SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXX, Issue 4487, 6 August 1875, Page 2

SUPREME COURT.—IN BANCO.

Tuesday, August 3. (Before his Honor the Chief Justice.) HAGGEKTY V. GILES. His Honor delivered judgment in this case as follows : This was a special case in which it was stated that the plaintiff and defendant entered into an agreement on 4th September, 1871, whereby the plaintiff agreed to lease to the defendant certain land and buildings for a term of five years ; and by the agreement, amongst other things it was stipulated that the defendant should “keep the said premises in fair tenantable order.” Under this agreement the defendant entered into possession on the 15th September, 1871, and remained in possession until the 27th August, 1874, when the buildings were destroyed by fire. In the meantime a formal lease had been tendered by the defendant to the plaintiff, but the form of lease had been objected to by the plaintiff as not in accordance with the agreement. The defendant has paid to the plaintiff the rent specified in the agreement as that to be provided for in the lease. The parties admit as a fact that the defendant was at the time of the fire tenant from year to year, at the rent and on the terms specified in the agreement, so far as applicable to a tenancy from year to year. The question of law is, whether, under the circumstances stated, the defendant was, as such tenant from year to year, liable on the agreement to “keep the premises in fair tenantable order;” whether that term of the agreement is applicable to the defendant as tenant from year to year ; and if applicable, whether he was bound to rebuild on the happening of the fire, and, not having rebuilt, liable in damages to the plaintiff for not rebuilding. It appears from the case that the plaintiff had insured the buildings in £l5O, and had received the insurance money. The plaintiff seeks to recover from the defendant, as damages, the difference between the value of the buildings destroyed and the amount received from the insurance.

Though somewhat embarrassed by the doubt expressed by Lord Denman, in Doe v. Amey,

12 Adi. and El., 179, and the opinion of Erie, J., in Bowes v. Croll, 6 Ellis and Blk., 264 (in neither of which cases was this question actually before these learned Judges), I have felt compelled by the authorities to come to the conclusion that the defendant was bound to rebuild the buildings destroyed by the fire, or pay damages to the plaintiff.

In Bowes v. Croll, the only question really decided was that, in an action on an agreement, whereby the defendant agreed to repay certain moneys to the plaintiff on the expiration of a lease, thereby agreed to be granted by the plaintiff to the defendant, a plea that the lease had not been granted was a bad plea, and that the granting the lease was not a condition precedent to the liability on the agreement. However, Erie J., in his judgment, and in answer to a contention by the counsel for the defendant, that the execution of the lease was essential to raise the liability as to matters connected with the interest in the lease, makes the following observations ;

“This falls within a class of cases which have repeatedly been before the Court, where parties stand to each other in the relation of landlord and tenant, upon the understanding that a lease is to be granted, but the lease not being granted, they go on in that relation for a long time, so that the question is how many of the stipulations which were to have been introduced into the lease remain in force. If the agreement had been for a ninety-nine years’ lease, and one of the intended stipulations of the lease was that the tenant should build during the term, it is manifest that he could not be called upon to build while he held for an uncertain term. So if there had been a stipulation that the tenant under the lease should repair, he would, if he held only from year to year, be bound only to tenantable repairs. The question always is whether a stipulation is materially connected with the lease which has not been granted.” It seems to me that the agreement supposed by Erie, J., and to which his observation was applicable, was an agreement for a lease, with a covenant to rebuild or to put the building in repair, or to do certain substantial repairs. In such a case it may be that the covenants are materially connected with term or interest to be created by the lease, and would not be implied against the tenant who entered into possession under the agreement, and became tenant from year to year; in such a case it may be clear that the extent and certainty of the interests to be created by the lease were the inducements to the covenants to lay out the money in rebuilding and repairs. If, however, the learned Judge’s observations can be construed as an expression of opinion that, where there is an agreement to lease, with covenants to repair, and occupancy under the agreement, the term as to repair is not applicable to the tenancy from year to year thereby created, then the opinion is contrary to many expressed decisions on the point. In Doe dem. Thomson v. Amey, 12 Ad. and E., p. 479, Lord Denman says : “ It has been argued that the terms of the lease cannot be applied to the parol tenancy, inasmuch as some of them, such as the agreement for repairs, are not usually considered as applicable to such tenancy. Whether the obligations to repair can be enforced under such circumstances, at least as to substantial repairs, may perhaps be questionable.” If the doubt of Lord Denman is well founded, then it will probably follow that the tenant would not be bound to rebuild in case of destruction by fire. However, this is not clear, as the liability to rebuild in case of fire, under an agreement to “keep in repair,” has been held to arise from the fact of a tenant agreeing to “keep” the premises in repair, without excepting damage by fire. The liability does not, it would appear, depend upon the nature of the repairs which the tenant has bound himself to, but on the fact that, having bound himself to keep the premises in some repair, he must rebuild if the premises are burned down, otherwise he cannot keep the premises in the stipulated repair. See Earl of Chesterfield v. Duke of Bolton, post. Notwithstanding such doubts as may be raised by the opinions of the learned Judges above referred to, it seems to me that an agreement to keep in repair is applicable to a tenancy from year to year, and that an agreement to keep in repair, or in tenantable repair, without excepting damage by fire, binds the tenant to rebuild.

