[Report of a Supreme Court case on land dealings]
[Monday, 7th June, 1875]
Mr. Travers, before opening the case, applied for leave to amend the declaration, making certain clauses more specific. Mr. Wilson opposed, on the ground that the matters proposed to be added were sufficiently set forth in the declaration in its present form. His Honor allowed the addition, as making the allegations more distinct as to fact.
Mr. Travers said this was an action for specific relief, brought by Paora Torotoro and Rewi Haokore, aboriginal natives, against Mr. F. Sutton. 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 certain lands were de 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 by the defendant, he knowing not only that there was no intention on the part of the plaintiffs 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. The nature and object of these proceedings, then resemble that of a bill in Chancery, and was an appeal to the jurisdiction of the Supreme Court, with the object of obtaining the reformation of certain deeds, on the ground of mistake and fraud. He did not intend in opening the case, to go into it at length, but merely to lay before the jury the leading circumstances, and leave it to the evidence to develope more fully the general character of the transaction, and also those special circumstances which, in the opinion of the plaintiffs, entitled them to the relief they sought. As they would all be aware, it was not until the Native Lands Act of 1865 came into operation that anything like individual title was recognized among the natives, and that up to that time they had no opportunity of dealing with their lands in the capacity of owners. Shortly afterwards Mr. Brathwaite, a settler, desired to obtain a lease of certain land in which the plantiffs and the natives were interested, and which he was occupying at the time for pastoral purposes. This land which must be distinguished from the block as a whole as afterwards defined by the Native Lands Court—consisted of two specific portions, known by distinct names, the northern portion being called Moteo, and the southern portion bearing the name of Omaranui-comprising altogether some 3410 acres. But in addition, in immediate contiguity to the portion known as Moteo, was a piece of land, 163 acres in extent, occupied at the time, and ever since by a considerable number of families. It was always known as distinct from either Moteo or Ruaranui, and was called by the distinctive name of Ngatahira. In the negociation between Brathwaite and the natives, there was never any intention on either side that Ngatahira should be included; in fact, the negociations were throughout expressly confined to the two pieces known respectively as Moteo and Omaranui. [Mr. Wilson objected to Brathwaite's arrangement being brought in as part of the present case.] He was prepared to show page 2that the transaction was strictly connected in terms with the land in the occupation of Brathwaite, and that from the very commencement of the dealings with this land to their close, it was never in any way contemplated by the natives to relinquish their title and their settlement. [His Honor: I do not see how you can go into the transaction between. Brathwaite and the natives to show the nature of a subsequent and different agreement.] [Mr. Wilson: If my friend merely means to show that the land now in dispute was not in Brathwaite's lease, we admit the fact.] They required more than this, as would be shown when he came to point out the result of these dealings. [His Honor: Have you any documentary evidence of their nature?] There was none whatever; but as bearing upon this point he would quote the case of Powell, v. Smith Law. Rep. 14, Equity Cases, page 85. The defendant was a gentlemen possessed of considerable estate, and in all leases granted by him it was customary to make the lease terminable at the will of the lessor only, and the plaintiff sought to have the lease made terminable at the will of the lessee. In this case it was shown by the introduction of other leases executed to other parties that this was the rule, and also that the lessee was conversant with the fact,—and the Court admited the evidence. Similarly in this case he would show that Sutton was well aequanted with the terms of Brathwaite's lease, and that all his transactions had special reference to the land actually occupied by Brathwaite. It was with the object of proving that Sutton must have been aware of this limitation, that he would bring evidence to show why the limitation was made in Brathwaite's case. The result of the negociations between Brathwaite and the natives was an application to the Native Lands Court to convert the original native title into an individual title. Mr. Brathwaite's tenure at this time was that of a merely temporary arrangement, not sanctioned by law; and must so remain until the original basis of title was altered. Among the proceedings necessary as a preliminary, was a survey of the land. He would show that the surveyor was expressly instructed not to include anything more than the land leased by Brathwaite, and the boundary of Ngatahira was distinctly shown. The survey was executed and paid for, and Ngatahira was afterwards included in the crown grant of the block. He would show circumstances in this relation which were important as inevitably connecting the defendant with a knowledge of these particulars. And he would here state that the actual determination of this case might not rest here after all. It might be a question hereafter as to what the result of there finding might be, and the court would decide whether or not that finding entitled the plaintiffs to relief. He would show that all the proceedings he had described were taken by Brathwaite, with a view to the lease, and that immediately on the granting of the certificate, the crown grant passed into the hands of that gentleman, and never left them till after the completion of the