[Report of a Supreme Court case on land dealings]
Tuesday, 8th June
His Honor took his seat at 10 a.m.
Karaitiana Takamoana, sworn examined by Mr. Travers, Mr. Hamlin interpreting: I am a native chief, and Member of the House of Representatives. Do you know Paora Torotoro and Rewi Haokore, the plaintiffs in the present proceedings?—I do. Do you know that they held a crown grant of Omaranui, Moteo, and Ngatahira?—Yes. You know Brathwaite?—Yes. Did he occupy the land known as Moteo, and Omaranui?—He occupied Moteo. Do you know when that land was surveyed?—I do not know; but I remember it was leased to Brathwaite before the survey. Did you see any survey being made?—I heard of it being made. When Brathwaite was about to occupy the land, did you point out the boundries?—Yes Do you know Ngatahira:—Yes. Has the land long gone by that name?—Always in former years. In speaking of Moteo would Ngatahira., be included?—No. At the time of the lease to Brathwaite was Ngatahira occupied by any persons?—It had been lived on before and at that time; and was therefore exempted from the lease?—Do you know of any part being mortaged to Mr. Sutton?—I heard so: ember Moteo passing through the Native Lands Court?—Yes. Were you present?—Yes. Did you take part in the proceedings of the applicants connected with that lands?—It was outside the Court that I spoke. I said. "Let Rewi and Paora be the grantees." Paora did not consent. Were Paora and Rewi chosen as grantees?—Yes; a great number. Were the same people interested in Moteo as in Ngatahira? Yes; they are one tribe. Are the same individuals interested?—These people constitute a large tribe, divided into hapus (sections.) What particular hapus were interested in Ngatahira?—Ngatimahu and Ngatipohua, and several other hapus, all belonging to the Ngatihinipari tribe. Do you know Paora Kaiwhata?—Yes. Are he and his people interested in Ngatahira?—He is the chief; he and Paora Toratoro are the principal men. Are you acquainted with the native custom in dealing with land under crown grants?—[Mr. Wilson objected to the question. The custom of page 8the grantees had invariably been to make away with the land as soon as practicable, and retain the proceeds. He objected to the question, as going beyond the issues, Question allowed.]—The only [unclear: eystom] I know of is, that when a crown grant is issued, the European people at once go out to deal with the grantees. Were the people consulted with regard to Brathwaite's lease?—Yes; that was the usual custom in leasing—all were consulted, and they all consented. Were they consulted regarding the mortgage?—I do not know that anything was said to them. Were they consulted regarding the sale?—Nothing was said to them; neither they nor I heard anything about it. When did you first hear that Ngatahira was sold?—I heard last year, through a letter from Paora, that Sutton was going to claim Ngatahira. Before I went to Ngatahira I heard of notice being given by Sutton to the people to go off. This was after the paper (produced) was put up. Did you see Sutton at Ngatahira?—I saw him there; he had one of his children with him, and Josiah Hamlin. Had you any conversation with him?—I said to Sutton, "Go back; this place will never be given up to you; I am no more frightened of your face." Was Henare Tomoana there?—Henare and Manaena were both there, and several others. Do yon remember Paora mortgaging the land?—I did not know of it at the time. When did you first hear of the mortgage?—I do not remember. Do you remember when Paora's new house was built?—Yes; and it was then that I heard of the mortgage for the first time, and saw Sutton taking things into the house. Was Paora spending much money at that time?—Paora spent a great deal of money in rum; his house was full of spirits. Did yon often see Paora about that time?—No, for we were at enmity; I had quarrelled with him for making away with another crown grant. Did you ever see him driving in a buggy?—Yes. Was he cultivating much land at that time?—A good deal. Himself or his people?—All his land was under cultivation at that time. Was Paora attentive to his business at that time?—I do not know.
Cross examined by Mr. Comford: You say that Paora and Rewi were chosen as trustees?—Yes. How often have you been selected as a grantee?—Many times. For what blocks?—All the lands for which my name appears—both Mangatereteres. How many of those blocks have you sold?—Not any. If I had sold I should have said so; the people to whom I owed money forced me; it was not my own free will. Were you forced into selling Pakowhai?—No; it was my own wish to sell it. How many acres did you sell?—Four hundred. At what rate?—£10 per acre. Were you the only grantee?—I alone. Had you been selected?—Yes. What became of the money?—We had that money. Who do you mean by "we"?—[Mr. Travers said he did not wish to interrupt the cross-examination; but would ask if these questions were relevant. His Honor said that he failed to see the relevancy of this line of examination; but he would allow the question.]—I will not tell the names; there has never been any dispute. Did you not get nearly all?—I do not know what answer to make. Did yon get any one's consent?—My sale was clear. Whose consent did you get?—Henare's and Manaena's. Do you remember the sale of Omaranui, No. 2?—No. Do you remember anything being done with it?—No. Do you remember a block named Kopuaroa?—Yes. Who owns Kopuaroa now?—The Europeans, perhaps; I do not know. Do Neal and Close claim it?—I do not know; all I know is that Paora Kaiwhata was turned off. Did not Paora Kaiwhata and his people claim the land after Neal and Close claimed it?—I heard so, but cannot say. Was not that claim made because Paora. Kaiwhata said it was an old setelement, and the people should not be turned off?—[Mr. Travers suggested that it should first be ascertained whether the witness was present, and knew anything about the circumstances.]
Rewi Haokore, sworn, examined by Mr. Izard. Mr. Hamlin interpreting: I am one of the plaintifis in this action. Do you remember the mortgage to Sutton?—Yes. Were you asked to sign it?—Yes. Where were you asked to sign?—At Tareha's Pa, Waiohiki. Who "asked you?—Hamlin and Sutton. What did they come for?—They came, and Hamlin pulled out a paper and said, "You sign your name to this paper." Did you previously know they were coming?—No. Had Sutton previously made any application to you about this?—No. When they came, was any one with you?—Yes; Paraone and Whatu. Did they give any reason why they wanted you to sign?—I asked what it was for, and Hamlin told me it was a paper to take care of the land. Did they tell you it was a mortgage?—They did not mention a mortgage. Did you know that it was a mortgage?—I knew afterwards. Did you know at the time?—When they came up I did not know, and I signed the paper. Was there any discussion with Paraone and Whatu when you signed?—There was no talk; we all three signed. Did you see Paora's signature when you signed?—Yes, and wrote my name below. Was the paper read?—Hamlin read it, but it was not finished when we signed. Did he only read a part?—Yes, only to about the middle, and then folded up the paper. Did you sign before the paper was folded up?—I signed first, and then asked what the contents of the paper were. Hamlin then read a part, and folded it up. Did they tell you what land you were dealing with?—Yes. Who spoke to you—Sutton or Hamlin?—Hamlin; he said the land was Moteo, and Sutton was to take care of it. What name did Hamlin give to the deed?—"He pukapuka tiaki" (a paper to take care of or secure), relating to Moteo. Does Moteo include Ngatahira?—Ngatahira is a portion of Moteo; nothing was said about Ngatahira; that is a piece of land which was set apart for the natives to live upon. Did Hamlin read the paper to you in Maori or English?—He spoke in Maori. Did he read the boundaries?—He did not. Did you receive any money?—No. Was anything said about any money?—Yes; Sutton was to give me £300. Did you over get that £300?—I have never received it from that time to the present. Did you get goods of him?—Yes; as I could get no money, I took goods. Had you any European to advise you?—No; I had no lawyer in respect of this mortgage. You remember the deed of conveyance of Moteo?—Yes. Who spoke to you first about that conveyance?—Hamlin. Where?—At Waiohiki; the same place; they came another time. Did you know they were coming?—Yes; I knew they were to bring the papers for me to sign. Who told you they were coming?—That was a mistake of mine; I did not know they were coming; they came of their own accord. Did page 9they bring the deed?—Yes. Were you asked to sign?—Yes. We had a long dispute, and at last I consented to sign. Were any other Maoris present besides yourself?—Many. Will you tell us some of their names?—Te Taka, Tarne Tuki, also some women and children. Any others?—Hare was there. Was there any discussion with those present?—No; they had nothing to say; the talk was between myself and Hamlin. Was the deed read?—It was not read over to me by Hamlin. It was night when I was asked to sign. Was any portion read?—No; the only explanation given was that it was to sell the land, hence the discussion; I did not want to sell the land. Did you decline at first?—Yes; we were a long time talking over it. Why did you sign at last?—Because I had signed the first, and they urged me so strongly. Did they tell you what land it referred to?—Yes, What did they say?—That it was Moteo which was to be sold. Did you get any money?—No; neither then nor afterwards; I only received goods. At the same time did you sign any other deed?—I signed what papers they bought me. [Deed of covenant handed to witness.] Is that your signature?—Yes. Did you sign this at the same time?—Yes. Did you sign a deed in relation to the way in which Sutton was to pay you the money?—No. Did Hamlin explain to you what that document was?—He did not; when I consented to sign he gave me one document, saying "You sign here;" and the other, saying "sign there." Did yon know that the deed included Ngatahira?—It did not; that land was reserved for the natives. Was it so explained to you?—It was. Are Ngatahira and Moteo distinct? [Mr. Wilson: You must not ask your witness to contradict himself. He has already said they are not distinct. His Honor: I think that is a leading question. You may try to ascertain whether he correctly understood your question when he gave the former answer. Ask him: What were the boundaries of Moteo?] Question put:—Witness: Do you mean the boundary between Ngatahira and Moteo? Mr. Travers: Is there any boundary between?—Yes; Brathwaite's fence is the boundary separating Ngatahira from Moteo.
