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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Native Land Court. [Kaitorete]

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Native Land Court. [Kaitorete]

Christchurch, 5th, May 1868.

F. D. Fenton, Esq., chief judge; and Henare Pukuatua, Arawa Chief Native Assessor.

Claim of Heremaia Mautai and Others to Kaitorete.

This is an application to the Court for a certificate of the title of Heremaia Mautai and others to the strip of land situate between Lake Ellesmere and the sea, on the ground that they inherited it from their ancestors, and never sold it to the Crown or abandoned the possession. The Crown, on the other hand, put in a deed of conveyance with a plan annexed, signed by a large number of the Ngaitahu tribe, of which the claimants are members, purporting to convey to Mr. Wakefield, Agent to the New Zealand Company, a large tract of country, including the peninsula in dispute; also produces a receipt for money, signed by the claimant and others, which receipt expresses that the money was paid on account of the transfer of land described in a plan. It is objected by the claimants that the deed of conveyance, being to Mr. Wakefield and not to Her Majesty, is invalid and totally without effect under the 13th cap. of the Royal Instructions of 1846, and the receipt by itself will not be sufficient as a memo. in writing signed by the party to be charged therewith, to take the transaction out of the Statute of Frauds, and that, therefore, the native title has never been extinguished, and the Court has jurisdiction over the land claimed which it ought to exercise in favour of the claimants.

The case is one of vast importance, immediately concerning the title of the Crown to nearly the whole of this and other provinces, and raises points of a difficult and conflicting character. And the Court feels that it is scarcely a fit tribunal for the determination of such important legal principles, and such great constitutional questions. But, as a decision must be arrived at, the Court will endeavour so to express its opinion that no doubt can exist as to the grounds of it, and a subsequent application to the Superior Court to reverse the judgment and quash it, if wrong, may be made without any difficulty.

The value and effect of the deed of conveyance to Mr. Wakefield, which has been called the Ngaitahu deed, must be first enquired into.

And before this can be done it will be necessary to enquire into the character given by the legislation of the Imperial Parliament, and page 32the Parliament of this Colony to the Waste Lands thereof, and to the rights of the aboriginal inhabitants therein.

The views of the Imperial Parliament and of the Crown appear to have constantly varied with respect to the nature and extent of the rights and interests possessed by the aborigines in the wild land of New Zealand. At first the Maoris were regarded by the Crown as an independent and organised state, capable of forming a treaty; and a treaty was formed with them on the 16th February, 1840, by which they obtained ' all the rights and privileges of British subjects," and a confirmation and guarantee of "the full, exclusive and undisturbed possession of the lands and estates, forests, fisheries, and other properties which they collectively possessed, so long as they wished and desired to retain the same in possession," and they yielded to the Crown right of pre-emption "over such lands as they might be disposed to alienate," and ceded as well all rights and powers of sovereignty possessed by themselves over their respective territories as sole sovereigns thereof."

The question as to the nature of the rights of the chiefs or the amount of territory over which they extended was not dealt with in this compact. Although there is no doubt that the conditions laid down by Vattel and other writers on international law as necessary to constitute a regular treaty, were not fulfilled in the treaty of Waitangi, yet as it has been acted upon for many years as of sufficient validity, and constitutes in fact the foundation on which the English sovereignty in the Northern Island has been built up, and is now sustained, it must be accepted as a valid treaty, forming part of the law, and it is necessary to enquire what is the interpretation that has been, and is put, by the Crown on it as affecting its own territorial rights and those of the natives.

The Charter of 1840, erecting the colony of New Zealand, empowers the Governor to make and execute in Her Majesty's name and on her behalf, under the public seal of the colony, grants of waste lands to her belonging within the same, "and provides that those Letters Patent should not affect the rights of any Aboriginal natives of the colony, to the actual occupation or enjoyment in their own persons of the lands now actually occupied or enjoyed by such natives."