Many authorities establish that, where a lessee has bound himself to “ keep in repair,” without excepting damage by fire, he is bound, to rebuild if the premises are burned down, even though accidentally. See Bullock v. Dommitt, C Term Rep., p. 651, in which the covenant was very full. It was to repair, support, maintain, amend, and keep the premises in needful repairs. Also, the Earl of Chesterfield v. Duke of Bolton, Comyn Reports 626, where the covenant was that the defendant would at all times sufficiently repair and keep in good repair; and at page 632 of the Reports, it is said by the judgment of the Court that, “ in case it be burned or fall down, he must rebuild it, otherwise he doth not ‘ keep’ it in good repair.”

There can be no doubt that under a general covenant to keep in repair, without excepting damage by fire, the lessee must rebuild if the premises are destroyed by fire. The reason is, that having bound himself unrestrictedly, it is his own fault, for he might by his contract have provided against the contingency. See Atkinson v. Ritchie, 10 East 530 ; Parridine v. Gane, Aleyn 26 ; Spence v. Chadwick, 10 Q.B. 530. So in equity the same principle is acted on. See Gregg v. Coates, 23 Beavan, p. 33. There a testator having directed his trustees to allow A B to occupy a mill so long as he should think proper so to do, “he nevertheless ‘ keeping ’ the premises in good and tenantable repair,” and A B having accepted the gift, but the premises being afterwards destroyed by accidental fire, it was hold that A B was bound to reinstate them. See also in re Skingley, 3 Macnaghten and Gordon, 221. The tenants’ liability is held to be the same after the expiration of the lease if he continues to hold as tenant from year to year on the terms of the lease so far as applicable. See Digby v. Atkinson and another, 4 Camp., p. 278, where a lessee who had held a lease, with a covenant to sufficiently maintain, uphold, &c., and “keep” the premises, with all needful repairs, and after the expiration continued in occupation at an increased rent : Lord Ellenborough held that though the defendant became only a tenant from year to year on such of the terms of the lease as were applicable to a yearly tenancy, that the covenant to repair was applicable, and that the premises having been burned dowu the tenant was, though only a yearly tenant, bound to rebuild. That was the case of a tenant holding over after the expiration of a lease. But the authorities are clear to the effect that the position, of a tenant from year to year under an agreement for a lease to be granted is no different to that of a tenant from year to year on the terms of an expired lease. The applicability of the terms to the tenancy must be governed by the same rules in both cases. See per Williams, J., in Doe v. Amey, where the question was whether a stipulation as to rotation of crops, &c., was applicable, and he says; “ It is admitted that, if this was a case, of holding over, the terms of the written agreement would apply.” In principle, there is no distinction between that case and the case of a tenant who enters and pays rent upon the faith of an executory agreement for a lease. That being so, the case of Digby v. Atkinson is a direct authority in favor of the plaintiff. The only difference between the case of holding over and that of holding under an executory agreement for a lease, is that in the former case the language of the agreement has been determined, while in the other case the words may not have been agreed on, and the agreement expressed only in general language. In the present case the agreement is to “ keep in fair tenantable order.” It may be that the language used in the lease would have been somewhat more elaborate, but the agreement expresses no exception providing against the contingency of the premises being put out of “ tenantable order” by fire. Other authorities were cited by Mr. Allan for the plaintiff, establishing that the agreement to keep in good repair is applicable to a tenancy from year to year. See Richardson v. Gifford, 1 Adi. and Ell., p. 52 ; Beale v. Sandars, 6 L.J., C.P. 283 ; Ecclesiastical

