SUPREME COURT-IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5433, 26 August 1878, Page 3

SUPREME COURT-IN BANCO.

KAWATINX AND OTHERS V._ KINROSS AND BURNETT. His Honor Mr. Justice Richmond delivered judgment in the above case on Wednesday last as follows : In this case the two defendants have pleaded separately, and the plaintiffs have demurred to the second plea of each defendant. The pleas demurred to may be treated for the purposes of the present judgment as substantially identical. The first objection is that the plea does not allege that the person who interpreted the deed of lease of 16th August, 1870, made a statutory declaration in accordance with the 74th section of the Native Lands Act, 1865, that his interpretation was correct. The case was elaborately argued, and many authorities were cited in support of the objection. Tt .appears to me that the question turns wholly upon the construction of the statutory provisions on the subject. The 74th section of the Native Lands Act, 1865, has been partially repealed by section 32 of the Native Lands Act, 1867. The former statute required that conveyances by natives of land granted under the Act should be attested by a Judge or justice of the peace, and should have written thereon or annexed thereto a statutory declaration by the interpreter that his translation was correct, and was understood by the, native conveying. The Act of 1867 reciting these provisions, enacts that “ it shall be sufficient if the execution of any such conveyance or other disposition be made in the presence of and attested by the interpreter and any other person being a male adult;” and then it goes on to provide, “and in any such case the interpreter shall make oath as in the said 74th section is provided,—{no oath, however, being mentioned by the 74 th section) —“ within three months after the execution of such conveyance, or other disposition, before some Judge of the Native Lands Court, or some justice of the peace. Now, under the 74th section of the Act of 1805, it might certainly have been contended that the writing on, or annexation to, the deeds of the interpreter's declaration was made necessary to the validity of the instrument. This requirement is coupled with the requirement that the deed shall bo attested by a Judge or justice, and both are things which if done must on the face of the instrument appear to have been done. But by the 32nd section of the amending Act both these requirements aro abolished, and the new provision, as I read it, substitutes only one such requirement in the place of them, namely, that the conveyance shall be attested by the Interpreter and a male adult. The 32nd section says that “shall be sufficient”— sufficient, that is, to the validity of the deed. What follows is, it seems to me, purposely disconnected, so as not to be made necessary to the validity of the conveyance. The plaintiffs desire to read tho section as adding a further condition. Had this been intended the language would have run on without a break, so that tho section would read—lt shall bo sufficient if the execution shall be attested, &0., “ and if the interpreter shall make oath.” It is plain to me I cannot adopt such a construction, entailing as it does inconvenience which it seems to me to have been the very purpose of tho Legislature, by this alteration, to avoid. I asked counsel what was to happen if tho interpreter died within tho three months without having made tho declaration ? It was answered that tho conveyance would bo avoided, and it was admitted that upon tho -plaintiffs' construction the only safe course for a purchaser would be to got the declaration made instantor, so doing away with all possible benefit from tho allowance of a term ,of three mouths. Tho plaintiffs’ construction has also the great inconvenience of delaying the vesting of the estate, or at least its absolute vesting, until the interpreter has made his declaration; nor (on the same construction) is any provision made for conclusive proof of tho performance of tho condition, so that the title can never be certain. It is tho duty of tho Court to avoid, if possible, a construction which leads to difficulties of such a nature. It is said by Baron Parke, in Gwynne v. Burnell, in tho Exchequer Chamber, 2 Bing., N.C. 30, that “it is by no moans an impediment to construing a clause to bo directory - that if it is so construed, there is no remedy : for* non-compliance with the direction.”" I • might content myself with this as a sufficient answer to tho argument used on behalf of (he, plaintiffs that unless tho consequence beheld void for want of tho interpreter’s declaration, tho concluding, provision of section 32 is a law without a sanction. But it is not tho fact that there is no other security for tho observance of the statute, Interpreters are fowled by Government, and an interpreter’s

license ought to bo withdrawn for the orai-sion to make a statutory declaration, if wilful ; and, farther, tho absence of the declaration would form a serious blot upon title as raising doubts respecting the bona fidesof tho transaction, so that tho self-interest of purchasers may be trusted to secure that the declaration will, unions prevented by inevitable accident, be in all cases made. The second objection argued was that the deed of 16th August, 1870, was meant to operate not only as lease but as a mortgage. The condition of the Crown grant to the lessors is subject to a proviso that the land granted shall bo inalienable by sale, or by lease, for a longer period than twenty-one years from the making of any such lease, or by mortgage, except with the consent of tho Governor previously obtained. The deed is in tho ordinary form of a lease, save that it recites that the lessors had agreed in consideration of largo advance? made to them by tho defen* dants to pay interest on such advances at the rate of ten cent, per annum, and to allow the rent to remain in the hands «>f the defendants until repayment of , such advances. And the last provision of the deed is a covenant by the lessors with the defendant Burnett (the sole lessee) “to repay tho advance made by him to them, amounting, as at Ist Juno last, to £795 IDs. 3d., with interest thereon at the rate of ten per cent, per annum, and authorise him (sic), should he t° p a PPty the rents hereby secured (sic) in liquidation “thereof.” The transaction to which this covenant gives effect is called a mortgage by the plaintiffs, and I think properly called. Tt effects a charge upon the rent during the whole terra of tho lease. On the part of the plaintiff it is contended that it is illegal and vitiates tho entire instrument. Upon this argument I have in the first place to observe that the transaction attempted is not in the proper sense illegal. There is a well-known distinction between what is illegal, as being prohibited under a penalty, and what is merely void—Fitch v. Jones, 21 LJ., Q. 8., 293. Here tho transaction belongs to the latter class. Then the general principle is that if any clause void by statute or at common law be mixed up with good matter which is entirely independent of it, the good part stands, and the rest is void. Here it is clear that the lease and tho mortgage are perfectly separable transactions upon distinct considerations, so that the invalidity of tho latter (if it bo invalid) does not involve the invalidity of the former. PigoM/s case, 11 Rep. 276 ; Gaskell v. King 11 East 165 ; Doe v. Pitcher, 6 Taunton, 359 ; Wigg v. Shuttle*, worth, 13 East,B7 ; and the judgment of Willes J. in Pickering v. Ilfracombe Railway Company, L.R., 3 C.P., 210. For these reasons the demurrers must be over-ruled, with costs.