G.—2

54

Mr. Stafford said that before the cross-examination of Mr. McDonald was commenced he would like to mention certain points, and ask the other side whether they assented to them or not. He wished to give the other side a knowledge of the counter-claimants' case. He would put three questions to Sir Walter Buller : (1.) Was Sir Walter Buller prepared to go into the box and submit to cross-examination as a hostile witness? (2.) Would Sir Walter Buller produce the draft of the deed of release ? (3.) Did Sir Walter Buller or Major Kemp propose to produce any accounts of the moneys received and expended by Kemp ? There dropped from the Court at an early stage of this case an intimation that there had been no order made cancelling the prior title to this land before the Court exercised jurisdiction on partition. He would like to ask the Court whether it had in its mind that the cancellation of the certificate of title of 1873 was a condition precedent to partition under " The Native Land Division Act, 1882." The Court did not think it had made any statement on the point, but it was in the mind of the Court that the cancellation of the instrument of title was a condition precedent to division, and that it had not been legally cancelled. It was evident to the Court from the replies of Judge Wilson that the provisions of the Division Act had not been complied with. There was evidence on the face of the instrument of title that the cancellation had not been made until some time subsequent to the proceedings before the Court in December, 1886. Mr. Stafford said another of their points was that Judge Wilson stated in his evidence that he acted administratively under section 56, and not judicially. Sir W. Buller declined to reply to the questions put to him by Mr. Stafford at this stage, and said the other side must conduct their case in their own way. The Court announced that Sir Walter Buller had already said that he would give his assistance on the question of accounts. Sir W. Buller said he would do so when No. 11 came on. He contended the accounts had nothing to do with this case. The Court stated that when the question of trust had been decided the position of those who supported Kemp would be considered. Mr. Baldwin did not understand the Court to rule that it was only if Kemp was found to be a trustee that he could be excluded from No. 14. He contended that the Court should not give any decision awarding the land to Kemp himself until question of accounts had been gone into. The Court would not rule on any point until it gave its decision on the whole question. Mr. Stafford contended that accounts should be furnished now. Mr. Baldwin claimed the right to cross-examine last. The Court said it was not of much consequence. Mr. Baldwin might cross-examine after the counter-claimants if he chose, but the applicant had the undoubted right to cross-examine last. It considered it advisable that the question of accounts should be made a separate proceeding. Mr. Stevens was satisfied with Mr. McDonald's evidence, and had therefore no questions to put to him. Cross-examined by Henare Apatari. Witness : I remember Muaupoko living in the barn and tents at Palmerston. Don't remember any besides Muaupoko particularly. Visitors came and went. Think I remember Nireaha Tamaki and Hanita te Aweawe coming there occasionally to see Muaupoko. Never heard Kemp asking Muaupoko for 1,200 acres for himself. Suppose because he did not do so. There were two 1,200---acre sections discussed at meetings, both to be vested in Kemp for purpose of an agreement for the cession of one of them to descendants of Whatanui. Don't know how many. Muaupoko said they consented, but 1 was satisfied that those who were present did consent that Kemp should convey 1,200 acres to descendants of Whatanui. Hamuera Karaitiana : No questions. Mr. Baldivin said as the Court had ruled that he must come before Sir Walter Buller, he would cross-examine the witness now, but before counsel addressed the Court he would produce authorities to show that counsel for the Crown had the right to address the Court last. Cross-examined by Mr. Baldwin. Witness : I said I was perfectly clear that no application was made by Kemp for 1,200 acres on the 2nd December. [List supposed to have been handed to Court of 1886 by Kemp produced to witness.] That corroborates my statement that the 1,200 acres was applied for on the 3rd December, and not on the 2nd December. Cross-examined by Mr. Beddard. Witness : I was not employed by Kemp, nor did I advise him in connection with sale of 4,000 acres to the Government before partition of 1886. I was acting for the Wellington and Manawatu Eailway Company at that time. I believe Kemp himself proposed the sale of 4,000 acres for the township, [fiorowhenua Commission, page 73 :"I then learned that Land Purchase officers," &c] That was long before I had anything to do with it. I was acting for the Eailway Company. I first heard of proposal to sell land for township when I went to Wellington with Kemp. This was before partition. I was aware at that time that any sale by Kemp would be ultra vires. I wrote the proposal for Kemp, and went with him to Wellington. I think Kemp gave me £25 or £50 as a present. I looked upon it that any agreement made by Kemp would require confirmation by the people on partition. There was no agreement between Kemp and myself before partition that was ultra vires. I heard that there was an agreement between Kemp and the Wellington and Manawatu Eailway Company drawn by Sir Walter Buller, but I never saw it. [Vol. 7, page 188, " Mr. McDonald said that the agreement between Kemp and himself," &c, read.] That is a mistake: I think it must mean between Kemp and McLean. [Vol. 7, page 188, " This Court does not propose to delineate on the plan," read.] That was in consequence of my intervention. My explanation of it