Cross-examined by Mr. Wilson: Do you understand English?—No. When did you find out about the mortgage?—After Sutton and Hamlin had returned, people who understood told me that we had signed a mortgage. Do you still say that Hamlin did not interpretet the deed?—He left off when he was half through; on the second occasion he did not read the paper at all; he only explained it. Does Sutton still owe you money?—No; I have applied to him, and he told me it was all gone, so I have ceased to ask him. Do you remember the Commission?—Yes. Did you say anything about Ngatahira?—No; I was not asked. What do you consider was your share of Moteo?—One thousand acres. What share of rent did you receive?—I received rent for the last year only £50; Paora got the other money and spent it. Did you not tell the Commissioners that you only got £10 from Paora?—That is correct.; that was before.
Re-examined by Mr. Travers: You say the Commission did not say anything about Ngatahira?—They did not. Did you then know that Sutton claimed it?—Sutton did not then claim it: he had never said anything to me. Then you did not know of Sutton's claim until after the Commission?—He has never told me anything about it. Did you get goods from Sutton after signing the deeds?—Yes; but I did not get money. How much in value?—He has not given me the bill. Did he ever give you any accounts?—If he had I should have known. But he told you that you had no money to come?—He told me that there was nothing more for me. [Deed of covenant shown to witness.] Did you ever have this deed in your possession?—No. Did Sutton and Hamlin take away with them all the papers that you signed?—Yes.
By the Court: Before Brathwaite's lease, and, before the survey, who occupied all this land—Omaranui, Moteo, and Ngatahira?—The Ngatihinepare and the Ngatinaho. Is not that land a flat?—Omaranui is a separate piece from Moteo. Is Moteo settlement outside the crown grant?—Yes, Paora Kaiwhata's Rainga. Do you know the land leased to Braithwaite?—Yes. Is there not land belonginng to Paora Kaiwhata, and called Moteo, as well as that within Brathwaite's lease?—The boundary line runs through the valley, dividing Paora Kaiwhaita's land from Brathwaite's. Before the lease, when you spoke of Moteo, how was its boundary defined?—The river is one boundary; the hills upon the other side; the hills on this side are also called Motao. Before the Europeans came, what was meant by Omaranui?—Omaranui is a separate block; it belongs to Neal and Close; it is where the fight took place; it was known as omaranui before the Europeans came. Is there any natural boundary between Moteo flat and Omaraui flat?—Only on imaginary line; no river or other natural boundary. Does Omaranui belong to Paora Kaiwhata?—To Paora Kaiwhata and Paora Toratoro, Can you give any reason why in the crown grant the whole block was called Omaranui? was there not a Rainga of that name near Kopuara.?—There was a Rainga there of that name. Is not Ngatahira the name of a Rainga, like Omaranui and Tukekoreroa?—A Portion of Ngatahira. Is Ngatahira the flat part of Moteo valley?—That is part of Moteo.
Hare Ngawhakakapinga, sworn, examined by. Mr. Izard, Mr. Hamlin interpreting: I am a son of Paora Torotoro. Were you living with him at the time his house was being built?—Yes. And before and after?—Yes. Was Paora spending much money then?—No. Was he getting much goods?—I did not see. Do you know whether he got much from Sutton?—I did not see. Did you see much spirits and other things in Paora's house?—I did not see. Had Paora a buggy?—Yes. Did he drive about much with it?—It was given him for that purpose. Did he drink much?—I do not know of his getting drunk when he got the buggy. At any other time?—I have seen him on his buggy drunk. Do you know a place called Kohupatiki?—That is my place. Do you remember Sutton and Hamlin coming down there?—Yes. Did anything take place about a mortgage deed?—Yes. Who else was there?—Several; Mahara, Kaihania, and Petiti were present. Was there much talk about this mortgage?—Yes. While Sutton was present?—Yes. Did Paora Torotoro speak about it in Sutton's presence?—Yes. Did he say what he was doing?—Yes. Did he say what he was going to Mortgage?—Yes. What was he to mortgage?—Moteo. [Deed of mortgage handed to witness.] Did page 10you sign this mortgage as a witness?—That is my signature. Did you hear it read over?—No. Did Hamlin read anything in Maori?—I did not hear him. Were the boundaries of the land in the mortgage mentioned and explained to Paora at the time?—Yes. Did you hear the boundaries explained?—No. How then did you know that they were explained to Paora?—I do not know about their being explained to him. You said just now that they were: did you know what land was mentioned in the deed?—Yes. What land was it?—Moteo. Did you hear anything of the boundaries at the time the deed was signed?—I did not know that the boundaries were mentioned; I only heard that it was Moteo. Who occupied the land at that time?—The European Braithwaite. When you heard that Moteo was being mortgaged, what land did you understand by that?—Moteo. Do you know Ngatahira?—Yes. Did you understand it to form part of Moteo to be mortgaged?—No.
Cross-examined by Mr. Cornford: Were there any residents an Moteo at the time of the mortgage?—Paora Kaiwhata. What part of Moteo?—The centre of the flat. Had that part any particular name?—The large name was Moteo; I am not acquainted with the small name. Was it Ngatahira?—No; that was another spot. Was it within Brathwaite's lease?—No; it was outside. Were any other natives living there?—Only Paoro. Do you know Kopuaroa?—Yes. Did you not dispute Neal's accupation of a part of that land?—Yes. Did you not break down a gate?—Were you summoned?—No. Was a writ taken out against you?—I do not know. Was a warrant out against you?—I do not know of these things. Was any paper ever issued to bring you to Court?—I had that writ for breaking down the gate. Do you recollect when Paora sold Moteo to Sutton?—No. You never saw the deed of conveyance?—No. Then you do not recollect signing the deed?—No; I only know that Paora Torotoro told me about the mortgage. Do you remember going to Sutton's house with Paora Torotoro some months after the mortgage was signed?—No. Will you swear you were not present when Paora signed the conveyance?—I do not remember going to Sutton's house. You gave up Kopuara, notwithstanding your objection, did you not?—To a certain extent. Who lives there now?—Bennett, a European. Any natives?—No.