Commissioners v. Merrall, 38 L.J.,Exch., p. 93

Mr. Brandon cited authorities to show that a tenant from year to year is not liable to other than what are called tenant’s or tenantable repairs, putting in windows and doors that have been broken by him, or to repair damage through acidental fire, or wear and tear of time, orthelike. Woodfall’s “Landlord and Tenant,” 4th edition, 405 ; Salop v. Crompton ; Croke v. Eliny, 777, 784 ; Leach v. Thomas, 7 0. and P., 327 ; Torrians v. Young, 6 O. and P., 8 ; Anworth v. Johnson, 5 C. and P., 239. Pergusson v. ,Q. exp., 589. And he contended that the agreement to “ keep in tenantable order,” if more extensive than the obligation which every tenant from year to year is under, was not applicable to the tenancy from year to year. This contention is sufficiently answered by the cases above referred to, of Richardson v. Gifford, Digby v. Atkinson, and other cases. See also Hyatt v. Griffiths, 17 Q. 8., p. 509, per Patterson, J., who says: “ When it is said that a party becoming tenant from year to year may be deemed to hold over on the terms of a prior lease for years, that cannot be confined to such terms as are necessarily incident to a yearly tenancy ; the rule would then have no meaning. It must include such terms as may be incident.” If the term is not inconsistent with a yearly tenancy, it is applicable. See per Lord Campbell in the same case. There remains the question whether the stipulation itself as to repairs, though applicable and binding on the defendant, did bind him to rebuild on the happening of the fire; or whether it bound him only to repair the damage arising from voluntary negligence; —whether, in fact, the agreement is only coextensive with that which would be implied in every tenancy from year to year. The agreement is to “keep in fair tenantable order.” In Richardson v. Gifford (supra) the agreement was to keep the premises in good repair. The declaration treated this language as synonomous with tenantable repairs, as also do several of the Judges in their judgments and observations: and in Colley v. Streeton, Q. B. andC., 273; and Edge v. Pemberton, 12 M. and W., IS7, where the agreement was for tenantable repair. In Ecclesiastical Commissioners v. Merrall {supra) the agreement was for tenantable repair, and it is evident from that case that where such an expression is used, it means more than the obligation to repair implied in all tenancies from year to year. I think, therefore, that the agreement to keep in fair tenantable order” means more than repairing damage done or happening through voluntary negligence of the tenant, and is equivalent to an agreement to keep the premises in a state fit for a tenant, and consequently binds the tenant to make good damage done from accidental fire.