conveyance, when it passed to Sutton: never having been in the hands of the natives at all, who thus had no means of checking the plan, and had proceeded throughout on the belief that Ngatahira was never included at all, and had occupied it from that day to this as a settlement and cultivation. Such was the state of things up to the time of the mortgage. It would be found that the lease to Brathwaite included only those parts of the land known as Moteo and Omaranui; but it would be found also that in the crown grant, for reasons not easy to explain, that the whole block was included. In Brathwaite's lease the plan showed on the north-east corner a piece of land outside the pink boundary, between the block and the river. No name was given to it in the plan, but it was marked "native reserve." The date of this deed of lease was 28th July 1866—not an unimportant date in connection with other matters he had to bring before them. They would notice that it was executed in the same month and year as the crown grant for the block, which bore date 14th July 1866. They would find that Brathwaite, in the matter of the lease, respected the arrangement between himself and the natives, and included no more land in the deed than Moteo and Omaranui. They would find also that in the description of the property contained in the lease reference was made to a fence dividing Moteo form the native reserve—indicating actual occupation on the part of the natives themselves. This deed then, which was registered almost immediately after execution, contained on its face and in the plan clear indications that this part was treated as a native reserve, in actual occupation for purposes of cultivation and residence. Such, then, was the state of things when the defendant appeared on the scene, shortly before the date of the mortgage. About this time, Paora Torotoro, who had become indebted to the defendant for goods supplied in the ordinary course of trade, became suddenly alive to the consideration that the land leased to Brathwaite, and from which he was deriving an income of £300 per annum, was a sort of mine of wealth, from which he might draw for supplies. Throughout his whole conduct this old chief had displayed a childish and reckless extravagance, coupled with a remarkable susceptibility to imposition. They would have little difficulty in infering that of the two men, Mr. Sutton was the most knowing, and that in the contest of intellects the keen man of business, with a shrewd eye to a bargain, was not likely to come off second-best. No doubt they had learned before this of the style in which Paora made use of the credit accorded him—of his fine new gig, in which he drove with the lamps burning in broad daylight—of his handsome house with its furnishings, including the four cupboards, filled with spirits, and free to all comers. At the time of Sutton's first connection with this business, Paora was his debtor to an indefinite extent, and was inclined to go further. Mr. Sutton knew the uses of a mortgage. He therefore placed the matter before the native, something in this way:—"You owe me £150, and you want a house built, which will cost about £350. I have no objection to advance the money for that purpose if you give me a mortgage." The result was that a mortgage with all the usual forms, was carried to Paora's house by Mr. Sutton and a person called an interpreter, and Paora, under the impression that his supplies were about to be stopped, and under influences which he would bring to their notice, was induced to sign the deed. Paora would swear—and other matters which would be brought before them would enable them to decide whether truly or otherwise—that he had no page 3conception at the time that the mortgage included the land now the subject of dispute, a block which had been occupied for years as a settlement by the natives, and over which, according to native custom, he had no right of control whatever. To his mind this view of the case was perfectly clear, and he had no doubt of establishing it to the satisfaction of the jury. In fact, it was not impossible that Mr. Sutton himself was at this time unaware of the fact, and that his explanation to Paora Torotoro corresponded with his own view of the land included. He would refer to another circumstance not without significence. In most native leases executed in the province there was included what was known as an improvement clause, covering all the outlay to which the lessees might go in fencing, draining, and otherwise adding to the value of the land in their occupation. Nothing of the kind was to be found in Brathwaite's lease, though at the time of the execution of the mortgage he had spent some £2,000 on improvements. Some months afterwards, however, a document of doubtful validity was executed to supply this omission. There could be no question that at this time Sutton had a good idea of the value of the land, and to what extent it had improved under Brathwaite's management. The circumstances attending the execution of the mortgage deed would be detailed in evidence, and the jury would have to decide whether or not a distinct pledge was given that it should include only the portion of land under lease to Brathwaite. That something of a loose kind took place regarding the division of the land would be proved, and Paora gathered that he was mortgaging, not the land described in the crown grant, which he had never seen, but that which he had already leased to Brathwaite. Having now secured the mortgage, Sutton felt safe in lengthening Paora's credit tether. Paora found himself at this time considerably in debt, and possessed only of a property over which his creditor had an inconvenient charge. Having tasted blood, however, and being told that a nice margin still remained, he shortened his tether with marvellous speed. At length he is told—we think we can accommodate you a little farther, but we shall require a conveyance. The deed was ready prepared, and