LAW REPORTS.

Dominion, Volume 5, Issue 1418, 19 April 1912, Page 3

LAW REPORTS.

MAORI LANDS. "THERE WAS EVER A SHADOW." JUDGE'S RHETORIC. THE MAIIUPURU PATRIMONY. Matters pertaining to a lease ot Native land formed the groundwork of a rather important ense in which the Chief Justico (Sir Eobert Stout) delivered reserved judgment yesterday morning. The plaintiff 11 the action was Martha it'Ciregor (formerly Martha Mahupuku), of Greytown, wife of George Stewart M'Gregor, sheep-farmer. Sho recently attained the age of 21 years. Tho defendants wers the District Land' Registrar, .Wellington, and William Harris and Thomas Harris, sheep-farmers, of Martinborough. At the hearing Mr. C. P. Skerrett, K.C., with him Jlr. 1. E. Ward, appeared'for the plaintiff, and Mr. 11. D. Bell, K.C., with hira Mr. C. B. Morison, for tho defendants, Harris. The District Land Registrar, who was not represented, submitted to the judgment of tho Court. The Claim Set Out. In tho statement of claim it was set out that, on April 1, 1893, Hamueru Tamahau Mahupuku and Horiana Xatanahira leased to Charles Harris (father of the defendants, Harris) for a term of 21 years, 64G9 acres of land, known as the Ngawakakupo Block. . Tho memorandum of lease was not only contrary to statute, but tho lease lyas granted at a grossly inadequate rent. It was in fact granted by tho two Natives to William and Thomas Harris (as the nominees of Chos- Harris) from feelings of friendship to the father, and out ot gratitude for financial assistance, which tho latter had rendered to Mahupuku. In addition tho lease was to commence in futuro." When application was made to the Native laud Court (presided over by Judge Mackay) to confirm the memorandum of lease, it was not granted, and, according to Martha M'Gregor, tho negotiations were then abandoned aud not reopened until after Mahupuku's death, which occurred on January 1-4, 1901. Martha Mahupuku, who was then 14 years of age, was apIjointod his successor to the block, 11. Stratton Izard, solicitor, being appointed her trustee. On August 3, 1904, William and Thomas Harris mado another application for the confirmation of tho lease, this time to the Native Land Court (presided over by Judge Gilbert Mair) at Wellington. A valuation was ordered, and, though there was no record of such valuation, an order (without authority of law and without further hearing) was issued by tho Court on August 3, 1904, purporting to confirm the document, which purported to be a memorandum of lease. This order was without jurisdiction, inasmuch as the order of Judge Mackay was final, and had not been set asido. Moreover, the Court had no jurisdiction to confirm the lease on account of tho fact that' the grantor wis dead. In addition to this it was alleged that the arrangement between H. S. Izard (Martha Mahupuku's trustee) and the defendants,' Harris, to consent to tho confirmation of the lease, and, to the proceedings, ;which resulted in the confirmation, was (to the knowledge of Wm. and Thos. Harris) a collusive arrangement, and a fraud on Martha Mahupuku's rights and interests because that arrangement contemplated a lease at a grossly inadequate rental, and also a direct payment of ,£SOOO to Izard. This was in violation of the law, and both Izard and the defendants, Harris, knew, or ought to have known, that tho interests of Martha Mahupuku (then a. minor) were being sacrificed under the arrangement. Nature of thß Defence. By way of, defence, William and Thomas Harris said that a.proper valuation was submitted before the Court adjudicated. They were proprietors of the leasehold estate created by tho lease duly registered (without fraud) under tho provisions of the .Land Transfer Act, upon which they relied. They denied that tho lease was illegal, or void, that the rent was inadequate, or that motives prompting Mahupuku to grant tho lease were as Martha M'Gregor now alleged. Further, they declared that tho proceedings for ccnfirmaton rf the lease v.cro not abandoned after the first application, and the order of August 3, 1901, was (they maintained) valid. While they admitted that it had been the duty of Izard to safeguard Martha Mahupuku's interests, they denied that there was any collusion or fraud in'the negotiations, which led to tho obtaining of the lease, and also denied the statement that the minor's interests were sacrificed.