The opinion of the Court is, therefore, in the affirmative of the question put. The measure of damage is the amount of depreciation in the value of the reversion. In the present case, where the interest of the tenant has expired, or is about to expire, such depre ciation may be taken as the amount which it would take to reinstate the buildings. However, the plaintiff is willing to let the sum received by him under the policy go in reduction. MILLAR V. THE MATCH AND CORPORATION OF WANGANUI. This was a case which had been argued on demurrer some time since, Mr. Travers appearing for plaintiff, and Mr. Hell for defendant. His Honor said he had intended to give judgment in the case, but now thought there must be another argument, for his impression was that the points on which his decision might mainly turn had not been touched on in the arguments j and that being so, it would scarcely be satisfactory to the parties were he to give judgment before they had had an opportunity of again arguing it. The declaration, amongst other things, alleged that the plaintiff had been an officer of the Corporation, and that he had been appointed to hold office during good behaviour, and that he was wrongfully dismissed. The pleas of the defendant said the dismissal of plaintiff was justified because of his neglect of duty for fourteen days, bat he (his Honor) was inclined to think that if the engagement was an ordinary contract between a master and such a servant as an engineer or surveyor, and under the terms defendants themselves stated —that the tenure depended on good behaviour —that the plea was not a sufficient answer to the declaration. He believed defendants would have to show some facts that would prove that plaintiff was not to be relied upon for the future. Granting that a single instance of neglect of duty by a servant had taken place, possibly it did not follow from that that the master could not rely upon the servant afterwards. However, he would give no decided opinion on the subject yet. But there were other matters which should also be argued. Tor instance, in the first place the declaration set forth that the Wanganui Corporation was a corporate body under the Corporations Act, but it appeared to him that that Act did not authorise the appointment of any officers during good behaviour. All the authorities cited showed that defendants had treated the case as an ordinary case between a master and servant, and seemed to think that they could put an end to the engagement with the usual notice, but it must not be forgotten that according to their own statement plaintiff was appointed to hold office during good behaviour ; and the question as to whether a single instance of neglect was sufficient justification must yet be argued, supposing the Corporation had powerto appoint officers to hold office during good behaviour. But that was anotherquestion which had to be considered. The 169th section authorised the Council to appoint and remove officers, but he was disposed to think that the section contained no power enabling them to make such appointments to hold office during good behaviour j he was rather disposed to think they could make appointments during pleasure, and being made during pleasure, it was not necessary for the Council to give any reason in justification of their conduct, and there ivas no cause of action. His doubt was whether an action for damages arose at all, and then again, could plaintiff recover money froin the Council by action "at law. Many authorities laid it down that the only way to proceed was by mandamus. ■ Mr. Travers submitted that an adjudication must be obtained in the first place, and then the only remedy to obtain payment of the money was by the issue of a mandamus t and not by execution. He quoted a case in which a road board had been actually sued in a Resident Magistrate’s Court, but judgment having been obtained for infringement of some territorial right, it was necessary to obtain a mandamus to compel payment of the money. His Honor: Yes, you cannot have an execution because a Council has no funds to satisfy an execution, and a mandamus must be obtained to compel the raising of funds for this particular purpose. Mr. Travers ; Exactly, your Honor. It is necessary to raise a special rate, because the rates collected for specific purposes cannot be applied to other than those specific purposes. But a judgment must first be obtained. His Honor would not express a definite opinion on the subject, having doubts as to whether it was not necessary to proceed by mandamus in the first instance. The matter then dropped. KARAITIANA V. SUTTON AND OTHERS.

Mr. Izard (with whom was Mr. Travers) mentioned the case. Amotion had been made at Napier in June last for a decree for an inquiry as to parties interested, with a view to a partition of certain lands in dispute. His Honor said as far as he could see defendants submitted to a decree, and therefore he should make it as prayed, leaving the particulars of the partition to be settled in chambers by the parties themselves if possible. Some discussion having arisen as to where the matter should be settled—at Napier or "Wellington—his Honor decided that proceedings should take place at Wellington, before the Registrar. Mr. Wilson, of Napier (with whom appeared Mr. Uornford, also of Napier), on behalf of defendant, making no objection. PAOEA TOEOTOP.O AND BEWI HAOKOBE V. SUTTON. Argument on demurrer. Mr. Travers and Mr. Izard for plaintiffs ; Mr. Wilson and Mr. Cornford for defendant. This was a demurrer to an after plea which had been entered by defendant. The issue of

