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[Report of a Supreme Court case on land dealings]

Wednesday, 9th June

Wednesday, 9th June.

His Honor took his seat at 10 a.m.

George Walker, sworn, examined by Mr. Cornford: I am a sheep-farmer, residing at Te Mahia. I have been in the country about 23 years, and lived in the Ahuriri district a part of the time. For the last twelve years I have lived at Mahia. When I lived in the Ahuriri district I was acquainted with the block known as Omaranui. It was then known by that name; a part was known then as Moteo. I did not know any block called Ngatahira, and am not acquainted with the name. Twelve or fourteen years ago I resided at Puketapu, some two miles from page 19Omaranui. I lived there altogether eleven years, and have seen the block during that time. Omaranui was then a native settlement. [A tracing of the block handed to the witness.] I see a small piece marked "Section B." I know the site of that land, but do not know that it had any special name. Omaranui settlement was a little lower down the river—about a quarter or half a mile south of section B. There were no buildings nor cultivation further up the river than Omaranui. I first saw a settlement on Section B. some 12 years ago, when I last visited the place. The native were then building some new whares.

Cross-examined by Mr. Travers: Do you recognise this plan on the lease as representing the block?—Yes. Is the position of the settlement accurately shown upon it?—I cannot say. You said from recollection that it was a quarter or half mile below Section B., yet now, it seems, you cannot swear whether it was below or not. Do you undertake to swear, after looking at that map, that Omaranui was to the south of Kopuaroa?—Witness (after considerable study of the map): From my recollection I should say that Omaranui settlement was further down. Will you swear that it was below Kopuaroa?—I forget the name of Kopuaroa. When did you first communicate with the other side about your testimony?—Last night; I spoke to Mr. Sutton, and told him there was no native settlement on the land when I knew it. Are not the native in the habit of leaving their settlement for a time and allowing their huts to fall into decay; afterwards returning and rebuilding their huts?—It is a common habit About twele years ago, you say, you saw them building new huts—was that not at the Omaranui settlement?—It was not where I had known the Omaranui settlement; It was a quarter or half a mile—perhaps a mile-and-a-half from it. Do you know a hill called Te Mini?—No; I forget the names of places. Mr. Travers (to witness): you seem to be very indefinite. The whole length of the boundary is little more than a mile, and a mile and a half would take it to the other side of the Tutaekuri altogether.

Re-examined by Mr. Cornford: Your recollection extends further back than 1866?—Yes. You are still confident that there was no native settlement above Omaranui?—Yes.

By the Court: Then you cannot tell us whether or not Omaranui settlement was Ngatahira?—I believe it was not. Why?—From what I can recollect of the bend of the river What do you mean by the block? There were no blocks in those days, we called all the land about there Omaranui. Who called it Omaranui, Europeans or natives?—The Europeans; that is, the few who were there; the natives had names for every hundred yards of land, I should think. Then how did the land about there get the name of Omaranui?- I do not believe that the natives would have that name for the district. Had they the name of Moteo for the district?—They had a place called Moteo, some miles further up than Omaranui. Did the Europeans at that time call the whole district by the names of Omaranui and Moteo indifferently?—Moteo was a distinct place. Do you mean that some portions were called Omaranui and some Moteo?—Yes. And Moteo was higher up the river than Omaranui?—Yes. Can you give any accurate idea, according to native ideas, where Omaranui ended and Moteo commenced?—No.

