Gh—2

38

Mr. McDonald stated that Judge Wilson drew a distinction between an ordinary and a Maori trust. The trust imposed in 1886 was a Maori trust, and he contended that Kemp had failed to carry out the trust. Mr. Beddard said Kemp held No. 2 in trust, and contended that, as the Government were the owners of it, not the tribe, Kemp was not liable to account except to Government. The Court : It is necessary to consider the provisions of " The Equitable Owners Act, 1886," in coming to a conclusion as to the object of clothing the Court with the power conferred on it by section 4of the Horowhenua Block Act. Under the Equitable Owners Act the Court could not exclude any person in the original title, however much such person or persons had misconducted themselves. Mr. Beddard argued that clause 4 was an overriding clause, and that the Equitable Owners Act must be read with it. Mr. Stafford said the relations of parties when deed of release was signed were that of trustee and cestui que trust, and that the Court should deal strictly with the trustee, as the cestui que trust were in the dark as to what they were doing. He argued that the deed was a deed of indemnity, although not specified, and that the last clause was a covenant of indemnity. It was to cover all the commissions and omissions of Kemp. He contended that a trustee was not entitled to a deed of release. There were many cases where ordinary deeds of release had been declared invalid because the cestui que trust had not been independently represented. They were in the dark. The deed of release was not under seal ; therefore, as there was no consideration shown, the deed was invalid as a nude contract. [Eeads from judgment of Appeal Court, page 98 "Law Eeports," 2nd February, 1896.] His contention was that accounts must be inquired into from 1873. If Kemp could not account for all moneys his side would ask the Court to exclude him from the certificate. The Court had great power under section 4, and could exclude any trustee for any reason it considered sufficient. Mr. Baldwin supported Mr. Stafford's view. Mr. Beddard still contended that the deed was an ordinary deed of release, and, further, that as such it need not be under seal. Vide Property Law Consolidation Act. Sir W. Buller presumed this Court would not determine the validity or otherwise of the deed of release. The Court stated that there was no occasion to express an opinion on that point. Touching the question of accounts, it had been already intimated that the inquiry into that matter should be confined to a separate proceeding. It was not necessary now, but it might be necessary, to take this matter into consideration in connection with the proceedings now before it relative to No. 14 before determining the question at issue. Examination of Keepa te Eangihiwinui continued. Witness (to Assessor) : I was trustee for the land in 1873 to prevent it being sold. I was careful because I had seen the evil of the ten-grantee system. Every deceased owner was provided for by the subdivision of 1886 as well as those living. The deceased owners or their successors are all in No. 3 and other sections. All the other sections, I think. If the Ngatiraukawa had accepted the 1,200-acre section at Ohau the surveyor would have had to survey it to include the area of 1,200 acres. I suppose it would have extended to the Waiwiri Lake, as it does now. There would have been no objection. Both No. 6 and No. 14 were originally located to the eastward of the railway. The owners for No. 6 had not been fully settled when the order was made for it. Many complained that they had been omitted from the list of names of 1873. Ido not know why the shortage of No. 14 was not made up out of No. 6. No. 14 was the last block surveyed, and there was not sufficient area for it east of the railway. It was therefore extended to Papaitonga. I had nothing to do with it. If the whole area had been eastward of the railway it would have been awarded to me there. If the 1,200 acres at Ohau had been accepted by the descendants of Whatanui, and had afterwards been extended to Papaitonga, neither I nor the Muaupoko would have made any objection. It was a necessary part of the partition. The Court announced that it had received an intimation from the Justice Department that no telegrams could be found addressed by the Under-Secretary of the Justice Department to Judge Wilson or by Judge Wilson to the Under-Secretary during 1895, and that Judge Wilson was holding Courts at Eotorua and other places continuously from and after April of that year. Sir W. Buller called Eu Eeweti. Eu Eeweti sworn and examined. Witness : I reside in Wanganui. lam Kemp's son-in-law, and act as his secretary. lam one of the lineal descendants of Te Whatanui. I know a place in the Horowhenua Block called Pipiriki. I remember a Maori meeting at Pipiriki after the Court of 1891 that reheard Horowhenua—immediately after that Court. I was present at that meeting. The main body of Muaupoko were present. Some may have been absent, but the representative people were all there. J. M. Fraser, Kemp, Tamatea, and I came to the meeting from Palmerston. Hoani Puihi, Eangimairehau, Wirihana Huuia, Warena Hunia, Makere te Eou, Kerehi, and others were at the meeting. The meeting was called to consider a proposal made by Mr. Barnicoat, Warena's solicitor, at Palmerston. Mr. Barnicoat proposed that Kemp should agree to Hunia family having 3,000 acres out of No. 11. It was to be in satisfaction of Warena's claim to the land. Mr. Barnicoat made a proposal to Mr. J. M. Fraser, who was Kemp's agent, and myself at Palmerston. We told Barnicoat that we would tell Kemp, and bring him to meet Wirihana, Mr. Barnicoat, and Donald Fraser to discuss the matter. When we mentioned it to Kemp he agreed to go, but added that he would not settle anything definitely there, but would lay the proposal before the tribe at Horowhenua,