the natives were taken as before, "on the hop." The mortgage bore date 5th October, 1868, and the deed of conveyance 16th March, 1869, so that only the brief interval of five months elapsed between the two transactions. The mortgage, as the deed set forth, was to secure payment of advances, past and future, the money to be payable in 1873, so that Mr. Sutton apparently had not contemplated the tether running out so rapidly. The purchase money for the equity of redemption, as set forth in the deed of 16th March, 1869, was £1300, which, added to Paora's debt of £1200, made a total of £2500, subject to Brathwaite's lease. On the same date as this daed of conveyance was executed, Mr. Sutton executed a deed of covenant. The deed of conveyance set forth a consideration of £1300 then actually paid, though, as a matter of fact, the money was not paid at the time. Paora then signed a deed of conveyance, and in consideration accepted Mr. Sutton's deed of covenant for £1300; £300 to be paid on the 16th April, 1869, or one month from date, and the balance of £1000 to be paid on the 16th March, 1870, with interest in the meantime at 10 per cent. Mr. Sutton also covenanted to supply the grantees with goods at fair market prices, all goods thus taken and accepted by them or order, to go in part payment of the £1300. Thus the natives were in effect told—You cannot have your money before 1870, but you may have goods. Mr. Sutton's interests were thus secured with special care, while the native extravagance was not in any way checked. Within six or seven weeks after the execution of the deeds of covenant, Mr. Sutton did a mean transaction. He found a purchaser in Mr. Brathwaite, the lessee, to whom he disposed of his interest in the land for £3000. Thus he cleared £500 by the transaction, beside having £1800 in his pocket in solid cash. Still, he was to allow 10 per cent, interest on the balanca, but there could be little doubt that the goods supplied fully covered this; it was not difficult to understand the signification of "fair market value." That deed of covenant if registered, would have acted as a charge on the property, a blot on the title; but Mr. Sutton, though he registered the conveyance promptly enough, kept his deed of covenant in his own pocket, and realised his cash immediately without any inconvenience. In the course of two or three years Mr. Brathwaite sold his estate for £27,000. No doubt he had spent a good deal in improvements in the meantime, but still the price realised showed that there was something in the property. It was hardly necessary to add that at the end of the year Mr. Sutton had nothing to pay of the £1300—the amount bad long been absorbed in the goods supplied at fair market rates. Not only this, but Poaro's credit had stopped; his cupboards were empty; his gig gone; his fine new house was burnt down; his fortunes had collapsed like a house of cards; and he sat lamenting. Rewi, the co-grantee, had made a little out of the bargain, having managed, with some difficulty, to get goods to the amount of £359 out of the purchase money. Thus matters rested for some years, until the next phase of what was really a very interesting specimen of native transactions. By the way, he had always admired the appearance of Mr. Sutton's name in Maori—it was so suggestive, being seareely distinguishable from the equivalent for "Satan" in the same language. Some years then passed, when Mr. Sutton became suddenly alive to the fact that he had a nice little piece of property. One day, therefore, Mr. Sutton, in imitation of greater men, issued a proclamation, or "Pannitanga," and popped it on the gatepost of a Pa; this document, bearing date 9th May, 1874, set forth that he had discovered that the land on which the settlement stood was his property, and that out the inhabitants must go. This being the first intimation, these people had of any adverse claim to the land, one could imagine the delicious feeling of astonishment it would cause in the settlement. He could fancy the whole settlement turning out in no time, as though to meet an unexpected enemy. A day or two after, Mr. Sutton went in person, and laid claim to the houses, stacks, &c;., on the ground. Some rather unpleasant discussion arose, and the natives then became aware for the first time of the nature and grounds of Sutton's claim. On this occasion he merely made a formal claim to the property—he made no attempt at eviction, as it would have led to a very unpleasant disturbance. The matter had resulted in the present action; the natives feeling that Sutton's claim was altogether un-page 4warranted, and wishing to have it put on a proper footing. If this was done Mr. Sutton would suffer no hardships. Seven months before the purchase money became due he had netted a profit on the transaction in hard cash; and during the rest of the time he had been supplying the natives with goods out of their own money, not even handing over the £1000 he owed for the land. From first to last he had the whole thing in his hands, and had made a handsome profit; and they had no occasion to waste any sympathy upon him. This was one of that class of cases in which the Court could rectify mistakes, inasmuch as the original position of the parties need not be in any way modified. The whole object of these deeds was professedly to secure payment for goods and advances; and this end had been fully secured, and more than secured in the manner already described. It would be for the Court to say whether any hardship would be entailed upon Mr. Sutton by the rectification sought. It was not proposed to alter in any way the transactions in which Brathwaite was concerned; but he asked that the natives in actual occupation should not be made to suffer, and that Sutton should be merely called upon to give up this claim, which he had no right ever to make, and thus place the matter on a proper footing. The particular mode in which this might be carried out was immaterial.
