A NATIVE CASE.

Hawera & Normanby Star, Volume XLII, Issue XLII, 14 October 1922, Page 8

A NATIVE CASE.

CLAIM BY SOLICITORS, jl'

The greater part of yesterday was occupied by tiie magistrate's Court in hearing an action vi ought by P. U. Fitzherbert and fc>. \V. i* itzherbert (Mr. Jb'. G. ibpratt) against a native woman named Wiki Pepe (.Mr. H. L. Sprattj j for £57 Os od. The case had been be- j fore tiie Court on previous occasions, | and a great deal of the evidence given j yesterday has previously been published. . The case arose out of the sale of land by natives to Mr. Le Fleming. The. native holding the largest interests in this land was AViki Irepe, and it was stated by one of the plaintiffs that she approached, him and asked him to bring "about a sale. This he agreed to do, • and an agreement was entered into under which, he was to receive sixpence in the £ on the purchase price as payment for his services. Mr. Fitz I herbert stated that he went to a good deal of expense in interviewing lessees with a view to bringing about a sale, and eventually concluded an arrangement with Mr. Le Fleming, who had already purchased an area that had been leased by him. Owing to the work being heavier than Mr. Fitzherbert had anticipated, Wiki Pepe, it was stated, agreed to pay slightly more than 2\ per cent., and signed a promissory note for the amount of the claim, which included the fee of an rnterI preter. An action was brought by Fitz- ! Herbert Bros, in respect to the promis- | sory note at the Magistrate's Court, New Plymouth, and plaintiffs were I nonsuited. Another summons was then [ issued founded on the bill of costs and alternatively the promissory note, and plaintiffs obtained juagment by default. The judgment was then removed to the Supreme Court, so that the plaintiffs could get execution against the land of defendant. When the advertisement announcing the sale of the land was brought to defendant's notice she stated that she had not received the summons in the second action. As this, if correct, would nullify the proceedings, an application was made to the Supreme Court to have the judgment set aside. This was done by consent, on condition that the case was reopened in the Magistrate's Court and that the amount of the promissory note, together with subsequent costs, was paid into court, pending a decision on the action brought yesterday. The Magistrate laid it down that there were only three points on which he wished to be satisfied: (1) Did Wiki Pepe authorise Fitzherbert Bros, to act for her in the sale of the land? (2) Did Fitzherbert Bros, do the work? (3) Were the charges^ reasonable ? It was contended by the defence that Messrs Fitzherbert Bros, were acting for Mr. Le Fleming, from whom they received a small fee; but one of the plaintiffs stated that it was necessary toi act nominally as solicitor for the purchaser in such a case, so that the agent for the native could see the,, whole of the correspondence which passed and keep in touch with the progress of events till the deal was finally concluded. Otherwise the native for whom the agent was acting might be cut out by the Land Purchaser and other .natives substituted. ' It was further stated) that the small fee paid to plaintiffs by Mr. Le Fleming was to cover essential clerical work for the latter. Another point made by the defence was that Mr. Fitzherbert had acted in the matter as a land agent and that his charge'was to be 2-J- per cent, on the amount received by Wiki Pepe, which was in the vicinity of £1320. Evidence for the defence was given by Robert Dunn in respect to a s letter and also a visit he had received from one of the plaintiffs. The purpose in calling Mr. Dunn/ was to show that Mr. Fitzherbert's visit to the lessees was purely a matter in which he himself was concerned, but the magistrate ruled that what took place between Mr. Fitzherbert and Wiki Pepe had nothing to do with what took place between Mr. Fitzherbert and Mr. Dunn. The defendant, in evidence, stated that when Mr. Fitzherbert placed what had proved to be a promissory note before her for signature she had asked him what it was for, and he had replied: "It-is for that sale of yours. The same thing again." On a later occasion she was told that the paper she had signed was an acknowledgment that she would have to pay 6d in the £ for the sale of the land. She had not met the claim for payment by plaintiffs because she had learned through her brother that Mr. Thompson, native land*" purchaser, had; said that he was the man appointed by the Government to do this work, and that no one else had/a right to do it. John Thompson, native lands purchase officer", said it. was his duty to purchase native interests for the Crown and to pay out the purchase money. The money was paid direct to the natives. The procedure in a case of sale was: When a particular block was leased by the Public Trusfee the lessee applied to the Commissioner of Crown Lands to acquire the freehold. A search was then made as to the title and to discover whether the whole area appled for was within the lease. When all was in order a notification was sent from the Commissioner of Crown Lands to the Undersecretary for the Department. The number of lessees in tne block was then ascertained by searching the titles, and the Valuation Department was approached for a special valuation to be made, and on receipt of the valuation it was sent on to the Commissioner of Crown Lands, who would notify the party who lodged the application. At the same time an agreement was sent to the lessee notifying him that if h& paid a deposit of 20 per cent instructions would be issued to proceed with the application to acquire the freehold. The head office would then notify witness to search the title and obtain native shares to value of the holding to be purchased. If a tenth of the block was needed, and a native could be found who owned one-tenth of the block, he could deal with this native alone. In ascertaining those who were to come into the deal he usually visited the district and interviewed the natives. Whether there would be more pakehas who were desirous of buying than natives who were prepared to sell would depend on the block of land. It did not follow that because a native signed ujj, with . an agent that witness would take his ] signature for that particular block. If I a native anxious to sell went to an ' agent who, at some trouble, found a j buyer ' and found appropriate vendors ' in a particular block, he did not recognise the work of the agent. If a native was anxious to sell and did not see much prospect of doing so, and went to an agent who succeeded in making suitable arrangements for a sale, it did not seem fair that the per- i son for whom the agent acted should. _ receive no more consideration than any other owner, but he was not influenced by such a consideration, and another native might be substituted. If the case was genuine the natives would probably come to him, and he would put it through. He felt it his duty to | protect the natives from unfair charges. 1 All that he wanted was fair charges. 1 Wiki Pepe had 60 shares out of the 531 in the whole block. The total number of natives interested was 38.