Mr. Wilson then addressed the jury. The facts he said, were now before them, and the issues which they were to decide were in reality few. The plaintiffs, he submitted, had entirely failed to make out their case. It was impossible to place any credence in the account given by the principal witness, Paora Torotoro, a man who had sold the lands of the tribe to pay the debts incurred through his own waste and extravagance. They had in evidence that this man had on one occasion sold the same land twice over in one day, and on being expostulated with had shown no contrition. He did not feel called on to combat the other evidence at any length. As if Paora's testimony broke down, the other side had no case whatever. The reckless manner in which the other witnesses had given their evidence would not have escaped their observation. That Mr. Sutton was a smart tradesman, there was no doubt, and his style of business might be peculiar; but that was not the real question for their consideration. If he had overcharged the natives, they had their appropriate remedy. What they had to decide was,—whether Mr. Sutton really carried out this transaction by frauds; whether, well knowing that the plaintiffs were entitled to the land, and had no intension of disposing of it, he had fraudulently included it in the deeds, and concealed the fact from them. This would involve the interpreter also, who, on this supposition, must have wilfully falsified his translation. Of course there was no ground for this imputation; but the plaintiff's case depended on its being proved. The issue was thus a very narrow one, and he need not devote many words to it. Mr Sutton's story was a simple one enough. He wanted good security for the money owing to him, and preferred certain land in Mr. Brathwaite's possession, knowing it to be valuable, and in the occupation of a good tenant. His debtors had no money; the rent they were drawing was of no use to them; it was dissipated as soon as it was received; and there was no prospect of the accounts ever being reduced. If reckless selling of land was to be prohibited, the matter was one for the consideration of the Legislature; Mr. Sutton had done what nearly every other person in business here had done, in protecting himself from loss by means of deeds of mortgage and conveyance. It was quite immaterial by what name the land was called; Sutton only wanted his money. Knowing that the property was sufficiently valuable for his purpose, he had made no search nor enquiry, but had simply taken it in security for the debt and further advances. Afterwards looking more closely into the particulars, he discovered that his mortgage included a small piece of land not in the lease to Brathwaite, and of course after the land passed into his possession, and he arranged to dispose of it, he took good care to reserve this portion from sale. After Paora had given the mortgage, and had gone so much deeper into debt that a conveyance had to be given, Mr. Sutton took care that the conveyance, like the mortgage should contain the piece in question. He believed that a gross injustice had been done to the native owners of this piece by the Native Lands Courts. The land really belonged to Paora Kaiwhata's tribe; yet in the first instance we found it sold by Paoro Torotoro, who page 20had no right to it, and in the second place the officers of the Government, whose bounden duty it was to prevent this, had not done so. But, he contended, the blame for this state of things did not fall upon Mr. Sutton. The sole question for the jury to decide was—whether Mr. Sutton fraudulently obtained this conveyance. This he could not do without the active assistance of the interpreter—a gentleman whose evidence was before them—who was in no way interested in the transaction, having only received the ordinary fees. It was complained that the natives had no legal assistance. This could not be said now, when the most able members of the bar in Auckland and Wellington had been called over to act for them. As for the evidence in support of the allegation of fraud, he believed that a greater tissue of falsehoods was never told in a witness-box. He need not say anything in confutation of paora's statement that Sutton said a mortgage was a good thing, and that he would get the land back in five years; or Rewi's account of it being dark when the deed was read, his other preposterous statement that Hamlin read the deed half through and folded it up; also his statement as to the existence of a natural boundary existing between the disputed land and the rest of the block, which was quite inconsistent with his own case. He repeated that there was only one issue in the case—that of the alleged fraudulent incorporation in the deeds of the land in dispute. He did not dispute the fact that Mr. Sutton had made an exceedingly advantageous bargain. In transaction of this kind the weakest must go to the wall; and a greedy extravagant native, determined to get what he wanted at any price, would have no difficulty in finding people to accommodate him. The strong point of the other side appeared to be that in the mortgage a greater amount was named than was actually owing. Such things were of very common occurrence, and in the present instance Mr. Sutton had advanced a certain proportion and had made himself responsible for the remainder. The transaction too, he might add, had been ratified by the officer whose special duty it was to examine matters of this kind, and who had issued a certificate of title, showing that he was satisfied that there was nothing irregular in the transaction. He did not see that Mr. Sutton had driven a hard bargain, although he had made a good thing out of the affair. [The Chief Justice remarked that Mr. Brathwaite appeared to have done even better than Mr. Sutton.] No doubt he had,—such chances did not fall to everybody. A good deal had been said about the different names by which the block was called. He submitted that the name "Moteo" included all the flat land. Hamlin and Walker, two unexceptionable witnesses, had never heard of such a name as Ngatahira, but, as the latter gentleman had remarked, the natives had a name for every hundreds yards of land. The cause of this action being brought was evident. The hapu, finding steps taken to dispossess them of the land, go to Paora and say, "What have you done? We are about to be turned out of our land. What right had you to sell it?" and Paora having to face a number of angry relatives who put some very unpleasant questions of this kind, makes excuses and says, "Oh I know nothing about it; I never sold the land." He hoped the jury would show by their verdict that transactions of this kind were not to be set aside on any such grounds.

