CASE. Judgment for the Plaintiffs.

Waikato Times, Volume XXI, Issue 1761, 18 October 1883, Page 2

CASE. Judgment for the Plaintiffs.

THEiSupr&mo Court wa? 'occupied all day on .Tuesday hearing the case Grrico, Benn, and others y . N Aiuiie Waata and others. As the,case possesses a large aindunt ' of local interest, we re-publish the report from the New Zealand Herald, Mr E. Hesketh appeared for the plaintiff ; Mr De Lautour and Mr Macgregor Hay for the defendants. This was an action' brought by the plaito tiffs to recover possession of two piece* of land forming part of the Pukekura block, upon which, it was alleged, the defendants had unlawfully entered. The declaration set out that the Pukekura block was granted to the native defendants (ten in number), the date of the Crown grant being the 4th of August, 1870; that a deed of lease was given by nine of ' these natives to one Thomas Douglas, dated July, IS7I, but one Wiremu Tureti who did not sign the original lease, executed a deed of confirmation of the original leabe. This second Seed was dated 24th of November, 1873. On the 4th of March, the plaintiffs bought the interest of this Thomas Douglas in the lease of the Pukekura block, Douglas assigning the original leaso, which contained a purchasing clause. The declaration further set out that the plaintiffs entered possession of the block under these deeds ; also that certain natives (the defendants) re-entered and occupied certain portions of the land ; that a native named Paul occupied la. lr. 27p., and four other defendants occupied la. 3r. 32p., on account of which the plaintiffs claimed £25 for mesne profits on account of Paul's occupation, and £75 on account of the occupation by the four other defendants. The defence was, in effect, as follows : — That the orginal deed was not signed by the majority of natives in value ; that the deed of confirmation was not executed by the nine natives who signed the original deed ; that the lease provided that a lessor should notsell without notice to theother grantees ; that the ten grantees were tiustees for other natives ; that conveyances had been made which weienever under the control of the defendants ; that plaintiffs refused and net glected to pay rent ; thas the natives did not re-enter, as alleged, upon the dates named. Edwin Barnes Walker, of Mona Vale, near Cambridge, excamined by Mr. Hesketh, said : 1 know the plaintiffs. I was their agent and attorney. I know the Pukekuia block, which ib claimed to be owned by the plaintiffs. The lease contains accounts for duty up to 1875. 1 have boon in the habit of paying that through an agent. I have made fmther payments — that is the duty up to the present time. I paid it to Mr Warren, Deputy Stamp Commissioner. (Receipts pioduced.) Aftui getting this lease the plaintiffs enteied upon the block. That was about 1871. Had continued upon the block ever since, cultivating, diainmg, fencing, building, and keeping sheep and cattle on it. I know the defendants, Annie Waata and others. They came on the block after I entered. They weie on the block on the 3rd of May last. They have several houses on the land. Knew also the portion occupied by Paul. These natives did not enter with plantiffs' authority. I have requested them to go off the land. They are .still in possession. (Pieces marked A No 1, ANo 2.) The plaintiffs claim £25 from Paul since 3rd of May. That is a low estimate (la. lr. 27p). The plaintiffs claim £7ii from the four otlior defendants (la. 3r. 32p). His Honour . Do you mean £25 for an acre and a-half ? Witness :It would be very difficult to ,say what the value of it would lie. It would be difficult to get a tenant for it. Say £10. Then for the other £75. (Leases tendered. ) Mr. DeLautour : I presume it would be moie convenient to my fiiend to allow exception to these leases to be taken now lather than latei. Mi Hesketh : It was already discussed between as to those legal questions. Mr DeLautour : I must take exception now, because there is the question as to the duties which I could not allow to pass. His Honor : Once they are in, they are in. Mr DeLautour : The 58th section of the Native Lands Act, 1805 (reads). The last payment was later than the 2Sth of August. His Honour : The admissibility in evidenceuis one thing, the validity of an instrument is another. This rather touches the \ alidity. Mr DeLautour ; I do not think my learned fi tend