Re-examined by Mr. Travers: Where many natives residing at Ngatahira at the time of the mortgage?—A great many. How many?—I cannot say; they were not counted. Are there many there now? Yes; many men, women and children. From the time of the mortgage?—Yes; and long before there is a permanent settlement there.
Hohaia Te Hoata, sworn, examined by Mr. Izard, Mr. Hamlin interpreting: Where do you live?—At Ngatahira. Did you live there when the land was surveyed?—Yes. By whom was it surveyed?—By Mr. Ellison. Who pointed out the boundaries to Mr. Ellison?—Paora and all the others showed Mr. Brathwaite the part to be leased to him, and the part to be exempted from lease. Did you have any conversation with Ellison when he was engaged in the survey?—Yes. What took place?—An old man, named Whareranga, saw Ellison going up to the house, and said, "You are not surveying the land, you are surveying the people," and Ellison then went back to the boundary. On what part of the ground was Ellison when the old man said this?—Where the natives live—Ngatahira. When he was told to go away, where did he go?—To the place where the boundary had been laid. Did you see him survey the boundary between Moteo and Ngatahira?—Yes. Did you know that Ngatahira had been surveyed by him?—No. Is Moteo distinct from Ngatahira?—Yes. When you speak of Moteo, is Ngatahira included?—No; there is a hill separating Moteo from Ngatahira. What is the name of this hill?—Mini. Does this hill extend along the whole boundary, or only part of the way?—It is a long hill, running right to the river. Have you ever seen the crown grant of Moteo?—Lately, but not before. Were you ever consulted about the mortgage?—No, Did you know anything of the sale?—No. At the time of the mortgage and sale, did you live there?—Yes. Was Ngatahira appropriated to you and your people?—Yes. How many people were there at Ngatahira at the time of the mortgage?—Fifty. How many at the time of the sale?—The same. Do you know of any notice being found on the gate?—Yes; I saw it. What was done with it?—It was taken off very carefully—the old people wished to tear it up; but I said "No; let us take care of it, and show it to the Europeans." [Document in question put in, and marked E, accompanied by a translation by Mr. White.] Was seeing this notice your first intimation of Sutton's claim to Ngatahira?—Yes.
Cross-examined by Cornford: Do you remember receiving a letter from Mr. Sutton in November, 1873?—I remember receiving that letter. Then do you still say that this notice (E) was your first intimation of Sutton's claim?
Mr. Travers objected to the question, as an attempt to arrive, by indirect means, at the contents of a written document. After some argument the cross-examination proceeded.
Cross-examination continued: What has become of that letter?—It is lost. What was in that letter? What was in that letter?
Mr. Travers objected that the other side was not justified in putting these questions without having given notice. After some discussion of the point, he withdrew his objection, though still maintaining that the course taken was an unusual one.
Cross-examination continued: What was in that letter?—I have forgotten its contents. Did it relate to Ngatahira?—My impression is that it did. Did you show it to any one?—Yes; to Hoera. To any one else besides? Can you recall what the letter said about Ngatahira?—No; but when I came to town and saw Sutton he told me verbally that Ngatahira was his. How long was this after you received the letter?—Perhaps two months. So long? did you not come to town on account of receiving that letter?—No; I came of my own accord. Do you not remember seeing Sutton about that letter, shortly after receiving it?—I do not know how long after. Do you remember shearing at Poraite for Burnett in. 1873?—Yes? Did you not at that time see Sutton at his own store in Napier and tell him that you had come to talk that letter over?—It was he who said so when I came to town. Mr. Sutton said, "I intend driving my cattle on Ngatahira"; I said, "I do not page 11know that that land is yours." [His Honor: Was that before the notice was put on the post?—Yes.] What did you say then?—"I will not consent to your cattle being on that land"; Sutton said, "The land is mine"; I said," No; it is not." [His Honor:—Did Sutton say how the land became his?—Not till afterwards: I was quite grieved at that talk. Was this after the notice on the post?—Yes; it was when Sutton came to Ngatahira: it was then that we all heard how he claimed it.] Did you not this same day go with Sutton to the Land Registry Office?—Yes; it was there that Sutton showed me the crown grant. Did he show you anything else—about Paora Torotoro?—He showed me something about Paora Torotoro and himself; I said, "I do not know anything about it."
Re-examined by Mr. Travers: You told Mr. Cornford you received a letter from Sutton?—Yes. Was it long before the notice was put up?—I could not say how long before. Did Sutton show you any mortgage deed when you went into the Deeds office?—Yes. Was it a deed like this, or was it in a book?—It was in a book. Did you read what was in the book?—I looked at it. And told Sutton you knew nothing of this mortage of land belonging to you?—Yes. At Te Mini there is a hill?—Yes. A high hill?—Yes. What way does it run towards Pakakoreroa?—The hill takes a bend towards Kopuaroa to Pakakoreroa; at Te Aopawa there is a swamp, thence the hill extends to the Tutaekuri. [The witness illustrated the boundary by pointing out the different localities on an imaginary line from his shoulder along his arm, the elbow representing the bend described.] So that Ngatarihi is separated from Moteo by a hill extending from Kopuaroa to Pakakoreroa?—Yes. Was the boundary line of Brathwaite's lease at the top of the hill?—At the foot; the swamp was in the portion belonging to the natives. The hill was in Brathwaite's piece?—Yes. Was it before or after Burnett's shearing that you got the letter?—Before the shearing was completed. How far is Burnett's place from Napier?—Fourteen miles. Did you come to Napier directly after getting the letter, or after wards?—Afterwards. How long afterwards?—About two weeks. After that Sutton came to Ngatahira and explained how he claimed it?—Yes. How long was it after you saw Sutton that he came to Ngatahira?—After I received the letter, the notice was put on the gate, and after that Sutton came up, and informed the natives of the ground of his claim.
Mr. Travers said that before closing his case he would ask the other side to put in the lease to Brathwaite. Should they not do so, he would propose to put in the office copy, Brathwaite being out of the country.
Mr. Wilson objected to this course being taken.
Mr. Travers said that the Deeds Registry Act provided that if the original copy of a deed was not obtainable, the office copy should be evidence. Mr. Sutton was now the proper custodian of the original, which ought to be in his hands.
His Honor saw no use in contesting this point. The terms of the lease had already been proved fifty times.
Mr. Travers said that he should ask for a copy of Mr. Sutton's application to bring the property under the Land Transfer Act.
His Honor said that if Mr. Sutton had made such an application, the lease had probably been deposited with the other papers in the Land Transfer Office.
Edward Moore (one of the jury), sworn, examined by Mr. Travers: I am manager of the Napier branch of the Union Bank of Australia. I have a packet of deeds in my possession, but do not know whether the lease in question is among them. I will cause search to be made for it.
Mr. Travers then put in the application by Mr. Sutton under the Land Transfer Act, dated 15th January, 1874; wherein the property was described as being 163 acres in extent; value £1200 and no more, at present occupied by Hohaia and other natives, names unknown, as tenants at will, the said land being included in conveyance to the applicant. He also put in the application under the same Act by Mr. Brathwaite relating to the rest of the block, and bearing date August, 1873.
