COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4264, 19 November 1874, Page 4

COURT OF APPEAL.

Wednesday, November 18. (Before Sir G. A. Arney, Chief Justice; Mr. Justice Johnston, Mr. Justice Richmond, , Mr. Justice Gresson, aud Mr. Justice Chapman.) HARDING V. GALBRAITH. Mr. Travers appeared for the appellant; the Attorney-General aud Mr. Wilson for the respondent. When the case was called on, Mr. Travers declined to move, aud the appeal was dismissed with costs. CASHMOBB V. MANEY AND ANOTHER. The Attorney-General and Mr. Wilson appeared for the plaintiff, Mr.-Travers for the defendant. This was a case ■ removed by consent fromthe Supreme Court, Wellington, into the Court of Appeal. _ . . The original cause of action consisted m the plaintiff having entered into an agreement whereby the defendants, R. D. Maney and H. S. Peacock, agreed to sell to tbe plaintiff their right to cut timber in the Pakiaka Bush, Napier, which right the defendants themselves possessed by virtue of the memoranda of agreement, to one of which a native named Tareha was a' party, and Te Waka Kawatini to tbe other. Tbe plaintiff averred that for tliis right he paid a sum of .£BOO, aud for this sum he sued the defendants in consequence of his having been disturbed in the exercise of bis right hy Tareha aud Kawatini. At the trial the jury found that tbe plaintiff had been so disturbed; and in a special finding to tbe fourth issue the jury awarded damages to the extent of £7OO, provided it were proved that he was entitled to Kawatini’s share as well as Tareha’s, being £350 for each share. On the 22nd July, the defendants obtained a rule nisi, calling upon the plaintiff to show cause why the judgment should not be arrested, and why the fourth issue should not he set aside aud the verdict entered for the defendants on various grounds, aud it was subsequently agreed that the case should he removed to the higher Court. The Attorney-General, in showing cause a"aiust the rule, said it was contended by the defendants that no right had been created either at law or in equity by tbe agreements made between the Maoris and tbe defendants, and consequently that as tbe agreements were set out in the declaration the judgment ought to be arrested, or if not, a verdict be entered for tho defendants. It was also_ contended that the non-payment of the duties affected the agreements;’but he submitted that an agreement for the sale of timber, such as in reality the agreements were, did not comer an interest in the land, and consequently'^ noncompliance with the tion of conveyances by the Jf he merit of duties did “Sjer gave an interest Even if this right to cujj e instruments were iu the land, yet s'"

agreements only, and not conveyances, they were not required to be executed in the manner provided by the Native Lands Acts of 1865 and 1867, for those enactments applied only to actual transfer and not to agreements. Ihe Attorney-General then referred to various provisions of the Native Land Act, 1865, and the amended Act of 1867, and contended that the ground that agreements were void for uncertainty did not arise, for it might well he that, even if the agreements were in themselves uncertain, the subsequent acts of the parties, such as the giving possession and occupation, had rendered them certain. It was also contended that even if the agreements created no right, the agreement to give a covenant for quiet enjoyment, such as was given by the defendants, ought to have been performed, and as it was not, the plaintiff was entitled to damages. There being an equitable right, the covenant ought to have been given, and the Court should therefore discharge the rule. Mr. Travers contended that the instruments were within the provisions of the Native Lands Act of 1865 and 1867 (which he referred to at length), and ought to have been executed in the manner provided by those Acts ; and as it appeared on the declaration that they had not, or, at any rate, as it did not appear that they had, the judgment ought to be arrested. The transaction, too, was invalid, by reason of the non-payment of the duties; therefore no right was created, and the covenant for quiet enjoyment would therefore be of no value to the plaintiff. What was purported to be sold by the defendants to the plaintiff, under the agreement of the 29th June, was simply such right as the parties themselves possessed by virtue of the agreement with the natives, and that was nothing. The defendants covenanted that the plaintiff should quietly enjoy whatever right they possessed,and nothing more ; and as they possessed nothing, there could be no disturbance of that which did not exist. Then came the question whether one in common could cut down timber belonging to other tenants in common. There were nine persons holding an equal interest in the timber, and it could not be cut without the consent of the whole. Tile learned counsel then argued that the plaintiff ought to be put to election ; that he could not bring an action for damages and claim specific performance. Upon the grounds urged he maintained that the judgment should be arrested. The Court reserved judgment.