Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Volume 75

The Horowhenua Case

page break

The Horowhenua Case.

Sir Walter Buller to the Right Hon. the Premier. Wellington,

Sir—A Memorandum by the Hon. the Minister of Lands, relating to the Horowhenua Case, has, with the leave of the House, been laid on the table and printed. As this Memorandum contains statements seriously affecting my honour, I desire to have an opportunity of replying to it in an equally public manner.

In justice to myself, will you have the kindness to lay on the table of the House, with a view to its being printed, the enclosed l reply to the Memorandum in question.

I have the honour to be, Sir, Your most obedient servant,

(Signed) W. L. Buller.

The Right Hon. R. J. Seddon,

Premier, Wellington.
The Right Hon. the Premier to Sir Walter Buller. Premier's Office, Wellington,

Dead Sir,—I return herewith, unread, the Memorandum which you ask me in your letter of even date to lay upon the table of the;House. I gather from your communication, however, that it bears upon the Horowhenua case.

I do not for a moment imagine that you seriously contemplated by complying with your request, and regret being forced to the conclusion that you have taken this course with a view to causing Amusement. If done with a view to causing irritation or dissension, we device is too thin. I am accordingly bound to treat it as a clumsy joke, and must decline to be a party to trifling with the House in respect to this matter.

I am, Dear Sir,

Yours faithfully.

(Signed) R. J. Seddon.

Sir Walter Buller, K.C.M.G., Wellington.
page 2

Now that my Land Transfer Certificates are proved to have been innocently acquired, so far as I am concerned, Mr. McKenzie (who, with charming candour, complains that my position according to the present law is secure) proposes to remedy this "miscarriage of justice," as he is pleased to term it, by a bold and daring step in the way of retrospective legislation. No XIV is to be declared Native Land, and thrown open to claims by original Maori custom; and the validity or invalidity of my Land Transfer Certificates, honestly acquired in 1892, is to depend on the question whether, say, in or before 1842—when the native title became crystalised—certain claimants did or did not catch rats on the land* In the meantime, my title is to be confiscated.

I repeat then: there is very little I need say in reply to the Minister. It is for the House—not for me—to determine whether my interest in No. XIV is now to be forfeited after some farce of an enquiry. My only object in writing this is to make it quite plain to Members that the propriety of my dealings with that Subdivision has been completely established in the recent Supreme Court proceedings; and that the Minister is now repeating, word for word, the same charges which the Public Trustee unconditionally withdrew, when forced by me to trial. I have appended to this Memorandum a reprint of the official report of Mr. Theo. Cooper's address, which speaks for itself.

I should have thought it hardly necessary to remind Members that the Supreme Court sat, under 'The Horowhenua Block Act, 1896,'. on purpose to retry the Minister's allegations of fraud against me in connection with No. XIV, which had been found true by the Horowhenua Commission; or that the Public Trustee (the late Chairman of that Commission) was appointed, as plaintiff, to reformulate those; charges, and so, if possible, justify his own Report, which had been impeached by me. But (on page 6 of his Memorandum) the Minister actually commits himself to the assertion that his present allegations are not those which Mr. Cooper withdrew. That assertion is directly contrary to the fact.

The Minister suggests (I am quoting from his own summary on page 6 of the Memorandum):—
"(1.)That Sir Walter Buller knew prior to his leaving in 1886 for England that the whole block was held by Kemp in one title in trust for the tribe, and that on his return to New Zealand he, without making enquiry to ascertain that the trust was extinguished, purchased part and leased other parts of the trust property.

* A recognised mode of proving, in the Native Land Court, a right of occupation, and especially in the case of bush land.

See Parl. Pap., 1896, No. 6.

page 3
"(2.)That Sir Walter Buller had knowledge that Kemp and Warena Hunia agreed in asserting that Major Kemp held this block, No. 14, for others as well as himself, both when he dealt with the land in October 1892, and, all the evidence goes to show, when he dealt with the land in May 1892.
"(3.)That Sir Walter Buller took his leases at a great undervalue from his own client.
"(4.)That Sir Walter Buller procured from Kemp a mortgage which he now alleges covers large sums of money for costs due to Sir Walter Buller, but which costs were never intended by Kemp to be covered by the mortgage."