need detain his witness by proving these payments. The whole question is not as to the payments, but as to tho time of payment. (Leases andmceipts f oi payment put in. ) Mr Hesketh : Of course, if there is anything wiong in tho declaration, I cannot altei it, and it is open to my friends to dispute it. Cross-examined by Mr DeLautour : We enteied m 1871. Theie were lease ■> before those, which were cancelled. Our fiist possession was, I believe, under a former lease. We have paid the lent, eveept once, when Hoii Pua refused to take the rent. He took it afterwards. He said Mr McDonald had told him not to take it. The paying rent was made accoidmg to arrangement. Sometimes they would allow it to remain over to get a larger sum. £27 was paid to Hori Pua to buy cattle. Last ' year there was a sum of £50. I believe I can produce receipts for most of the payments, but I have with me only those to Hon. I have purchased the land from some of these natives. I joined in the application for a revision by the Native Lands Court. I have taken conveyances for these purchased lands. Mr DeLautour : I shall leave the question of damage to your Honor. Mr Hesketh ; The witness is clearly confusing tho question of mesne profit and damage. Mr DeLautour : We understand that Mr Walker could not put down the me^ne profits of one acre out of SOOO acres, which he holds at a rental of £5)0 a-year, so as to lepresent a profit of £10 for the six months. Mr Hesketh : The witness evidently confounds the action for possession with the action for trespass. The whole question here is the recovery of possession. Mr DeLautour : We rely on certain points by which, touching the validity of these leases, we would be entitled to claim a non-suit. There are other points which would necessitate our taking evidence. The statute of 18(59, section 14, required that any alienation of native land being made, assent must be given by a majority in value of the grantees. The plaintiffs are claiming possession of two eight-thousandths of a block of land. But their claim covers the whole block. The objections I take are :—: — 1. That the non-payment of duty at the time the action was brought is fatal to the lease. 2. That there was no duty paid at all on the second lease. 3. That only nine signed the first lease, who did not represent the majority in value, 4. That the second lease can m no way be conjoint with the first, Mr Hesketh contended :—l.: — 1. That an instrument did not take life on the payment of the first duty, and only possessed life until the next payment, then losing its validity. It became valid on the duty being paid, as provided by the statute, and retained its validity, notwithstanding the subsequent non-payment, for which cases the statutes made provision. 2. That this was a lease from the whole ten grantees of the block, because whatwas called the second lease was simply a confirmation of the first, or method devised to enable the tenth grantee to sign. Mr DeLautour ; The IGth Section of the 1 act of 1860 is that six months shall be al1 lowed, during which payment made after due, and if not so paid then the instrument is invalid. , His Honour : It appears to me that section destroys your contention, for that act imposes a penalty equal to three times the duty. The meaning of that i<? not that the instrument shall become invalid, < but that three times the penalty Bhall be pai^, ajid. it remains, valid., , • „,■ Mr DeLautour : There is a similar case to this, " Mona v. Ormond," which is rer ported in the books, where it was held that ' my contention was law. I His Honour : That case appears to me to be against you. There it was held that a lease of six-tenths (six out of ten natives) would inure. • Here there ara nine-tenths. Mr Hesketh contended that inasmuch as the whole of tKese,facts constituted one and the transaction, as,, there r was 'Second' 'consideration, therefore ' ffhe'r^ was not in ejEfecii t^o leases butldne lease. ! < ' His Honour- \ 1$ se.emB tjo me that If *he,re has been only gne. Je.a.sa with nmeaigna--'tureii'then'it'HVould be' 'incumbent 'on th^ plaintiff | to ,hay,e , prc-yed i fhat these, nine persons > represented .a .majority' in value. / B U 't,tHe7de6 < d l Wm t fiU ! 'insVance^pur^6rts itp"'be,inade(bfyjj;bevwKoleilten/'ithat.iis; w the first deed purports to be made, by the whole [»ten, : although|not' executed" by ,then Venth fmap>tnjst 3 belng;»b^