The Maoris and Their Patrimony. 11l the course of his' judgment, his Honour said:—"lt is said that Mahijpuku was an able and astute man of business for a Maori. If this is so, it shows how little able Maoris- are to conduct land transactions. Thero is no doubt that, if tho valuations of the land aro looked at, and as spread over a series of years, the jease was at a gross undervalue, even if it had been a leaso for immediate possession, but, being a lease that was not to come into operation for ten years, the lowness of the rent is even ridiculous. The capital value in November, 1910, was, it is stated, ,£15,225. "The history of the law of New Zealand since tho very first Act that dealt with the lands ot' tlio aborigines, has-been to protect the Natives against disposing ,ot their lands ■ without due consideration. Various modes of protection have been adopted. Though grants from tho Crown have been made to Natives, these grantees have only in rare instances had grants in fee simple. Conditions, cither in the grants themselves or by statute have almost always been imposed. , In lact, tliero was ever a sliadow, so to speak, of their customary rights cast over their land. Thev could ( never alienate their lands at their own will by documents either inter vivos or by will..Tho reasons for such legislation are apparent to cvervono who knows aught of Native wavs. Tho aborigines have neither the" foresight ! nor the business ability of the white race, and, to have given them freedom in disposing of their patrimony, would have meant that they would soon have been left .landless. They had moro need .of control than many of the white race who are infants iu tho eye of tho law. "Further, the powers that tho statutes havo given to set aside' wills and to award lands to succcssors, according to Maori custom, shows that Natives have never been treated as owners in fee simple. So careful has the Legislature teen ot their rights-that, even in a case ivliero specific performance of an agreement to sell land has been decreed, tho Court of Appeal reserved to the Trust Commissioner under tho Native- Land Frauds Prevention Acts the power to decide whether tho decree was to ba carried out.'' Relief Should Be Granted. Then, after referring at length to tho various phases of tho transaction on which tho case hinged, his Honour continned:—"l am of opinion that this confirmation and the leaso aro both null and void. Jl'lie question arises, however, assuming that they aro both null and void, whether, seeing registration has been effected, that registration is not conclusive?" . The various cases cited did not, in tho learned Judge's opinion, seem to affect tho matter, for there was 110 caso exnetj.v liko Ibis 111 cin the numerous Now /jealand authorities referred to. His Honour's Conclusion. His Honour, therefore, concluded:—"l am of opinion that unless tho defendants can successfully contend that once a deed is placed 011 (ho registry, however, improperly placed, that it must remain for ever there. This is a case in which tho relief asked should l:e granted. lam not prepared lo hold that tho ease of tho Assets Company v. Mere Koihi has gone the length of holding that once a person improperly in fraud of the .statute and in fraud of the proprietors, obtains l-egi---t.ration, Iho ■•ogi-tratiou homologates a breach of the law." "It 'was urged thai something dishonest or morally wrong must be proved before the l egist rat ion could be interfered with. Jf obtaining a lea~e from a Maori at a gross undervalue, if concealing the true bargain both from the solicitor that drew op the lease and from the Court, if not