William Ellison, examined by Mr. Izard, being sworn, deposed: I am a licensed surveyor. I was employed in 1865 by Mr. Brathwaite to survey a piece of land at Omaranui. Mr. Braithwaite guaranteed me payment. The block was pointed out to me by Messrs Brathwaite, Locke, and Tanner. There was a small native settlement near the land, which was also pointed out. The land on which the settlement was situated adjoined that surveyed for Mr. Brathwaite. There were some natives present when I surveyed the land, but I cannot remember who they were. I included the native settlement in the survey, for this reason—that there would be no extra expense in passing the land through the Court. The natives assented to this being done. I do not understand Maori; but my son, who assisted me in the survey does, and conversed with the natives. Mr. Braithwaite paid for the survey. My plan was supplied to the Native Lands Court; the plan on the deed produced is a copy on a reduced scale. The part marked "Section B" is where the native settlement stood, and a line is shown dividing it from Brathwaite's portion, which line forms the eastern boundary of the lease.
By Mr. Wilson: I never at any time had any conversation with Mr. Sutton about the matter. It was only about twelve months ago that it came to my knowledge that Mr. Sutton had acquired the block.
By the Court: I know Paora; I do not think he was living on the land at the time of the survey. There was nothing secret about the survey; the natives saw me go over the land and take the boundaries. There were some eight or ten families at that time living on the land. There were some cultivations. I noticed one paddock fenced in and cultivated.
By Mr. Travers: I chained and pegged out the boundary between the lease and the native settlement. The boundary was pointed out by Mr. Brathwaite. There were some natives present, and Mr. Brathwaite mainly arranged the boundaries with the natives.
The boundaries are those set forth in the lease. Mr. Brathwaite saw them after they were laid down, and he afterwards put up a fence, leaving the native settlement out. I attended the Native Lands Court as surveyor when the land passed through. I knew Paora was a claimant, and I think I saw him once on the land when the survey took place. It was a voluntary act on my own part to survey the reserve.
By the Court: I did not describe the settlement on the plan in the crown grant as a reserve. I did not peg the line along the river, as it was a natural boundary. At the time of the survey an actual ditch-and-bank fence existed between Brathwaite's lease and the settlement. I commenced the survey in December, 1865, and completed it in the month of January, 1866.
Two interpreters were then sworn-Mr. John White on the part of the plaintiffs, and Mr. Henry Martyn Hamlin for the defendant.