Mr. Travers said he should now ask for Mr. Sutton's books of account to be put in; he had served the other side with notice for their production.
Mr. Wilson objected to the shortness of the notice, which had only been given that morning, when the Court opened. His client lived eight miles from town.
Mr. Travers said that if the books were not produced he should have to tender evidence of their contents. He would call Mr. Sheehan, who in his capacity of counsel for Paora Torotoro had gone through the whole of the books for the information of the Land Alienation Commission. An analysis of the accounts, the result of this examination, had been printed in the Parliamentary Papers He had a right to ask for these accounts in any case as the transactions between the parties would necessarily come in evidence.
Mr. Wilson said he must claim reasonable time. It would have been impossible to have produced the books on so short a notice, He did not understand why they were called for, there being no allegations about the account in ths declaration.
His Honor said the only course appeared to be to allow Mr. Sutton an adjournment of sufficient time to enable him to produce his books.
Mr. Sutton said he lived seven miles out of town. He had not been any great length of time in his present residence, and in the present state of his arrangements it would take him at least a whole day to find the books and papers called for.
Mr. Travers: If Mr. Sutton will accept the correctness of the printed analysis, we will waive our application for the books.
Mr. Wilson: Accept Mr. Sheehan's presentment!
Mr. Travers: No; the analysis is drawn up by Mr. Witty, appointed for that purpose by the Comsioners, as an entirely independent accountant.
Mr. Wilson: Our objection to the published analysis is that it deals with so many matters besides the one in hand.
Mr. Travers: If the other side object to it we must analyse the books, that is all. We only want the books produced in order to close our case.
His Honor: I see no other course but to adjourn. page 12the case for their production. I Myself expected the books to be here.
Mr. Wilson: There is nothing about the accounts in the declaration.
Mr. Travers said that a deed of covenant, not on the Register, and withheld by Mr. Sutton from those who were entitled to its custody, pledged him to make them certain payments, which payments had never been made in money. The amounts were said to have been paid in goods, and he wished to have the means to test how they were paid. The authenticity of this document had never been impeached, and it would save vast trouble and all necessity of reference to the original books, if Mr. Sutton would accept the analysis as evidence. If he proposed to say it was not true, it was strange that he did not impeach it before the Commissioners.
Mr. Wilson said he was prepared to accept the analysis in question; Mr. Sutton being allowed to supplement it with such explanations as might be found necessary.
The document [Appendix 5 to the Report of the Native Lands Alienation Commission, 1873] was then put in.
Mr. Wilson, in opening the case for the defendant, said that the whole matter had been so clearly laid before them by his learned friend on the other side, that he need not take up much of their time, The case, however, was of a peculiar character and of special importance, calling for a few remarks before he proceeded to the evidence he was about to adduce. His learned friend had opened in a very fair manner, showing the grievance of which he complained, and for which he sought redress; but he would show them conclusively that the real causes of this and similar instances were bad laws and bad administration. There would be no doubt in their minds after the evidence they had heard, that the parties concerned were suffering from a genuine grievance. The case was one showing the justice of the comment of the learned judge who presided over the Lands Alienation Commission in 1873, in his able and elaborate report laid before Parliament. "I am far from thinking," he wrote, "that the Maoris of Hawke's Bay have no real grievances in the matter of ther landed right." But he went on to say: "These are to be found under the division of complaints of the operation of the Native Lands Act, and of the procedure thereunder of the Native Lands Court." And he proceeded to point out how any attempt to remedy these grievances would be productive of more harm than good. The evidence of Mr Ellison, the surveyor, in this case was sufficient to prove that the full intention of the owners of this land was that it should be a native reserve; and further, that it ought to have been reserved. This was one of the instances of hardships arising from the extraordinary action of the Native Lands Act. The aim of the Act was a reasonable one—that each individual proprietor should be placed in possession of his particular proportion before any dealings could take place; but what did they find was the operation of the Court in the present case? The claimants of the land were told to go out of Court and select two native as grantees; and forthwith in these two was vested a trust so peculiar as to be quite without precedent elsewhere. No record being made of their fiduciary position, these grantees had invariably dealt with the land as their own; the crown grant investing them with full powers of ownership. The hardships to the other owners was undoubted; but he maintained that in the present instance nothing had been shown which ought to affect Mr. Sutton's position. He claimed this property under the crown grant, with no notice and means of knowing that any irregularity had taken place; and he was fully justified in maintaining the rights which that crown grant secured to them. The jury would not fail to see the importance of this action from another point of view. If this experiment on the part of the natives should prove successful, there would be many more of the same kind which would follow. The natives need only say that they had not intended a certain portion of their lands to be included in their deed of sale; they would be supported by any number of witnesses; and it would be difficult to say what the end would be. He had no intention of defending Mr. Sutton's conduct on the ground of strict morality; but submitted that this was not a bad transaction. It was just such as might have been expected to take place between a needy and improvident native on the one hand, and a keen—witted storekeeper, intent on making the best bargains on the other. The legislature, not his client, were to blame in the case. The charge of mistake must fail; the facts were very simple—the original lease excluded 163 acres; but Mr. Sutton obtained a mortgage of the whole block, and subsequently conveyed all except the 163 acres to Mr. Braithwaite. The real question was—did Sutton fraudulently obtain a conveyance, knowing that the land was not intended to be conveyed. One of the witnesses called to prove this point had previously been convicted of perjury, and though on technical grounds the conviction failed to be sustained, he submitted that he could not be relied on; and unless the statement of Paora was accepted, the whole case must inevitably fall through. The deed had been executed with all requisite forms, and was not to be interfered with on light or doubtful grounds. He would call Mr. Sutton, who transacted all the business, and the interpreter—almost the only other person who could give information on the subject, who would show that all the documents were fully and properly explained before they were executed. All the witnesses called so far had a kind of common interest in the success of the plaintiffs; Mr. Sutton, it was true, was an interested party on the other side; but this could not be said of the interpreter—an officer of the Government, with no interest to serve in the matter. They could not find a verdict for the plaintiffs without implying that both Mr. Sutton and the interpreter had been guilty of gross misconduct.
Mr. Travers asked that Mr. Hamlin should leave the Court during the examination of Mr. Sutton.
Mr. Wilson said he was not present, and added that all the natives had passed in and out of Court unchecked while the plaintiff's case was heard.
Mr. Travers: My friend made no objection.
