As to Express Notice.

I now proceed to consider Finding 9—the finding, as I have already remarked, really personal to myself. The question is whether, supposing the alleged trust had been created in 1886, it is likely that in 1892 I should have known of it. But there is a preliminary point which it is convenient to notice here, as the Committee is party composed of laymen. I have mentioned that the Native Land Court certificate of 1873 showed Kemp to be a trustee for himself and the Muaupoko whose names appeared on the back of it. The Committee should understand that when, in 1886, by common consent of the tribe, the land was subdivided and allotted among the beneficiaries the old trust was wound up and Kemp's responsibility for the future ceased. As a matter of fact, the judge who makes the partition cancels the old certificate of title, and the statute which requires his to do so provides expressly that the effect of such cancellation shall be to destroy the old title completely, so that on this being done the land ceased to be vested in Kemp as trustee.

But apart from statute, common sense shows that if (to take a simple illustration) John Jones holds twelve sovereigns in trust for himself and eleven other persons—a sovereign each—on each person receiving his sovereign John Jones ceases to be trustee, and if the eleven persons choose to give back part of the twelve pounds to John Jones in trust for any purpose this is the creation of a fresh trust Similarly, the partition of 1886 put an end to Kemp's old trusteeship over the Horowhenua Block. I should mention that certain subdivisions were allotted and the land transfer certificates thereto made out to Kemp on various trusts—for instance, as I have said subdivision XI was allotted to him and Warena Hunia in trust as dwelling place for the tribe; but this was the creation of new trust in respect of particular subdivisions—Kemp's trusteeship over the whole block was gone.

Proceeding now to consider whether I could have had notice of the trust which the Commissioners say was created in 1886 over subdivision XIV, I must state emphatically that the Commissioner do not even allege any circumstances whereby I received actual or express notice of the trust. I should mention that I was absent in England when the partition took place in 1886, and for five years afterwards and it is obvious therefore that I could not have been cognizant of the supposed understanding between Kemp and the tribe at that time. The Commissioners do not suggest that on my return to the colony Kemp (who, if he was selling or leasing in breach of an agreement would be guilty of deliberate fraud) would be likely to tell me of it My other possible informants were the members of the tribe. I had the best possible proof that no question of a trust over Subdivision XIV was raised among them till long after my dealings. Mr. now Mr. Justice) Edwards was retained by the tribe in 1893 and acted for page 13 them up to the passing of the Horowhenua Block Act, 1895, and, speaking of so late a period as that, he was able, in October last, to write the following letter to the Chairman of the Native Affairs Committee (see Exhibit "AW ", p. 332) :—

At the request of Sir Walter Buller, I have to inform you that I have never in the course of my connection with the affairs of this block heard any claim advanced by or on behalf of any of the natives interested that the subdivision numbered XIV is held subject to any trust, and that, so far as I am aware, no such claim has ever been advanced. The records of the Land Transfer Office show that no caveat has ever been entered by or on behalf of any native against any dealings with this subdivision upon any ground whatsoever.

As a matter of fact, the caveat lodged against Subdivision XIV was lodged, not by the natives but by an officer of the Goverment, on the 2nd November, 1895, subsequent of course to my dispute with the Minister of Lands.

But the strongest piece of evidence is yet to come. Mr. H. D. Bell was retained for the tribe in 1890 and was acting for them at the time of my first dealing in May 1892. In the year following (March, 1893) Mr. Bell, acting for Mr. Peter Bartholomew, accepted a lease from Major Kemp of 100 acres of this very Subdivision XIV. Considering Mr. Bell's reputation and opportunities of knowledge, this appears to be proof certain that, even as late as 1893, a trust had not been mooted. But need I elaborate this, seeing that during the sittings of the Commission extending over two months not one member of the tribe (who attended at Levin in force) came forward to say that he had ever spoken to me or to Kemp on the subject of No. XIV being trust land ? No one alleged even that a trust had been mooted among the tribe, with one rather ridiculous exception : Waata Muruahi said that at the Pipiriki meeting in 1891 he had heard a young man named Mohi Rakuraku speak about it, but Mohi himself gave evidence (p. 273) that the words were only spoken "in his heart"; whilst Mr. Hector McDonald, who attended the meeting and heard all the speeches, denied that the subject was mentioned at all (p. 274).