Paora Torotoro sworn, examined by Mr. Travers. Mr. White, interpreter: I am one of the plaintiffs; I know Rewi Haokore, the other plaintiff, and Mr. F. Sutton, the defendant. Do you know the land called Omaranui?—Yes. And the land called Moteo?—Yes. Do they join, forming one piece?—No; Omaranui is one, and Moteo is another. Are they close together?—Yes. Do you know the land called Ngatahira?—I have not heard that Europeans called it by that name in times past; but it has been called Ngatahira from the time of our ancestors. Is Moteo an ancient name?—Yes. And Omaranui also?—Yes. When the natives speak of Moteo and Omaranui, would these names include Ngatahira?—No. Do each of these names indicate a separate piece of ground?—Each name implies a distinct piece of land. Had you any interest in Mateo?—Before the crown grant was issued Paora Kaiwhata lived there. Had you an interest in it when it was native land?—I had. Had you an interest in Omaranui?—I had. Had you, before the crown grant, any interest in Ngatahira?—Yes. Were any other natives interested?—Paora Kaiwhata and his relatives. Who occupied Ngatahira before the crown grant was issued?—The sub-tribe called Ngatihinepari. Is that the home of Paora's people?—It is. Who were in occupation before the crown grant?—The Ngatihinepari. Are any natives in occupation now?—Yes; Paora Kaiwhata and his people. How many people?—Thirty-six. Has Ngatahira been long occupied by the people as a settlement?—Yes; a long time. Have they cultivated that land for a long time?—From the time of our ancestors. How long has the Pa been there?—Our ancestors had a fortified Pa there; but latterly it has only been a Rainga or settlement; it has been continuously occupied. Was any of the land enclosed before the crown grant?—It was only fenced round the cultivations, not round the general boundary of the block. Did you and Rewi make a lease to Brathwaite?—Yes. Did Brathwaite occupy Moteo and Omaranui before the land passed into the Native Lands Court?—Brathwaite occupied Moteo before the Native Lands Court. Do you know Ellison, the surveyor?—Yes. Did you see him making a survey of any part of the land?—I did not actually see him survey it; I did not see him on the land. Had you any conversation with Ellison about the boundaries of the land?—I had. But not on the land itself?—It was not. Did you make a mortgage to Sutton—I did.page 5
Before you made that mortgage, did you buy goods from Sutton?—I spoke to Sutton about the mortgage, and then I did it. Did you owe Sutton money before making the mortgage?—Yes, for sugar and rum. Who spoke first about the mortgage—you or Sutton?—Sutton. What did Sutton say, and what took place about the mortgage?—I came to Napier, and Sutton said to me, "mortgage Moteo." I replied, "I don't understand mortgaging." Sutton said to me, "a mortgage is a good thing; if you mortgage the land for five years, it will be £500, and when we arrive at the fifth year the land will go back to you." Was anything said about the rent?—I spoke about it; I said, "I am not clear about the object [or purport] of this thing." Mr. Sutton said, "It is quite clear—you sign your name." What was said about Brathwaite's rent?—I spoke of the years to come, saying, "Give me the £300." He said, "You and I will settle that." Was there a deed ready for you to sign?—No. When did you first see the mortgage?—I do not understand what a mortgage is; in those days I did not understand. When did you first see the deed?—When Sutton came to my Rainga. Was that after the conversation about the mortgage in Napier?—Yes. Was any European with Sutton when he took the deed to your place?—Yes; Martyn Hamlin. Who had the crown grant of the land when Sutton and Hamlin came to your place?—The European Brathwait had it. Did you ever have the crown grant in your possession?—I never had it. Had you ever seen it when the mortgage was brought to you by Sutton?—Brathwaite did not invite me to see it, but after Sutton and Hamlin came I called at the office where the deeds are kept, and saw it. Was that after you had signed the mortgage?—It was. How long after?—Perhaps about three months. Do you remember signing a deed of sale to Sutton after the mortgage?—Yes. Was it before or after the singing of this second deed that you first saw the crown grant?—It was between the signing of the mortgage deed and the sale that I saw it. Did you look at the plan on the grant?—I did. When you agreed with Sutton to give him the mortgage, what land was to be put into that mortgage?—Moteo. Did you agree to put into that mortgage any other land besides Moteo?—No; I did not. Did Mr. Sutton speak of what land was to be put into the mortgage?—He did not mention any land except Moteo. Did he mention Moteo?—He did. Was that the agreement, that you should mortgage Moteo to him?—Yes. Was the conversation between you and Sutton regarding the mortgage in the presence of the other natives?—Yes, my children [people]. Will you name some of them?—Yes; Hare, Pititi, Marara, Raihania—they were all. Could they hear what took place?—They heard from me. Some time after Mr. Sutton and I had been talking these natives came in. Were any natives present while you and Sutton were talking about the mortgage?