COURT OF APPEAL

New Zealand Times, Volume XXXI, Issue 6964, 2 November 1909, Page 3

COURT OF APPEAL

MONDAY. NOVEMBER 1. (Before their Honors Justices WilUams, Denniston, Edwards. Cooper and Chapman.) RESERVED JUDGMENTS DELIVERED "KEMP’S PURCHASE." A MATTER OE 20.070,314 ACRES. The plaintiffs were, nominally the At-torney-General, and actually ileic L> Aika and Tini Arapata. wno are residents of Ivaiapoi, mar Christchurch, .n tho Canterbury mstnet Thu detenuau wore Kuiha Mono to Aika (of Ivaiapoi). Rahera Whitau (of Teiuuta), Tupae Reinanga, and Eruera to Aika (ot Kaiapci). At tho argument Mr T. t\ . Stringer, K.G., with him Mr,P. Xxivi, appeared tor tho native plaintiffs, and Mr D. M. e'indiay for the Attorney-General and Mr G. Harper tor tho native defendants. This was a motion for judgment in a ease removed by consent and by the order of Mr' Justice’ Denniston for argument into tho Court of Appeal. The iacts weao that’on September 19th, 1805, a Grown grant was issued to Aperahama to Axka. who resided at Ivaiapoi, of certain .anus, but the following provisoes were included in the grant:—"Provided that no disposition of the land included m this grant way of sale, mortgage, lease,- or gtherwiso shall bo made without tho consent in writing endorsed thereon ot tho Governor or some person duly appointed by him, or otherwise duly audiori&od by law in that behalf. Brooded also thab upon the death of the grantee the Governor may without prejudice to any sale, mortgage, lease, or other disposition, made with. such, consent as hero inboforo mentioned, direct the succession and dispose of such land in accordance with, the provisions of the xntcsUue Natives' Succession Act, 1861, or otherwise according to the law in that bo half for the time being in force. The section, of land the subject-matter of this suit is part of an. enormous tract of country—its area is stated at 20,070.314 acres—wliich is known as "Kemp s purchase,” and which runs from Capo houlwind on the West Coast to the mouth of the ICaiapoi river on the East Coast, and is bounded on tho south by a straight line from Milford Sound running twenty miles south of Nugget Point. The deed into which tho natives entered with the New Zealand Company commenced as follows: —

"Hoar ye, all ye people. We, the Chiefs and People of Ngaitahu who have signed our names and marks to this deed on tho 12th day of June, 1848, consent to surrender for ever to William Wakefield, Agent for the New Zealand Company,” etc., etc., "all our lands aucl all our possessions in” (etc., as above bounded) "our places of residence and cuitivat tions are to be reserved, tor _us and , our children after us, and it shall be for the Governor to set apart tor. us some portion, for us when tho lan.l is surveyed, but the greater part ot I the land is unreservedly Riven U U i to the Europeans for over.' 'lne deed i ends with a provision for the payment of .£2OOO consideration and with the signatures.

In pursuance of tills deed, reserves were made by . the New Zealand Company—and afterwards the Government, which succeeded the company. Aniong the reserves made was that at Kaiapoi, the subject of the present action. 1 t contains two thousand sis hundred am. forty acres, and was in‘lß-18 reserved by Mr ’ Commissioner Mantil in terms ot “Kemp’s purchase.” The natives desired that these, reserved-lands should be mad®: inalienable from persons of the Maori race. At the partition Aperahama .was awarded a section of fourteen, acres one rood and on® perph. He is now dead, but by his will he devised this section, which is valued at .£lO per aero, to Metro te Aika and Tini Arapata.. The defendants contended that this devise was inoperative by reason of the restrictions contained in the Crown grant. Plaintiffs argued that the provisoes were inserted in the Grown grant without lawful authoritiy and were invalid, and they asked for an order of the Court to direct that the Crown grant bo rectified. : . . ■ , , The judgment of tho Court was read by Mr Justice Cooper. Their Honors were unanimously of opinion that tho Legislature had recognised tho existence of the conditions or restrictions in the grants of the Kaiapoi reserve and assumed that they wore valid. Judgment was consequently given for the defendant The question of costs was reserved for argument and coaisideration on Wed-, nelsday next. ' ,

WAIMAEINO LEASEHOLD. TH GPETINI v. SMITH. This case bad been removed into the Court of Appeal by older of Mr 1 Justice Edwards. Mr Gv Hutchison appeared for tlio plaintiff and Mr Martin Luckie for the defendant. The plaintiff’s case was that he, with others, ■ leased to defendant 727 acres 1 rood and 22 perches of timber laud in the Wainrarmo district for 12 years, commencing ora September 19th, 1907. During the first ten years the rental was to be A 72 Its 9d, and at other rates during the balance of . the term. Plaintiff claimed to hold two out of eight shares—hia own and that of another native to whom ho had been, appointed successor by the Native Lands Court. On March 19th, 180 S, Ms share amounted to £8 is 8d for a half yearis rent and timber royalties £BO 16s 4d, totalling ASS 'ISs. • Tho questions of law placed before the Court were:—l. Is the sum of ASO 16s Id claimed as royalties recoverable as rent oc in the nature of rent; or is it purchase money for timber, and if_ so, not recoverable as , claimed ? ,2.V os any notice in terms of and in accordance with isestion 9-i of the Property Law Act, 1908, necessary as a condition precedent to recover upon the forfeiture alleged in the statement of claim? 3. Has the plaintiff, as (me of the several lessors (as described in the statement of claim), fhe right to sue for rent or breach of covenant without joining all tho lessors of ithe said land as alleged in the statement of defence? Tfia Honor Mr Justice Chapman, read tho (reserved and unanimous judgment of the Court, which answered the questions as follows: —1. The sum of ABO 16s 4d claimed as royalties is recoverable as rent. 2. Answered in the reply to question one. 3. Tho plaintiff as one of several lessors Las the right to, sue for the rent without joining all the lessors. Questions, of costs to stand over until Wednesday next

IN BANCO (Before his Honor Mr Justice-Dennis ton). TONTTNB ASSURANCE POLICY. BOYD AND ANOTHER v. COLONIAL MUTUAL ASSURANCE SOCIETY. This case was brought forward for argument on the common law points raised in it. It was a claim by a farmer named William Boyd and his wife, Mary Boyd, against the Colonial Mutual Assurance Company, Limited, arising out; of a “tontine policy" on the life of the plaintiff,' William Boyd,' issued 1 by the ! defendant company in December, 1887. Plaintiffs alleged that by representations made by the-defendant company’s agent, in writing, the company undertook that the cash value of the policy at the end of twenty years should be A 163. At the expiration of twenty years the company, informed the plaintiffs that the surrender value of the policy was A 64 13s. ,

Plaintiffs asked that the company be either ordered* to make good the alleged representation with regal'd to the .£165. or to repay to plaintiffs the amount _ of premiums paid (amounting to .£109) with interest at the rate of 5 per cent-, amounting to ,£S6, or a total of .£195. The ease had been heard before his Honor Mr Justice Deniniston and, a- jury of four some eleven months ago, when the jury brought in a finding negativing any suggestion of fraud on the part of the agent with regard to certain representations alleged to have been made. The question for the decision, of the Court was whether a written document supplied by the Assurance Company’s agent and headed “A Good Investment’' was a representation which the company was bound to make good. The company disputed liability on the ground that the statements in the document in question were abated to be “estimated results,” and Were not in any way binding upon the company. . Judgment was reserved.