fact had been tried before the Chief Justice and a special jury at Napier on the 17th June, 1875, when certain issues had been decided by the jury inconsistent with one another, so that the defendants, particularly P.ewi Haokore, felt that they were entitled to relief, and decided to come to the Court in its equity jurisdiction to seek that relief. The action was commenced in August, 1874, and its object was analogous to what was known in English law as a suit in Chancery—to obtain the reformation of certain deeds executed years ago by the plaintiffs to the defendant. This relief was claimed on the grounds—first, that the lands were tie facto included in the deeds by mistake, contrary to the terms of a special agreement between the parties ; and secondly, that these lands were fraudulently included in the deeds, defendant at the same time knowing not only that there was not intention on the part of the plaintiffs, at any rate Rewi Haokore, that the land should be so included, but that in having it included he was acting contrary to the express terms of the agreement between himself and the natives. Therefore the plaintiffs wished to have the deeds reformed on the ground of mistake and fraud. The jury had found substantially for the defendants, but the plaintiffs, as before stated, had resolved to appeal to the Court in banco, and defendant had entered an after plea to the effect that he had secured an indefeasible title to the land by obtaining a title from the Registrar under the provisions of the Laud Transfer Act. This plea was demurred to. Mr. Travers supported the demurrer. He sard the action had been commenced in August, 1874, the pleas in answer to the declaration were entered on 21st September, 1871, but in December, 1874, a certificate of title was issued, so that it would be seen that it was after the action was commenced that the land was brought under the operation of the Land ’ Transfer Act. The application to have the land brought under the operation of the Act was made in June, 1874, and on the 10th July plaintiff, or some one on his behalf, caused a caveat to be lodged, but failed within three months from that date to give the Registrar notice of proceedings having been taken, thus allowing, as it were, the caveat to lapse, whereas the Act provided that the party taking proceedings should give the Registrar notice. This for the purposes of the demurrer was admitted, and it was granted that the 31st section of the Land Transfer Act had not been complied with. But as a matter of fact proceedings had been taken, and the question arose whether that certificate, obtained by defendant after the commencement of proceedings, could be pleaded as an indefeasible title, so as to bar the plaintiffs from obtaining the relief they sought in the declaration. He (Mr. Travers) submitted it was not so, because the 31st section was merely directory, and did not alter the substantial position of plaintiffs and defendants. He called attention to the 39th and 46th sections, the latter of which the defendant would probably rely upon most. The 39th section perhaps was not so strongly in his favor. It said: “ Every certificate of title duly authenticated under the hand and seal of the District Land Registrar shall be received in all courts of law and equity as evidence of the particulars therein set forth, and of their being entered in the register book, and shall, except in any of the cases hereinafter otherwise provided, be conclusive evidence that the person named in such certificate of title, or in any entry thereon, as seised of or as taking estate or interest in the land therein described is seised or possessed of such laud for the estate or interest therein specified, and that the property comprised in such certificate of title has been duly brought under the provisions of this Act, and no certificate of title shall be impeached or defeasible on the ground of want of notice,” &c. That did not alter the position in any degree, because it was admitted that by virtue of the evidence produced by defendant it had been affirmed that he was the person who, by virtue of the title he had exhibited, was entitled to the fee simple of the property. But it was the 46th section that probably he would most rely on for the purposes of his after plea. This said that the estate of the registered proprietor should be paramount, “ except in the case of fraud,” and “except so far as regards any portion of the land that may be erroneously included in the grant, certificate of title, lease, or other instnunent evidencing the title of such registered proprietor by wrong descriptions of parcels or boundaries.” But if there had been fraud, then the title was affected. The plaintiffs said the ground was obtained by fraud, and that the title was affected by fraud, and as a consequence, the after plea must go to the wall. His Honor : You allege mistake and fraud. Mr. Travers : The plaintiffs alleged that generally. They said that the execution of the deed of mortgage and other documents was obtained by fraud, because defendant well knew that the plaintiffs did not intend to include in the deed certain 163 acres, which had been included therein contrary to the terms of the arrangement made between plaintiffs and defendant. The deeds had been prepared under the direction of the plaintiffs, and the defendant had had no independent legal advice, and under these circumstances, although plaintiffs had positively agreed that the 163 acres should not be included in the deed, it had been included. The assertion of the plaintiffs was clear and definite. They said defendant had fraudulently obtained execution of deeds by the plaintiffs, inasmuch as he had caused plaintiffs to include in a deed, not merely in mistake, but contrary to the express terms of the contract, land which should not have been included, and it was this deed which formed the foundation of the title obtained under the Land Transfer Act. Upon that ground, inasmuch as the after plea did not negative the fraud declared in the declaration, and must be taken, therefore, to be a tacit admission, the title must be taken to be bad.