(I omit No. 5, because it has nothing to do with Subdivision XIV, and is mere irrelevant abuse of me to be disposed of, in a few words, later on.)

These four allegations were raised before the Supreme Court and expressly withdrawn by Mr. Cooper, who said:—

That he was satisfied that I had no notice of the trust alleged; and, further, that if there was any other trust affecting No. XIV I was not aware of it. (Members will notice that Mr. Cooper acquits me of knowledge of any trust.)


That he agreed with my counsel, Mr. Bell, that I was entitled to I frank withdrawal of the charge of having paid inadequate rentals and values, and of having obtained my mortgage by fraud and concealment.

In the face of this, how dare the Minister wind up his accusations with the remark—"It will be observed that my allegations are based on different considerations from those in the action brought by the Public Trustee "? Why, they are simply copied from the statement of claim; indeed, as to the mortgage, the Minister himself admits this.

Now, just let me clinch this matter and sweep away at a breath a number of ridiculous insinuations that I have burked an enquiry into the charges on their merits. On the contrary, this is exactly what the Government tried to do. Members, if they have taken the trouble to follow the reports of the proceedings, will remember how difficult I found it to force the plaintiff into Court.

After the devices of refusing to serve the writ and filing a discontinuance of the action—with a view to hang it up indefinitely—had been frustrated by me, the Public Trustee set up a dilatory plea based on a supposed construction of 'The Horowhenua Block Act, 1896.' That statute, the House may remember, had directed two separate and independent enquiries; the propriety or otherwise of my dealings was referred to the Supreme Court, the validity or page 4 invalidity of Kemp's certificate to the Native Appellate Court (which the Minister for short calls the "Appellate Court"). The Public Trustee, with a view to delay, raised the contention that the Supreme Court was hound to wait until judgment had been given by the other tribunal in Kemp's case—an argument, by the way, afterwards expressly abandoned by Mr. Cooper as untenable. About half a dozen motions and summonses to postpone the hearing on this ground were successfully resisted on my behalf by Mr. H. D. Bell, who, in round terms, demanded that, as my character was involved,; the Court should not permit these attempts at procrastination.

Then came a despairing effort. The plaintiff struck out all the charges of fraud from the statement of claim, substituting the old dilatory technicalities. This device, if permitted by me to succeed would of course have rendered a trial of the facts impossible; but I applied to the Chief Justice and had the charges reinstated—showing I venture to say, that I was anxious to meet them.

The last device of the Minister's advisers was to notify me that they would call no evidence in support of the charges. To that my solicitors quietly retorted that they would call evidence on my behalf to disprove them.*

In a word I succeeded at last in dragging the plaintiff before the Court, and when (all subterfuges failing) the hearing came on, the Minister's charges at once collapsed, as I have always known they would. The House will note Mr. Cooper's express statements:—
(1.)That his reason for withdrawing all the charges of fraud, as to my dealings, was a desire to save the expense of a trial of the facts which could only result in my favour; and,
(2.)That before making this withdrawal he had for ten days carefully considered the whole of the evidence, taken before the Native Appellate Court and before the Royal Commission, and that it disclosed nothing against me. This—I need hardly remind the House—is the same evidence on the strength of one-sided extracts from which the Minister now seeks to re-open the matter.

The decree to which Mr. Cooper accordingly submitted is prefaced with the words—"The plaintiff, admitting that he can adduce no evidence to substantiate the charges against the defendant, Sir Walter Duller, alleged in the statement of claim, submits to a final judgment in favor of the said Sir Walter Buller."

The plaintiff confesses that he can adduce no evidence.

I hope I am not needlessly elaborating an obvious matter. But Members, if they will refer to Mr. Cooper's address, will see for themselves that, by forcing the Public Trustee to trial, I extorted from

* See correspondence, between Mr. Stafford and Mr. A. P. Buller, is the Appendix.

page 5 him (the man who, of all others, would have brought forward facts, if he could, to justify his Report) an acknowledgment that the facts were entirely in my favour.

So much for the nature of my vindication. Now, to return to the Minister's remarks, if indeed they need comment. Which is it, I ask—I or the Government—who throughout these proceedings has been afraid of the facts and sought refuge in legal excuses and delays? The Minister is surely (to use a colloquial phrase) taking the bull by the horns when he accuses me of that manoeuvre!