The idea here seems to have been that the Governor might grant all lands except those actually occupied by natives, and in accordance with this view he was instructed by the Crown in the same year, "to cause a survey to be made of all the land within the colony, and to divide and apportion the whole of the said colony into counties." And Her Majesty declared "it to be her will and pleasure that all the waste and unclaimed lands within the colony belonging to and vested in Her Majesty, which should remain (after making certain reserves) should be sold and disposed of." At this time, then, all the waste lands were held to be in the Crown, with the exception of such land as might be reserved for the uses and in manner specified, and such lands as were actually used by natives.

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A statute of 1841 passed by the Government and Legislative Council, called the "Land Claims Ordinance, No. 1," goes further, and if the language of the legislature in future years had been as clear and had remained the same, this case would never have come before the Court, nor indeed would the Court have had any existence. The second section says, "it is declared, enacted, and ordained that all unappropriated lands within the said colony of New Zealand, subject, however, to the rightful and necessary occupation, and use thereof by the Aboriginal inhabitants of the said colony, are, and remain Crown or domain lands of her Majesty, her heirs, and successsors, and that the sole and absolute right of pre-emption from the said Aboriginal inhabitants, vests in and can only be exercised by her said Majesty, her heirs, and successors, and that all titles to lands in the said colony of New Zealand, which are held or claimed by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, leases, or pretended leases, agreements, or other titles, either immediately, or immediately from the chiefs, or other individuals, or individual of the Aboriginal tribes inhabiting the said colony, and which are not or may not hereafter be allowed by her Majesty, her heirs, and successors, are, and the same shall be absolutely null and void.

Under this statute the whole land of the colony became demesne of the Crown subject to certain or rather uncertain rights in the Maories.

The Royal instructions of 1846, direct that such parts of the island of New Zealand as were or should be owned or lawfully occupied by persons of European birth or origin, should be divided into municipal districts; and with reference to "waste lands of the Crown," provided that charts of the New Zealand islands should be prepared, and especially charts "of all those parts of the said islands over which either the aboriginal natives or the settlers of European birth and origin had established any valid titles, whether of property or occupancy," and natives, either as tribes or as individuals, claiming a property or possessing title, were to send in claims and have them registered, and all lands not so claimed or registered should be considered as vested in Her Majesty, and constituting her demesne lands in right of her Crown within the New Zealand islands; and finally all doubt is removed by the provision that no native claim should be recognised except for "land occupied or used by means of labour expended thereon."

And the 13th chapter contains the following provision, "the conveyance or agreement for the conveyance of any of the lands of or belonging to any of the aboriginal natives, in common as tribes or communities, whether in perpetuity or for any definite period, whether absolutely or conditionally, whether in property, or by way of lease, or occupancy which may be henceforth made, shall not be of any validity or effect, unless the same be so made to or entered into with us our heirs and successors."

The character attached by the English authorities to the wild page 34lands of the colony up to this period, seems to resemble very much that of the folcland or public land of the Saxons; and the above instructions appear to have provided for the conversion of this folcland into bocland or land of inheritance, the resemblance being continued in the process. All lands not appropriated were to be considered as demesne lands of the Crown, or Crown lands, (for the two phrases appear to mean the same thing.) Allen, in his inquiry into the Royal Prerogative on this subject says:—"From these appropriations of the public lands to the King as representative of the State, the word folcland fell into disuse, and gave place to the term of terra regis or Crown land. Antiquaries inattentive to this change of language have bewildered themselves among copy-holds and commons in search of the folcland of their ancestors."

The view thus taken by the Imperial Government of the respective rights of the Crown, and of its aboriginal subjects in the territory of the colony, is clear and distinct; but it was objected to by the natives, and was never carried into practice, and in fact could not have been in a peaceful manner.