Mr. Wilson objected to this assumption that they admitted the assertion of fraud. _ That had been denied in the other pleas, and it was unnecessary to repeat it in the after plea. Mr. Travers contended that it was a rule of law that 'where a plea did not expressly deny any assertion the absence of the denial must be taken to be an admission. Proceeding with his argument, the learned gentleman submitted that the lapse of the caveat should not be a bar to the action. The clause respecting the caveat was merely directory, and the only effect it was intended to have was to protect the Registrar. The Registrar could not issue a title to land, the ownership of which was in dispute, until such dispute was disposed of. The failure of the plaintiffs to give notice protected the Registrar, but the issue of the title, under the circumstances, would not affect the rights and equities of the parties in any way, in proof of which might be quoted the 139th section. The whole question was whether the equitable jurisdiction of the Court was ousted by the issue of the certificate, when there was no change in the title of the party against whom fraud was alleged. Mr. Wilson referred to the anomalous position in which he was placed, owing to the application of New Zealand rules to pleading in equity suits, and pointed out how different would have been the course had the case been in the Chancery Court in England. The only answer plaintiff could give to the after plea was to prove that fraud had been committed, and the defendant for the purpose of the after plea was obliged to admit that fraud had been committed, although ho entirely traversed that.

His Honor remarked that there was nothing in the after plea to negative fraud. Mr. Wilson admitted that; but pointed out that by the whole record it had been denied. He had not considered it necessary to deny again in the after plea what had been already put in issue and decided in the negative, and in the same way it was impossible for plaintiff to succeed, because he could not show fraud without entering into fact, which they were not there that day to try, and which, when it had been tried, wap utterly disproved, as witness the findings of the jury. He contended that the title issued was a proper document, and so soon as it was issued defendant had an absolutely indefeasible title to the land, and until it was cancelled by the Registrar it was unchallengeable. The holder of the certificate, unless fraud were proved, had an indefeasible title.

His Honor : You admit if fraud were proved it cannot stand.

Mi - . Wilson admitted it, but that was the only thing which could affect it. The only reasonable interpretation to be put upon the 31st section was that it prevented a party dealing with the land after a suit was instituted, but the Registrar had a discretion. Thus if notice were given him of a suit pending, and no proceedings were taken, the Registrar, not being satisfied of the bona Jides of the person lodging the caveat, would have the discretion of issuing the title. Further discussion ensued, in which the learned counsel for the defendant repeated his argument that the title could not be disturbed unless fraud were shown, and no fraud had or could be shown.