Mr. Travers said that his friend on the other side, in anticipating his line of argument, had fallen into complete error. Before entering upon the case he would call attention to the law bearing on the subject as illustrated by a case in Chancery, Harris v. Pepperell, decided by Lord Romilly, the Master of the Rolls, and bearing considerable analogy to the present one. In the case to which ho referred, a vendor proceeded in the Court of Chancery to obtain the rectification of a conveyance on account of a mistake in the inclusion of certain land. When contracting to sell other portions, he had discovered that there had been an error in the transaction between himself and a previous purchaser—that the plan attacked included a footway and part of a plot which he had had no intention of conveying. Application was at once made to the solicitor of the purchaser, who insisted on his rights under the conveyance. The transaction was between Europeans, and each party was represented by a solicitor. Lord Romilly, in his judgement, placed the matter of mistake on a wide and intelligible footing. He explained that when a mistake was proved it was open to rectification by the Court, quite independent of the fact whether it was on the part of one side only, or common to both—a consideration which only affected the question of costs. The Courts, in consideration of the fact that the plaintiff, having professional assistance had been guilty of gross negligence, declined to allow costs; but ordered the rectification of the deeds, with the option to the defendant of annulling the contract.

The Chief Justice: The soundness of this decision, it appears has been questioned.

Mr. Travers: But it has never been disproved. In reviewing the case which had now been very fully placed before the jury, it was necessary to go back to the occasion of Paora Torotoro's first interview and negotiation with Sutton. This interview was preceded by a debt on Paora's part, amounting to £150 or £160; and he was desirous of obtaining an advance from his tenant for the purpose of putting up a house. This being refused, he goes to Mr. Sutton to complain of his tenant's hard-heartedness, and asks him to become as it were his banker—in fact, to increase the liability by several hundreds of pounds. Mr. Sutton not unnaturally replied that he would like to know what security his debtor proposed to give, whereupon Paora named several blocks of land—Petane, Moteo, and others. In course of conversation, as Mr. Sutton had testified, the native spoke of this latter block indifferently as "Moteo," "Omaranui," and "te whenua Brathwaite." The conversation naturally turned upon this latter block, as being in the occupation of the tenant who had refused to accommodate him with the desired advance. According to Mr. Sutton's version, this interview took place early in October, on the 5th of which month the mortgage was prepared, the parties had but one interview on the subject, and Mr. Sutton promised to consider the application. He did not appear to have taken long to consider, for it was probably the same day that he ordered the mortgage to be prepared. Mr. Sutton did not say that he compared the plan on the crown grant with that on the lease to see what land they page 21respectively contained; but the fact was before the jury that both these documents were registered at the time, and Mr. Sutton, if so inclined, would have had no difficulty in examining, in the books of the Registry Office, accurate copies of these plans, both of which gave clear and unmistakeable evidence of the distinction between Omaranui and Ngatahira. In the crown grant they were marked as "Section A." and "Section B," and their relative dimensions stated. The extent of section A. was given as 3410 acres, and section B. as 163. In Mr. Brath waite's lease exactly the same divisions were shown, the part indicated as "Section B." in the grant being marked "Native Reserve." Mr. Sutton had thus, if he referred to these deeds at all-as he undoubtedly should have done a clear and distinct intimation that these two sections were distinct, they being indicated by differently coloured boundary lines, their relative divisions described, and the area of each separately stated. Looking now to the plan on the mortgage, which might have been expected to have been copied either from the lease or the crown grant, we found for the first time the division so clearly shown in both of these documents practically obliterated. The line through Te Mini, dividing the two parts, was certainly there, but was not referred to, while the aggregate acreage of the two parts was given, as 3573 acres. It was in itself a strange and suggestive circumstance that an entirely new plan should thus have been drawn for the mortgage deed, when a copy might so easily have been made from either of the two authentic sketches then in existence. Mr. Sutton, having thus decided to accept a mortgage over "te whenua Brathwaite," caused the deed to be at once prepared, and went out with Hamlin to get it signed. He went out to a reckless chief, ready for a slight present advantage to deal with the property of himself and his people in a manner utterly inconsistent with ordinary prudence. Acting thus on the stupidity and reckless greed of the native, who had no independent advice, he went with the document in his pocket ready prepared; and the native snapped eagerly at the offer—being prepared to sign the deed before either it was produced or read; but