Frederick Sutton, sworn, examined by Mr. Cornford: I am a grazier, residing at Farndon, seven miles from Napier. I have lived there about seven months. In 1868 I was carrying on business as a storekeeper in Napier. I know Paora Torotoro, one page 13of the plaintiffs in this action, and had transactions with him previous to October, 1868, and he bought goods of me. I know Rewi Haokore, the other plaintiff; I no not think he was indebted to me at that time. On the 5th October, 1868, Torotoro and Haokore signed a mortgage to me. [Deed of mortgage handed to witness and identified.] The mortgage was given as security for the sum of £500 due and owing, and further advances. The circumstances which led to the mortgage were these. In the early part of October, some days before this document was signed, I saw Paora in my shop, and spoke to him about the state of his account, which was then over £150, some of it of long standing; and asked him when he would be able to pay. He told me not until he had received his rent from Brathwaite, I think in the January following. He told me also that he had been to Braithwaite, asking him to advance him sufficient money on account of the rent to build a house at Kohupatiki, but that Braithwaite had refused to advance him anything, telling him that he must wait till the rent was due. I asked him what kind of house he wanted, and from his description roughly estimated the cost at from £300 to £350. He proposed that I should advance him the money, as he could not come to terms with Braithwaite. His statement that the proposal to mortgage the land came from me is not correct. I told him I would think about it. I asked him if Braithwaite or any one else had any security on the land, and he replied in the negative. The land to which I referred was the Omaranui block, and I knew by current report that it was leased and occupied by Mr. Braithwaite. I told Paora I would give him an answer in a day or two; and no further conversation took place at that time. I went to Paora's Pa in a day or two with Mr. Hamlin; the object of my visit being to see Paora on the question of making advances and giving security. In the former interview he had spoken of various blocks which he was ready to offer as security. I remember he indicated the Petane block as well as Omaranui. In speaking of the latter he called it "te whenua Braithwaite" (Braithwaite's land.) He mentioned also the Ohikakarewa land. It was the 5th October when I went over, and I took the mortgage deed with me. We met Paora at Kohupatiki, where he was then living; I think we found him in his own house. I cannot say who were present during the interview. Hare was present during the latter part of the conversation, and witnessed the signature to the deed. There were other natives in the next room, but my impression is that there were none in the room with us. I am not certain whether Hamlin or myself had the deed; we went together and were together the whole time. It was about 12 or 1 o'clock when we got there. Paora first begun the conversation. He said: "I suppose you have come about what we were talking about." I have been about eighteen years in this country, and have sufficient knowledge of the Maori language to understand ordinary conversation. I replied: "Yes, and Hamlin has come to explain, and see what arrangements can be made." I added that I was prepared to advance the money, provided that he would give me security over the Omaranui block. He asked if we had the documents with us, and Hamlin replied that we had; and the deed was then produced and interpreted by Mr Hamlin. Hamlin read every word of the Maori translation, which he had written before we left town. I believe Hare was present when the translation was read; he was not there during the whole interview, but was in and out. I don't think any one else was present. My impression is that the door of the next room was open, and that a number of natives were in there. Before the deed was signed, we had given Paora a rough plan of the proposed house, telling him it would cost about £350. In reality it cost considerably over that sum. Immediately after talking about the house I gave him a memorandum that I would not be responsible for the costs. Before he signed, Hamlin asked him if he wished to explain any more about the deed. He said no—he quite understood it, which appeared to be the case. He signed the deed, which was witnessed by Hamlin, and his son Hare. We then left Kohupatiki and went to Waiohiki, about four miles distant, to see Rewi, the other grantee. We were on horseback. We found him there, and several old natives were present during our interview. We told him we had come to ask him to sign a mortgage which Paora had already signed regarding Omaranui. At that time Rewi owed me nothing. Hamlin began to read and explain the deed, when he was interrupted by Rewi, who said, "As Paora has signed it, I suppose it is all right." Hamlin, however, read on to the end. He read the translation attached to the deed, and showed Rewi the plan. Rewi did not say anything about not being in my debt. He said he had derived very little advantage from the arrangement with Braithwaite—that he had only received £10 of the rent during the previous three years. He asked if he might have clothing or such other things as he required. Rewi was not a very expensive native. I told him that I had no objection, but recommended him to consult Paora on the subject, so that no misunderstanding should arise between them. Paora had already seen the plan, and neither he nor Rewi said anything whatever about any reserve or piece to be excluded from the mortgage. After this Paora continued to obtain goods from me. I at once started the house for him, making the arrangement personally with Mr. Lindsay, the contractor. I believe the building of the house occupied some two or three months, and Paora expressed himself as satisfied with it when it was finished. Some months afterwards a deed of conveyance of the Omaranui block was signed by Paora and Rewi. [Deed produced and identified.] Paora had become indebted to me very largely beyond the extent of the security, and in March, 1869, his account had reached a trifle over £1,200. Rewi had a separate account, the amount of which at this time I do not recollect, but I believe that altogether it reached £259. I had made Paora cash advances for the purchase of goods in addition to paying for the house. Previously to the execution of the conveyance I had spoken to him several times about his account, and he had made some small payments of £20 or £30. He then, about the early part of March, suggested that I should make the mortgage larger, or buy the land. This was a week or ten days before the execution of the conveyance. I said it would be of no use to make the mortgage larger, that page 14it would not reduce his debt, and commenced negotiations with him about the purchase. I always spoke of the land as "Omaranui;" but the natives sometimes called it "Moteo," sometimes "Omaranui," and sometimes "te whenua Brathwaite." I cannot positively say by what name the land was spoken of in the negotiations—I think it would be "Omaranui." I had not at that time heard of any piece called "Ngatahira," and was under the impression that the whole block was leased to Brathwaite. I never heard the name of Ngatahira mentioned in any conversation with the natives until May last. I had no positive knowledge of Brathwaite's lease, and was unacquainted with the boundaries. It was some five or six weeks after the execution of the mortgage that I became aware that it included land which was not contained in Brathwaite's lease. It was about two months after the mortgage that I received the crown grant from Brathwaite—whether before or after the conveyance I cannot say; but I think it was before. My impression is that I had the grant between the date of the mortgage and of the conveyance; I had at any rate seen the registered copy. I saw Paora several times between the execution of the mortgage and the conveyance; the deed of conveyance had been prepared a week and seen by him several times before he signed it. The terms of payment were £300 in one month, and the balance (£1,000) in twelve months. These terms were embodied in a deed executed at the same time as the conveyance—on the 16th May, 1869. I do not think I saw Rewi until after Paora had signed. Paora made no agreement as to where or when he would sign; but ultimately we came to terms, and the deed was executed in my shop. Paora wanted a larger price. Mr. Hamlin was present on that occasion; also Hastie, my shopman. The deed had a translation attached at the time it was executed. The Maori translation was read to Paora, and the plan on the English deed pointed out him before he signed. Hamlin read the whole deed before it was executed. The interview and execution of the deed took place some time in the forenoon. Paora asked no questions whatever, we had talked the whole matter over so often. Nothing was said at the time about the exception or reservation of any land whatever. The conveyance included the whole of the land in the crown grant, without any reservation. After the execution of the deed, Hamlin and I went to see Rewi. We arrived at Waiohiki some time between 1 and 3 p.m., and found him there. No one went with us. Three or four of the old men were