In a word, the Report contains no suggestion that anyone had informed me or that I became aware of the supposed trust over Subdivision XIV created in 1886. In view of this fact the Committee will read with surprise pages 18 and 19 of the Report, containing the finding of the Commissioners on the question of whether I had notice of a trust at the time of my dealings with Kemp in 1892—a finding supported by numerous citations from the evidence. No one reading these extracts, or the words of the finding, could doubt that not only was Subdivision XIV trust property in 1892 but that I stand self-convicted, out of my own mouth, of actual express knowledge of such trust.

I wish to point out the means by which the Commissioners have Achieved this surprising result. I have already mentioned that Kemp's page 14 trusteeship over the whole block, existent prior to 1886 but extinguished by the partition of that year, was apparent on the face of the old Native Land Court certificate. It was patent to the world, and the fact that I, in common with everyone else, knew of it was treated before the Commission as common ground. Needless to say since my dealings were in 1892, the statement that I was aware of the old trust can do me no harm if the fact that it was extinguished in 1886 be also mentioned. But this is precisely what the Report does not mention. On the contrary, the Commissioners, on the above mentioned pages, after referring to the old 1873 trust, and alleging with various proofs that I knew of it, and without the vestige of as allusion to its extinction in 1886, sum up their finding in the following words :—

"The only conclusion we can come to is that Sir Walter Buller knew prior to his leaving in 1886 for England, that the whole block was held by Kemp in trust for the tribe, and that on his return to New Zealand he, without making enquiry to ascertain that the trust was extinguished, purchased part and leased other portions of the trust property."

The finding expressly refers to the old 1873 trust over the whole block, and actually blames me for not satisfying myself as to its extinction when, as a matter of fact, it was extinct. This misleading finding of course implies that the old trust continued to exist after 1886. On these same pages the Commissioners say they think that at the time of some if not all of my transactions I had express notice of the trust. In support of this they adduce (on page 19) the Deed of Release from the Muaupoko to Kemp prepared by me and expressly reciting Kemp's trusteeship. The Commissioners by no makes exaggerate when they call this express recital in a deed drafted by me " a distinct admission of a trust"—but, as before mentioned, they entirely omit to state that such trust had been extinct six years at the date of my dealings. There is all the difference in the world between admitting knowledge of what has ceased to exist and admitting knowledge of what is still existent. I will give a short explanation as to the deed. While trustee from 1873 to 1886, Kemp had received and spent the income of the land on behalf of the tribe, but had no receipts to show for such expenditure; and generally, in managing the property in the rough and ready methods of a Maori chief and in ignorance of law, had doubtless committed many irregularities. In 1889 an action (the merits of which need not now be discussed) had been commenced by Warena Hunia to call Kemp to account for his former trusteeship. Being retained by Kemp in 1892, I obtained the execution of a retrospective deed of release and discharge from the Muaupoko to Kemp of his old 1873-to-1886 trusteeship which is recited in the deed. I said, at the outset, that the fact that Kemp was a trustee before 1886 way common ground before the Commission. I page 15 have never denied that trusteeship or my knowledge of it; those facts are purely irrelevant. But knowledge of a trust existent in 1892 is a very different thing. Anyone reading the reference to the deed on page 19 would imagine that the trust of 1873 (to which the deed expressly relates) continued to exist in 1892. And yet—will it be believed?—the recitals in the deed are express to the effect that the trust to which the deed relates was wound up in 1886. Even if their knowledge of the law did not tell them so, the Commissioners should have read the deed before using it against me. As an illustration of the misleading effect of this citation on a reader, I may mention that, in a recent conversation with me, the Premier (who had read the Report) referred to the admission of a trust in a deed prepared by me as the strongest point against me. Clearly he did not understand that the trust spoken of as "admitted "by me was an extinct one! The Commissioners' only authority for saying that I had express notice is this Deed of Release.

I have thus dwelt with the question whether I had actual Information or, as the legal phrase runs, express notice that the supposed trust had been created in 1886, and I have shown that the Report fails even to allege that I received such information, whilst it contains misleading references to a trust which at the time of my dealings had been extinct six years.