having in his mind all the time, be it noted, his previous conversation with Sutton regarding le whenua Brathwaite. It was unnecessary for him to comment at any length on the nature of this affair, or to impute much morality to Mr. Sutton in the matter. To call the transaction an honest one would be libel. A man wishing in such a case to have acted honestly and rightly would have taken care that his conduct should have been above suspicion; and even common prudence would have dictated that he should take care that the person with whom he was dealing should have a clear and definite idea of his position, and be represented by some person who should take care that the deed was in strict accordance with his intention. The deed, upon the face of it, exhibited gross recklessness and want of proper prudence and honesty on the part of Sutton. It purported to be as security for the sum of £500 lent and advanced, not only to Paora, but to Rewi, who had never received anything, and up to that time had never received anything, and up to that time had had no transactions with Sutton whatever, yet was induced to sign the deed, and thus acknowledge this amount of indebtedness. Yet further, Mr. Sutton admitted that not £500, but only £150, had at that time been advanced to Paora, and he could not even be sure that he gave an undertaking to find the balance. Even if he did so, it did not justify the insertion of the increased amount in the deed, providing, as it did, for "further allowances," This deed, he submitted, bore upon its face evidence of the improper nature of the whole transaction. After obtaining Paora's signature, Sutton went off with Hamlin—that guardian angel of the natives, who took upon himself to give them erroneous legal explanations—to visit Rewi Haokore, and complete the deed. Mr. Hamlin, though not allowing Paora to sign without giving him full explanation, did not appear to have explained to Rewi that by his signature he was committing himself to a liability of £500 when no such liability existed—his virtue did not extend that far; and he actually allowed the man to sign his name to an obligation with which he had no concern whatever. Rewi Haokore appears to have acted the part of a very humble instrument, and on the strength of Paora's having already signed to put his name to an instrument of the actual effect of which he could have known nothing. This transaction Mr. Hamlin considered to be deserving of no reprobation. So reckless indeed was Rewi that he was quite prepared to sign without the document being read over to him; but this the prudent Hamlin, who had to make a certain declaration at the end of the deed, would not allow. The whole string of transactions leading to the final issue, could be clearly traced. First, the little debt; then the mortgage given as security for the debt and further advances; then increasing debts, until the native finds himself up to his neck in liabilities, and finally the sale. It had been shown that the plaintiff Paora had lived during the time credit was allowed him in a style which very few country gentlemen in England could afford, and his extravagance had been fostered rather than discouraged by his creditor. Any ordinary European, possessed of the property held by this chief, finding himself in difficulties, could have gone into the market with his security, and have made favourable terms whereby he might have been relieved from immediate pressure, and have possibly freed himself in time. But Paora, without independent advice, and perfectly ignorant of the best course to pursue, went direct to the very man to whom he was indebted—a man actually trading on the ignorance and improvidence of the natives. The Court had Mr. Sutton's own statement that it was not until two or three weeks after the execution of the mortgage that he was aware that it included more land than the original lease; and the inference from this was perfectly clear, that the transaction, in the minds of both parties, had reference to this particular block, and no more. Up to this point, then the mistake now sought to be rectified was mutual. Mr. Sutton, however, discovered by examination of the crown grant that his security includes more land than he was at first aware. It was not his intention to look very strictly into the ethics of the matter; but he thought an honest man, before taking any further proceedings, would have cautioned the natives that more land was included in the mortgage than in Brathwaite's lease. Mr. Sutton did not think it necessary. If he had informed Paora page 22Torotoro of this fact before the execution of the conveyance, and thus allowed him an opportunity of rectification, in all probability it would not have affected the terms of the conveyance—the reckless Paora would very likely not have taken advantage of it,—but Mr. Sutton's position in the affair would have been very different from that occupied by him now. As a matter of fact, he said nothing about it, and Paora was allowed and encouraged to run riot; his fine house was built, with its cupboards full of spirits, and himself and his friends rejoiced and lived well, if we might judge from the amount of sugar and other comforts which appeared in Paora's account. Nor did paora overlook external decoration, but clothed himself in broadcloth and fine linen—to judge from his liberal outlay in shirts and trousers. In short, he lived magnificently, and in five brief months came another turn of the screw. "My advances have been considerable," Mr. Sutton said, "we must make some change in the security." Finally a sale was arranged. Did he then take any steps to prevent the future suggestion of improper dealing?