A rather amusing instance in point occurs on page 6 of the Memorandum. The Minister, in the last paragraph but two, argues all over again that the Native Appellate Court had first to give judgment. He hints indeed (not very candidly) that Mr. Cooper refused to call evidence because the Chief Justice would not listen to that contention, whereas Mr. Cooper expressly withdrew it, as I have already stated. But the last sentence of the paragraph is really most unkind. Mr. McKenzie actually winds up this rigmarole about the Native Appellate Court—the quibble by which, as I have shown, the Government for weeks delayed the trial of the facts—with the reproach that I have quibbled to escape that trial! The Hon. gentleman appears to be a little confused.

Before concluding I must inform the House of a tyrannical act of interference with the course of justice. On the eve of the hearing and when all efforts to prevent it had failed, my chief witness, Judge Wilson notified to the Registrar of the Supreme Court that, when actually on his way to Wellington, he had received a telegram forbidding him to attend on my subpoena "without the written consent of the Minister of Land."; and the interdict was only removed on the insistence of Mr. Cooper who, failing that, would no doubt have thrown up his brief. In view of this I shall venture to assert that Mr. McKenzie was more afraid of a fair trial than I was. Indeed, is it not notorious that, for the last two years, my one object has been to clear myself before a tribunal not of the Minister's creation, and his to prevent me?

He says that I have been impeached before "that Court of conscience." public opinion. True: so has he! And with what result? Which of us has the Press of the Colony-—the mouthpiece of that public opinion—unanimously condemned?

I have now completed all that I am called upon to say in reply to fee Minister. He demands forfeiture of my interest in No. XIV on the ground of certain charges of fraud. I answer him by showing page 6 that these have been effectually disposed of; and, having done so much, I submit myself confidently to the justice of Parliament.

I hope I do not seem disrespectful to the length of Mr. McKenzie's Memorandum. I do not for a moment forget that, will praiseworthy assiduity, he has compiled six folio pages of close print in proof of my wrongdoing. But I repeat: the Hon. gentleman's proofs—where he does offer any proof at all—are selections from the very evidence which Mr. Cooper admitted discloses nothing against me. There is therefore nothing for me to argue.

I must indeed, for the entertainment of Members, briefly call attention to the ridiculous methods of the Minister. He seeks, among other curious things, to prove my "guilt" and does so, entirely to his own satisfaction, partly by means of quotations from the Horowhenus Commission Report (which I should hardly have expected at this day to find quoted against me as evidence) and partly by reckless assertion And all this after his terrifying announcement, on page 1, that he would convict me entirely out of my own mouth!

The number of "ifs" and "seems" in the document is phenomenal; and—to take an instance of the author's modest "suggestions"—he "ventures to suggest," without pretending to adduce any evidence, that I incited Kemp to claim what was not his own. (See last sentence of paragraph on page 2 headed Sir Walter Buller's First Agreement.) The Hon. gentleman shows himself so ready to imagine evil of me that really, notwithstanding his comforting assurance on the point, I cannot altogether flatter myself that I enjoy his goodwill.

Mere barefaced guesswork like this hurts no one of course; but must remark that conjecture, if it masquerades as quotation from evidence, is highly misleading; and, further, that extracts ought not to be made up like patchwork. However, not to enlarge on these points, I assume that any Member industrious enough to read the paper will verify the references for himself.

I need not weary the House by any further comment on the Minister's very inconclusive manner of proof, but will dismiss the subject of my dealings in respect of No. XIV with one obvious remark namely, that if the Supreme Court trial had proceeded (and it was expected to last three weeks) I should have called a great mass of [unclear: exdence]. To take, for instance, the contention that I obtained my lease at an undervalue—one of the old contentions now re-stated by the Minister, with a confidence that was sadly lacking at the recent [unclear: herding]: I had briefed and subpoenaed eight witnesses to prove that [unclear: is] page 7 giving halt-a-crown an acre tor the bush land in question (all improvements to be surrendered at the end of the term) I was paying a maximum rent. To show the character of my witnesses as to value, I give their names:—Messrs. James Gear, John Davies, Frank Smith, Joseph Death, John Kebbell, Peter Bartholomew, John Gower, and John McLeavey.

