51

G.—2

The Court said the position had not altered since yesterday. Mr. Fraser's clients had not properly understood the position. They appeared to consent unanimously to Kemp having No. 14, and Sir Walter Buller could have called any of them who chose if he had considered it necessary. Mr. Fraser said he would leave himself in the hands of the Court. The Court said it did not appear to be necessary for Mr. Fraser to open a case. Mr. Fraser asked to be allowed to open a case later on if he thought it advisable to do so. The Court informed him that the matter must be decided before the counter-claimants commenced. Sir W. Buller reminded the Court that if the other side introduced new matter he would ask leave to call rebutting evidence, in accordance with the rules of the Court. Mr. Stafford stated that he had intended yesterday to place certain questions of law and fact before the Court to show that Sir W. Buller's case was bad, but as he judged that the Court had determined to send the case to the Supreme Court he had decided not to do so, as it would be unwise. Mr. Stevens regretted he was absent yesterday. He had understood the Court would not sit. With regard to the merging of cases, he was taken by surprise at Sir Walter Buller's case closing so suddenly and unexpectedly. He would ask the Court to indulge Mr. McDonald and himself by granting an adjournment until 2 p.m. If the adjournment was allowed it would facilitate rather than retard business, as the cases could be condensed. Mr. McDonald said in the absence of Mr. Stevens those in town had met and done what they could, but had not reached the point of merging the cases, as the interests of parties were so diverse. It was agreed, however, that he was to be the first witness. He had not had time to confer with Mr. Stevens. Time would have been saved if the adjournment had been granted, as asked for, till 2 p.m. He supported Mr. Stevens's application for a further adjournment, but, if not allowed, he was prepared to go on, say what he intended to prove, and go into the box. The Court considered that after what Mr. McDonald had said there was no necessity for any adjournment. Mr. McDonald could go on with his case. Sir W. Buller asked whether the other conductors could cross-examine Mr. McDonald. Mr. Stevens claimed the same right to cross-examine Mr. McDonald as he had to cross-examine the witnesses called by Sir Walter Buller. Mr. Stafford said he would only put questions on points of law. The Court stated that Mr. Stevens and the other conductors could cross-examine Mr. McDonald if their cases were diverse. The Court informed Mr. Stafford that it had not declined to disclose the legal points that were in the mind of the Court, but had said that it was inadvisable to disclose them. It considered so still. The Court considered this a fitting opportunity, inasmuch as counsel on neither side had called attention to the anomalous position the Appellate Court was placed in by the Horowhenua Block Act, to remark thereon. The Act confers concurrent jurisdiction to a certain extent on two Courts differently constituted. The authority conferred on the Appellate Court is absolute to deal with all matters connected with the block in question, excepting the question as to the validity of certain alienations in connection with division 14. Section 10 confers jurisdiction on the Supreme Court for that purpose ; but the Appellate Court is the only tribunal that can determine all other matters in connection with the several parcels of land brought under its jurisdiction by the Horowhenua Block Act, and on these questions its decision is final. It may happen, therefore, that the decision given by the two Courts in respect of Subdivision No. 14 may clash, and should that happen neither Court can reverse the decision of the other. The result, therefore, would be that two conflicting decisions will co-exist about the same matter. It seems therefore advisable, in view of this possibility, that certain points of law should be referred to the Supreme Court for its opinion, to prevent such an undesirable state of affairs taking place ; for, notwithstanding anything this Court may do in exercising its functions, it will not be considered binding by the Supreme Court in respect of any matter it is required to deal with under section 10. It is rather an anomalous position of affairs, but that seems to be the position. The obvious mode of preventing a difficulty of this kind from occurring would have been to have given a right of appeal to the Supreme Court on certain points only, which could have embraced the existence or non-existence of a trust in section 14, and the determination of the validity or otherwise of the several alienations connected therewith. Had that been done the possible complications referred to would have been avoided. Mr. Stafford said that appeared to be the position, but there were other difficulties in the way which he would not refer to now. The Court called upon McDonald to open his case. Case op Himiona Kowhai. Mr. McDonald : Before going into the box to give evidence I desire to make a few remarks by way of opening, though there is no need to occupy much time. Still, I desire to say something by way of opening of the case of my client, Himiona Kowhai, and any others of Muaupoko who it may hereafter appear are of the same mind as to Major Kemp's claim, now before the Court, as Himiona Kowhai. Major Kemp's case, as disclosed by the witnesses called by Sir Walter Buller, rests, it appears to me, on four main allegations: (1.) Allegation of Major Kemp that the Eaumatangi Section, of 1,200 acres, was awarded by the Native Land Court of the 25th November, 1886, viz. : The Court of which Mangakahia was on that day and year the Assessor, and the further allegation of Major Kemp that the only reference in Court on that day to the Ohau Section, of 1,200 acres, was his voluntary statement to the Court that he had at first intended to allot 1,200 acres at Ohau to the descendants of Whatanui, but that they had objected to it, and he had consequently allotted the Eaumatangi Section to them. Evidence will now be adduced in