about—Paraone, Kaore, and one or two others. I think Rewi has given their names correctly. We explained that Paora had agreed to sell the Omaranui—I am almost sure I used the term—and that we had come to see him about it. We talked for ten minutes or a quarter of an hour, and Rewi said he would consent if I paid him £300. He probably spoke in Maori to us both, and Hamlin would interpret. I said that I could not entertain any such proposition—that Paora and he must settle it between themselves. He said he was content if I would pay him the £300 with Paora's consent. I said I would not guarantee him the money; but that if Paora arranged that he was to have £300, I would pay it. He consented to that arrangement, and signed the deed. It was read aloud by Hamlin in the presence of all the natives; eight or ten altogether. After Hamlin had read the deed he handed it over to Paraone, who read it also. Rewi did not mention any reserve, or exclude any part of the land. Nothing was said about the object of the deed being to protect the land. I do not know what portion of Rewi's debt was incurred before the execution of the mortgage. I have made several unsuccessful attempts to get Paora and Rewi together to go into the accounts. Rewi said that Paora and he were not friends and could not meet. At the same time I believe I signed the deed of covenant relating to the way in which the money was to be paid. By that deed £1,300 was to be paid for the land. It has been paid, partly in cash, partly in goods—I cannot say in what proportion. [A printed paper handed to witness]. This is Mr. Witty's report on the account between myself and Paora; to the best of my belief it is correct. The matter of these accounts was very fully gone into before the Commission; I cannot say what time it took. The Moteo case was gone into fully on that occasion, but no mention was made of these 163 acres. Up to April or May, 1874, I never heard of Ngatahira. In August or September, 1873, I first became aware that natives were living on the block known as Ngatahira. I then spoke to Tareha and other chiefs telling them to let these people know that they were on my property. Afterwards, gathering that he had taken no steps, I wrote on the 11th November to the natives in possession, Hohaia, Te Hoeroa, and others. I saw Hohaia and Hoeroa and several others. They came together, and expressed their surprise that I should claim the land. I informed them that it was sold to me, and asked them to come to the Deeds Registry Office and they would see that I was correct. We went over, and examined the certified copies of the crown grant, mortgage, and conveyance. They said, "The map looks like it, but we cannot admit your claim." I had asked in the letter that the people should be called together with the view of talking the matter over, as I believed it was through a misunderstanding that they had fenced in the land. It was not, I believe, fenced when I bought it, but I cannot be positive. I did not mention The fencing in the letter. I suggested a meeting so that they might remove after their crops were gathered, as I did not wish to disturb them while their crops were in the ground. The paper I hold is the letter, which I gave to Josiah Hamlin to translate. [Letter put in and read by Mr. Cornford.] Hohaia said he would arrange the meeting directly the shearing was over at Bennett's, and that he would let me know. He did not wait on me, and when I saw him in town I Complained that he had not done so. This was early in 1874. I next saw Hohaia in February or March in Napier. I do not know whether Hoeroa was with him—they were generally together. I met them in my shop. I went to Ngatarihi about a fortnight before I wrote the letter. I went on the second time with Josiah Hamlin and saw Hohaia, Rewi and others. The object of the meeting was to see what my position was. Hohaia maintained that the land had not been surveyed. I produced certified copies of the crown grant and conveyance, and asserted my right to the land. The natives still refused to admit my claim. They said they had been advised by page 15persons in Napier not to move off, and that they would resist my claim. They talked of the original owner of the land—Hamahona, I believe—and Hohaia claimed as his decendant. This was the reason they pretended to give for the land not being in the grant. I heard Paora Torotoro's evidence, that I said a mortgage was good, that he would have £500, and that at the end of five years the land would come back. It is untrue—I said nothing of the kind; nor anything that could be so construed. When Paora Torotoro spoke of the land, he would generally call it. Moteo, and so would any native. It is not correct that the first conversation about Paora's house took place after the land was sold; it was a few days before the mortgage. Hare was not present when Paora signed the deed of conveyance—only a small boy. It is not true that the deed was signed on the first day that the mortgage was spoken of; the nogociations extended over eight or ten days. I was present at the sitting of the Native Lands Alienation Commission, and heard Paora Torotoro swear that he understood the conveyance included the whole block. [Mr. Travers: The question is: What was the block. Spoken of before the Commission?] When Hamlin read the deed of mortgage to Paora, he certainly did not say that the reserve was the boundary, and that the land beyond was reserved for the natives. I knew that Kopuaroa was native land, but I certainly did not tell them that the part marked as section B. was a reserve for them. I was not aware of such a division existing, and Hamlin certainly did not say anything about it. I was with Hamlin all the time, and he did not in my hearing say that the mortgage was to take care of the land. It is not true that he only read half through the deed; it was fully read and explained. It was not night when Rewi was asked to sign. The deed was read and explained. I have several times offered Rewi to make up his account; but he would never take one. He has looked over my ledger, and checked the entries. I never said that if he did not sign, I would sell the land by auction; such a conversation never took place. The hill Te Mini extended two or three chains along the line from kopuaroa to the Tutaekuri. There is no natural boundary except for these two or three claims—in fact, it is quite the reverse, as a swamp extends on both sides of the line.
Cross-examined by Mr. Travers: You say you had no knowledge of Ngatahira at the time of the mortgage—did you not believe it was all in Brathwaite's piece?—No; I did not inquire before the mortgage was executed what portion it included. Then when Paora spoke of the block by three names, what did you understand by that?—I knew he meant the same thing—I knew I was to get the whenua Brathwaite. When did you first visit the land yourself?—Very shortly after the natives disputed my claim. I believe my first intimation that the crown grant included a separate piece was when I saw the deeds in the Registry Office. How was it that you never took steps to assert your claim till you wrote to Hohaia?—The possession passed under the mortgage. I have twenty or thirty section lying about the country under somewhat similar conditions, and some of them I have never seen. Did you not have an offer for the land about twelve months before your application under the Land Transfer Act?—I had an offer of £18 per acre for the land about a month ago. From whom?—Mr. Bennett, the owner of Omaranui No. 2. Had you never had an offer for the land before?—No; but Bennett had been talking about it for months past. For twelve months past?—About three months, not twelve. Was it not about the time you wrote to Hohaia?—It was three or four months after I wrote to Hohaia. I had an idea previously that the land was a swamp. It was not so valuable then as it has recently become. Have you had many dealings with land?—Yes? It was a few weeks after execution of the mortgage that you discovered that you had more land than was included in the lease?—Yes. You had asked Paora if Brathwaite or any one else had any security over the land?—Yes. When you discovered that certain additional land was included in your mortgage, you dit not mention it to the natives?—I saw no necessity for doing so. I never negociated for the security of Brathwaite's lease; I did not know whether it included more or less than Brathwaite's land; and it would have been a very unusual thing to do to have mentioned it when I found it out. You had the mortgage deed prepared the next day after your interview with Paora?—I do not believe it was the next day; it was probably the same day as the interview that I gave Lee instructions to prepare the mortgage deed. You put into that deed the sum of £500 as owing to you—why did you do that when that amount was not owing?—Because I was responsible for that amount. The solicitor did not put the £500 in the mortgage; it was entered afterwards. How soon after the mortgage was prepared did you get it signed?—Probably the following day. When did you become responsible for the £500?—At the interview when the mortgage was signed: at that time I gave Paora an understanding to erect a building at an expense of £350. You took a mortgage for £500, and gave a piece of paper undertaking to spend £350?—Yes. And you charged interest in the mortgage?