I regret that, in conclusion, I must refer for a moment to entirely outside topics. The House will acquit me of having started these. Personally I am quite innocent of any desire to waste time. The Hon. gentleman's "sense of public duty," however, impels him, whenever he is discussing No. XIV, to indulge in all-round abuse of me, and in the present instance such manifestations of goodwill are not wanting. To mention a parallel: .during the debate last year on the Horowhenua Commission, Mr. McKenzie, just as an illustration of my general "villainy" (as he terms it), read out a long extract from the Native evidence given at the Owhaoko rehearing nine years ago.* I should mention that, during my absence in England in 1888, some Maori witnesses came forward and told the Court a very circumstantial tale, alleging that, acting on behalf of Mr. John Studholme, I had used gross fraud in order to obtain the signatures of Topia Turoa and others to a withdrawal of the application for rehearing. This story, so impressively declaimed by the Minister, is the one which Judge Puckey declared from the Bench (on the authority of documentary evidence then in his possession) to be a concoction. I find no mention, however, of Judge Puckey's remarks in the Hon. gentleman's speech.

Mr. McKenzie, even if he does not see the unfairness of attacking me in the House where I cannot reply, should at least give all the facts.

The Hon. gentleman's present Memorandum contains two more anecdotes of the same nature. Let me first deal with the more pathetic of the two. I appear to have "coveted" the last six acres of a "poor, old, landless woman" who, by the way, as the correspondence shows, had sixty-six acres of first-class land at the time. My further "villainies" (in the character of the wicked Ahab) seem to have been as follows:—According to Mr. McKenzie, I "induced" the poor old woman to part with her "last six acres," and then prevailed upon the Trust Commissioner to pass the transfer by promising to grant her a sub-lease of part of my leasehold in No. XIV, but afterwards endeavoured to repudiate that promise,

* Hansard, Vol. XCIII. pp. 19-23.

page 8 and, when held to it by Judge Mackay, evaded it as far as possible by locating the woman in a part of No. XIV unsuitable for occupation, This is another illustration of the reckless manner in which the Minister puts forward his own vague surmises as accepted facts.

(1.) In the first place, so far from the woman (Ani Patene) being "induced" by me to sell, I was induced by her to buy; for she came to town of her own accord and threatened that if I did not purchase this piece of land, which adjoined my homestead and was cut off from: the rest of her property, she would sell to some one else, as she was going North and wanted money. Bather than that should happen, I bought the land at the same high price per acre I had given for the rest, and paid the whole of the purchase money on the signing of the i transfer. There was no suggestion at that time of any sub-lease. This was a subsequent proposal (as the Minister admits) to meet a technical difficulty raised by the Trust Commissioner.

(2.) Surely Mr. McKenzie knows that no Trust Commissioner will pass a transfer till the European has completed his part of the bargain. To do so would be absolutely contrary to law. Yet the Minister's cock-and-bull story rests on the assumption that Judge Mackay passed the transfer on my mere promise; whereas, on the contrary, the transfer was not passed till the 8th March, some six weeks after I had forwarded the lease to the Trust Commissioner executed by me in triplicate and duly stamped.

What then becomes of all this nonsense about my trying to wriggle out of a promise on the strength of which I got the transfer passed?

(3.) Even more absurd is the complaint about my not registering the lease to the "poor, landless woman." Of course it was not registered, and for a simple reason. After I had sent in the lease the woman died; and I presume the Minister will agree with me that, under these circumstances, a life-lease to provide land for her personal occupation, became unnecessary, not to say impossible. Accordingly, on the 8th March the Trust Commissioner passed my transfer unconditionally and the lease, which had been awaiting his certificate, was dropped.