By the 10 and 11 Vic., c. 112, the several provisions relating to the settlement of the waste lands of the Crown contained in 13th chapter of the said instructions, of 1846, except such as relate to the registration of titles to land, the means of ascertaining the demesne lands of the Crown, the claims of the aboriginal inhabitants to land, and the restrictions on the conveyance of lands belonging to natives, unless to Her Majesty, were suspended in New Minister.

The proceeds of land sales were, amongst other things, to be applied in and about the compensation to be made to the aboriginal inhabitants of New Zealand for the purchase or satisfaction of their claims, right, or interest in the said demesne lands.

14 and 15 Vic., chap. 84, empowers Her Majesty to make, or to authorise the Governor to make, regulations for the disposal of the demesne lands of the Crown in Wellington, New Plymouth, and Nelson.

It thus appears that a gradual change took place in the interpretation put by the English authorities on. the territorial rights of the aborigines, between the years 1846 and 1851; and the Constitution Act clearly contemplates the practical exclusion of land, in which the native interest is still unextinguished, from the category of "Waste Lands." Thus from being considered as the demesne lands of Her Majesty in right of her Crown, subject or not to a certain payment to be made, the unoccupied territory of the colony, in the hands of the aborigines, came to be regarded as their distinct and admitted property, but inalienable to any person other than the Crown. The slight variation of this latter limitation made in after times by the Native Land Act, 1867, need not here be noticed.

At the time of the execution of the Ngaitahu deed the provision in the 13th cap. of the Royal instructions was in full force, as well as the previously cited enactment in the Land Claims Ordinance of 1841. And in addition to those laws which rendered conveyances of page 35native land to any person except her Majesty invalid, the Native Land Purchase Ordinance made them absolutely illegal, and attached heavy penalties to persons taking possession of lands or acting under them. But this Ordinance was repealed by the Natives Land Act, 1865, and it will not be necessary again to refer to it.

The Ordinance of 1841. and the 15th cap. of the Royal Instructions, render it difficult to find any grounds on which the Ngaitahu deed can be held as valid at the date of its execution, as creating a title in the purchaser. And it is the opinion of the Court that at that time it had no force to operate as a conveyance of the land referred to therein, to the person and in the manner therein expressed.

And here, before going further, it will be necessary to glance at the events which had been taking place all this time, and which have since taken place affecting the block of land in which this claim is situate. By letters patent, dated the twelfth day of February in the fourth year of the reign of Her Majesty, certain persons therein named were constituted a Body Corporate, with perpetual succession and a common seal, by the name of "The New Zealand Company," for the purpose of purchasing, acquiring, and alienating lands within Her Majesty's colony of New Zealand and its dependencies, and for other purposes therein set forth. And Her Majesty on the twenty-third day of December, one thousand eight hundred and forty-six, issued instructions accompanying the New Zealand charter of the same date, and providing amongst other things in the thirteenth chapter thereof for the settlement of the waste lands of the crown in the said colony of New Zealand, and on the twenty-seventh day of January, one thousand eight hundred and forty-nine, issued certain additional instructions in relation to the said lands containing amongst other provisions the provision before quoted avoiding conveyances to private purchasers from natives. By 10 and 11 Vic. entitled "An Act to promote colonization in New Zealand, and to authorize a loan to the New Zealand Company," after enacting that the provisions relating to the settlement of the waste lands of the crown, contained in the thirteenth chapter of the said instructions, with the exceptions therein mentioned, should be suspended, and of no force and effect within the province of New Munster, until the fifth day of July, in the year one thousand eight hundred and fifty, and during such further time as should be directed by Parliament, and that all the demesne lands of the Crown in the said province of New Munster, and all the estate and right of Her Majesty therein or power and authority over the same or any part thereof should from and immediately after the passing of the said Act, and during the suspension of the said instructions, be absolutely and entirely vested in the said New Zealand Company in trust to sell or otherwise dispose of the same as therein mentioned, it was enacted that if the directors of the said company should give notice to one of Her Majesty's Principal Secretaries of State within three calendar months next after the said fifth day of April, one thousand eight hundred and fifty, by any instrument under the seal of the company, that they were ready to page 36surrender the charters of the company to Her Majesty, all claim and title to the lands granted or awarded to them in the colony, all the powers and privileges of the company (except as therein provided) should cease and determine, and all the lands, tenements, and hereditaments of the company in the colony should thereupon revert to and become vested in Her Majesty as part of the demesne lands of the Crown in New Zealand, subject nevertheless to any contracts which should be then subsisting in regard to any of the said lands, and upon certain other conditions therein provided. By Letters Patent dated the 13th November in the 13th year of Her Majesty, certain persons therein named were constituted a Body Corporate with perpetual succession and a Common Seal, by the name of "The Canterbury Association" for founding a settlement in New Zealand and were empowered to purchase, hold, and alienate lands in the said colony of New Zealand and its dependencies: And by an agreement dated the First day of December One thousand eight hundred and forty-nine between the "Canterbury Association and the New Zealand Company, the New Zealand Company agreed to reserve as the site of the Canterbury settlement therein mentioned, and to place at the sole disposal of the Canterbury Association the lands described in a Schedule annexed to the Act 13 and 14 Vic. cap. 70 (hereafter quoted) during the term of ten years from the date thereof, subject to the payment by the Association of such sums of money and the performance of such conditions as were therein mentioned.