—I did not in account. You took a mortgage for £500, in consideration of a debt of £150, and £350 to be advanced for a house?—Yes. And the mortgage was also security for further advances?—Yes. You gave an undertaking to put up a house—had that document any stamps?—I do not remember—it is not likely. Was it in English?—I believe so; but am not quite sure that I gave him a written undertaking. Then between the time of your interview with Paora and the time you obtained his signature, you never saw him?—No. You say you understand Maori; will you translate a passage from this Maori Testament?—I do not think I could translate a passage from a Maori book; I do not profess to be a Maori scholar. It is probable that I made the explanation to Paora which I have detailed in my evidence; it would not require one to be highly educated in Maori to do so. Paora, you say, asked if you had brought the document. You had not previously mentioned the document; how, then, did he know of it?—He asked for information, I suppose. You say it was produced explained, and interpreted; can you give an explanation how this was done?—Did Hamlin not simply read the paper down?—I have never seen Hamlin content with merely reading a paper down-page 16Could you, then, understand the whole of its explanation?—I could understand enough to check whether he was talking about the subject or not. Have you had many transactions with native lands?—Eight or ten. Have you not been in the habit of making advances in goods, taking mortgages in the first instance?—I never took mortgages except where the natives were in debt. In Coleman's case, Did you make any purchases of land from the natives?—In that case, I bought no land, I only bought interests. Had you any transactions regarding Heretaunga—any mortgage or conveyance?—I do not think so. Did you ever receive money for negotiating the purchase?—No. You obtained signatures?—Yes. Do you remember the kikirawa block?—I purchased some interests. You remember Te-Awa-o-te-Atua?—Yes. You had some mortgages there?—Yes. And some absolute interests?—Yes. Beginning with a mortgage?—In some instances. In Pekapeka?—Yes. Raukawa?—Yes. Were you not asked some questions before a committee of the House of Representatives?—Yes. Did you not receive considerable arrears of rent from Raukawa?—No. Not from Messrs M 'Lean? No; and I never said I did. Regarding Kaokaoroa?—You had mortgages there?—Yes. And acquired interests?—Yes. The same with Mahanga?—Yes. And Ngawakatatara?—Yes. You had mortgages there?—Yes. And Tautitaha?—Yes. And Mangaroa?—Yes. Had you anything to do with Mangatarata?—I remember some proceedings in the Supreme Court; but I held no securities on that land. Regarding Mangatatera—did you not get arrears of rents belonging to the natives?—I do not know that I did; I had a judgment of the Supreme Court in my favour. You became owner of the interests, and sued for arrears due?—Yes, and got them. You never accounted for them to the native owners?—No; of course not, I took the risk of the action. What was the amount of these arrears?—£700 or £800, I believe something that way; I cannot exactly tell. You bought several interests in Mangateretere?—Six. How did you pay for them?—Partly in cash; partly in goods. Beginning with a mortgage?—In some cases. Petane?—All that I had to do with Petane was this: The gentleman who was in the box this morning (Paora) sold it to me and took the money an hour or two after he had sold it to another person. Wairoa?—I have several section there. All these transactions, I believe, were prior to the Native Land Frauds Prevention Act?—I could not say without working it up, but not many of them were after. That was an awkward Act, was it not?—It was for some people. You say Hamlin read every word of the translations: how do you know that?—Without understanding a word of Maori I could see if you read the whole of a document. I could stand beside you and check you. Do you mean to say you did so in this instance?—I checked Hamlin as he read. You say that Paora was perfectly satisfied. Before the commission did you not say that Paora had made some objection to the form of the mortgage deed?—There may have been some trivial objection, but nothing of any moment. Paora said, when it was explained to him—"That is just what I have been wanting." Of course this took place before the deed was signed?—Yes. You told the commission that Paora wanted to sign at once, before the Court you said it was Rewi: are you certain that Paora raised no objection?—The only objection he made was to the power of sale; he asked if in case the land was sold it would be by auction, and on being assured by Hamlin and myself that such would be the case he withdrew his objection. Then Paora did at first object?—Yes, and I wish to correct my evidence to that extent. Did Paora ask any questions about the boundaries when the translation was read?—I do not think he did; Hamlin and he talked over the boundaries, and Hamlin read over to him the description, and showed him the plan. Is there not on the lease a line indicating the boundary between Moteo and Ngatahira?—Yes. Is not this same line on the plan in the crown grant?—Yes. You treated Rewi with little consideration?—Paora was the principal. But Rewi was equally responsible?—Yes. Did you explain to him that he was liable in proportion to his interest?—It was explained to him. You obtained a deed of conveyance, and had it registered, with the consideration entered as paid?—Yes. Why did you keep the deed of covenant?—It was safer with me than with them. The consideration was taken out in goods, &, before it became payable?—It was entirely taken out. You very soon had an offer for the land?—Brathwaite came a day or two after I had bought it, and offered to buy if I gave him a discount. The negotiation continued for about six weeks. You looked upon him, then, as a probable purchaser?—Yes. And you received £3,000 in cash within five or six weeks?—Within a few weeks. So that within that time you sold at an advance of £500 on the purchase money, and had £1,300 in land besides?—Yes. Have you not lately had a conversation with Maney about the land in dispute?—Not within the last twelve months. I do not remember his ever coming about the land, but I had a conversation with him on the subject about twelve months ago. Was it not after that conversation that you began to move for its possession?—It was not Mr. Maney who first told me of its value. I found it out for myself. I heard that it was a very nice piece, and that natives were living on it. Brathwaite was very anxious to buy it when he bought the rest, in fact, he delayed paying the purchase money because he understood the agreement to include the whole block. There was some little misunderstanding between us; Brathwaite had misinstructed his solicitor to include the whole block, which I refused to sell, and the deed had to be reconstructed. Did Rewi owe you anything at the time of the mortgage?—He owed me nothing: at least that is my impression. Yet you speak of money advanced to Paora Torotoro and Rewi. How much did Rewi owe you at the time of the conveyance?—I do not know at all. Did you ever render him any written statement?—Never, so far as I am aware. Did you ever borrow any money from the Bank of New Zealand on the security of this property?—No. From the Colonial Bank?—No, I never borrowed from any Bank on the strength of it. Did you ever borrow from any private person on it?—No. What goods did Paora get of you?—Such as are shown in the abstract put in—clothing, supplies, and wines, spirits, and beer. Any cash advances?—There were considerable items in cash for articles supplied by the page 17dealers-among others a large item of £164 to Maney for posts. Did you get a discount on these sums?-I got no discount or profit of any kind I simply advanced the cash in full. On the 15th March the accounts reached £1,286, leaving between £1,250 and £1,300. The amount of £1,200 was then written off, leaving £1,300 still to be cleared off under the deed of covenant. Of that sum £900 was paid in cash. In seventeen months Paora's account reached £2,800 Who received the rent from Brathwait?-I applied For it, and received it as Mortgagee out of possession. Did you not say before the Commission that you told Paora if you went into a thing of the sort you would Want security, and that you asked him what blocks He had to sell?-Paora told me without my asking; he mentioned other blocks besides Moteo-Petane and Ohikakarewa. Why did you select Moteo?-Because it was the least trouble in the occupation of a good tenant; improved too. Were you on good terms with Brathwaite?-I was but a little breach occurred about that time. You chose Moteo then, because it would give you very little trouble, besides affording satisfactory security and features of prospective profit? -Yes.
Re examined by Mr. Wilson: I had no doubt that the block afforded ample security. In reference to the Petane block, I bought one share from Paora, and one or two shares from some friends and relations of his, out of whose good nature he had got a few pounds, and found afterwards that it was within an hour after he had sold them to Mr. Maney. I got the money, some £40 or £50, back again, and remonstrated with Paora about it; but he said there could be no objection—there was plenty of money about.