(4.) As regards the fairness of the bargain—if I am called upon to discuss the terms of a lease which never took effect. I hardly need explain that in these dealings the European pays his money down and takes the risk of the Trust Commissioner passing or not passing the transaction. Unless, therefore, the dealing be fair to the Native, the purchaser is simply throwing his money away. I have every confi- page 9 dence in saying that the bargain in this instance was a perfectly just one. The Minister admits that I gave a fair value, but he omits to say that I was paying a fancy price for the land, and is equally silent as to the fact that the lease was at a peppercorn rent. The only reason for giving the lease at all was that the woman's remaining sixty acres were leased to Mr. Kebbell. To comply, therefore, with the technical requirements of the Act, I gave the woman a lease of the bush land in question without rent. As I pointed out to the Trust Commissioner, if I had given her a lease of cleared land (which had cost me £12 an acre) I should of course have charged a rent which she was not in a position to pay.

(5.) When the Minister talks (in italics) about the lease being for the old woman's "personal occupation and residence"—as if there had been really an intention of that she should occupy—he only proves that he has not read the correspondence, which shows that the "poor, landless woman" had arranged to quit the district and go North.

A word, in conclusion, as to the Minister's allegation (5) that I "fomented and encouraged legal proceedings which have resulted in casting the tribe in thousands of pounds of costs without making the least effort to avert this huge expenditure." This statement I meet with a direct and emphatic denial.

No one knows better than the Minister himself that, in my efforts to save the tribe from the ruinous cost of asserting their rights in a Court of law, I exhausted every possible remedy. Session after Session I approached Parliament by petition, in the name of Major Kemp, praying for relief. What I asked for was the setting up of a competent tribunal to take evidence and determine whether Kemp and Warena Hunia were beneficial owners of No. XI or only trustees for Muaupoko. Twice over I obtained a recommendation from the Native Affairs Committee that there should be remedial legislation; but the Government would do nothing. Even as late as June 20th, 1894, I sent to Mr. Seddon, for his consideration, a Draft Bill to meet the case, and, in any letter covering it, I said:—"If you can see your way as Native Minister to initiate such a measure, it will give general satisfaction to Major Kemp and to the Muaupoko tribe and will put an end forever to the Horowhenua difficulty and that, too, in a perfectly legitimate way." Mr. Seddon's answer was:—"I have referred the Bill to the Native Department and I will, when advised thereupon, communicate with you further on the matter";* but I heard nothing more on the subject.

* Parl. Papers, 1896, G-2, p. 300.

page 10

No legal proceedings, however, were taken by me till after the Minister of Lands had, with express notice of the trust, purchased what is now the State Farm from Warena Hunia. Before anything else was done, a deputation of Muaupoko chiefs waited on the Premier to protest against that purchase. Mr. Seddon's answer was:—"We say it belongs to Hunia. The title is perfect and cannot be upset. . . . . The Government has bought the land and will retain it,"

It was not till then that I started the costly litigation which, as Members are aware, had the effect of proving my contention and establishing the trust. The total cost of these first proceedings in the Supreme Court and Court of Appeal amounted to £1000, the whole of which had to be found by me; and not one shilling of that money has yet been repaid.

All the subsequent, and no doubt ruinous, expense of proceedings before the Royal Commission, the Native Appellate Court, and the Supreme Court, has been the outcome of the violent attack made upon me, in the Session of 1895, by the Minister of Lands, who would not quietly accept the verdict of the Supreme Court as to Subdivision XI (including of course the State Farm) but argued that what was wanted was a tribunal which "Sir Walter Buller could not get round and his money could not purchase"!

Walter L. Buller.


Parl. Pap. 1896, G-2., pp. 313-4


Horowhenua Block.

