CIVIL ACTIONS.

Dominion, Volume 5, Issue 1514, 9 August 1912, Page 2

CIVIL ACTIONS.

!.■■..;' 'iWBIT OF PROHIBITION SOUGHT. r .'■■ CASE: " ' ''~ ', Au application.for, a writ of prohibition, ; to. preveftt u:District -Maori Land Board . ■ .from confirming a'transfcr-of certain sections '.oL Native..land, was 'heard ■ in the Supreme Court-yesicrday,::before Mr. Jus- [.: tic© Edwards. Tho plaintiff in tho acwivs • tho -Solicitor-General, while the i defendants were the Tokerau District Maori-Land Board; Charles-John Schnauer, solicitor, of . Auckland (esec'u- ■ lor of -the„will gf the, late John Olsen, land agent, Auckland); ' hrid'.Hoii l J a<iI rimu,' : abongiiial ; Nativo." The-last-named '. was jojned;as defendant yesterday when : tho hearing commenced, the other parties , conseh'ting; '.' "■;•■ • . ■ The Solicitor-General (Mr.'J. W: Sal- ' mow!) appeared -in .personi' '. ■ Sir',.'John Finflla'y; K:C.,'with'bim' Mr. IX. M. Watson, appeared for the defendant, Schnauer. . Mr. Ai,S,-Baker, ; of Auckland, appeared-'. lor, Hori Pacrimri,;but stated that,ho did : not intend to take any ncfivo part in the proceedings.■'■' The TbKoiria'ru' District Maori Land Board .was not represented. In the- statement of claim.it.was set. out thaton April 19. 1912, an application was lodged with .the. Tokerau District Maori Land Boar'd'by John Olsen'.for'cohfirma-'. tion of Ja transfer from Hori Paorimu (dated March-23, 1012) of certain sectionsof tho Ofhk'ei- Native Reserve, containing I 46 acres 24 perches.' Tho reserve was until I tho. year--1898--vested by Crown- grant (dated July 8, 1873) in certain' persons as ■ - trustees for the Native beneficial owners. On January ■ 10, ; 1808, the'Native-Land Court made several' orders ."of partition of tho reserve, purporting ' to .'• partition . tho reserve among the equitable ownors ! thereof. By one of these partition orders the land included in the transfer mentioned was allotted in severalty,to Hori Paefimu, but the order ill favour;of hinr has never been registered under .-■■ tho ■•• Land Transfer Act, ;and tho partition or- , dcrs are null "and void (the Crown alleged), so far as they • purport fo affect tho legal"fee'simplo of tho reserve., The.estate and interest Of Hori Paorimu in tho land.included in tho transfer is-an equitable .estate arid:interest "only, and is ac-cor(b'ngly;.-.itial.icna,b!e, :by.;.veason-;.of the ; provisions'of:-'Section- 210 -of/tno -NativeLand Act, 1909./...-The..transfer, is. thercforonull and void, and the Tokerau District Maori Land' Board-has no jurisdiction to confirm it. I'or these reasons the Solici- | tor-General asked: '' -•-■"•. ■ Tliat„the.,-Court. l shpuid, -issue .a- writ of prohibition directed tb"the board and the other defendants, prohibititij; all. further proceedings in the application for"'cbnfirmatifln,.. "y' r ,- '.■'. '.'. i That" the defendants ' be ordored (x> tiny . costs of tho .proceedings!' '..'..' In'the defence filed by Charies John Schnauer the material facts alleged in . the statement of claim were not disputed, ' but it fra.r denied that" tho -partition ord' ers partitioning the'land were hull and void, or that the land mentioned in the transfer was inalienable, or that the Tokerau District Maori Land Board had_ 1 no jurisdiction to confirm the . transfer." further, it was contonded .that, by the order of/the Native I,and_Court- of January 10,' 1898, Hori Paefimn became the. " owner of tho land and -.entitled—to -a- landtransfer certificate- of -title <and -to the cancellation of the , i Crown_,.gJant. as to the land comprised in flio order.- More--1 over, several of the .orders on..partitionreferred to have.'.been registered and the Crown grant cancelled 'as-to'the 'several parcels of land 'included in those orders, and it-was-the-duty of the Registrar of the Native Laud Conrt to have forwarded the partition order in favour of Hori Paorimu to the office of the District Land Registrn? etftftat; it.might'hnyo, been registered and certificate of' title issued. Cancellation of tho Crown grant would then have- followed. Even if . tho. partition orders were invalid -priori to ■ th« rei gistration of those referred . toV,'it wos contended that rraqh registration' and cancollation erfsrires to tho benefit of those./