—No. He at once caused the deed to be drawn, and pressed Paora to sign, until it was at last executed in his own shop; and this being done, he went at once to Rewi and completed the transaction. The plan of the property of this deed was curious and suggestive. Between Omaranui and Ngatahira was a fine line scratched apparently in pencil, and the figures "163" faintly traced in pencil or ink upon the reserve; but the division was not shown so broadly as in the mortgage; it was not a copy of either the grant or the lease; but was no doubt effectual for the purpose for which it was intended. According to Mr. Sutton's own testimony, the deed was said at the time of execution to include the same land as the mortgage: but he never took the slightest step to make Paora aware that more was included than they originally supposed, and so the whole thing went. Paora in his evidence described the mortgage as a deed which, by some vague idea, he imagined would, by means of the rent, relieve him from his debt, and restore him the land, free of all incumbrance, at the end of five years. That mortgage was for five years; it was evident that something was said leading to belief that the obligation would cease at the end of that term; and from the terms of the deed itself, many an uneducated European would have come to the same conclusion. The fact remained that Mr. Sutton, with no more right than he (Mr. Travers) to receive the rent, drew a year's rent from Mr. Brathwaite about a month after. [Mr. Wilson: The deed contains the power.] If so, it gave a stronger colour to Paora's statement that the liability was to be wiped out by the deed—for in the five years the rent would not only have paid off the debt of £500 with interest, but have left Paora a considerable margin. Another little phase of the transaction was very peculiar in every respect—he alluded to the deed of covenant. In the conveyance given by Paora and the other conveying party a receipt of the whole purchase money was acknowledged, and this deed Mr. Sutton placed on the Register at once; thus occupying the apparent position of owner of the property in fee simple without incumbrance. The fact was that at this time he contemplated dealing with Brathwaite, and forced on the negotiation with reference to that contemplated sale. At the same time he had executed a deed which, for the protection of the natives, ought to have been registered at the same time for the land, and which they did not even retain. A solicitor would have insisted upon the registration of this paper, which then would have constituted an incumbrance upon the property only to be got rid of by a cash payment to Paora. Had such a deed been registered, it was quite clear that Mr. Brathwaite would not have paid Mr. Sutton £3000 in cash for the land; but even if Paora had stated that the consideration was not paid he not only possessed no evidence in proof of the assertion, but had given a written acknowledgment to the contrary. But Mr. Sutton, with distinctive cunning, kept the document himself, and worked of the liability by means of goods delivered afterwards. In entering into this transaction, he only sought security for debts owing to him, and his goods were sold at fair market prices. We found then that he netted £500 cash profit on the property, besides all the profit and interest on the goods supplied, with the £1200 also in cash, which he did not liquidate until afterwards, also in the way of goods supplied. He had his seeurity, and a handsome profit as well—what more could he ask? But he had something more than this—he had 163 acres of land quietly in his pocket, to be brought out when occasion suited; a kind of bonns bouche, a "nip," so to speak, after a satisfying dinner. It would not become less valuable by delaying a while—they had seen how Mr. Brathwaite had sold for £27,000 the property he had a few years before brought of Mr. Sutton for £ 3000. Not only so, but the state of the native mind was very much unsettled about 1868 or 1869; it was as well to keep the natives sweet. Doubtless if Mr. Sutton had then attempted to deal with the land, he would have had an hornet's nest about his ears. The result was the property was now worth at least £2934—he had refused an offer for it of £18 per acre, and it was probably worth more. That was his profit on the transaction after his profit on his goods and netting £500 seven years ago. Not only then had he full security; not only had all his advances been paid, leaving him a handsome profit, but he had still a residuum amounting to the entire original amount of his sale—that was if the jury found that there had been no mistake, and that these dealings had been characterized by propriety. They had two question to consider in this matter. First—was ther originally a mistake? If so, it was not too late to remedy it. Mr. Sutton would suffer no loss, but would simply be deprived of that to which he had no just title. They had not, however, to consider the case in this aspect alone. The second question for them was this—Was there fraud? There was, if Mr. Sutton, discovering that a mistake had been made by which the other parties would suffer, did not make the fact known to them. They found the first question regarding the title arose early in 1873, when Mr. Hamlin heard that a