LAW REPORTS.

Dominion, Volume 3, Issue 653, 2 November 1909, Page 6

LAW REPORTS.

; ! COURT OF APPEAL. A PIECE OF "KEMP'S PURCHASE.";; INTERESTING DECISION. The Court of Appeal gave its decision yestor-J day as to the disposal of certain Maori holdiings in Canterbury. The case, which had been removed from the Supremo Court by consent, .was heard on October 19 and 20 by their Honours. Justices Williams (Acting Chief Justice), Denniston,. Edwards, Cooper, and Chapman. A motion for judgment was brought by'plaintiffs—the Attorney-General at the. relation of ■ Mere ; Te Aika and Tini Arapata, aboriginal Natives of Kaiapoi, and these two . Natives in" their own rights. Mr. D. M.' Findlay appeared for the Attorney-General, and" Mr. Stringer, K.C. (of ChristchuTch), with him Mr. Levi, for the'Natiye plaintiffs. The defendants, who were" represented by'Mr.'G. Harper (of Christchurch), were Ruiha Mono To Raherii .WUtau. (Tqmuka), Amiria Kemara mnia), Tupae Picihana, and.Eruera To■ Aika (Kaiapoi), aboriginal Natives^ Plaintiffs had claimed that, as devisees of Aperahama To Aika, they wore entitled to section 75 (14 acres) ..of the.Kaiapoi Native Reserve.'. The section was portion of 20,070,314 acres,. Canterbury province, formerly known' as. Kemp's purchase, which was bounded on the north by a straight line from Cape Foulwind "on the 1 West Coast to'about a mile north of ;~the month of the Kaiapoi River on the, East Coast; on the south by a straight line from Milford Sound running .towards a point about twenty miles, south-of 'Nugget Points but stopping about twenty miles from ■ the ■ ocean, and thence, curving- to Nugget Point' on the East Coast! The eastern and western boundaries were the ocean. The deed commenced;—.

"Hear yej air ye people: We, the chiefs and people of Ngaitahu,. who' have signed our names and marks to this deed on the 12th day of, June, 1818, consent 'to." surrender for ever to William 'Wakefield, agent for ,tbe New Zealand Company . '. . all our lands and all our possessions.' .- . . Our places of residence and cultivations are to be reserved for. us and our children after us, and it shall be for the Governor to set apart for us some portion for us ■; when the land is surveyed,'but the greater part of the land is unreservedly given up to the Europeans for ever." .

Pursuant, to this deed, ..reserves . to .the Natives were made by the New Zealand Land Company, and afterwards by the Government. Among the reserves was the one at Kaiapoi, the subject of the" action.;. It contained 2810 acres',', and . reserved by. Mr.: Commissioner Mantil in 1818, in, terms, of Kemp's "Purchase. Section 75 was awarded to Aperahama Te Aika by a Crown ::Grant dated September 19, .1865; which contained a . restriction forbidding -the disposition of the - land, by : way .of sale, mortgage, lease, or otherwise, without the consent of the Governor. The. defendants alleged that they were Aperahama's successors, according to ,Na±ive custom,' and claimed' tho land upon the ground that the proviso in the_ granteevented- Aperahama" from devising' it. by- will.' Plaintiffs contended ; that the proviso inv the grant restricting Aperahama's-power of alienation, had been inserted without, lawful authority .by the Crown, andtwas- void.- They prayed' that the. Court. might declare that. the. proviso had* been inserted without lawful authority, and that tho Crown Grant might be recalled and rectified by the omission of the: proviso. •; The judgment of the Court wis delivered by Mr.> Justice Cooper. It was . held that the, grant to Aperahama had been issued under statutory , authority, and ' thero was power-to insert restrictions.: The /legislature recognised the existence ! of' these 'restrictions, assumed their ; validity,: ,and: provided .machinery by which they might be modified or removed. There was evidence of the positive intention on the part of the Legislature to give effect, to those restrictions, and Ito givo power to the ;grantee to make application for the amending, modifying or ; annulling of them. By the deed , of original .purchase, the Maoris stipulated' that the reserves werorto^blP^frir:'us'and our .children after us." The .restrictions'did not permit a,devise of; the, land ; ( the. words-"or. otherwise" prevented' alienation by . will. Judgment . must therefore bo " for ' defendants,- with -costs. _ • . ~ Application was made by Mr. Eindlay for costs on behalf .of the Attorney-General,-, The Court decided,.that •"the' matter\should' l .stand over until to-morrow. It was usual for-tho' Attorney-General, -. in. these cases, to insist upon an. undertaking being made by the relator as to .costs.• The Attorney-General hero appeared t° be a co-plaintiff with the relators, and there ■would be difficulty in ; giving costs \to ■ one plaintiff, and not to the; other.

MAOKI LANDLORDS AND UNPAID KENT.' The Court also delivered judgment in a northern . Maori case,, which.. had- come before Mr. Edwards and been removed into the .Court of "Appeal." Argument was heard by their Honours Justices Williams (Acting-Chief Justice), : Denniston, Edwards, Cooper, and Chapman, on October 26, Mr. G. Hutchison appearing for plaintiff, Te 'Peehi te Opetini.and Mr. .M. Luckie for defendant, Philip Georea Smith. . 1 .

Plaintiff claimed that he twith others as tenants in common) demised to the defendant a piece of land, in: the ■'Wainiarino district, known as Raetihi No. .2 B, No. 3, containing 727 acres for 42 years. ' The rental Was to be, during the first ten years" of the term, an aggregate annual payment of ,£72 14s. 9d., and ,£1 per acre.per annum; was payable as royalty for the timber. ..'The half-year's, rent' due- on March 19 last had not: been paid.. On ; August 21 last,; plaintiff re-entered on tlie' land in respect of the default of the defendant, and determined his tenancy. • *.'• Plaintiff, claimed—(l) Possession; - (2) rent androyalty;. JEI33-7«.» due on .March 19, 1909, royalty .from, jthat date until reentry, £97. Is., and mesne profits; from the date of 'reentry' until could' be obtained on the* basis of •an annual value. of .£266 Us. ' '. ■ .

Three questions of law. were iasked of the Court—(l) Is the sum of ; '£80 16i;;4d.',; claimed as royalty recoverable" ds'rent or iii; the natUTe of rent, .or is it purchase-money' tar.'timber,; and, if so, not recoverable as claimed? (2) .Was'' anjrnotice/.in terms-of Section' 94 of the Property Eaiw .-Act, 1908iJ 'necessary .as a' condition precedent to recovery 'upon- the forfeiture alleged in the statement; of claim? and (3)'-Has the'plaintiff, as one of the several lessors; the right to .sue':.for rent or breach of covenant without joining all of the lessors of the. land,as : alleged in the statement. of defenco? ''."V v 1

These , questions, tbe Court, m its judgment, answered as follow The, sum Df £80 16s. 4d. is rentj ,(2)''No:;'. (3) The right:.to: ; sue ;alone' is an inherent right. . The settlement of-', costa ijas held, overi ''