Henry Martyn Hamlin, sworn, examined by Mr. Wilson: I was about three years ago a licensed native interpreter. I am now native interpreter to the General Government. I have been about twenty years in Hawke's Bay. I have had considerable experience in translating deeds. I know Mr. Sutton, and remember his coming to me in the year 1868, and asking me to prepare a deed of mortgage of Omaranui. [Deed handed to witness and identified.] The attached translation is in my hand writing, and is correct. I remember going in company with Sutton with the deed to Kohupatiki, where we saw Paora Torotoro, about two o'clock in the afternoon. Hare Ngawakakapinga was there, and other natives were about. I had had previous conversations with Paora in Sutton's store on two or three occasions. The conversation in the first place related to Paora's request to Sutton to advance him money to build a house with. Paora said, "I want a house built; will you pay the carpenter for putting it up?" and Sutton said he would think about it. The next time Paora came in, he asked if Sutton had thought over it. About a week had then elapsed from the date of the first conversation Sutton said: "Well, if I do so, you will have to give me security for the money." It was suggested by Paora, and arranged after a long conversation, that Omaranui or Moteo should be given as security. Omaranui whenua was the term used. [By the Court: So far as I recollect the term used was Omaranui.] So far as I know there was only one Omaranui at that time. Mr. Sutton consented, the mortgage deed was prepared, and we took it out. A conversation first took place about the proposed house, and it was arranged that Sutton was to pay the carpenters. Mr. Sutton was to advance paora £500. Paora at this time owed Sutton money, and the mortgage was supposed to cover this debt (from £150 to £200,) the rest to go to building the house. Paora expressed himself willing to sign the mortgage deed-I believe he would have signed the deed before it was explained if we would have let him. I read over the contents of the deed, and explained it to him. He made no objection that I can remember. He asked how the land would be disposed of, if the money was not paid. I told him that if he could not pay, the land would be put up to auction and sold. Thereupon Paora signed the deed, and Hare and I witnessed it. There was a plan on the deed, it was placed before Paora, and I showed it to him, drawing his attention to the boundaries. I read the boundaries to him, and no remark was made upon them. We went thence to Tareha's Pa, to see Rewi Haokore, and after some conversation with him, we explained why we had come. The deed was explained to him, he said it was good, and signed it. He made no objection about the power of sale. The plan was shown to him. I do not recollect any conversation about the boundaries. The interview perhaps occupied an hour. We left about 4:30 p.m., there being still a good light. Nothing further took place until March, when I translated a deed of conveyance of the same land. [Deed handed to witness and identified.] The translation attached is in my handwriting, and is correct. I went to Sutton's shop; Paroa was there, and, I believe, Hare. A conversation took place between Sutton and Paora about selling the block. Paora wanted to sell, asking, I think, in the first instance, £1,000. Sutton said he would not buy the land at all. [Deed of covenant handed to witness and identified.] Paora's debt at this time amounted to £1,200. The negotiation ended in a sale being arranged. Sutton was to pay £1,300, in addition to the amount of the debt, £300 to be paid in one month, the remainder in a year, payment secured by the deed of covenant now produced. I witnessed the execution of the deed, Mr. Hastie being the other witness. I had previously read, translated, and explained the deed. The plan was on it at the time, and was shown to Paora. I did not tell Paora that if he did not sign Sutton would sell the land by auction. Nothing was said at the time about Ngatahira. I had never heard of it then, nor for some time after. I first heard of it about the time of the commission, in March, 1873. I heard from Paora that there was such a place belonging to the natives, and occupied by them. I do not know that I said anything about it. I explained, when I knew where it was, that it was sold to Sutton. [By the Court: I believe this was after the sitting of the commission.] After obtaining Paora's signature, Sutton and myself went to Waiohiki, where we saw Rewi Haokore. I explained what we had come for, and Rewi at first objected to sign the deed, saying that Paora would get all the money. Te Whata and other natives were present. Rewi asked if he could have £300. After consulting with Sutton, I told him I had no objection if he and paora could come to town and arrange that he should have it. He expressed himself as satisfied, and signed the deed. I page 18interpreted and explained the deeds of covenant and conveyance before he signed. It was not night, and he professed to understand my explanation of them both. There is no truth whatever in Paora's statement that I described a native reserve; and Rewi's statement that I said the deed was to take care of the land is also untrue. Sutton did not say in my presence that a mortgage was a good thing, and that the land would come back in five years. I did not read the conveyance half through, and then fold it up. It is not true that Rewi signed the conveyance because Sutton and myself urged him strongly. I have known Ngatahira for some time. Fourteen years ago I had about a hundred cattle running over it; there were no natives living there then. I first saw a native kainga there about five or six years ago. I have passed near it, but do not think I have seen the place since then. Fifteen years ago there were neither houses nor cultivation there, nor any signs of cultivation. It is flat land. I scarcely like to give an opinion of its value six years ago—I might have given £3 an acre for it.
Cross-examined by Mr. Travers: What would you have given at that time for the rest of the block?—Perhaps 10s. an acre. How many interviews had you with Paora on the subject of the mortgage before it was executed?—Perhaps two or three. If Mr. Sutton has said there was only one interview, is that true?—My impression is that two interviews took place at Sutton's house, besides the one when the deed was signed. You are obliged to coin words in your translations to meet the requirements of the English language—the word "links" for instance is thus represented?—Yes. Would the measurements where that word so frequently occurs convey any intelligible idea in a translation?—Not without explanation. Omaranui No. 2 was at that time native land?—Yes. May you not have pointed to the boundary of Omaranui No. 2 as leaving the land outside for the natives?—I should certainly, in explaining the boundaries generally, have mentioned that the land outside was native land. Are you prepared to say that you explained the boundaries so as to admit of no dispute whatever as to the portion comprised?—I have no hesitation whatever in saying that both Paora and Rewi thoroughly understood that this portion was sold. How is it, that when you found it disputed, you did not mention the fact to Sutton?—I may have done so. It was April when you heard of it; but Sutton says he knew nothing about it till November?—I can't say that I communicated it to Sutton. I hear many things that I don't tell. The translations of the deeds occupy a separate sheet, afterwards attached to the original?—Yes. You read the first sheet, containing the Maori version, to Rewi?—Yes Might that not explain his statement that you read only half of the deed?—I don't know what he thinks—I take what he said. By what name was the land spoken of?—I am persuaded that the term used was Omaranui. So that if Sutton says it was Moteo, he would be wrong?—I will not Say so, we might have used both. Did you hear the natives use the words "Te whenua Brathwaite" in reference to the land?—They may have done so. I knew the land was occupied by Brathwaite, but did not know whether wholly or only in part; I cannot say what my impression was, Who gave instructions for the preparation of the mortgage?—Mr. Sutton; I did nothing but translate. Who put the plan on the deed?—Mr. Koch, I believe. What was the object of making the mortgage for a larger amount than was really owing, when further advances were also provided for?—It was possibly done in anticipation of further advances. Then the deed states what was absolutely false; yet according to your own statement you put it in on Mr. Suttons's instructions. Did you explain to Paora that this £500 was said to be due at the time?—Yes. He was rather childish, was he not?—I am afraid you would not find him so if you had to deal with him; I don't think he is easily imposed upon. Yet he signed an acknowledgment of indebtedness to the extent of £500, when he only owed £150?—I suppose he had faith in Mr. Sutton. Do you remember the deed of covenant?—Yes; it was explained to the natives. What became of it after?—I do not know. Do you remember the sale to Brathwaite?—I had nothing to do with it, and have no personal knowledge of it. Were you concerned in any other transactions of Mr. Sutton's?—I was possibly concerned in the Mangaroa and Kaokaoroa transactions. You remember the Frauds Prevention Act?—Yes. It had special reference to transactions in Hawke's Bay?—I believe so. Did you ever make any communication to the Government regarding such transactions?—No. Did your brother, Mr. F. E. Hamlin?—I am not responsible for my brother's sins. Did you ever hear of such a letter?—I cannot say—I have no knowledge of it.
Re-examined by Mr. Wilson: I am not in the habit of paying much attention to such complaints as that of Paora's. One native, Te Waaka Kawahui, claims half the province, and Paora is nearly as bad. I should take very little notice of anything of the kind coming from him. I received only my ordinary fees from Mr. Sutton. I had no interest in the transaction beyond that of an interpreter.
By the Court: I am sure that Paora understood that he was mortgaging the whole of the crown grant, and that the language used had no reference to the land leased to Brathwaite. I am quite certain that the crown grant was mentioned. I do not remember anything being said showing that there was more in the crown grant than in the lease. I was not aware of the fact, nor do I think Sutton was.
The Court rose at 10.20 p.m.