Circuit Court.

Hawke's Bay Weekly Times, Volume 1, Issue 48, 2 December 1867, Page 300

Circuit Court.

;? /; TUESDAY 26th NOYEMBEE. , : . Hrs Honpr/Mc Jpstice Jolmston-toak his eepfot 10 ofolock. ••</. V. TOOSOOD AlfD ASIOTHEa o. , BASLOTT. ..... .The Attonioj-Ganeiral appeared for the plaiatiffs, Mr Allan for' the defendant. . • : ■ - ■ =■- 1 '••••• The ’foUowing' special jury was empanel - • led:—F 1 . Sutton, John Parsons, James "Wood, H. G. Mdrecroffc, E. Carr, G. A.. 5 Oliver, A Irvine, W. Bircli, I£. Lyndon, M." Hill, A. Kennedy, C. A. Brown. , The Deputy-Registrar then road the issues, twenty-four in number. The Attorn sy-General made a long and detailed statement, and called Edward Toogood, who deposed: lam one of the plaintiffs in this action. In January.last I was in partnership with Mr Richardson. Wo possessed a run called the Waikokopu station, which contained about 2,040 acres of freehold land, 510 acres leased from Ihaka Whanga, with I,4oo‘sheep. We had occupied the.station since May, 1865, and had purchased i'. from Mr * Riddell. In January, 1867, we had uo other title to the 510 acres than the lease. I know Mr Barlow. • I first became acquainted with him at the beginning oi January or perhaps the end of December. I was introduced by Mr Carver, iu consequence of a previous conversation that they had. I met Mr Barlow in Mr Carver’s shop, and told him I would sell Waikokopu, giving him-terms and ..general particulars. 1 told him that the purchase money would be £4030, that tbertf were 1,400 sheep, 2,040 acres freehold land, and a piece of land, 500 acres or thereabouts, leased from . Ihaka Whanga. Very little more was said. . Barlow agreed to go up and. see the place with me, fixing the 6tii or 7th January, 1 asked Mr Carver to accompany us, but he said lie could not get away. We arrived at the station on the 10th, and.next day I took Barlow over the run, showing him the freehold and leasehold land. He expressed himself highly pleased with the place, and said it was better than he expected.- Mr- Barlow said he feared 4 that the leasehold land would have to go into.the.Native Lands.Cojirt. J told him that in this case 1 believed there was no necessity for the land to go through the Couvt, as it had been promised by the Government to Ihaka, the original owner. J told him that wo sold it as wo had got it, that there was no doubt that the Government would fulfil their promiso, and thai ' Ihaka could be trusted. 1 agreed that fot the sum of £ t-,lßo' I should go out of possession, reserving only my personal property, and Mr Barlow should come in. [ Agreement read.]' I showed him a house •which I told him was reserved by Ihaka I left, and arrived in town on the 21st in a vessel “called the ‘ Hero.’ I saw-Mr-Locke in'his cilice on the morning after I arrived (the 22i;d) I believe! have seen Barlow since, but I have not spoken to him. Cross-examined by Mr Allan : I cannot eay whether a plan was produced. I did not say “Tho land is lliaka Whanga’s, and Mr Richardson has the lease all right at Napier;”-• I-saidlhakalield.theland under Mr Locke’s promise. I knew that the Go' verrrment-could turn mo off if they liked, but. i did not ssy this to Barlow. I knew that the promise was no legal title. I told Barlow the nature of xny title, but I did not tell him it was no title at ail. I asked him not . to say anything about the negotiations for the land. I will swear that mi reason was not that I was afraid he niijhi find I had no title. The reserve was important to the station from its position, and from its.being the only liarboron that part of the coast. I know the plan produced. I gave it to; Barlow. The first agreement was cancelled,-'and a second made. I consider the first one fair j the eeeoud £503 too cheap. I had heard of a claim to the land by a man named Salmon, but I did not mention it, as I thought itwasofnpimp.ortan.ee. George Edward Gordon Richardson de posed: I am one of the plaintiffs, iri this action. I know Barlow. I saw him-shortly before the 21st January. He- brought me a letter from Mr Toogood. Bariow. told-me ho was-not in a . position to carry out the agreement. He had. mob received some money lie had expected, and did not wish to borrow.. I appointed to see him again on the subject, and we met on.the Spit oh the 21st, and made an arrangement giving him more’time." I read Ihaka’s- lease, giving him-the meaning of it, and told him that Ihaka would consider , any. arrangement. ha had mode as binding. I had heard that Mr Salmon, of Auckland, had claimed some of the land, but in a conversation 1 had with Mr AlLean I understood that this claim had no foundation. . I saw Mr Ciitf two or three days after making the agreement. . \ ■ " v Cross-examined by M-r, Allan: -I-knew nothing .of-Ihaka’s title... L supposed it would have to go through some court-. 1 do not remember Mr Cuff saying that he must have sonic" title. William Airey Richardson, deposed: I am an officer in - the- Military Settlers.-. 1 remember .the 2lst Jaimary. The signa; ture to the deed marked B is in my writing I ; signed tho deed, as a witness, at/Mr Richardson/s office. -Mr Richardson,.and Mr. Barlow .were present. I did not see them sign it... . , , -Samuel. Lhcko, deposed: I am a, surveyor practising a good deal as a surveyor . of native laiids. j .-I. have been.;,connected witlfil'ho.Ka,tlye>Office about 9 years,/, >1 , uiidorstand the Maori.language. In-1865 - - I wasiabtiiigi under. Mr McLean, yvho/was sCliieCN ativeLandPuvchase'Cornmisiibner, in-Ahfl parij,ojf:tha Province*]Wtj purckaWatlib NuhakaffiocM owner of;, which was Ihaka /Whanga/ When he sold it he itipulated that a por-

