SUPREME COURT

Dominion, Volume 7, Issue 2142, 7 May 1914, Page 9

SUPREME COURT

STATUE TO A SOLDIER'S MEMORY

KEMP MEMORIAL

THE SIMILITUDE OF THE WORK

The efforts , of "Mrs. Hor.l Hakaraia, a Maori woman residing at Levin, to perpetuate the memory of her.brother, Major Kemp, a notable figure on the British ■ side in the Maori wars, have boon followed by a very considerable amount of litigation. Another phase of it was entered upon in the Comt oi Appeal yesterday. The Question. er contracts. Mrs. Hakaraia's wish was to preserve Major Kemp's memory by e«ctmg « monument at Wangamii ihe flutter first came into the Law Courts in ilaj ■of last year, when Mrs. Hakaraia was sued in'the Supreme Court at Inlmerston North for .£6OO, as ■ tho balance due on the stiituo, :ind interest. Jbe plaintiffs in the action' wen; 1' rank -Harris and Co., Ltd. (in liquidation), of Auckland,.and John George Restcll (the liquidator).-also .gf .Auckland. Harris mid Co. alleged that they had had the statue executed to Mrs. Hakaraia s order for £1000. It was to bo on a "granite pedestal including four battles, or other scenes.representing-inci-dents of valour in Major Kemp's lite. Subsequently, added Harris and Co., inscriptions which wore to cost £IoU were ordered, and thus tho total cost was to bo £1150. A sum of £550 had been paid, leaving £GOO unpaid. Mrs. Hakaraia's defence to tins claim was a denial that any such contract was entered into as alleged. She said that, originally, she had ordered a monument which was to cost £u'sO, but that, when tho statue was finished, she refused .' to pay ' for i.t, and entered into a fresh contract, under which Harris and Co. wero to rccrect tho monument and rcplaco the figure with a new one. When this had been completed, Mrs. Hakaraia said that slio was to pay £1150 in full settlement. At tho samo time that .Harris's claim was heard, Mrs. Hakaraia counterclaimed for tho return of £550 which she had handed over in, part payment. ■ ■ '

The Courso Through , the Law Courts. The' action was heard. at Paltnerston North in May, 1013, before His Honour •Mγ. Justice Chapman and a common jury of twelve. Tho jury fountain .favour of Harris and Co., and.jiidgment was entered for'that firm for the £uUU claimed, with £1S 10s, 9d. interest,'and £162 14s. Sd. as costs of the action. ' -in Jiiiio Mrs. llakariiiu's solicitors movod for a now trial on the ground that tho verdict of the jury was against tlie weight of evidence:; Mr. Justice Chapman heard tho motion, and decided that the verdict must be set aside and a now trial ordered. . In giving this judgment His Honour.said that, he had, on several occasions, inspected tho inonu'mont, and, despite a natural inclination to support-the verdict of a jury who had heard the evidence and scon tho monument, ho'was bound to say that, so .far as tho statue was concerned, he could not conceive that it came as a work of art within tho category' to which Mrs. Hakaraia was entitled. He felt himself hound to say that the verdict as to.the completion j of thq contract was against tho weight of'- -evidence. ■'•■" .

■ Against Mr. Justice Chapman's order for a new trial, Harris and Co. have appealed, and. tho hearing of this appeal was commenced in the • Supremo Court yesterday. Tho grounds of' appeal are: —. • . , Tho judgment is erroneous in point of law, and also as to matter of fact. The verdict of the juryat the trial was . not against tho weight ,of evidence. A new trial ought not to have been ordered. ■ . ■ Tho Bench yesterday consisted of Their Honours Mr!.-Justice. Denuiston, Mr. Justico Edwards, Mr. Justice Sim, and Mr. Justieo Hosking. Mr. M. Myers appeared for the appellants (Harris aiid Co. and Restell), and Mr. A. Gray, K.C., with him Mr: G. 11. Kell, represented , the respondent (Mrs. Hakaraia). Tho Bench on the Art of It. Mr. Myers', in 'his address to the Court, contended that tho 1 jury, who had heard tho ease in Paltnerston North, woro there to bo the judges. They had judged, and that should bo tho end of tho master. /Phero was, he added, no misdirection on the part of the presiding Judge (Mr. Justice Chapman). Indeed, tho parties agreed that tho direction was all that could bo asked for. ! Thero was one unusual feature in connection with the case, and that was that tho jury's verdict iiad boon set aside not only after'evidence had been adduced on both sides, but after there had been a personal inspection of tho

statue. The inspection by tho jury was taken at tho conclusion of the case, and

after tho Judp;e had addressed them. It was submitted that tho Judge, in giving Iris decision, did not deal with the importance of the point that there had been an inspection b.y tho jury. Thero had boon very few cases (counsel liad

only been able to find one reported in Great Britain and Australasia) whero there had" been a new trial after the jury had inspected the subject matter of_ tho claim, and that iva-s a New South Wales'case. . _Mr._ Justice Dcnniston: After all, a new is only an clement in the case. Mr. Myers: Yos; but a very important element, and an clement which appeals, to the senses.

Jlr. Justice Sim: His Honour, also, had a view. Mr. Myers: After thocaso. He did not kq with the jury. Mr. Myers, .continuing, said that Mr. Justice Chapman's judgment on' tlio motion for a new trial meant only'that His Honour was dissatisfied with Ihn verdict- of the jury. The Judge had not applied the principles which ought to bo applied in dccitlinp: the point.

Mr. Justice Edwards: Probably the jury did not have any artistic sense at all. They could not have had, according to the judgment of Mr. Justice Chapman. Mr. Myers: There is nothing upon which people elifl'er so much as upon vnalters of art.

More Obssrvations on Art, Later, Mr. Myers remarked: It is an imposing statue. Mr. justice Dciiniston: That is the casi' for tlui defence. Mr. Myers: Ah, but I don't mean in that sense. Mr. Justice Edwards: Do you mean that it excites tho wonder of all who see it. ' ' , Mr. Justine Denniston: There is a statue in Parliament, grounds which does. . Mr. Myers: There is another exactly the same nt Vnngamii. '. Mr. Justice Denniston: With the same Icrs? Mr. Myers: Yes. Mr. Justice Denniston: 1 did not think there conhl be two like that. Mr. Myers: There is an amusinp Mr. Justice Denniston : 1 do not think that, there could bo anylliina more nmusinu than the statue itself. Mr. M.rors said that tin; chief objection to tho Kemp statue was taken by the 'Wancanui Maoris, who said that Uie statue "was not their ' Major Kemp," but these Natives remembered

Major Kemp ns ho wo,s in his later yours, whilo the photograph chosen lor tho maldiiß of the stattte was. one takm when lie was young, Mr. .Myers said, also, that Mr. J. B. Al'Dojialrt. 01 .Levin, who had acted as Mrs. Haltarain's business'manager in the matter, had said that ho was prepared to take the statue, and/sot it «p at »"> reS!, iloncc.' ■ Mi: Justice Edwards: Some people put queer thiiißs in their gardens. •Mr. Justice Hoskinß: Ho may have wanted to frighten ixWav the birds. After lunch the liflst ffora winch the statue was to bo modelled was brought into Court. Mr. Myers: That, Your Honour, is the bust. Mr. Justice Demiiston: They seem to have more than done justice to.'MW whiskers. .■ . . In conclusion, Mr, Myers submitted that the verdict coiikl net 1)0 set aside unless it wns a verdict which no twelve reasonable men could find. Mr. Gray contended Hint the faet that there had been n view did net prevent the verdict of 'the ]'nry from being set aside. He had not concluded his address when the Court rose, for the day.^