C.A. 1902.

MERE ROIHI

v.

ASSETS

COMPANY.

appeal will be brought on. Semble, however, That if such a document is to operate both as a notice of appeal and as a notice of motion bringing on the appeal it should be filed both in the Supreme Court and the Court of Appeal, in addition to being served on the respondent.

Where a notice in the above form had been filed in the Supreme Court and duly served on the respondent, but had not been filed in the Court of Appeal, the Court granted special leave for the appeal to proceed (assuming the objection to be a valid one), the point being a new one, and it being clear that the respondent was not damnified.

Where leave had been given to appeal in formâ pauperis, and the appeal was allowed with costs, the Court refused to allow as disbursements the travelling-expenses of the appellant's solicitor (who resided at a distance from Wellington), being of opinion that he could have instructed counsel by writing, and that there was no absolute necessity for his personal attendance.

THIS was an appeal from a decision of Conolly, J. (reported

sub. nom. Mere Reihi and Others v. The Assets Company, 20 N.Z. L.R. 54), dismissing an action on the ground of its being vexatious and an abuse of the process of the Court. The action was one in which Mere Roihi and certain other aboriginal natives were plaintiffs and the Assets Company (Limited) was defendant.

The relief claimed was that a certificate of title under the Land Transfer Act held by the defendant company in respect of a block of land known as Waingaromia No. 3, in the County of Cook, might be called in and cancelled, and a fresh certificate issued in favour of the Natives named in a memorial of ownership or certificate issued by the Native Land Court, or, in the alternative, that the defendant company might be de clared a trustee for the said Natives or their successors.

The statement of claim alleged that one Robert Cooper had, between the months of May and September, 1876, obtained the signatures of certain Natives to a document which purported to be a conveyance of the land; that by an order of the Native Land Court dated the 27th of December, 1876, the plaintiffs and certain other Natives were declared to be the owners of the land according to Native custom, and it was ordered that a memorial of ownership should issue in their favour; that no approved map or plan of the land, as provided by sections 33 and 71 of "The Native Lands Act, 1873," was lodged in the Native Land Court until 1885; that on or about the 27th of December, 1876, the said Robert Cooper caused the document (purporting to be a conveyance) referred to above to be lodged in the Native Land Court; that between the 27th of December, 1876, and the month of April, 1877, Cooper

C.A.

1902.

V.

ASSETS COMPANY.

obtained the signature of John Rogan, then a Judge of the Native Land Court, to a document, dated the 28th of December, 1876, purporting to be an order in freehold tenure in MERE ROIHI favour of Cooper; that neither between the 27th of December, 1876, and the 12th of April, 1877, nor at any other time, was any sitting of the Native Land Court held to make the inquiries and take the evidence necessary under sections 59, 60, 61, and 75 of "The Native Lands Act, 1873," nor were such inquiries or evidence even made or taken; that no memorial of ownership was issued until the year 1889; that the plaintiffs never sold or conveyed their interests, or authorised a sale or conveyance thereof, or received any consideration-money, or assented to any order in freehold tenure; that no inquiry was ever held before a Trust Commissioner; that a copy of the alleged order in freehold tenure, dated the 28th of December, 1876, was presented to the District Land Registrar for Hawke's Bay in April, 1877, and constituted by him a folium of the Provisional Register in favour of Cooper, and a mortgage from Cooper to Kinross and Graham registered against it; that the mortgage was afterwards transferred to the liquidators of the City of Glasgow Bank, and the latter, and subsequently the defendant company (by virtue of "The City of Glasgow Bank Liquidation Act, 1882 "), placed upon the Provisional Register as tranferees of the mortgage; that in January, 1889, the then Chief Judge of the Native Land Court, at the request of the defendant company, issued, without any authority or jurisdiction, a memorial of ownership, dated the 16th of March, 1876, expressed to be in favour of the Natives named in the order of the 27th of December, 1876, signing it on behalf of John Rogan, the Judge who had made the order, and who was then a retired Judge, and further certified on the back that the sale to Cooper was complete, and indorsed what purported to be another order in freehold tenure in favour of Cooper, dating this the 28th of December, 1876; that in March, 1889, the defendant company obtained from Cooper a transfer of the land; and that immediately afterwards the defendant company obtained from the Governor a warrant purporting to be founded upon the alleged order in freehold tenure, dated the 28th of December, 1876, in obedience to which the District Land Registrar issued a certificate of title under the Land Transfer Act in favour of the defendant company. The statement of claim set up that the whole of the above documents and proceedings were void as against the plaintiffs.

C.A. 1902.

The statement of defence set up, amongst other defences, the Statute of Limitations. The statement of claim, however, MERE ROIHI alleged that in 1876 certain of the plaintiffs were infants. It did not appear when they came of age.

V.

ASSETS ('OMPANY.

The defendant company's notice of motion to dismiss the action as frivolous, vexatious, and an abuse of the process of the Court alleged as the grounds of the motion that two previous actions had been brought, by the same solicitor as that now representing the plaintiffs, on behalf of two others of the original owners of the same block of land, Waingaromia No. 3, there being fifty-three of such owners in all; that both such actions had been brought by such solicitor upon the instructions of the great body of the owners of the block, who had selected the nominal plaintiffs to be put forward in each case; that all of the plaintiffs in the present action could have intervened and been added as parties, if they had chosen, in the previous actions, if of opinion that the plaintiffs in those actions did not properly represent them, or could have applied to have the conduct of the actions taken from such plaintiffs; that the present plaintiffs stood by while their co-owners in interest, to their knowledge, or to the knowledge of their solicitors, tested the claim of all such owners to recover back the land; that no costs had been paid by the plaintiffs in the previous actions, although judgment had been given against them; that no new ground or cause of action was disclosed in the present action, the allegations being merely varied in form; and that the action was brought for purposes of extortion only.