Sir. Travers replied, and quoted authorities in support of his argument. His Honor reserved his decision. SAME V. SAME. Mr. Travers moved for a decree in favor of Rewi Haokore. He said his Honor would remember that on the occasion of the trial the findings of the jury were different as regards the respective positions of the two plaintiffs in the suit. The jury found that the plaintiffs were dwelling on the land at the date of a lease granted to Mr. Braithwaite, which lease was the earliest document referred to during the trial. That they were also dwelling, using, and cultivating the said land at and for some time prior to the date of the mortgage, and prior to the date of the conveyance, and in effect were in actual possession of the property on that date. Then came the question on the treaty for the mortgage in the declaration mentioned : “Was it mutually agreed by word of mouth between the defendant and ■ the plaintiffs for the sale of laud included in the Crown grant mentioned in the declaration should be included in the mortgage ?” This was the second issue, and this peculiar answer was given: “Yes; so far as Paora Torotoro, but not as regards Kewi Haokore.” The next issue, 2a, was: “If not, was it on such treaty so agreed that only the land so leased to the said James Butcher Braithwaite, as in the declaration mentioned, should be included in the said mortgage 1” The answer was “No ;” but they were left to assume that it was Torotoro alone who agreed, because the answer left untouched the point raised by the answer to the second issue, so affecting Rewi Haokore, who in point of fact clearly had taken no part in the negotiations under the contract when the whole land was mortgaged. The questions in the next two issues, as to the mortgage deed being prepared under the instructions of defendant alone, were admitted as answered in the affirmative, and also the fact that plaintiffs had not had any independent advice in reference to it; and then the jury found in answer to the next issue, —“ Did plaintiffs, or either of them, know, and if so, which, that the said mortgage comprised all the land included in the said grants ?”—to the effect that Rewi did not negotiate, and know nothing whatever about it. In 5a came an important issue, and the answer given required particular attention. The answer was to this effect : that the mortgage deed was read over, interpreted, explained ; but there is no evidence that it was understood by Rewi Haokore. On this point he (Mr. Travers) submitted that it should be shown that the deed was understood; but defendant had never in any of his allegations pretended that it was. If his Honor would refer to the Native Lands Act, 1865, section 74, he would find it was laid down that a deed could only be sustained by evidence put before the jury that it was notonly read over, audinterpreted, but actually understood by the native making the sale; but as there was no evidence of that in this case, it must be taken as a negation that Rewi had understood the bargain. In other issues it was shown that the first intimation of the mortgage obtained by Rewi was in December, 1873. In the issues 6to 8 precisely the same evidence was afforded as to the conveyance of the equity of redemption —that Rewi knew nothing at all about it. In the tenth issue there was the finding that the execution of the deed of conveyance was not fraudulently obtained ; but that he submitted was a finding quite inconsistent with that which followed. For if Rewi was ignorant of the whole transaction —if he was ignorant that the deeds had included land which he had agreed should not be included—that he was not at any period aware of the contract to include the 160 acres of land, and remained in quiet possession of the land without any claim being made against him till 1873, and no laches could be imputed to him—then it must be taken that so far as Rewi was concerned there had been fraud on the part of the defendant. Upon that state of facts, the decree was asked by Rewi, and to show that one plaintiff had a right to claim relief, Mr. Travers quoted Dickens’ Reports, vol. 2, p. 513. If one party was not considered entitled to relief, the other party must be, and the question was, how was he to be granted relief. In this case it would be merely a partition of the value of the property they had been deprived of, and costs of the action. There might be an injunction at once issued to restrain the defendant from alienating the property so as to defeat the plaintiff. His Honor thought Mr. Travers must show that defendant, when he was proceeding, was aware of the want of knowledge on the other side. Mr. Travers said that might be gathered from the evidence that had been given and the findings of the jury. There was no agency on the part of Paroa Torotoro alleged; it was so put to the jury, not the slightest suggestion that he had acted as agent for Rewi. The finding of the jury amounted to -this, that Rewi was willing to part with some land, but he did not instruct the deeds to be prepared, had not had any independent legal advice, and that land had been alienated from him which he specially agreed should not be mortgaged. Possibly a native was supposed to look out for his own interests, but he contended that in dealing with these natives they must be treated in the same position as children, or in the position of persons not having the same knowledge of business, or faculties of comprehension in business transactions as white men, and it was nothing less than fraud to treat them otherwise. His Honor : There is the answer to the tenth issue, that the defendant did not know that the plaintiffs did not intend to include the 163 acres.

Mr. Travers contended that finding was inconsistent with the other findings, for the reason, as his Honor would see, that it was to another issue found that Rewi knew nothing at all about it. He had not caused the deed to be prepared, but it was prepared by order of defendant himself, without Rewi having had the advantage of independent advice, and as a matter of fact knew nothing at all about it.

His Honor : It was explained to him. Mr. Travers: But it was not understood by him, His Honor : But defendant was induced to think ho understood it. • As a matter of fact, it seems he did not understand ; but as a matter of belief, defendant thought he did. Mr. Travers: That presumption might be contended for on the strength of the answer to the 11th issue ; but your Honor will look at this fact, that this man remains in possession utterly unmolested, and without a word from defendant. Till defendant goes and demands possession Rewi has not the smallest or remotest knowledge that the property has gone from him, and that it is actually included in the mortgage.

His Honor : What is the date of -the deed ? Mr. Travers : March, 1800, and it is not until the 11th December, 1873, or about four years afterward, that he knows anything about it. Defendant allows him to remain in possession all that time, thus making it all the more difficult for him to dispute this deed. The findings of the jury are an evident attempt at compromising the matter, but ineffectually carried out. Although they seem to find something like fraudulent dealing, they say defendant 0 did not know it. Although they find Rewi knew nothing about it, yet they consider his failure to understand it was not the fault of defendant. The whole of the circumstances were before them, and apparently they could not appreciate the great discrepancy in the statements. Mr. Travers quoted Hands and Pepperel 5 Law Rep., eq. p. 1. At fifteen minutes past 4 o’clock, the Court adjourned till 11 o’clock next day.