow Cave, William Edgar Smith, and Thomas Allison, all of Waugnniii, defendants. Tho defendants Cave were cited as owners of the land affected, and the other two defendants as mortgagees. In delivering his judgment in this case, the Chief Justice said:—"This case differs from the case of Smith v. the AttorneyGeneral in this respect, that the title to tho Native land wns determined under tho Native Land Act, ISGS, Crown grants having been issued on April 2, ISG7, and October 24, 18fi7. The limitation of time for the exercise of tho Governor's power is provided in paragraphs (a) and (b) of Section 05 of the Public Works Act, IMS. It is clear that it cannot come under paragraph (a), which says as to land the subject of a grant or certificate issued under the Native Land Court Act, ISSG, or any Act passed in amendment thereof, or in .substitution therefor at the end of 15 years from the date of such grant or certificate. Nor docs it in my opinion come under paragraph (b), which says "as to grants issued under any Act repealed by the Nativo Laud Court Act, 188G, at the time when such power would have eeased under such repealed Act." The Act of 1865 was not Tepealcd by tho Nativo Land Court Act, 188 G. It was repealed by the Native Land Act, 1873. The consequence is that there is no limitation provided for the exercise of the Governor's power. This seems a very hard case considering that under the Act under which the grant was issued tho power to take roads was limited to ten years. By, however, the passing of the Public Works Act, IS9J, in the form in which it appears, this limitation, was, it must be assumed, through mistake, overlooked, and Section 91 of the Public Works Act, 1831, is identical in language with paragraphs (a) and (b) of Section 95 of the Consolidated Statute of 1908. I may point out that the Consolidation Aot, of 190S is a copy of the compliation Act, called* tho Public Works Act, 1905. Section 95 of that statute is the samo as Section 95 of tho Consolidation Act of IMB. There is no doubt whatever that there has been a slip in tho passing of tho 1834 Act, and no doubt the Governor or Parliament will take steps to remedy the slip tliat has taken place. So far, however, as this Court is concerned, it must hold that there is no limitation for tho taking of the <lefendants' land under tho Public Works Act, and therefore the question must bo answered in tho affirmative. SIGNING A WILL, nOW COMPLICATIONS ARISE. Whether certain signatures' were sufficient attestation to a will was tho question that arose at Napier last month, when Sir. V. A. , Sproule appeared before the Chief Justice (Sir Robert Stout) in support of an application for probate of the will of John Davidson, carpenter, lato of Napier, deceased. Decision was delivered at Wellington yesterday. It appeared that testator b'equeathed all his property to his wife, whom ho appointed his sole executrix, but a complication arose, from tho fact that tho witnesses (two sons of deceased) signed their names where their mother should have signed, and thus three executors were apparently set up instead of one. The sworn testimony of John Davidson, jun., was to tho effect that ho and his brother signed as witnesses.

Jiis Honour considered it was a most extraordinary mode of signing, but he saw no reason to assume that the witness was not telling the truth. The question then was: If he was stating the truth, was this a sufficient Attestation? The statute did not require the. signatures to l;e in any particular place. That being so, his Honour must assume that the signatures were sufficient, l'robnte of the will was therefore granted.