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It might be that, as between British subjects, the High Commissioner's Court might, in deciding actions of trespass to land, apply some principles of English law, such as the right of a person in actual poseession of land to be protected in that possession as against the whole world except the true owner; but if both parties claimed to be owners of the land, then we think it would be an assumption of power on the part of that Court to decide that the natives have sold the land to either one or the other witli a view of deciding that the natives have divested themselves of the ownership, because, first, such a decision should not be made unless the native owners were first heard —parties of .the action; and, second, the question as to what is the proper method of changing the ownership of native land must be decided by native law. This now brings us to a consideration of the particular facts presented to us. 1. It appears clear to us that MoArthur had a good cause of action, and there was nothing to prevent him suing Mr. Cornwall upon the notes. The original arrangement was not to last for all time, and that a debt was originally contemplated is quite clear, and if this debt was not liquidated by produce, &c., it is to our minds equally clear that it was open to them to recover it in a competent manner. The "mortgages," as they are called, did not merge this debt; indeed, we have a difficulty in seeing that the doctrine of merger applies at all, for we are not by any means clear that the "mortgage" as it appears is a debt of any higher nature —such as a debt by deed or under seal —than the promissory notes, and ■without this element the doctrine of merger has no application. Moreover, we do not see that MeArthnrs were bound to take the land under the "mortgages." Having a "cause" of action, could they sue in the High Commissioner's Court as they have done? On this question we are not free from doubt, and this, too, notwithstanding clause 5, sub-section 1, clause 22, and clause 85 of Order in Council. The cause for our doubt is that the plaintiffs were not " within the islands residents or not." We conclude that security for costs was not applied for under clause 25, assuming that clause applied to such a case. As for the judgment, we fear that, after what has been done, it is too late to interfere with that now, and we pass on to consider the right to issue. That there was power to issue execution on a judgment in the High Commissioner's Court appears to us to be reasonably clear —see clause 269 and following clause 22 —but this is only as against the goods. There is no power to touch the land, that is, by way of selling the corpus, changing the ownership, giving the title to it whether by possession or otherwise. To do this, special power and machinery must be provided, in New Zealand and some other Colonies this power is given to a plaintiff who has obtained judgment, but, like the Acts and Order of Council before referred to, such a power is the creature of modern times and of special and unusual legislation. Assuming clause 22 supplies all the machinery and procedure "which is not specially provided for by the Order of Council, then the only course available (if available at all) to a plaintiff to enable him to touch defendant's lands is by a writ of elegit; and even if that course was pursued, the question of ownership "of native" lands (for all are native lands) must arise, and we fail to see at present that elegit would apply to such land. We do not see any objection to " seizing " the defendant's interest, whatever that may have been, in the lands, for in doing this nothing is decided, and something or nothing may be sold, as the case may be. In such a case nothing is guaranteed, and all is at the risk of the purchaser, who must get possession as best he can, and fight the question of ownership and title with those who think fit to contest it with him. As against the native owners of the soil such a sale would be nugatory for the reasons before given. They not being amenable to English laws, to executions, entries by Sheriffs, and such like, their acts in resisting a purchaser or Sheriff must be judged of and determined by the native laws and tribunals. We think it is quite clear there is no power to sell the corpus of the land, and therefore that it has not been sold; and it rests with the natives to assert their rights thereto according to their own laws. As to the other lands, we are told they were " settled "on the native woman. If so, then they were not the defendant's to sell; and, if his interest therein only is sold, the same consequences will follow as before mentioned. As to entering upon the plantations, &c, of this woman, this must be resisted or otherwise as the natives choose. What we have previously Btated as to the native rights will apply to this part of the subject. Native laws must settle the question, and we have not discussed that she has the power to appeal to the English tribunals for damages. As to Mr. Cornwall's right to sue in New Zealand, and his prospect of success, we can hold out no substantial prospect of success. If he sued for damages for maliciously and wrongfully suing him in the High Commissioner's Court, then he would fail, for they had grounds for suing, and therefore it "was not wrongful and malicious. If he also claims damages for entering the lands and selling produce, they would justify this as being the act of the Sheriff to carry out the execution ; and as to the " settled " lands he would have no cause of action, those lands not being his. 18th October, 1882. Hesketh and Richmond. Still further to be assured of my being unable to obtain redress from the New Zealand law Courts, I appealed to Messrs. Dignan and Armstrong, who advised me as follows :— With reference to the matters submitted to us for our opinion, we beg to say we have given them very careful attention, and with the following result: — The first question on which you ask our advice is, whether the judgment given by the Deputy-Commissioner at Samoa, in the action W. McArthur and Co. against yourself, was sound in law, and whether you could reopen the judgment here, your contention being that such action was not maintainable upon the promissory notes given by you, upon the grounds—■ (a) that the notes were given for the plaintiffs' accommodation ; and (b) that the promissory notes were merged in the various mortgages referred to in the case for opinion. The judgment of the Deputy-Commissioner above referred to was afterwards affirmed on appeal by the Supreme Court of Fiji, which at the same time cancelled the mortgages given by you. To this question we reply that we think the judgment sustainable, but, whether sound or not, we feel certain that the Courts of New Zealand have no power to reverse it, nor would they be likely to reverse it in any way. Your next question was, whether the subsequent proceedings in the action, including the seizure and sale by the Sheriff of certain lands, were illegal; and whether, in the event of our holding the sale illegal, you could sue Messrs. W. McArthur and Co., the plaintiffs in the action, for damages in our Supreme Court. Our reply is that, except as to the crops and produce of the land, and any movable plant or building, the sale by the Sheriff is, in our opinion, a nullity, and that your ownership of the corpus of the land is not affected in law by such sale; and, after a careful examination of the Order in Council, we fail to see how, such so-called sale having taken place, the Sheriff (were such ever appointed) could make any conveyance of such lands, the Order providing no power or machinery for the purpose. That the Sheriff and all persons acting under him would be liable for any trespass or wrongful act in excess of the authority given by the warrant of distress. That, although such illegal seizure and so-called sale of the corpus of the land were done for the benefit, and presumably under the direction and with the sanction, of the plaintiffs, who themselves became the purchasers, and that therefore they might be liable with the Sheriff, we cannot advise you to bring an action against them in New Zealand, as we do not think the Supreme Court here would undertake to say whether such acts were justifiable or not according to Samoan custom and ÜBage, by which custom and usages the legality of the acts themselves would have to be tested. As to the lands settled upon the Samoan woman and her children, which were at the same time seized and sold by the plaintiffs, our former remarks apply, that the land could not be sold, and therefore was not sold ; but, the lands being in Samoa, we do not think she could sue Messrs. W. McArthur and Co. in our Courts of law in New Zealand for any loss or damage she may have sustained. As to your next question, what steps could Manaema take to eject Messrs. W. McArthur and Co. from the lands settled upon her, we can only again say that, although we consider Messrs. W. McArthur and Co. in unlawful possession, we are of the opinion that the Courts here can afford you no relief, upon the ground that our Courts cannot give a decision upon what seems to us to be purely a question relating to Samoan lands. That as to the " wrongful and improper conduct of Messrs. W. McArthur and Co.'s agent at Samoa," so long as the same was distinguishable from the question of title, we are of opinion that redress can be had here against Messrs. W. McArthur and Co., provided you could prove that such agent had their authority or instruction to do what he did, or a subsequent ratification by them of his acts, but not otherwise.

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