Mr. Cooper (who with Mr. Stafford and Mr. Baldwin apposed for the Public Trustee) said:—If your Honour pleases. This is a statutory action brought by the Public Trustee under Section 10 of 'The Horowhenua Block Act, 1896,' a section which directs and empowers him to institute on behalf of the original owners of Division 14, Horowhenua Block, an action for the purpose of testing the validity of the alienations in fee-simple of Sir Walter Buller, page 11 and of the registered dealings with him by Major Kemp upon the original Certificate of Title. I should like to say before I proceed further that the Act is one very difficult to construe indeed, and that the Public Trustee was advised that the obtaining of the judgment of the Appellate Court was a condition precedent to the exercise of any jurisdiction by the Supreme Court under Section 10, and, entertaining that view, he applied to your Honour for a postponement of the trial until the question should be determined, or until the Appellate Court should have delivered its judgment. After argument you determined that the application should not be granted. Some ten days ago I was myself introduced into the matter, and I have given it the most careful and anxious consideration. My first impression was that the judgment of the Appellate Court was a condition precedent to the exercise of the jurisdiction of the Supreme Court, but, after going very carefully through the Act, I felt I could not successfully maintain that position and I think it my duty to say so at once. I have also made a most careful and anxious examination of the evidence which is in the hands of the Public Trustee, for the purpose of ascertaining whether that evidence shews any notice on the part of Sir Walter Buller of any trust which might have existed in Major Kemp, and I feel bound to come to the conclusion that the evidence does not show any such notice on the part of Sir Walter Buller. It is probably within the knowledge of your Honour that there has been a very complete investigation of the circumstances connected with this portion of the Horowhenua Block in the Native Appellate Court, but the Court has not given its judgment, although the taking of evidence has for some time been concluded. We have no evidence in the matter further than that before the Appellate Court and the Commissioners. It is on an examination of the evidence more fully adduced at the further investigation by the Native Appellate Court, during which all the witnesses were fully examined and cross-examined, that I have felt it my duty with a full sense of the responsibility which rests upon me—a responsibility in which my learned friends associated with me are quite prepared to share—to advise the Public Trustee that there is no evidence of notice on the part of Sir Walter Buller of any trust—if any trust exists—in Major Kemp. Under these circumstances it seems to me—and I may say my view is concurred in by those learned friends associated with me—that it is the plain duty of the Public Trustee to say so to this Court, and to submit to a decree under section 10 of the Act, stating that the transactions appearing upon the original Certificate of Title are valid, and that they shall be re-registered upon any new Certificate of Title which may be issued under the provisions of the Act for the land the subject of such dealing. Those are the words of the section. It is only due to the Public Trustee that I should say page 12 that the views which were taken up to a few days ago have very considerable force in them in the provisions of the Act. They are views, however, which I have come to the conclusion I cannot be successful in maintaining. Then, the applications which were made for the determination of these questions, and for the postponement of the trial, although refused by your Honour, I feel it due to the Public Trustee to say, were made in perfect good faith. I think also—and my learned friends on the other side will agree with the course I am taking in stating the view I hold—that the view that I take, that there is no evidence to support any notice on the part of Sir Walter Buller of any trust which might have been in existence affecting Kemp, is one which I ought to state to the Court at the very outset, and so save the Public Trustee and the parties concerned the expense of a long and complicated trial, which, in my opinion, could only now result in a judgment in favour of Sir Walter Buller. I therefore submit to a decree being pronounced in terms of Section 10 of the Act. I think I may be permitted to remark that if the Native Appellate Court had, within the six months referred to in section 5, determined the question which manifestly was submitted to them for determination, and the judgment upon which they have not vet pronounced, a very considerable amount of difficulty and embarrassment would have been avoided. I make no reflection upon the Appellate Court. It is the unfortunate circumstance that the judgment of the Appellate Court has been postponed, it may be for a considerable time, which to my mind has placed this action in its present position. Had the Native Appellate Court before the trial of this action said "Aye" or "No," whether there was a trust or not in Major Kemp, there would have been no necessity for further investigations. If it had been decided there was a trust in Major Kemp, then I should have advised the Public Trustee that he could not show any evidence of that trust having been notified to Sir Walter Buller, and that would be a logical and consistent termination of the matter. Major Kemp is a party to this suit and I submit—and I do not think my friends on the other side will disagree with me—that, whatever view your Honour may take, no decree of the Court can be pronounced in favour of Major Kemp. The only decree that can be pronounced is one under Section 10 of the Act, to order the Certificates of Title for the two small sections which were conveyed in fee-simple to Sir Walter Buller to be re-issued, or decreeing their validity; and also ordering the re-registration of the dealings on the Certificate of Title to Block 14. The Native Appellate Court must in due course determine the question as between Major Kemp and the other Natives. It will in due course determine the question whether Major Kemp was a trustee, but in this case the only question is the validity of the dealings of Major Kemp, who was the ostensible page 13 owner of the property, and Sir Walter Buller. The decree, therefore that your Honour should pronounce is one under Section 10, setting up the validity of those two certificates which are mentioned in the Statement of Claim. The total area is 11 acres; there are also the leases and mortgage which are registered in the name of Sir Walter Buller. I shall also ask your Honour to include in the decree the lease to Mr. Bartholomew—a lease which has never been attacked; but the effect of the statute is to set aside all dealings upon the Certificate of Title unless they are ordered to be re-registered. I think my friends will agree with me that Mr. Bartholomew's lease should be validated, otherwise the effect of the statute might be to prevent his taking advantage of a lease which has never been attacked at all. I feel the course I am taking is the only one I could take, consistent with my duty to tender the best advice I can to the Public Trustee. It is a course which meets with the approval of my learned friends, Mr. Stafford and Mr, Baldwin, and I think, therefore, that the decree which I have suggested is the one the Court should make. I shall have something to say on the question of costs after my friends have said what they have to say on these questions, and will then leave the questions of costs to be determined by your Honour.

