I.—B.

82

First, Judge Fenton was clearly of opinion that no memorial of ownership should have been issued to either the Kaimanawa, Oruamatua, or Owhaoko Blocks, if the presiding Judge who heard the case became aware that persons not present were interested in the blocks as owners. He also agrees with me that before voluntary arrangements could be recognized, allowing only a certain number of owners to appear as the owners, clause 48 should be given effect to. The persons consenting, or their agents, should have appeared before the Court, and the record should have been entered, stating the names of the persons who consented to the arrangements. It is perfectly clear from the evidence that those who were not at the Court did not voluntarily consent to surrender any of their rights, and, therefore, that the memorials of ownership in both blocks were wrongly issued; Ido not say that when Judge Bogan issued these orders he was conscious Of doing a wrong —I believe he was not; but at the same time it is abundantly plain that these orders ought not tohave been issued. Ido not care to go through all that occurred—the changing of the Court, the making, as it were, provisional orders, altering them, entering minutes in the absence of the Assessor, and the Judge purporting to deal in chambers as if he were in Court. My memorandum sufficiently states what was done; and. the explanation given in the evidence and address by counsel only states that the practice of the Court was lax, and that the course adopted in these cases was, unfortunately, not unusual. The next point that arises is, Was a rehearing properly held of the Owhaoko Block ? Mr. Fenton has explained away some of my comments by stating—first, that Dr. Buller's telegram of the 26th July, 1880, is untrue in so far as it states that Mr. Fenton had advised Studholme to make terms with a view to withdrawal. Mr. Fenton saw that telegram on a file of the Native Land Court, and, though he considered the telegram impertinent, he took no means to do as Mr. Stewart suggested, to minute it as untrue, nor to complain to Dr. Buller of his conduct in sending a telegram to the Clerk of the Native Land Court that was incorrect. The Committee have not thought it desirable to cable to Dr. Buller to ask him anything regarding this telegram.. It certainly places him in a peculiar position, that he should have telegraphed to the Clerk of the Court what was untrue,*and casting, as it seems to me, a reflection on the Judge of the Court. Mr. Fenton also explains that the most important telegram from the Native Minister, forwarded to him while he was sitting in the Court at Napier on the 11th November, 1880, was, if seen by him, overlooked in his pressure of business, and that he never replied to it. His explanation is that it was possibly handed to him while he was investigating an intricate Native title, that he had handed it back to the Clerk, and it was never brought to his notice again. He states that, if it had been brought to his notice, he certainly would have replied to it. As to the letter from the Natives dated the 3rd November, 1880, on which there is an indorsement by Mr. Dickey addressed to Mr. Fenton, he states he never saw this important document. If I had known when writing my memorandum that the administration of the business of the Native Land Court Office had been conducted with such laxity, not to mention carelessness, that an important telegram of this character from a Native Minister, charging fraud against persons appearing before the Court, and a request from the Natives to the Chief Judge urging that the withdrawal signed should not be acted t upon, were not perused by the persons to whom the messages and letters were addressed, I should have made other comments. I should have withdrawn the charge that the Judge had, in the face of these documents, proceeded to state the case to the Supreme Court, which I stated was wrong. I mean I should have withdrawn the following words : " The Court does not deal with the facts of this case, but only gives a general opinion. It is, I think, to be regretted that the whole facts had not been stated in the case by the Chief Judge to the Supreme Court. He knew that persons who had applied for the rehearing had not abandoned the prosecution of their appeal, for the case was not settled until the month of July, 1881, and in 1880 he had forwarded tohim the telegram which had been sent to the Hon. the Native Minister. He had also received the letter from Heperi Pikirangi and others before set forth It was, in my opinion, the bounden duty of Judge Fenton, before he sent the case for the opinion of the Supreme Court, to have had the whole question of the signatures to the withdrawal and the telegram repudiating the withdrawal adjudicated on ; and I can find no excuse for his neglect of such duty. It was entirely wrong for a Judge of the Native Land Court to certify to the Supreme Court that the Natives had abandoned their application for rehearing, when one of the Natives had repudiated such abandonment." But I should have felt bound to comment on the carelessness of the administration of a Native Land Court Office that allowed such a telegram and such a memorial not to be perused by the person to whom they were addressed. I must, however, state that I do not withdraw my interpretation of section 58 of the Act of 1873. In my opinion, once a rehearing was granted, it was the bounden duty of the Court to hear the claims of all persons that might be brought before the Court, just as if the hearing was taking place for the first time. If, as I understand it, Judge Fenton says that it has been the practice of the Native Land Court to exclude claimants unless they were the persons who had been originally declared the owmers, or were the persons who claimed the rehearing, then I think that practice has been wrong. I may add that Judge Eogan is of opinion that persons should be allowed to come in, and he believes that was the practice. See questions 1145, 1146, 1150 : — " 1145. And would you hear them ?—Most certainly. " 1146. That is, outside both claimant and counter-claimant ?—Yes. " 1150. Supposing the people signing the application for rehearing desired to withdraw the application, and the other people in Court interested in the block did not wish it withdrawn— objected to the withdrawal—what would the Court do then ? —I should think the Court would go on with the case." From which questions it is plain, according to Judge Eogan, that the refusal to hear claimants in the Owhaoko rehearing case was wrong. I agree with Judge Eogan, and not with Judge Fenton. I may say one or two words as to filling in the date of the order affirming the original decision of the Land Court —namely, filling in a day on which the Court never sat. Judge Fenton attempted