settlement existed at Ngatahira, and said "But you have sold that land to Sutton;" when they replied, "we have not sold it," and he again said, "Yes, you have." He did not appear to have communicated with Sutton on the subject, but just to have let the matter drop. Mr. Sutton left it page 23in abeyance until November, 1873, when he made his claim in a letter of a very singular character. It was as follows:—"The piece of land you live on belongs to me. It is bounded by Bennett's land, by Brathwaite's land, and by the river, and was sold to me with Moteo. As you have crops on the land, I will wait until they are gathered before I enter into possession. If any of you think there is a mistake, I will show you the deed in which the land is included." What was the meaning of this latter clause, if no claim had ever been asserted by the natives? The evidence showed that about this time Bennett had had a conversation with Sutton about purchasing the land. This set Sutton in motion, and he opened the ball by this letter. It was also worthy of remark that he spoke of it as sold with Moteo—yet Moteo in no sense including Ngatahira. Hohaia after this came in and spoke to Sutton on the subject and looked at the documents, and his observation, "I do not understand these things," was perfectly reasonable under the circumstances. Hohaia went away, and we heard no more about it until Sutton put in an application under the "Land Transfer Act," dated 15th January, 1874, for "land occupied by Hohaia and other natives whose names are unknown, being tenants at will." This application was in all probability advertised, but no active steps appeared to have been taken until we came to Mr. Sutton's Proclamation, addressed to "The men at Ngatahira." Now Mr. Sutton had sworn in the most positive manner that at this time he knew nothing of the name; yet we found it used in his own proclamation, stuck up by himself on the gate of the Kainga. Strange that his own proclamation should be addressed to the people of a place of which he had never heard. The fact was pregnant with meaning, especially when the other side would have them infer that the name was pure invention. The natives, seeing the position of matters, appeared to have immediately and naturally taken advice; the result being that a caveat was issued. That caveat was said to have lapsed, whereupon a certificate of title was at once issued, on which the defendant relied. He would now conclude by briefly referring to some observations which had fallen from his learned friend on the other side. First, that the root of the evil was in Mr. Ellison exceeding the instructions he had received from Mr. Brathwaite in regard to the lease. It was lamentable that such should be the case; but it afforded no excuse whatever for Mr. Sutton's subsequent conduct. His learned friend further attributed the evil to the action of the Native Lands Court. This was not altogether the case. Had the present been a bond fide transaction, no attempt would have been made to interfere with it on the ground that the sellers held a position of trust. It would be a monstrous thing if a person were precluded from all dealings with property simply because it vested in him in a fiduciary position. The learned gentleman had further proceeded to make certain remarks as to the probable result of a verdict for the plaintiffs. These remarks were addressed to gentlemen in Napier, where, as was well known, a good deal of dissatisfaction existed regarding land transactions—where a great deal of land was held under titles not in every respect satisfactory, though not characterised by the gross features of the present case. He maintained that every case should stand on its own footing. There had been an evident insinuation to the jury not to permit the insertion of the thin end of a wedge, lest it might be driven further home then would be pleasant. Such an appeal ought not to go forth as having been made to a jury in Napier. English gentlemen were deservedly renowned for honesty of purpose and strict impartiality in their dealings, and he believed that in these respects a Napier jury differed in no degree from other educated Englishmen; and that in this, asin any other future case which might come before them, each would stand upon its own merits. It was not desirable that any such appeal should go forth to the world as having been made to them, without being the subject of comment on the other side. He did not pretend to analyse nicely the ethical considerations arising from the case now before them. There was palpably an original mistake; and although it was not actually necessary for the purposes of his case, he considered that he had also shown to their satisfaction that the mistake was followed up by a fraudulent suppression of facts; that Mr. Sutton was by that means guilty of what in law was known as fraud, thereby acquiring property of considerable value. It was not alone the money value of the property thus unjustly obtained that had to be taken into consideration; it should be remembered that the land had been long occupied and was still occupied by persons of the native race, whose minds were now awakened to jealousy of their European neighbours through becoming aware that dealings of this kind had been carried out. He now left the case with confidence in their hands. If they looked at it fairly and apart from prejudice, they would arrive at a conclusion satisfactory to all sides, and, he believed, in favour of the plaintiffs.