The directors of the New Zealand Company gave notice in pursuance of the said Act, of their being ready to surrender the charters of the company, and all the lands, tenements, and hereditaments of the company in the said colony, including those described in the said schedule, thereupon reverted to, and became vested in Her Majesty as part of the demesne lands of the Crown in New Zealand, subject nevertheless to any contracts then subsisting in regard to any of the said lands, and to certain other conditions therein mentioned.

And the before-mentioned Imperial Act of 13 and 14 Vic. cap. 70, enacts—

That neither the thirteenth chapter of the said instructions, dated 23rd December, 1846, nor the said additional instructions of the 27th January, 1849, shall thenceforth apply to the lands described in the schedule annexed to the Act during the period thereinafter provided. The schedule is as follows;—

"All that tract of waste and unappropriated land formerly in the possession of the New Zealand company, situated in the Middle Island of New Zealand, being bounded by the snowy range of hills from Double Corner of the river Ashburton; by the river Ashburton, from the snowy hills to the sea; and by the sea from the mouth of the river Ashburton to Double Corner, and estimated to contain 2,500,000 acres, more or less, with certain exceptions therein mentioned, not comprising any native lands, or referring to any rights of natives."

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Another Act was passed by the Imperial Parliament, in the following year (14 and 15 Vic. cap. 84), making further provision for the lands of the Canterbury Association, and by the Constitution Act the Association was empowered to transfer their power to the Provincial Council of Canterbury. It is remarkable that no mention was made here of Superintendent, and how a Council which has no corporate existence could take and exercise their powers without the Superintendent, who is part of the legislature of the province, it is difficult to understand. But, however this may be, by sundry instruments, and ultimately by an Ordinance of the Provincial Legislature, the power was exercised, whether legally or effectually it does not concern the decision of the question before the Court to determine.

It appears then that of the two written laws on which Mr. Cowlishaw relies for avoiding the Ngaitahu deed, two are now repealed, and there only remains the provision before quoted in the Laud Claims Ordinance, 1841. The provision in the Constitution Act is not retrospective.