of the orders that have not been registered (including that of Hon Paerimu) and therefore tlio validity of those orders cannot now be questioned. Tho Solicitor-General, in opening tlio said that two ouestions of law were raised by the application, viz.: Will a prohibition issue from this Court to pi-event confirmation of nn invalid instrument of alienation of Nntivo Lnnd? Did the partition order in question vest • tlio legal citato in the land in Hord ■Pacrinm? The Solicitor-General nrgued his side of the question, at some length, and Sir John Findlny followed. During tlio course of tho latter's argument, the point nroso as to whether the case should bo removed into the Court of Appeal.in view of an authority cited by Sir John Fiiidlny. Eventually tlio hearing was adjourned, Sir John Findlny to apply for a fixture after ho had conferred with his client. OLD CITY ACCIDENT. NONSUIT POINTS ARGUED. An accident that occurred in a city warehouse ovor twelve months ago was recalled in tho Supremo Court yesterday, when the Chief Justice (Sir Robert Stout) heard nrgument on nonsuit, points that had been reserved in an action for damages arising out of the accident. 'Ihe parties were Douglas George M'Girr (gi-ard-ion ad' litem. .Hon. John Rigg, M.L.C.), plaintiff, and':Pholp3, Wilson, and Co., warehousemen, of Wellington, defendants. Mr. C. P. Skerrett, K.C.," with Mr. F. P. Kelly, appeared for tho plaintiff, and Mr. T. Neave for defendants. ._ When the action came, before tho Ccurt ini-May last it; appeared that the plaintiff : (M'Girr) Was employed as an assistant packer by Phelps, Wilson, and Co. at their warehouse in Harbour Street, and, according to the • statement of. claim, was required to use a lift in the building. This lift, he alleges, was, by the negligence and default of Phelps, Wilson, and Co., constructed unsatisfactorily and was unfit to bo used for the purpose for, which M'Girr was required to use it., On June G, 1911, in obedience to ordors, M'Girr wont "to uso the lift, but, so it was alleged,'.it had been removed by tho negligence of some person employed by Phelps, Wilson, and i Co;, and without warning, with the result that M'Girr fell down the lift well and was seriously injured. -As a mult of the accident he suffered considerably, and incurred nursing and medical expanses. In respect of the accident he claimed .£l9 19s. for nursing expenses, .£25 Os. Gd. for medical attendance, .CSOO for damages, and costs of the action. ■■.-.".' On the' conclusion of the case for the plaintiff, Mr. Neave moved for a nonsuit on the following grounds:—(l) That the'evidence adduced by. plaintiffs t'isclosed no negligence on the part of the defendants, and no breach of duty on the part of. the defendants' towards plaintiff; .(2) that the plaintiff himself was guilty ,of contributory negligence in failing to ascertain the position of the cage before stepping on to what,he thought, mm tao"floor of- the cage.- "... These points were reserved by . his Honour, and Mr. Neave) subsequently .called evidence for the defence.

;•,.Tip, case;,was'heard before a jury, of twelve, but after retiring for ever four hours to consider seven issues put to them they ! failed to agree upon a verdiot. Plaintiffs counsel thon announced that tho necessary! steps would be taken to secure a new trial, while defendants' euinsel intimatod that he would ask for a fixture to argue tho nonsuit points, and as a itsult counsel for both parties appeared before the Chief Justice yesterday. .After Mr. Neave had addressed' tho Court, the argument wps adjourned until to-day, it being suggested that in the meantime the parties might arrive at a settlement..