In support of the motion there was filed an affidavit by Albert McKay, of Gisborne, managing law clerk and licensed interpreter. The following paragraphs of this affidavit referred to one of the previous actions mentioned in the notice of motion: ·

8. On the hearing of the said action of Mere Peka Kaimako I am informed and believe that five other Native persons were called by the plaintiff's counsel, all of whom were asked whether they had transferred their shares to Robert Cooper. Such questions were, however, overruled by the Judge presiding as not being relevant.

9. I have no doubt but that the action brought by Mere Peka Kaimako was brought in the interest, as was supposed, and for the benefit of all the owners of Waingaromia No. 3 Block, and with the actual knowledge of a large number of such owners.

10. The actions from time to time brought against the defendant company have been matters of considerable interest to the Natives in the district. I know this of my own knowledge as a licensed interpreter.

The motion came before Conolly, J., who made an order dismissing the action. The judgment of His Honour is reported 20 N.Z. L.R. 54.

The notice of appeal printed in the case on appeal was a document headed "In the Court of Appeal," and in the following ternis :

Take notice that the plaintiffs herein will move this honourable Court at its next sittings, or so soon thereafter as counsel can be heard, to reverse the order dismissing the action herein without trial made by His Honour Mr. Justice Conolly on the 26th day of June, 1901, and issued out of the Supreme Court on the 9th day of July, 1901, with costs against the plaintiffs.

And take notice that the whole of the said judgment and order is complained of and appealed against, on the ground that the said judgment and order is wrong in law.

This document had, it appeared, been filed in the Supreme Court and served upon the respondent company. It had not been filed in the Court of Appeal, however, as a separate document, though a copy of the case on appeal, containing a printed copy of it, had been filed in the Court of Appeal.

W. L. Rees for the appellants.

C. A. de Lautour and M. Myers for the respondent company. M. Myers raised a preliminary objection to the appeal: Rules 4 and 15 of the Court of Appeal Rules contemplate a notice of appeal in the Supreme Court. This is an appeal from an interlocutory order: Salaman v. Warner(1). Rule 2 requires a notice of motion bringing on the appeal, a distinct. document, which must be filed in the Court of Appeal: Robertson v. Howden (2). There has been no notice of appeal in the Supreme Court under Rules 4 and 15. Nothing has been filed in the Supreme Court.

[W. L. Rees. This document, which is printed in the case, was filed in the Supreme Court.]

That has never been stated until now. This document is headed "In the Court of Appeal," and is a notice in the Court of Appeal bringing on the appeal. The notice of appeal in the Supreme Court should be a distinct document, and should be headed" In the Supreme Court."

[WILLIAMS, J.-This document appears to be both a notice of appeal and a notice of motion bringing on the appeal.]

There should be distinct documents. This document has never been filed in the Court of Appeal. There is merely the printed copy in the case left with the Registrar.

C.A.

1902.

MERE ROIHI

v.

ASSETS COMPANY.

C.A. 1902.

STOUT, C.J.: — The Court is of opinion that, looking at the past practice of MERE ROIHI this Court, it may be that there has been some irregularity in not filing the proper notice. Before, however, deciding that COMPANY. question, or hearing Mr. Rees thereon, the Court would like

V.

ASSETS

to hear what counsel for the respondent have to say against the Court waiving any irregularity there may have been, and granting, if necessary, under Rule 15, power now to proceed with the appeal.

M. Myers:

The appellants would not be prejudiced by the objection being upheld. Other actions are pending. There is a new action in reference to this block which is a representative action. A judgment in this action will not dispose of the other actions which are pending. It lies on the appellants to show why special leave should be given: Ell v. Weston(1); In re Manchester Economic Building Society(2); Curtis v. Sheffield (3).

STOUT, C.J.:

It appears to the Court that the only irregularity that can be suggested is that the notice of appeal was not properly filed in the Court of Appeal. The objection raised did not take this form. The notice of appeal was given and duly served in time. The filing of the notice in the Court of Appeal in the time limited for appeal has not been the invariable practice of this Court. It is clear that the respondent has not been in any way damnified by the non-filing of the notice, and no ground has been urged against the Court granting leave to the appeal proceeding save that the action is without merit. This is not a case where a notice has not been given. The notice was given. And we think that, the point of the absence of filing, even if valid, being new, the Court should allow the appeal to proceed notwithstanding the alleged irregularity.

W. L. Rees, for the appellants: -

It is said that these plaintiffs could have had themselves joined in the previous actions. But one tenant in common cannot interfere in an action begun by another. They have separate titles, not one title like joint tenants; and they join in personal or mixed actions, but in real actions they must sever: Coke upon Littleton (4); Williams's Saunders, Notes (4) Vol. ii. chap. iv. 188A, 188B, 189A,

(1) N.Z. L.R. 5 C. A. 120.

(2) 24 Ch. D. 488.

(3) 21 Ch. D. 1.

195B, 198A.