His Honor said the main question for the consideration of the jury was whether the plaintiffs, in giving the mortgage, understood it to include Ngatahira. If they did, there was no mistake in the transaction; if they did not, the mistake might have been a mutual one, or on the part of the plaintiffs alone. The other question, as to whether there were fraud, was one of secondary importance, and it was open to them to find that a mistake had been made without. The question of fraud was confined to the second transaction, or the conveyance; the issue imputing fraud as regarded the mortgage having been abandoned by the plaintiffs as unsupported by evidence. There were difficulties surrounding a case of this kind, it being entirely unknown in English practice to leave points of this kind to juries; and but little experience had as yet been gained as to the working of the system in the colony. He was in considerable difficulty, therefore, as to how far it was his duty to direct the jury, and should therefore confine himself as far as possible to the issues raised, and refrain from giving directions. They had before them a deed executed by the parties, and that deed being called in question, the onus of proof lay with the parties who sought to impeach it. The jury would no doubt consider that a deed, executed with all the usual forms, was not to be lightly broken down; and, in fact, before it could be done, it must be established that it contained provisions never intended by one or both of the parties, or fraudulently inserted. In a book of page 24authority—"Taylor on Evidence"—it was said that when a party comes into Court to obtain rectification of a deed, unless he has some written instrument in support of his case, it is well-nigh hopeless. He would not go so far as this; but he would say that they must require very satisfactory evidence to justify them in nullifying a written instrument. The first fact for their consideration was the crown grant, and how far the plaintiffs were cognizant of its effect. All the circumstances connected with this crown grant were very material. The lease was also a very material matter, as introducing the fact that whether the crown grant was, or was not intended to include Ngatahira, the lease did not. They must recollect that there was nothing very distinct as to whether Ngatahira did or did not form part of Omaranui or Moteo, and they would have to see if they could come to a distinct idea whether there was any real separation between Omaranui, Moteo, and Ngatahira. As to the facts relating to the mortgage and obtaining of the conveyance, they would probably find that the evidence of neither party was to be absolutely relied on; one side making out a clear case of fraud; the other side making out that there was neither fraud nor mistake. They might possible be able to say that the plaintiffs were in error, but that the defendants were not in fraud. He had one observation to make regarding the mortgage, which, as Mr. Travers had observed, was drawn for £500 when only £150 had been advanced. This was not an unusual proceeding when money was about to be advanced, and the fact could not be relied on as proving either fraud or mistake. They would no doubt find considerable difficulty in settling the application of the native names of the land. The natives might never have thought of applying the name Omaranui to Ngatahira until the crown grant was issued. The "Omaranui Block" was the creation of the Native Lands Court; Moteo being the native name of another portion of the land; part of which again was outside the block. No doubt Karaitiana was perfectly truthful in his statement that Ngatahira was a name given to the land by their ancestors; for, as Mr. Walker had stated, the Maoris had a specific name for every little piece. This question was one of the difficulties they would meet in coming to a decision. [His Honor then read in detail all the evidence bearing upon the issues, with occasional comments on inconsistencies or discrepances in the statements of the various witnesses, as well as those points on which the parties were agreed. His analysis of the evidence was very full, occupying about two hours.] His Honor having read the issues, said that the evidence on the one side was that of Mr. Sutton and Mr. Hamlin; on the other that of the natives. If they believed Mr. Hamlin, the boundaries were thoroughly explained, and there was no possibility of error; they had heard the nature of Mr. Hamlin's connexion with Mr. Sutton, and must take all the facts into consideration. Had the plaintiffs proved their case? This was the great question, for the onus of proof certainly lay with them; and the jury must carefully balance the testimony in coming to their decision. If they found, therefore, that they could not find for the plaintiffs, they must remember that it was with them that the issue lay, and for them to prove their case. He need not instruct them further. He had of course already decided that there was evidence to go to them.