—Hare was there when they came in, and some considerable time after the others came in. Had you then signed your name?—No. Could Hare and the other people hear the talk about the mortgage before you signed?—Yes, they might. Did Sutton or Hamlin tell you anything about the land in the mortgage?—No. At that time you had agreed to mortgage Moteo?—Yes. Did you know when you signed that Ngatahira was included in the mortgage?—No. Did you see the deed at any time before it was brought into your place to be singed?—No. Did any lawyer or other European act for you in reference to that mortgage?—I had one. Who was it?—Mr. Sheehan. But before you signed the deed?—I had no European. There was only myself when they came. Who showed you the mortgage first?—Mr. Hamlin. Where did he take it from?—From his coat, Before you signed the mortgage, did Sutton say anything about the money you owed him?—Yes. What did he say?—Before I signed it he mentioned my debts, which the mortgage was partly to pay. I said, "I do not know that my debt is very heavy." Did Sutton say anything about getting more money after the deed was signed?—He said that portions of the £500 would be paid. I said "How much?" and Sutton said he would give me £300 in cash. How much did you owe Sutton when the mortgage was signed?—I told Sutton about £20. Did you know how much you did owe?—About £20. Why did you give a mortgage for £500 if you only owed £20?—I consented to the mortgage for two reasons—first, that I should have £500; and second, that at the end of five years I should have it back. Was anything said about a house?—Not at the time of the mortgage. When was the house spoken of?—I went to Cashmore for timber for the house; after that I spoke to Sutton. Did Sutton agree to pay for the house?—I told Sutton that I had the timber ready, and he said that he would find the money to build it. This was not at the time of the mortgage; it was after the land was sold. Did you, after the mortgage, sign a deed conveying the land to Sutton?—Yes. At what place did you sign?—At Sutton's house in Napier. Who was present besides Sutton?—Martyn Hamlin. Any one else?—Hare. Did you know that that deed included Ngatahira?—No. Did you speak to Paora Kaiwhata about the mortgage or sale of this land?—Before I signed for the mortgage or sale I told them. Did you speak about mortgaging or selling Ngatahira?—Yes; I told Paora and others that I was going to mortgage Ngatahira, but they would not consent. When was that?—After I signed the mortgage. [Mr. Hamlin: He has just said it was before he signed. Mr. Travers said that it did not lie in the mouth of Mr. Hamlin, as an interpreter, to pass comments upon the statements of a witness. The Chief-Justice said that Mr. Hamlin was sworn merely to interpret, and had a right to check the interpretation of the evidence by the other interpreter; but had no right to comment on the evidence.] Was it before or after signing the mortgage that you spoke to Paora Kaiwhata on the subject?—After I signed. Did you speak to him before of after signing the second deed?—After I had signed the conveyances. How long after?—I signed on Monday, and on Saturday I spoke. Did you ever tell Paora Kaiwhata that you were going to mortgage Ngatahira?—No. Did they object to the mortgage of Moteo?—Yes. When did you first know that Sutton claimed Ngatahira?—In the year 1874. How did you hear that Sutton claimed Ngatahira?—Pitit, and Raihania told me. Before that did you not know that Sutton had Ngatahira in the deeds?—I did not know. When you signed the conveyance, did you get any money from Sutton?—No. Did Sutton give you any deed or paper to keep for yourself when you signed the conveyance?—No. [Deed of covenant page 6handed to witness.] Did you ever have this deed in your own possession?—No. [Mr. Travers here put in the Crown Grant marked A, the mortgage marked B, the conveyanece marked C, and the covenent marked D.] Did any European., lawyer or otherwise, act for you and advise you in regard to the conveyance?—I mentioned to Mr. Locke, R. M., that Sutton was pressing me to sell Moteo. Did any person go over the conveyance with you to see that it was right, before Sutton brought it for you to sign?—No. Did you ever see the deed before signing? —No. Did you know before you came to Sutton's shop that the deed was to be ready for you to sign?—I did not know beforehand; I came to Napier of my own accord. Was that the first time that Sutton spoke to you about the sale?—That was not the first time; he had spoken before. Had you, before that time, agreed to sell?—No. Then was the sale all settled the day you came into Napier, when the deed was signed?—When I would not consent to sign, Sutton sent for Hamlin. Was the thing all settled on that occasion before you parted?—Yes; it was all done at once. The reason I consented was that Hamlin said if I did not do so Moteo would be sold by auction. When you agreed to sell Moteo, did you speak of Ngatahira?—I did not speak of Ngatahira. Did they?—No. Were you aware that Ngatahira was included in the deed of sale?—I was not.