carrying out tlio bargain, if making «, now bargain with a trusteo who did not purport to alicne, if 110 steps were taken to bring tho person whoso property was affected—tho infant—boforc tho Court, was not morally wrong, thero must, I think, be a now definition of the phraso "morally wrong." If it was necessary to dccido tho question on that footing I should hnvo no hesitation in saying that tho defendants must havo known that they were acting in a way that was morally wrong in obtaining tho lease. As I have already said, I ani of opinion that the Court had no jurisdiction to do what was done, and that both tho lease and confirmation were void. "Judgment will bo for tho plaintiff, with costs according to scale, as tl JMOO were claimed, with usual fco for second counsel, and .£lO 10s. each for two extra days." Mr. Bell asked if his Honour would grant a stay of execution pending an appeal. His Honour said he would allow reasonable time. It was, he thought, a fitting case for appeal. COURT OF APPEAL. THE AUCKLAND TRAM ACCIDENT. In the Court of Appeal yesterday further argument was heard in tho case of King v. tho Auckland Electric Tramways Company, an appeal from a nonsuit, by Mr. Justico Edwards, of a compensation claim in the Supreme Court. The Bench was occupied by the Chief Justico (Sir Robert Stout), Sir Joshua Williams, Mr. Justice Cooper, and Mr. Justice Denniston. Tho parties were Wni. Herbert King, railway employee, of lloso Street, Mount Eden, and Martha King, his wifo (appellants), and the Auckland Electric Tramways Company, Ltd. (respondent). Mr. H. P. Richmond appeared for the appellants, and Mr. J. H. Reed for the respondents. Particulars of the case were published yesterday. It had reference to a tramway accident, which occurred in Auckland on May 30, 1911, and which gavo riso to a subsequent claim for compensation. Mr. Richmond did not conclude Ilia opening address until 4.30 p.m. The Chier Justice then intimated that the Court intended to look into tho authorities quoted before calling on Mr. Reed, who would be notified'on Monday next if tho Court desired to liear him. The Court then adjourned until 10.30 a.m. to-day, when the Auckland criminal appeals will bo heard. MAGISTRATE'S COURT. IMPORTANT RATING MATTER. . MIRAMAE CASES. Yesterday, at tho Magistrate's Court, before Dr. M'Arthur, S.M., the Miramar Borough Council sued the Evans Bay and Miramar Estate Company, Ltd., for £2 17s. 9d., and Central Miramar, Ltd., for £2 Bs. 4d., amounts representing 10 per cent, added to rates which had been levied upon certain occupiers of land in the Borough of Miramar, who had purchased their sections from one or other of the defendant companies. Mr. M. J. Crombio appeared for. tho plaintiff, and Mr. A. Gray for tho defendants. Mr. Gray said that tho case was one in which tho occupiers of the sections had failed to pay any portion of the. rates. In November last tho council had decidcd to claim payment of an additional 10 per cont.' Demand had been made upon each of the defendant companies for the whole amount of rates, plus 10 per cent., and these actions had been brought to determine the question of whether or not local bodies could recover from an owner, or a mortgagee, or other persons interested ill l land, tho rates upon which land had not been, paid by the occupier. Mr. Gray contended that tho additional chargc allowed by the Rating Act Amendment Act, of 1910, was not a rate, nor part of a rate; and that an owner or other person having an interest was liable only for the actual rate, and that, even if tho owner was liablo to pay the additional 10 per cent., such liability did not accrue until the expiration of six months and fouticDii days from the date upon which tho demand was mado upon him. In this case tho .demand upon tho defendant companies had only been mado on January 23 of this year. The defendant companies were neither owners, nor occupiers, jjnd were only liable as persons having an interest in respect of unpaid purchase money. Mr. Crombio argued that if an occupier failed to pay his rates, and tho council imposed a 10 per cent, addition, every person having an interest in tho land was liable for the additional charge, as well as the rate. Tho addition was part of the rate itself. His Worship said that the council had its right against the occupier, and if it chose to let non-payment of rates nm 011 for six months and fourteen days it could demand an additional 10 per cent., but it had no right to make that charge 011 an owner, or a person having an interest, until after the expiration of six months and fourteen days from tho making of tho demand. Judgment was for the defendant in each case. Leave to appeal was granted.

THE DIAMOND CASE. Mr; Riddell, S.M., delivered judgment in the case of -Margaret Rebecca Diamond v. I'rancis Diamond, in-which action -Mr. C. It. Dix had appeared for the plaintiff and Jlr. J. J. M'Gvath for the defendant. Plaintiff's claim was for certain photographs, a brass clock, three bank pass books (or their value, ,£2 18s.), and J;10G lis., which was made up of odd sums alleged to have been either lent or paid on behalf of the defendant by the plaintiff between a date prior to 190G and March. 1912. Tho parties were husband and wife, but at the time of the action were living apart. Their marriage took place in February, IUO7, and they lived together till their separation this year. The wife carried on boardinghouso businesses, and the husband was a contractor. His Worship said that ho was inclined to think that if the parties had not separated the claim for the money would never have been made. He doubted if, under the circumstances; and considering the iclationship of the parties, 1 he plaintiff had made out her case. Plaintiff was nonsuited respecting her claim for monies lent. Ilis -Worship held that plaintiff was entitled to recover tho photographs and two of tho bank books. CARPENTER'S WAGES. Several. weeks ago; in the Magistrate's Court, tho Inspector of Awards proceeded against W. Lawson, builder, of J'almerston North. The action was one alleging failure to pay the award rate of wages to a carpenter named Herbert Greer; and, also, with failing to give preference to unionists by employing Greer, who was a non-unionist. Besides the action against tho employer, Greer was also charged with failing to claim award rates. The case was heard before Dr. M'Arthur, S.M. The Wellington award rate is Is. 4!d. per hour, and the "Wellington district" embraces all territory within a radius of 25 miles from tho To Aro Post Office. Lawson had been engaged in building a place near Wellington, where tho award rato is Is. -4-ld., and Greer had been working for him there, and had received Is. Oil., which is the country rate. Mr. D. Carmody represented the Department at the hearing, Mr. A. Gray appeared for Lawson, and Mr. J. J. M'Orat'h for Greer. At the hearing tho question arose as to whether e.u employer carrying on business in, say, l'almerston North, is, or is not, bound by tho Wellington award when ho is doing work within the radius to which that award relates. Mr. Gray had, on that occasion, nsked his Worship what ho termed a man's "place of business." Ilis Worship's reply had been: "Where ho has his business promises, or his place of residence." ilr. Carmody had then said that a man's place cf business was where he was actually carrying on his business; otherwise it would be competent for a builder lo rcmovo his ''place of business' outside the 25 miles radius and pay whatever rale of wages he liked. Dr. M'Arthur gave his decision yesterday. He held that as the work done by Greer had been done at: Titalii Day, which was \vjfhin 2.") miles of the To Aro IVt Otlice, the town award applied. Thi« decision was bn-od on a judgment delivered by .Midge Sim. Laiv.-on \m* fined -£'2. and Greer X'l. IJNIi.SI/AL CLAIM. Mrs. Ulilli.im. a machinist at tho