tion at Waikokopu, should be reserved for him, and a Crown grant given him for it*. I know, the defendant Barlow; I also know Mr Carver. 1 * Between the 16th or 17th and the‘2lst of January Mr . Carver came to my office; I should; have been almost; certain., that lie was accompanied by Mr Barlow, if that gentleman had not since told ihe that lie,, had. never been-in my office? L’was'engaged with some natives at (he ! time;.! Mr Carver, asked -me for an.explanation of the. terms on .which the land was granted to. Ihaka Whanga. T explained'to, him exactly the condition of - the purchase. He told me that'Mr Barlow-was'going to purchase the ! Waikokopu run. Lguye Ihaka-a . good character. I have since seen, Mr Barlow. He called at my house one day last week ; he said he had never been to my office in his life. I told him I had : been greatly deceived if he had not, as I had not anv doubt that I had the interview with him as well as Mr Carver.

Mr Toogood, re-called : I called on Mr Locke on the 22ud January. He said that Mr Barlow and Mr Carver had called on him.

James Hamlin,, deposed: I am acquainted with the Maori language. I know Ihaka Whanga. I saw him execute tho lease produced. [Mr Hamlin confirmed the translation of the lease before the Court.] The Court adjourned about 5 p.m.

WEDNESDAY, 27th NOVEMBER. His Honor, took his seat at 10 a.m. Mr Allan, addressed the jury for the defence at considerable length, and called — John Barlow, who deposed: I am defendant in this action. I arrived in Napier on the 3rd December last in the ship Strathallan. I came out to get land. In Mr Carver’s shop on tho 3rd January I saw Mr Toogood, who stated that lie was willing to sell his land. We had no conversation about the title. He told me what lie would take for it, and asked me how much I was prepared to pay. I told him I could not say anything till I had seen the property. At the time I knew nothing about the native tide to laud, but had heal’d that it had to pass through a Court to make it good. I left Napier with Mr Toogood on the 7th, and arrived at Waikokopu on the 10th. We had no conversation about the title on the way. At Wairoa Toogood told me not to say anything about the transaction till it was completed, as he was selling the run very *,:heap, and had some land for sale at Wairoa, the sale of which would be damaged by the arrangement- being known. On the Llth we rode over the run, when he showed me all the boundaries, and again ask,*d uis not to mention that I was in treaty for it, this time giving a different reason. He showed which part of the run was freehold, and which leasehold. From the position of. the latter, I considered it was the most important pa-t of the run, ns it, contained the only landing place. When we got back I asked him if Ihaka’s land had been through the Court. He said it did not need to.go through the Court ; thatit was leased from Ihuka Whanga, and t-t-at Richardson had the lease all right at Napier. He did, not- tell me anything of the promise to Ihaka Whanga. He told me Ihaka was to be trusted. He showed me a house, which he said was 111 aka’s, but said he was going to pall it down, and that very likely I might buy it for £5. On the faith of the title being good I signed the document. He said nothing about Mr Salmon. I left and came,to town. I met Mr Richardson on the 14tli. I gave him a letter from Mr Toogood. I told him I was not then in a position to arrange the matter. Ho told me to take a week to consider the matter. We said nothing about the title. On the 21st I met him at the. Spit, and the second agreement was decided upon. I had not spoken to any one on the subject, not did 1 consult a •lawyer until after I had signed the agreement. I have never been in Mr-Locke’s office. In consequence of information I afterwards received with regard to the title i refused to fulfil the agreement, and communicated with the plaintiff to that effect. I went to Mr Locke one day last week. He asked me if I remembered going to his office. I said I had uever been to his office in my life. He said he had been strongly under the impression that 1 had been there with Mr Carver.

