THE COURTS.

New Zealand Mail, Issue 870, 2 November 1888, Page 23

THE COURTS.

SUPREME COURT. CIVIL SITTINGS. Monday, October 29. (Before his Honour Mr Justice Richmond.) PEDERSEN V. COLONIAL MUTUAL LIFE INSURANCE SOCIETY AND HESCOTT. This was an action brought by Ole Pedersen, tinsmith, of Martoh, against the Colonial Mutual Life Insurance Society and George Hescott, insurance canvasser, for the recovery of Ll5O damages, in consequence of the alleged fraudulent representation of Hescott; who, the plaintiff alleged, had induced him to surrender a policy issued by the Government Life Insurance Department for Ll5O, payahle at death, or at the expiration of 25 years, on the representation that the defendant Company would issue to him a policy at a cheaper rate, and upon more favourable terms, namely, a policy for L2OO, payahle at death, or at the expiration of 20 years. This transpired on the sth December, 1887, and in February, 1888, the defendant Company issued to the plaintiff a policy for L2OO, payable one month after death. The plaintiff further alleged that the defendant Company refused to issue a policy on the terms stated by Hescott, and and he therefore prayed that the policy issued by the defendant Company should be cancelled, and that he be awarded Ll5O damages. All thß allegations as to the false and fraudulent representations were, denied by the defendants in their pleadings. The defendant Hescott, in an amended statement of defence (subsequently withdrawn), alleged that the ac-, tion’ was commenced in pursuance;of an alleged agreement between the plaintiff and the Government Life Insurance Department, the effect of which was. that the , latter would maintain the plaintiff in

| bringing the action. In a further state- / mont filed a few days ago, the defendants stated that they were willing to admit that the • plaintiff may have signed the proposal under a misapprehension as to to its purport and effect, and they would therefore agree to the decree sought by the plaintiff for the cancellation of the policy, and also that the surrender of the Government policy should not be registered, but should be delivered up to the plaintiff and cancelled, only that it was not in'their possession or under their control. The case was adjourned for half an hour at the request of counsel, and on resuming Mr Gully (who appeared for the defendants) stated that the defendant Company had satisfied itself that the plaintiff was, at a 1 events, under a misapprehension as to the effect. of the policy, and under the circumstances they had decided not to oppose the prayer of

the claim. The defendants would agree to cancel the policy, and would repay to the plaintiff the amount of the premium (L 53s 6d) paid by him. The plaintifl had accepted this, and the defendants had agreed to pay costs according to scale. °Mr P. A. Buckley (for the plaintiff) asked that fees should be allowed for a second counsel, seeing that the case was such an important one, to which request his Honour acceded. Mr. Gully wished it to be understood that the defendants had consented to the judgment on the ground set forth in their amended statement. The Court then adjourned.

IN BANCO. Wednesday, October 31. (Before his Honour Mr Justice Richmond. ) APIATA AND OTHERS V. SEYMOUR AND ANOTHER. This case, which was adjourned from Wednesday last in order that the statement of claim might be made more specific, was now argued. The original statement of claim asked for an injunction restraining the defendants from selling the Whangara Block under writ of sale upon the judgment recovered by the defendant in an action Apiata v. Seymour, reported in 6 N.Z.L.R., 331 ; and stated that the block was held by the plaintiffs, and more than 100 other Natives, under certificate of title, issued under the 17th section of the Native Land Act, 1807, and had never been subdivided or dealt with otherwise than by lease, and that the block had been decided to be inalienable in the case of Seymour v. Mac donald, reportedin N.Z.L.R.,5, CA., 167The amended statement of claim stated that the Native Land Court, by order under section 17 of tliß Native Lands Act, 1867, dated the 2nd December, 1870, awarded the block to the plaintiffs and others, directed the issue of a certificate of title to the Governor, and certified that in any Crown grant the legal estate should vest as from the 2nd December, 1870; that the Court at the same time further ordered that the presiding Judge should report that the Court recommended that the block should he inalienable by sale or mortgage or by lease for a longer period than twenty-one years from the date thereof; that a certificate of title was issued on the 20th February, 1871, pursuant to the order, and transmitted to the Governor with a report by the presiding Judge lecommending the above restrictions. Affidavits were put in on behalf of the defendants, to the effect, and it was afterward admitted, that no certificate or report ever was transmitted to the Governor, and that no certificate under section 17 of the Native Land Act, 1867, or reports relating thereto, ever are transmitted to the Governor; hut that the order and report were transmitted to the Chief Judge at Auckland, who signed and sealed the certificate, and that the practice is for the Native Land Court to hold such certificates until subdivision, as no Crown grant could issue until then. It was also stated in an affidavit by the Registrar of the Native Land Court at Gisborne that the report as to restrictions on alienation was forwarded to the Chief Judge for his information that the certificate was to issue under section 17 of the Native Land Act, 1867, and that a similar report was forwarded to the Chief Judge in the case of every other certificate under that section issued for the Gisborne district, without any other notification to him that the certificate was to issue under that section. Mr Skerrett, for the plaintiffs, contended that the sale should be restrainedonthegrounds—(1) that the land was rendered absolutely inalienable by the provisions of sections 17 and 20 of tlie Act of 1867 ; (2) that the lands . were rendered inalienable until subdivision by virtue of the statutes of 1867 and 1873 ; (3) that the lands were owned by more than 20 owners, and were consequently inalienable by section 5 of the Native Lands Fraud Prevention Act, 1888 ; (4) that the Trust Commissioner’s certificate on the judgment was insufficient.. Mr Bell, for the defendants : The Court must construe sections of the Act, of 1888, strictly, as upon an indictment under section 7. There are only ten owners on the certificate. Section 5 has the word “lease. The ten have and always have had power to lease. The Legislature intended to provide power for Natives to deal with lands not Crown-granted, and also to give power to make Natives pay their debts. The report was not a recommendation ; it was a clumsy way of notifying that the certificate should issue under section 17 of the Act of 1867. At that time a recommendation of restrictions would be forwarded to the Governor, but upon sub- ■ division, not before. This was for the

issue of the certificate, and was not intended for the Governor. Your Honour had not the facts shown in Mr Brook ing’s affidavit before you in Seymour v Macdonald. - The Attorney-General v Tipae, 6 N.Z.L.R. 157, is to some extent in point. Mr Skerrett having replied, his Honour reserved his decision.