D.1.C., claimod JJ3 from Frank Shaw, chemist, as tho amount of damago done to a mackintosh. J V Niudmarsh represented plaintiff, and Mr. E. J. Fitzgibbon tlio defendant. Mr. Hindmarsh said that tho plaintiff had gono to defendant's shop during a sale winch followed a fire, and had made somo purchases. On leaving tho shop, sho had noticed the marks of some stuff ? n tl 1 , m;lc kintosh. She had returned to the shop that evening, and shown the coat to a young man who was in attendance there, and lie had said that something dripping from the roof had caused the damage, and that several other people had had garments soiled there in the same way. Subsequently, plaintiff had seen Shaw, ami 110 had sent the coat to a man for it to be repaired, but the mail Iliad been unable to effect repairs. A remarkable thing was that Shaw had assumed liability at first, but now rejected it. 1 for the defendant was given ™ 'hp effect that a fire had occurred on tho floor abovo that in which the sale was held, and that water had dripped through into tho shop, but that no other liqiud hnd dropped through. His A\ orship decided in favour of the plaintiff. Plaintiff, he said, was certainly entitled to recover somothing; tho onlv question was how much. Tho coat had cost £1), and had lieen worn for nine months. He fixed tho amount at <£2 55., with Court costs 65., and solicitor's fee, Jil Is. EMPLOYER AND MEN FINED. Richard Moffitt, builder, Miramar, was charged 011 tho information of Mr. D. Carmody (Inspector of Awards) with . seven breaches of tho Wellington Carpenters' and Joiners' Award. It. was alleged that defendant had employed men during extra hours, and had not paid them overtime rates. Mr. T. N. Holmden, who appeared for the defendant, contended that the work was country work, and that tho pay the men had received was consistent with tho award. Mr. Carmody said that the award re* quired defendant to pay Is.' 4{d. per hour plus 25 per cent, for overtime. His Worship fined Moffitt amounts totalling .£7. William Wilson, James S. Haselwood, F. Hassall, M. J. Hasler, Walter Skinner, and Edward Fogden were fined os. each for accepting less than tlio award wage. MOTOR DAMAGES WINDOW. Arthur Walling, tobacconist, Manners Street, claimed ,£l2 ss. from W. A. Palmer as damages dono through a motorcar belonging to defendant crashing into plaintiff's window. Defendant did not appear, and judgment was given for plaintiff for tho (amount claimed. Mr. G. Samuel represented the plaintiff. LOAN ALLEGED. Mrs. Maggie Newman claimed £12 from George Masters, a sum which sho said sho had lent him at his request. Mr. P. W. Jackson represented tho plaintiff, and Mr. E. It. Kirkcaldie tho defendant. j Plaintiff gavo evidence to the effcct that she had advanced tho money on April 6, 1909, and it was to bo repaid in threo months from then. Defendant had several times admitted that he owned .it, and had stated that ho would endeavour to repay it. Tho caso was then adjourned till Monday. INSURANCE CASE. The Northern Assurance Company, Ltd., proceeded against George Laban to recover £7 Is. lid., of an insurance premium alleged to bo duo by [ him. Defendant counter-claimed .£5 as commission for services which he asserted lie rendered in getting a claim on a firo insurance policy reduced. Defendant admitted plaintiffs' claim. His Worship gavo judgment for plaintiffs for tho amount which they claimed, and nonsuited the plaintiff respecting the counter-claim. His Worship said that there was 110 evidence to show that defendant h?d been engaged to perform the services'which ho said .110 Tendered. Mr. A. Fair'appeared for the plaintiff, and tho defendant conducted. his- own case. . . • ! ■ UNDEFENDED CASES. In the following cases judgment -w.u entered for the plaintiffs by default:— Greater J. D. Williams Amusement Company, Ltd., v. A. Mcecli, .£3O Gs., costs £2 145.; Public Trustco v. Fredk. Healey, .£8 55., costs .in ss. Gd., "New Zealand Times" Co., Ltd., v.' G. H. Thompson, .£2, costs 10s.; John Niool y. Eliza Clark, £1 2s. Gd., costs 55.; "New.'Zealand Times" Co., Ltd., v. Geo. Thomas, .£1 Gs. 3d., costs 155.; Jas. Owens v. W. Jenkins, <£20, costs £2 Gs.; Herbert H. Price v. Alex. Crerar, £5 12s. Gd., costs .£1 Its. Gil.; . Gear Meat Company v. Walter Cook, JCI 10s. 2d., costs 55.; E. Reynolds and Co., Ltd., v. J. Shucleton and Son, 55.. id., costs Bs.; Mrs. Moore v. 11. E. Carter, .£3 15s. Bb., costs 10s.; Harry A. do Latour v. Martin Leslie Millett, .£2 2s. Gd., costs 10s.; S. Luke and Co., Ltd., v. Thos. A. and M. T. Murphy, JJI3 35., costs XI 19s. Gd.; Ernest. Eraser Jones v. J. H. Whittaker, £a 55., costs XI 3s. Gd.; Wollorman and Co. v. Mrs. N. O'Halloran, iMO 13s. 3d., costs .£2 195.; J. B. Clarkson and Co., Ltd., v. Newton C. Fairs, .£8 155., costs Bs.