Now, it has been long established that when an Act of Parliament is repealed, it must be considered (except as to the transactions passed and closed) as if it never had existed (Surtees v. Ellison, 9 B., and C, 752). "We are to look," said Lord Tenterden, "at the Stat. 6, Geo. 4, c. 16, (which repealed all previous acts), as if it were the first that had ever been passed on the subject of bankruptcy; so in a criminal case (Rex. v. Mackenzie, P. and R., C.C. 429) where an Act from its passing, repealed a former Act which ousted clergy for a certain offence, and imposed a new penalty on the same offence from and after its passing, it was held that an offence committed before the passing of the new Act, but not tried till after, was not liable to be punished under either of the Statutes, (Dwarris). Mr. Cowlishawadmits this general principle of law, but says that the Ngaitahu transaction was a transaction passed and closed. But the evidence does not sustain this position—on the contrary, we find the agent of the Crown who had adopted the contract, coming down and making first a payment of £500, and then at a subsequent period a further payment of £1000, both being part of the original purchase money of £2,000. And indeed, the learned counsel himself has urged upon the Court the clause reserving the pahs, food places, and residences of the natives, and has asked the Court to remember that this provision, has not, even to the present day, been satisfactorily carried out. The Court inclines to the opinion that these repealed laws cannot now be referred to, but must be regarded, in Lord Tenterden's words, "as if they had never existed." But I do not think it necessary to give a decided opinion on this point, for the Land Claims Ordinance, 1841 still remains, and the judgment of the Court will go on different grounds, so that the point is not one of much importance.

Whatever may be the legislative meaning of the phrase "unappropriated lands," used in the Land Claims Ordinance, 1841, the Court is clearly of opinion that the Ngaitahu deed did not vest any estate in Mr Wakefield or the New Zealand Company, As far as page 38these purchasers were concerned the deed was, in the judgment of the Court, invalid. But I am strongly inclined to think that by the common law of the empire, that deed did suffice to extinguish the title of the tribe Ngaitahu, in the lands described therein, and that the principle Of the law is, that no private person may acquire land in such a manner for himself, and that if he makes the attempt, as Mr Wakefield did, he will, if the transaction is fair, extinguish the native title, but will gain nothing for himself, and only give a title to the Crown. It is remarkable that in the Land Claims Ordinance the rights of Her Majesty are expressly saved, so that the common law would not be interfered with by this statute, which is in fact in affirmance of the common law. I give this opinion with great reluctance, for I am aware that this question was argued before the Supreme Court in the case of the Queen v. McIntosh, and I am very diffident in expressing my mind on the matter, when I know that the Gazette contains the decision of Chief Justice Martin and Mr. Justice Chapman, delivered with much elaboration, after hearing the arguments of the Attorney-General, and the eldest member of the bar in New Zealand (Mr. Bartley), on the other side. That judgment is not accessible here, and I will merely add that though the opinion of the Court now given, if correct, would render further reasons unnecessary, I must now proceed to show other reasons why in the judgment of the Court the case must still go for the Crown, without relying on the effect thus attributed to the Ngaitahu deed.

There is abundant evidence of the existence of a parol agreement by the Ngaitahu tribe, or the majority of them, to sell the block of land to Mr. Wakefield. It is also clear that this contract was adopted by the Crown, and acted upon as its own. Mr. Mantell partially reduced this contract to writing by making the memorandum of the receipt of the £500 in part payment of the purchase-money of land described in a plan annexed. Now the maxim is—Omnis ratihabitio retrotrahitur et mandato priori æquiparatur. A subsequent ratification has a retrospective effect, and is equivalent to a prior command. "The doctrine Omnis ratihabitio retrotrahitur et mandato æquiparatur is one remarks the Court of Exchequer in a modern case (Bird v. Brown, 4 Exc: 798), intelligent in principle, and easy in its application, when applied to cases of contract. If A, unauthorised by me, makes a contract on my behalf with B, which I afterwards recognise and adopt, there is no difficulty in dealing with it, as having been originally made by authority. B entered into the contract on the understanding that he was dealing with me, and when I afterwards agreed to admit that such was the case B is precisely in the condition in which he meant to be; or if he did not believe A to be acting for me, his condition is not altered by my adoption of the agency, for he may sue A as principal at his option, and has the same equities against me, if I sue, which he would have had against A."