— —~- — second \sas merely the equivalent of the "original deed. Tho tenth man recited the agreement with him, giving the reason why he did not sign at the time. But the consideration for the whole transaction was at 'the beginning with the ten, and not with the nine ; that this was merely a subsesequent execution by the tenth ,man. 'We all know the difficulty it is to get 'a number of natives who may be required together at the same time. In these cases the deed would have to be executed by two or three at one time, and two or three or four, as the case may be, at another, just as the grantees could be got together at one time. But that would not invalidate the execution by the previous tAvo or three, because the whole had not signed. I hold that the execution of the original deed, which is the effect of the second deed by the ten grantees, renders it unnecessary on the pai t of the plaintiffs to prove the majority in value; for it is recited that they concui red in the transaction, aud there is no fresh consideration and no duty payable. Mr DeLautour ; I now wish to show that the Crown grant is without foundation, and, therefore, voidable. His Honour : If you wish to attack the Crown grant, you mu&t do it by scire facias. MrDoLautour : The 17th section of the Act of 1807 gave a new remedy, which did not exist before. Mr Justice Chapman has laid down very definitely the distinction between an instrument that is void and one that is voidable. (Queen v. Spender Macaisey, G2S.) We do not seek to attack the Crown grant by saying that it is void, but that it is " voidable," and there we ask the Court to say that it shall have no effect. His Honour : If you wish to set aside the grant, you must do it by action. Mr DeLautour : We think your Honor, that the statute provides a mnedy (17th section of the Act of 1867) which is applicable in such a case as this. Mr Hesketh : I contend your Honour, that there is no power in the Court upon a proceeding of this kind to set aside or impugn a Crown grant. A Crown grant is a public Act of the Crown aud cannot be set aside unless the Crown is made a party. His Honour : I agree that a Crown grant could not bs set aside unless the Crown were made a party. In any case, I should not admit an atta k upon a Crown grant as an incidental proceeding in a suit like this. If the grant is to be upset you must do it by scue facias. Would not the counsel for the defence do better by producing their evidence, aud then we might consider the legal application of each point as it should arise ? The Registrar of the Native Lands Court produced the certificate of title. Mere Whakatutu, Ani Wata, and other native defendants, were examined as to payment to them of rent by Mr Walker. They admitted certain sums, but could not speak to dates or places or other circumstances attending the separate payments. Mr DeLautour .suggested a means by which the litigation might be determined upon the real issues involved. He would consent to judgment being given for the plaintiffs, if execution should be stayed until January, when a number of cross actions by the natives against the piesent plaintiffs should be tried. These actions would test the whole of the case on substantial merits. Mr Hesketh : I believe my clients are ready to concur in such an arrangement, but it must be coupled with some condition. I am informed that there are from 60 to SO horses and other cattle running over this block, also 200 pigs. The damage all these animals do is incalculable. I am infoimed that a very large sum would not cover it between this and January. We have no obiectiou to these people remaining on so much of the land as they actually occupy, but to allow them to iuh their hoi nets and cattle over the whole block, containing the land my clients have purchased, would bo asking too much — it would be asking us to give the natives a very laige sum of money. [The court, at the request of Mr De Lautoui, adjourned for ten minutes, to allow a confeienco between counsel engaged on each side.] Mr DeLautour (having returned into court) : I find, your Honour, that the difficulty is that the parties cannot agree as to the extent to which either should give way. Tho plaintiffs reasonably enough say, "You must not do certain things. " The natives, on tho other hand, .say, " We have nowhero else to go to." I believe my clients have very substantial merit-- on their bide. Mr Hcskoth : Wo have offered to give the natives these two pieces of land, and cut them off. But I am informed that thei'o aie two thousand acres of the Pukekura block, any part of which these natives might go on. His Honour : I do not see how I can intoifere. This matter has already been before the Court. The present plaintiffs asseited their lights in force, and have suffered foi it. They are now as&eiting their rights in duo form of law. They havo been put to laige expense. But I confess theie is nothing that has come undei my notice either on the present, or on the f oi - mer occasion, which affouls the blightest giounds for doubting the validity of the Crown giant. Mr DeLautour : Still it is a matter m disimte of which, I presume, the Court would nave cognizance. Mr Hobketh: I am informed that the dogs belonging to these defendants killed over 500 sheep. The paddocks contain selected &lieep, and the natives constantly leave the gaites of these paddocks open. I am informed that Mr Walker is willing to give up the lease of the unsold portion of the Pukekura Block, and retiro from it altogether. We have complied with the law a& far as we can. We a&k the natives now to comply with the law by 'abstaining from the trespass. The unsold portion of the block contains 2200 acres. His Honour : I oan only pronounce judgment according to law. It appears to mo that the plaintiff having proved his title founded upon Crown grant, and ha\ing pioved the unlawful occupation by the defendants, and the defence set up by the defendants having failed, I have no alternative than to givei ye judgment for the plaintiffs, with mesne profits, say 20s for the binaller area, and 30s for the larger area. It appears to be admitted that the amount should be nominal.