JUDGMENT SUMMONS. In tho casa of Rosenberg and Co. v. Bertie Williams Munns, n claim for ,£2 Is., defendant was ordered to -pay JJI lis. (balan'co of the amount) by May 2. . POLICE BUSINESS. ONE OF THE GREY" CASES. - (Before Mr. W. G. Riddell, S.M.) . Clara Algar.wis found guilty of having been inebriated in Tui Street on April 10. Sub-Inspector Shcehan stated the woman hod only recently been released from Pakatoa, and that since then she had been in a state of drunkenness all the time. Her family were anxious' that she should be sent back to I'akatoa. Senior-Sergeant Rutledge gave evidence that ho knew accused to bo a habitual inebriate; she could not keep away from intoxicants. Tho defendant denied that she had been in a state of drunkenness since returning to Wellington, and said that she had been canvassing for her sick boy. Sho pleaded hard for another chance. • His Worship said that there were 79 convictions against tho defendant, and that.most of thorn were for 1 either drunkenness or breach of prohibition orders. He would commit her to Roto Roa for two years. Defendant (in tears): "Oh, isn't thero any other homo I can go to." She was taken from tho Court weeping. SENT TO HOSPITAL. A chargo against Maggie M'Neil of drunkenness was called on. Defendant did not appear, and Sub-Inspector Sheelian stated that sho was in an unfit state to como before the Court. A doctor had advised that M'Neil should bo sent to tho hospital. His Worship remanded defendant for a week's treatment in the hospital. SHIP DESERTION. Charles Nelson was sentenced to one month's imprisonment for deserting the steamer Ivia Ora." If the vessel leaves New Zealand waters before tho expiration of the term, Nelson will be placed aboard.

TERRIBLE FATE. It's a terrible Me to suffer from serious Lung Trouble. Ward it off with Dr. Sheldon's New Discovery. Price, Is. Gd. and 3s.* Miniatures r,f the Qteen and Princess Mary have just been painled by Mr, Charles Turri'll, and her Majesty li:i« given permission for Ihoin to be exhibited at the llnyal .Academy (his year. The miniature of the Queen shows her Majesty in a simple -oft green gown and wearing a collar of pearls, diamond ornament*, anil a. diamond coronet. Princess Mary was painted in a plain whilo evening die--. Little .lack Horner sat In a corner, With Woods' Great l'eppormint Cure, The little fellow was turning yellow, He'd riyspep.-ia. 1 fee! sure. By hook and crook a dose he took, And soon was smiling again; Ho had no plums, but two dirty thumb» Were seckinr mischief again.—Advt,