Cross-examined by Mr. Wilson, Mr. Hamlin interpreting: Are you the same Paora who was convicted of perjury in this Court? (Mr. Travers: "Tried" Mr. Wilson: "Convicted" Mr. Travers:—Then where is the conviction? Paora was found guilty by a jury, and the conviction was afterwards quashed. We do not deny that.) Do you remember being examined by Judge Richmond and Judge Manning?—Yes. Do you remember saying: "I understood the deed to include the whole block"? I did not say so to the Commissioners—that would never come from me. I did not say that—how could I say it when I said at the same time that it was separated. Do you state that the deed of mortgage was not read to you? Mr. Hamlin told me he had read the deed over. Was it not translated to you?—I have said already that Hamlin interpreted. Was the deed of conveyance translated to you?—It was. [By the Court. Can you read?—Yes, I can read writing. Do you understand English?—No.] [Mr. Wilson here informed the Court that the witness, though able to read his own language, could not do so without the aid of a powerful glass.] Was the deed of conveyance put into your hands?—You do not give us that kind of paper to hold. Did you see it?—Yes, Did you look at the map?—Hamlin showed it to me; he explained the deed and showed the map. [By the Court: Were the boundaries explained?—Yes, and pointed out on plan. The plan was on one side of the sheet, and the deed the other.] Did you sign the application to bring the land under the Native Lands Act?—Yes, I myself, with others. [A file of the Provincial Gazette for 1866 was here put in; containing a notification, published in January of the year, that Paora Torotoro, on behalf of himself and others, applied to have Moteo and Omaranui brought under the Native Lands Act.] Where you Present when the land was dealt with by the Native Lands Court?—Yes. Did you claim Ngatahira?—I said Ngatahira belonged to those people, as they held it. Did you know it was given to yourself and Rewi by the Court?—I know Ngatahira was given to us two by the Court. Did you know it at that time?—Yes, at the time the decision was given: I do not know about Omaranui, but the decision of the Court was given about Moteo. Were you not a grantee in Omaranui No. 2?—I was one of the grantees. Did you sell that land to Neal and Close?—It went altogether. After the sale did not you and others claim a piece called Kopuaroa?—A portion of Kopuaroa was reserved on the lease, and I objected to its being surveyed. Was it not all included in the sale?—The interpreter deceived us. Who has it now?—Neal. Was not an action brought in the Supreme Court, resulting in the natives being turned off?—No; the native were turned off by the pakehas, not by the Court, After they had been in possession for a time, the pakehas threatened to burn down their houses. Did you never see or hear of a Supreme Court writ about Kopuaroa?—No. Is your son Hare interested in Ngatahira?—Yes. Also in Kopuaroa?—Yes. Did you not tell your son to break down the gate at Kopuaroa!—Yes Was Hare summoned for breaking the gate!—Yes. Paora Kaiwhata was living on that land, but Grindell turned him off; he then went and lived at Moteo. Not at Ngatahira?—No; adove that. Do you remember the fight at Omaranui in 1866?—Yes. Who were living at Ngatahira then?—Paora Kaiwhata and others. Are they living there now?—No; they were turned of by Grindell. The same people lived there that are there now. Paora has shifted about from Moteo to Ngatahira and back.
Re-examined by Mr. Travers: When the land was before the Court, did not the people go outside to elect some one to represent them?—The boundaries were all settled before the land was surveyed. We did go outside, and it was decided that Rewi and I should be in the crown grant for Moteo. And who was decided to be in the crown grant for Ngatahira?—We did not appoint any one; we did not know Ngatihira was in the Court. Did you apply for a grant of Ngatihira?—No; Moteo only. When Hamlin explained the deed, did he explain that the boundaries included Ngatihira?—He pointed out the line, and ran along it to the end. Did you understand that the boundary included Ngatahira?—No. Did you understand that, when you made the deed of sale?—No.