"But the authorities go much further, and show that in some cases, where an act which, if unauthorised, would amount to a page 39trespass as done in the name and on behalf of another, but without previous authority, the subsequent ratification may enable the party on whose behalf the act was done to take advantage of it, and to treat it as having been done by his direction. But this doctrine must be taken with the qualification that the act of ratification must take place at a time and under circumstances when the ratifying party might himself have lawfully done the act which he ratifies."

Such being the law as between private individuals, the question arose in Buron v. Denman, 2 Exc. 167, whether it applies likewise where the Crown ratifies the acts of one of its officers, and the majority of the judges presiding at the trial at bar in that case held clearly that it does so. The ratification of the defendant's act by the Minister of State was held equivalent to a prior command, and rendered it an act of State for which the Crown was alone responsible (Parke B. dubitante) and that such defence was open on the general issue.

The contract, then, such as it was, was capable of being legally ratified by the Crown, and I think that the evidence shows that the original parol agreement was adopted, and has been partly performed by the Crown. The question then arises whether the agreement itself was of such a character, and whether the part performance has been sufficient to render powerless the Statute of Frauds. The payment by Mr. Mantell, on behalf of the Crown, of sums of money on account of the part contract, is no doubt something, but by itself would not have induced a Court of Equity to decree specific performance. Taken, however, along with the receipt which has been produced, and which is in the following terms:—"Hakaroa, 22nd Feb., 1849. On this day was paid to us the second payment for our land, the plan of which is here attached; (£500) five hundred pounds of money was paid to us; Mr. Mantell, the Commissioner for Extinguishing Native Claims, divided it amongst us," and which was annexed, as distinctly proved by Mr. Mantell, to the plan which includes the block now litigated; there can be little doubt that the contract, after the signature of that receipt, will take a higher rank than a mere parol agreement, and will be almost, if not quite, an "agreement for the sale of land signed by the parties to be charged therewith," and will be taken out of the Statute of Frauds.

It will be convenient to treat together the judicial leaning on this subject, and I will quote from Tudor and White on the leading case, Foxcroft and Lyster.

In this case specific performance of a parol agreement to grant a lease was decreed, notwithstanding the Statute of Frauds, after acts of part-performance on the part of the lessee by pulling down an old house and building new houses according to the terms of the agreement

The final decision was by the Lords, and is in the following terms:—

Die Lunae 7 Aprilis 1701. Upon hearing counsel on this appeal, it was ordered and adjudged by the Lords, that the decretal order of page 40dismission complained of should be reversed, and that the respondent, Isaac Foxcroft, or such other of the respondents to whom the estate in question should come, by virtue of his father's will, should, when he or they should be of age, execute to the appellant Lyster, his executors, &c, such a lease of the premises in question, as was prepared and approved of by the said Isaac Foxcroft, the father, before his death, and that the appellant and his assigns should, in the mean time, hold and enjoy the same, under the covenants and agreements in the said intended lease contained, discharged of all encumbrance done by said Isaac Foxcroft or any claiming under him.— Lord's Journ., vol. xvi, p. 644.

The remarks in White and Tudor's Leading Cases pertinent to our case are as follows:—

"The Statute of Frauds" observes Lord Redesdale "says that no action or suit shall be maintained on an agreement relating to lands, which is not in writing signed by the party to be charged with it; and yet the Court is in the daily habit of relieving where the party seeking relief has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief. The first case (apparently) was Foxcroft v. Lyster cited 2 Vern 456, and reported in Colles' Parl. Cas. 108.

Payment of part of the consideration money is not an act of part performance so as to take a contract out of the Statute of Frauds. (See Clinan v. Cooke, 1 S and L 40.) Lord Redesdale held it not to be an act of part performance. "It has always" observed his Lordship, "been considered that the payment of money is not to be deemed part performance to take a case out of the statute." (Seagood v. Meale, Prec Ch. 560.)