Mr. Bell (who with Mr. A. P. Buller, appeared for Sir Walter Buller) said:—I have listened carefully to the statement made by by learned friend, Mr. Cooper. He has omitted to notice that there are two charges in the claim of personal fraud against my client: one is, that he obtained land from Major Kemp while he was his confidential adviser, at grossly inadequate rentals and values; and the other is that he obtained the certificate to his mortgage by preventing matter coming to the knowledge of the Trust Commissioner. I submit that we are entitled to a frank withdrawal, and I submit that there is no evidence—

Mr. Cooper:—That is so. It was an omission on my part. I have no evidence to support either of those statements, and I say so now.

Mr. Bell:—It has been stated publicly, not, I believe, by or in any way with the consent of my learned friend, that this action has been settled. The statement is absolutely incorrect. What I desire to do is to make it clear that no compromise of the kind has ever been proposed or suggested to us; and they will concede that if they had proposed anything of the kind we should have indignantly refused it. Charges have been made against my client which can he met and disposed of only in open Court, and Sir Walter Buller has consistently and persistently claimed the right of having the charges inquired into in the Supreme Court. As late as Saturday last this correspondence took place: A letter dated the 7th August—that is, on Saturday— page 14 addressed to the solicitor for my client, and signed by the solicitor for the Public Trustee, Mr, Stafford, was as follows:—

Dear Sir,

Public Trustee and Bullek and Kemp.

I hereby give notice that at the hearing of this cause the plaintiff will rely upon and argue the questions of law arising upon the amendments annexed to the original statement of claim, and discussed before His Honour the Chief Justice yesterday, and will adduce no evidence other than the proof that the Appellate Court has heard the evidence adduced upon the application to that Court by Major Kemp and others, and that such Court has not yet delivered its decision. No doubt you will admit these facts. The object of sending this letter to you is to enable you to avoid, as far as possible, the expenses of the attendance of witnesses.

Yours faithfully,

E. Stafford.

A. P. Buller Esq., Solicitor, City.
And immediately the following answer was addressed to Mr. Stafford:— Wellington,

Dear Sir,

I am in receipt of your letter of to-day's date, giving me notice that it the hearing of this action the plaintiff proposes to rely upon and to argue the questions of law arising upon the amendments to the original Statement of Claim, and that he will adduce no evidence other than proof that the Appellate Court has heard the evidence adduced to that Court by Major Kemp, and that such Court has not yet delivered its decision. On behalf of the defendant, Sir Walter Buller, I give you notice that I object to the course you propose to adopt; that the defendant insists that he is entitled to have tried the issues of fact which the Public Trustee has taken upon himself to assert in the original statement of claim, or, at all events, such of them as are within the scope and intention of Section 10 of 'The Horowlienua Block Act, 1896.' The defendant will request the Court to try such issues, and to hear evidence to be adduced on his behalf as to the question of trust, as to the question of notice thereof, and as to the question of value.