Cross examined by the Attorney-Gene-ral : I had seen Mr Locke, before the Ist of January.l asked him, if he knew o any land, for sale.- He. mentioned Toogood’s,. but said'that,as lie had just bought a large quantity of freehold land, lie would want-a good deal of money for it. I only asked Mr Toogood once if the land had gone through the Court, and lie said there was no necessity for it to do so, He did not say Ihaka would'have a Crown grant. I asked what sort of a neighbour Ihaka was,"and lie said-he .was a man who could .be .trusted. He did not think Ihaka was going to live on the land,..but that his house would - have to be removed. The -plan produced was given to me .by Mr Carver before I left Napier. I lived with Mi* Carver three weeks after I came to Napier, and have lived in other houses in the town during ten months., I have not carried on on any bnsiness since’my arrival. ’ Mr Wtßichardson was’not present’ when the docuuxent was sigued, but signed it at.bur request. s .\ ; Robert William Ind. Carver, deposed ; I cqrry, on business as a chemist in Napier. -I know"the defendant Barlow; lib'lived for some weekb ih my house.; ,1-knowMr Lockei; !I have, never: beeiifindiis office with jMfeßatlo.vv, ajictiieyjsr went by MjisJarlpw?s .direction.l did not; go before The 22n$, after T had seen the document in’ Mr/Guff *8 office. Mr Locke w&a engaged with some

Maoris, and I waited a quarter of ail hour. He explained to me lhat this, land'was re-' served for-Ihaka Whanga at the time of the purchase of the Nuhakii block. 'Cross-examined by the Attorney-Gene-ral : I never went by "Barlow’s, direction. This occurred several days after the 22nd. Joshua Cuff, deposed : . I am a barrister, practising in Napier, and acted a3’solicitdr for the defendant. I first received in:, stractions from him on- the 22nd January.' I had .known him before. Soon after-I met Toogood and Richardson in the street, and told them that Barlow had brought his agreement to me, with instructions to prepare the deeds, and requested them to name their solicitor. Itioiiardson said he did not want any more lawyers; I bad better'act for-all parties. I said, “ Yenwell, but-you will have to covenant tintitle. From enquiries I have, made I cannot find that Ihaka Whanga has any title to the reserve.” Mr Toogood said lie would nob guarantee the title. I said, “ In that case T.cannot act for both parlies. You name your solicitor and see him, and I will call upon him in the course of the day.” They named Mr Wilson. I called on Mr Wilson shortly after, and we went to the Superintendent’s office, to Mr Grindeli’s office, to the Lund office, and to Mr Locke’e office, but could not find any til iu ihe correspondence before, the Court did not take place immediately. It resulted in Barlow repudiating the contract. Donald MLeau deposed : 1 am Superintendent of the Province and Genera! Government agent. lam acquainted with (he circumstances of the purchase of the Null aka Block. [A proclamation from tlie Provincial Government Gazette was read to witness.] That proclamation offers to public competition a block of land including Ihaka’s reserve. This was not inconsistent with the promise made to Iliaku, but was a method adopted by the Government by which it might- be fulfilled. Any person may apply lor the land, and it is then put up to auction among the applicants. Any number of persons might have put in an application for the land, but the Government might have outbid them, and bought it in. Thirty acres are excluded from the proclamation in consequence of a claim made by a private individual, Capt. Salmon.

William Colenso and James Grindell were afterwards sworn to compare the translation of the so-called lease before the Court with tile original, and both said that the translation in reserving the house did not give the full meaning of the original, as it included, in tjie term. Jcainga, something more in connection with the house. 11 is Honor, however, considered the term Icainga to be derived from kai, and to mean feeding or eating-place, and observed that common sense, as well as a knowledge ol’ the rath e language, was necessary in translating Maori documents. The counsel for the defence and prosecution then addressed the jurv, and His Honor carefully summed up the evidence in connection with tlu- issues to be decided, which numbered twenty’ six, four having been added and two expunged daring the trial. The jury retired at 9 p.m., and after being locked up all night, were discharged at 5 a.m., without having been able to agree upon the most important of the issu.es.

The Court sat in Banco and in Chambers on Thursday ar'd Friday, but nothing further was arranged in the case of Toogood and another v. Barlow, which still remains open.