COURT OF APPEAL.

Daily Telegraph (Napier), Issue 4168, 29 November 1884, Page 3

COURT OF APPEAL.

Wednesdax, November 26. 'Before their Honors tho Acting Chief

Justice and Mr Justice Williams. f. sutton (appellant) v. j. siieehan (respondent.) This was an appeal against a decision of Mr Justico Richmond, given in Wellington on the 11th June last. It will be recollected that the main question involved was whether a reference made by the Supreme Court to the Native Lands Court constituted under- tho Act of 1573 could be entertained aud adjudicated ou by the Native Lands Court constituted under the Act of 1880, tho judgment affirming that it could. Mr Edwards, for the appellant: For the purpose of the argument it is admitted that the judgment appealed against was right in saying that by virtue of sub-section 2 of section 16 of the Interpretation Act, 1878, sections 7 and 8 of tho Nativo Succession Act, 1876, were to be read as if they referred to the court constituted under tho Native Lands Act, 1880, as soon as that Act was passed ; but to enablo the res- | pondent to make use of that provision ho must make out that the court referred the matter undor the Act of ISBO, or that the new court had power to carry on the proceedings in the old court. He might have applied for a fresh order of reference to the court, but ho did not do so. Subsections 7, 8, and 9 of section 10 of the Interpretation Act, 1878, wore passed to enable an abolished e;onrt to complete pending proceedings unless the new court had been given jurisdiction over such proceedings. If the proceeding was pending the abolished court had power to carry it on, but that section has bfen interpreted by the court below in an inverse sense. But it is not clear that the Court established under the Native Lands Court Act, 1873, is abolished. Sub-section 2 of section 16 of the Interpretation Act docs not apply to future proceedings, and docs not apply to orders made by the Court under repealed enactments, but only to the enactments themselves.

Mr Travers, for tho respondent: The Court, under the Act of ISSO, had power to carry on the proceedings instituted in the Court undor the Act of 1873. Wilson v. Wilson (49 L.T.R. 430.) If the Court, as admitted, has power to repeal under the Act of 18S0, the judgment of tho Court below amounted to such a reference. (Mr Justice Williams—The reference can only be as to native lands.) The reference was not to enquire into tho shares of the natives under the Crown grant, but into their shares before the issue of tho grant while the land was still native land. The Native Land Court of 1880 has power to go into such a question. Douglas v. Sutton (N.Z. L.R.,■_ C. A. 309). Mr Izard, who appeared on the samo side, did not address tho Court. Mr Edwards, in reply : The cases' cited, are distinguishable. The Supreme Court cannot refer it to the Native Lands Court to ascertain the interests of natives in Crown "•ranted' land. Thompson v. Handley (N.Z. L.R., 1 S.C. 158). It was also held that there could bo no reference under the Nativo-Rights Ae-t, 1865, and it was in conseepiencc of this-that the sections 7 und wero inserted in the Act of 1876.

Judgment was reserved. —N.Z. Times. _ [By a telegram in another column it will

be seen thlitludgmeptms been giveffin the case of Sheehan-'-vr Sutton/ upholding the jUdgment.of Judge .Richmond.] .