TRESPASS. The action for trespass was next tried. Mr E. B. Walker, Mr Thornton Walker, Edwaid Tripp, and other \vitnesbe<> deposed to the damage whole aud in detail. —His Honour gave judgment for plaintiffs, with damages, £250, co&tb to be taxed.

I'UAHUI BLOCK. The same parties brought an action against Waata, Wiremu, Tureti, Mara. Hana, Mere, Taperi Rachel and Kawata. Messrs E. B. and T. Walker and E. Tripu gave evidence as to the damage from the same kinds of trespass. Damage was laid at £250. ' The court, at twenty minutes past five, adjourned to Wednesday at ten a.m.

[BY TELEGRAPH. — OWN CORRESPONDENT.] Auckland, Last Night. At the Supreme Court, to-day, in re trespass onPaahioe Block, damages JSlSO^was given. The hearing of this case was resumed, when counsel for defendants adduced evidence, principally for the purpose of showing that, individually, defendants, were not owners of certain horses and cattle which were alleged to have committed damage. Learned council having briefly addressed the Court} ' ' His Honour proceeded to give judgment. He said it was quite clear that all these . defendants had been living upon , the land, and trespassing upon it. Therefore, although any one of them, individually, may not have been owners of individual horses or pigs that had done damage, for that these animals had wrought damage had been very clearly proved," atill each one appar.ontly had control over the animals, and exercised control, over the horses, and acts of ownership over the pigs, and so they were all responsible for damages r done, although uo individual one could be -pointed, out as having done -these, acts of daihage. Still all were trespassers, who were there, and, tjheiiv /ho«ies''and pigs, though > not necessarily owned by any one of them, were yet under thair ]oint;charge when the damage was committed. As to "the amount of damage the evidence was certainly not as clear as hV; would like it.- "Walker/s, to^n estimate laid , damages, afc£l7ath.p.ug'h, hi? first estimate] h.e staged, ajj £3QQ, inclviding therein, certain goiisemteritifa.l damages for having to jjurn out stock jalsewhere in order to be fattened, butt he .had out that this was too remote to be .included. After reviewing the 'estimates 'of damage done by varioda witnesses; he-thougH'tithe 'amount of damage to which plaintiffs would be entitled lay,between,<tbe 'estimates; of, Jg. fßi ►Walkeii^ai^d, t Tripp.^; Judgment jfbifild ifii&i'Qroi'B * \i&t for £lfn) tviiJi * nnsts '■j.vßhiQri

desired to* consult "his, convenience. His ' Honour said, thatfat ther latest ho would ; be 1 leaving on the 30th, inst;. There would be, plently of opportunities of making applica-' ? tion in Champers.