Lord Redesdale's doctrine is nowuniversally adopted, and it has even been recently laid down that the payment of all the purchase-money will not be considered an act of part performance to take a parol contract out of the Statute of Frauds. (Hughes v. Morris, 2 De Gex. Mac and G. 356.) But admission into possession having unequivocal reference to the contract, has always been considered an act of part performance. The acknowledged possession of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorise an enquiry into the terms, the Court regarding what has been done as a consequence of contract or tenure. Morphett v. Jones, 1 Swanst. 181. Borrett v. Gomeserra, Bumb. 94, &c.

Where the evidence of the parties as to the terms of the contract is in some respects contradictory, specific performance will be decreed, if the Court, by directing inquiries can collect what were the terms about which the parties differ. Thus in Mortimer v. Orchard, 2 Ves. jun. 243, where the plaintiff had built a house, his witness proved an agreement different from that set up by the bill, and the answers stated an agreement different from both. Lord lough-page 41borough C. said, that in strictness, the bill ought to be dismissed, but, on account of the expenditure, decreed specific performance, according to the agreement admitted by the answers.

In Mundy v. Jolliffe, 5 My. & Cr. 177, Lord Cottenham says, Courts of Equity exercise their jurisdiction in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement. Under such circumstances the Court will struggle to prevent such injustice from being effected; and with that object it has, at the hearing, when the plaintiff has failed to establish the precise terms of the agreement, endeavoured to collect, if it can, what the terms of it really were.

It must be always borne in mind that "part performance," to take a case out of the Statute of Frauds, always supposes a complete agreement. There can be no part performance where there is no complete agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement. Per Lord Brougham in Lady Thynne v. Earl of Glengall, 2 H L Cass 158.

The Court then is of opinion, that though the several payments made by Mr. Mantell, would not of themselves suffice to prevent the operation of the Statute of Frauds, in avoidance of the agreement now upheld, yet those payments, combined with the receipt and the amended plan, and the subsequent acts of ownership exercised by the Crown (for a piece of the land has been granted), would form sufficient ground to cause a Court of Equity to compel a specific performance, and it will be the duty of the Court, under the order of reference, to ascertain all the terms of the contract, and to make such orders as will secure the due fulfilment of them, by the Crown on one side and the Ngaitahu tribe on the other.

There is only one point remaining to which I desire to advert. Heremaia Mautai, the claimant in this case, stated that he had never consented to the sale had never signed the deed or receipt, and was in no way party to the contract. When pressed by the Court, as to the name of the hapu he represented, he positively declined to answer, repeating over and over again that he belonged to "Ngaitahu Katoa." It was, however, clearly proved that some of his immediate family, who claimed with him this very block, had received money and had signed documents, and were cognisant of the sale. The Court cannot recognise individual ownership of native land. The strength of the tribe, before the arrival of the British Government, was required to maintain the title of a tribe, and the land belonged to the tribe. The contrary doctrine was endeavoured to be set up by the Government in the celebrated Waitara case, but all aboriginal New Zealand protested against it, and a long and expensive war ensued.page 42We cannot allow Heremaia to set up a doctrine, because now it suits his interest, against which all his fellow countrymen have so energetically protested. Qui sentit commodum sentire debit et onus is the maxim—and the Maori custom is, that the individual must (as regards native land) be bound by his tribe, in their external relations.

The evidences of occupation by the claimant and his ancestors all indicate that the tribe have always regarded this place as a valuable fishery. And Mr. White clearly proves that they have exercised their rights since the contract of sale. And it is quite consistent with that contract that they should have done so. And, no doubt, in acting under the order of reference, the Court will recognise the fisheries (included in the phrase mahinga kai) as the most highly prized and valuable of all their possessions.

The Court is prepared to hear further evidence as to the terms of the contract for the sale of the Ngaitahu block, and to make orders for their specific performance. In the meantime Judgment for the Crown.

Since writing the above, I have received the Gazette of 1847, which confirms my recollection of the judgment of the Supreme Court, in the case of Mackintosh v. Symonds (not the Queen v. Mackintosh, as I called it).—[Christchurch.]