The jury retired at 4.35 p.m., and at 5.55 p.m. returned, saying they found it impossible to agree. His Honor informed them that they had not been absent sufficiently long to come to such an opinion; that they must have been six hours in consideration before he could accept such an answer. The jury then asked if they could divide the issues, as there were a good many presenting no difficulty. His Honor replied that the rules of the Court permitted a special finding on any issue. The jury again retired, and at 8.57 p.m. returned, having agreed upon all the issues. The answers were then read, but one of the answers, being ambiguous, it was rendered more explicit by the jury, after a short consultation in Court. The following is a copy of the issues, with the answers, as returned by the jury:—

1.

Were the plaintiffs at and for some time prior to the date of the lease on the declaration mentioned dwelling on the said 163 acres of land in the declaration mentioned, and cultivating and using the same?

Yes.

1A.

Were they so dwelling on, using, and cultivating the said land at and for some time prior to the date of the mortgage in the declaration mentioned?

Yes.

1B.

Were they so dwelling on, cultivating, and using the said land at and for some time prior to the date of the conveyance in the declaration mentioned?

Yes.

2.

On the treaty for the mortgage in the declaration mentioned, was it mutually agreed by word of mouth between the plaintiffs and the defendant that the whole of the land included in the crown grant mentioned in the declaration should be included in the mortgage?

Yes; as far as Paora Torotoro, but not Rewi Haokore.

2A.

If not, was it on such treaty as aforesaid so agreed that only the land so leased to the said James Butcher Brathwaite as in the declaration mentioned should be included in the said mortgage?

No; it was not only Brathwaite's lease.

3.

3. Was the said deed of mortgage prepared under the instructions of the defendant alone?

Yes.

3A.

Was the said deed of mortgage prepared under the instructions of the plaintiffs as well as of the defendant?

No.

4.

Had the plaintiffs, before or at the time of execution of the said mortgage, any independant legal advice in reference to the said mortgage?

No.

5.

5. Did the plaintiffs or either of them know, and if so, which, that the said mortgage comprised all the land included in the said grant?

Yes, as regards Paora Torotoro only.

5A.

Was the said mortgage deed read over, interpreted, and explained to the plaintiffs before the execution thereof by them, and did they understand the nature and effects thereof?

Yes; read over, interpreted, and explained; but page 25there is no evidence that it was understood by Rewi Haokore.

6.

Was the said conveyance of the 16th day of March, 1869, prepared under the instructions of the defendant alone?

Yes.

6A.

Was the said conveyance prepared under the instructions of the plaintiffs as well as of the defendant?

No.

7.

Had the plaintiffs before or at the time of the execution of the said conveyance any independent legal advice in relation to the said conveyance?

No.

8.

Did the plaintiffs or either of them, and if so, which, know at the time of the execution of the said conveyance that the said conveyance comprised all the land included in the said grant?

Yes; by Paora Torotoro.

8A.

Was the said conveyance read over, interpreted, and explained to the plaintiffs before the execution thereof by them, and did they understand the nature and effect thereof?

Yes; read over, interpreted, and explained to both; but no evidence that it was understood by Rewi; but it was understood by Paora.

9.

Did the plaintiffs previously to the execution of the mortgage to the defendant agree to mortgage to the defendant the said 163 acres?

Yes, by Paora Torotoro only, inasmuch as it was included in the crown grant.

9A.

Did the plaintiffs, previously to the execution of the conveyance to the defendant, agree to sell to the defendant the said 163 acres?

Yes, by Paora Torotoro, inasmuch as the land was included in the crown grant.

10.

Was the execution of the said deed of conveyance fraudulently obtained by the defendant by reason of his knowing that the plaintiffs did not intend to include therein the said 163 acres?

No.

11.

Were the plaintiffs in occupation of the said 163 acres at or for some time prior to the 5th day of October, 1868, and have they been in occupation thereof ever since?

Yes.

12.

Was any claim for possession of the said 163 acres made upon the plaintiffs by or on behalf of the defendant before the month of May, 1874, and if so, when first?

Yes; on or about the 11th December, 1873.

13.

Were the plaintiffs or either of them aware before the month of May, 1874, that the said deeds of mortgage and conveyance, or either of them, purposed to affect their title to the said 163 acres, and if so, when first?

Yes; by Paora Torotoro upon execution of the deed, and by Rewi on or about 11th December 1873.

14.

Did the defendant, at the time of making his application for the certificate, know that he was not rightfully entitled to the said land?

No.

15.

Were the plaintiffs, Hohaia, and other native persons, in possession adversely to the defendant before and at the date of the issue of the certificate, and were they, or any of them, rightfully entitled to such land?

Yes; in possession adversely, and not entitled, as the grantees had signed the deed of conveyance.

His Honor then, at 9.35 p.m., discharged the jury.