Of these 14 joined in the sale to Le Fleming, who purchased^2sl shares. The acreage of the two sections was 212. They could only sell the whole of any lease, not a part. That was the procedure laid down by the Native Land Court. The transaction with Le Fleming was treated by the Department as one transaction. The amount received by Wiki Pepe was £1352. It was not correct to say that Wiki Pepe received no share in the sale of section 64. Sections 64 and 61 were purchased as one. Had Mr. Fitzherbert not informed Wiki Pepe that the sale was to go through she may not have known till after the sale had been completed. It would then be too late. Until the day of settlement ancf paying over witness had not communicated with Wiki Pepe. Witness did not know that Fitzherbert Bros, were acting for the natives till on January 21, 1921. The natives informed him that they had signed up a lot of p.n.'s to Mr. Fitzherbert. They told him that Mr. Fitzherbert was acting for them. He told the natives what the price would be, and they said that Mr. Fitzherbert said it was £30 an acre, whereas the purchasing price was £23. The p.n.'s were given on £30 on acre. All the natives retired from the room to discuss the matter. When they came back he told them that Mr. Fitzherbert had no authority whatever to tell them what the price per acre would be, and that witnefs was th» land purchase officer. He had reprimanded Mr. Fitzherbert 3 and had told him that it was not the first time he had told the natives the wrong price. The question arose as to the payment of th« promissory notes. Witness told the natives that Mr. Fitzherbert had no right to collect the amount on the p.n.'s, and that he could only charge his ordinary fees as a solicitor. Mr. Fitzherbert's firm gave him some assistance in organising the natives and getting them up* to time. Mr. Fitzherbert had asked witness to include Wiki Pepe in the vendors

By Mr. F. C. Spratt: There had been a certain amount of friction between him and Mr. Fitzherbert ever since witness had held his present office. He had on one occasion excluded natives who were clients of Mr. Fitzherbert from a sale, and had brought in other natives. He had in the sale in which defendant was interested associated Mr. Fitzherbert with. Mr. Le Fleming. As far. as his memory served him, no list of natives prepared to sell was supplied by Mr. Fitzherbert. He had sent Mr. Fitgherbert a telegram from Wanganui telling him of the date that he would deal with Le Fleming's lease. Witness know that Fitzherbert was interested. H» brought the natives in. That did not account for witness not sending any notice to Wake Pepe, as he understood that Fitzherbert was acting for the lessee. Mr. F. Spratt: .But there was no need to have the lessee there. All you wanted was the natives who were prepared to. sell.

Witness: The telegram may have been sent in reply to a communication from Mr. Fitzherbert who, unkown to witness, may have been interested Aa far as witness knew the practice ot selling the whole of the land in one lease and not_Jess at one time was rigidly adhered to by the department. With regard to Mr. Le Fleming's lease, witness knew that an application had been put in first for the sale of section 64 and later for section 61, and that as a, result of Mr. Fitzherbert's representations one valuation, fee was made to cover the lot. Where consistent with justice to the Crown and the natives the lists submitted by Mr. Fitzherbert jnay have been accepted by witness for the purpose of a sale Hie had excluded Mir. Fitzherbert's list on one occasion not -because it broke in on Currie and Jack's list but because the natives in the former list had been concerned in a recent sale The price the natives got was less than that the Crown got. To the Bench: He was opposed to aS?nts because they were not required. rhis concluded.the evidence and the Magistrate stated that he would give his decision later.