By the Court: Did Hamlin pretend to show the boundaries on the deed?—He appeared to read what was in the deed. Did he read anything about the Tutaekuri river?—Yes. Did he read anything about the native reserve as a boundary?—He did when he showed me the map. What did he say?—"This is the main line; from there to Tutaekuri belongs to you and the native." Did Hamlin then say that the piece for the native was outside the land mortgaged?—Mr. Hamlin said: "This is the line; the part beyond Ngatahira belongs to you and the natives." Do you know that a Maori translation is annexed to the deed?—Yes. And that you have signed both? Yes Did you read it?—No; I only signed it. You remember going to the Crown Lands Office, and seeing the crown grant?—Yes; but I do not remember the month.page 7
What did you go for?—To see the plan of Moteo. Were you alone?—Yes. No interpreter with you?—No.
Henare Tomoana, sworn, examined by Mr. Izard, Mr. Hamlin interpreting; I am a younger brother of Karaitiana, and a relative of Paora Torotoro. I live at Moteo, and know Omaranui and Ngatahira. Who now live at Ngatahira?—Paora Kaiwhata is the principal man; Hare and several others there related to him. Have they lived there long?—Yes. Before the lease was made to Brathwaite?—Long before. Do they cultivate the place?—Yes. Are they in the habit of moving about and returning?—No. Is there a permanent settlement there?—Yes; in former times, when the tribes were at war, the people of a settlement were often taken prisoners; it is the decendants of such as these who travel from place to place, not those who have never been conquered. So far as I have known, people have always lived there. Do you remember the application to bring Moteo under the Native Lands Act?—Yes. Was Omaranui passed through at the same time as Moteo?—I was not at the Court when the boundaries were defined, and did not know them. I knew of the natives coming out of the Court to select the grantees; Rewi and Paora were chosen. Who selected the grantees?—All the natives interested. Do you know whether Ngatahira was included in the application?—No. When did you first hear that Sutton claimed Ngatahira?—Last year. Was that the first time?—Yes. From whom did you hear it?—From Sutton. Where did you see Sutton about it?—At Ngatahira. Was he alone?—Josiah Hamlin was with him; they Went to turn the natives off the land. How many Were there with him?—Five. When you met, Who Spoke first?—Sutton. What did he say?—He said the natives must be off—that the land belonged to him. Did you reply?—I did not speak; it was Paora Kaiwhata who answered; he said "We will not leave it; the land has not gone to you." Mr. Sutton said: "This land is mine." It was then that I spoke, and Said:" This land is not yours." Sutton said: "I have bought the land," I asked "When?" He said: "When Paora a sold the land, I bought it of him." Sutton took from his pocket a paper, which was opened by Hamlin, who said that Moteo, Omaranui, and Ngatahira were all included in that paper. I do not know whether the plan was attached or not. The boundaries of the land were explained by Mr. Hamlin. Pointing to the paper, I asked: "What is this?" He said, "This is a peg;" and pointed to place on the plan. I pointed to another place, and asked: "What is this?" He replied, "That is another peg; it's all right." I said: "It's not right; if Ngatahira had been surveyed there would have been pags here." I then said to Sutton: "This land has not been taken by the survey." Hamlin said: "Ngatahira is all included in Moteo; and it has been explained in Maori that Omaranui and Moteo are one." I said: "If it had been surveyed, the pegs would be shown. I know it was all surveyed by one man; I went round with him; and if he had surveyed Ngatahira the pegs would have been put down there." Sutton said: "The native wheat is not to be thrashed; you are forbidden to plough; and the gates must not be closed." Karaihana said: "It is not good for you to have the wheat; you must first destroy the natives." Did you get any notice in the paper?—No; but it was through that notice that we knew it was intended to turn the natives off. Is Moteo distant from Omaranui?—No: it is one block. Was one part known as Moteo and another as Omaranui?—Yes. Are not the three, Omaranui, Moteo, and Ngatahira, known as separate places?—No; as one block. But they are three separate parts?—Yes.
Cross—examined by Mr. Wilson: Have you never sold lands over which you have been elected a grantee?—No; not where I have been chosen, but where I have a claim of my own. Do you remember Here—tannga?—Yes. Did you not sell that?—It was not my desire to sell that land, as I explained before the Commission. Did you do it?—I signed my name when pressed by the purchasers. Were you selected by the people?—No.
Court adjourned at 6.30 p.m.