Yours faithfully,

A. P. Buller.

E. Stafford Esq., Solicitor, Wellington.

That was on Saturday morning; and on the afternoon of Saturday my learned friend, Mr. Cooper, informed me that he intended to take the course which he has just notified to the Court. That communication was made in fairness and courtesy to Sir Robert Stout and myself, but it was a statement made by my learned friend to me without any suggestion of compromise, or any suggestion that we should accept it. If my learned friend chose to take that course, that was for him. We discussed nothing and arranged nothing. It was simply an intimation made by one counsel to another of the course which the plaintiff intended to take. My client wishes through me to make it clear that we have not directly nor indirectly proposed or been asked by the other side to agree to the course which my learned friend has just notified to the Court.

page 15

His Honour:—I do not quite understand with regard to Mr. Bartholomew.

Mr. Bell:—My learned friend pointed out, and I understand that, this lease of Bartholomew's required to be re-registered; but the Public Trustee omitted to bring the action, and if there can be a validation of Mr. Bartholomew's lease in this action, there would be no objection on our part. It is a matter that does not concern us; but if Mr. Bartholomew cannot get his title, in consequence of action not having been commenced within the six months, we are quite content that there should be a validation of his title by this suit.

Mr. Cooper:—I should like to say there has never been any approach by one side or the other for a settlement of the matter. What Mr. Bell has said is absolutely correct. I considered it was only right and courteous that I should intimate to counsel on the other side the course I proposed to adopt, and that was done.

Mr. Bell:—Being absolutely at arms' length with the other side, I have not submitted to them the minutes of the decree. I will read them with your Honour's permission; and my learned friends can say whether they would accept them, or adjourn to consider them. These are the minutes:—
1.The name of the original co-plaintiff, Wirihana Hunia, having been struck out by order of His Honour the Chief Justice on the day of August, 1897, on the application of the said original co-plaintiff, amend the statement of claim by substituting the word "plaintiff" for "plaintiffs" wherever the latter word occurs, and make all consequential grammatical amendments.
2.The plaintiff, withdrawing all charges against the defendant, Sir Walter Buller, and submitting to a finding in favour of the said defendant upon (all) the matters of fact and law alleged in paragraphs 27 to 34, inclusive, of the original statement of claim, and upon all the matters of fact and law alleged in the additions made to the original statement of claim by amendment, decree that the said defendant El entitled to the final judgment of this Court upon the several issues of fact and law raised by such allegations.
3.Decree that the validity of each and every of the dealings specified in sub-paragraphs (a) to (f), inclusive, of paragraph 28 of the original statement of claim, is established by this final judgment in this action.
4.Decree that each and every of the said dealings is entitled to be re-registered, pursuant to Section 10 of "The Horowhenua Block Act, 1896."page 16
5.Adjudge that the plaintiff do pay to the said defendant his costs of the action, computed, &c.

Sir Robert Stout:—On behalf of Major Kemp I have to state that, unfortunately for him, Parliament did not yield to his suggestion that any charges made against him should be investigated by the Supreme Court, and, therefore, in this action he has only been brought into it almost like what is called a third party, viz., to be bound by any decision that might be made against Sir Walter Buller; and as this action is, under Section 10 of the Act, to deal with the validity of the dealings on the certificate of title of Division 14, of course he can ask for nothing further than that the action may be dismissed against him As to costs, I suggested that there should be added to the decree words to this effect: "This Court doth further order that the action be dismissed so far as the defendant Keepa Te Rangihiwinui is concerned, and that the plaintiff do pay to the said defendant the full costs of suit, on the same being taxed by the Registrar of this Honourable Court." Considering the litigation that has taken place in this matter, I suggest that we should have full costs of the suit, and not merely costs in accordance with the scale of which your Honour is aware. Major Kemp has really been brought into this matter because be had the temerity to say that he was trustee for part of Block 11. Otherwise there would have been no trouble. There would have been no Horowhenua Block case proposed. He was punished because he was honest, and because he dared to say he was a trustee for Block 11. Of course I do not wish to make any comments upon that matter It would be improper for me to say anything further about it. As far as Major Kemp was concerned, he was always willing, and in fact he begged the Legislative Council to be allowed, to have his case tried by the Supreme Court; but that justice was denied him.

* * * * * *

His Honour:—I think both the defendants are entitled to their costs. The amount can be fixed in Chambers. With regard to Bartholomew, all I am prepared to say is this:—if a proposal is brought before me in any way that looks at all right I shall offer no objection. The decree generally is in favour of the defendants.