A MAORI CLAIM.

Gisborne Times, Volume XXVI, Issue 2180, 2 May 1908, Page 2

A MAORI CLAIM.

KERERU v. W. D. LYSNAR. In tlio Magistrate’s Court yesterday. before Mr. W. A. Barton, S.M., William Douglas iLysnar, solicitor (Mr. W. L. Wees), was proceeded against tby Ha.po Koreru and To Turu Kanui, both of Mahia (Mr. Finn), for £l7O 10s sd, alloged to havo 'been paid to him by the Validation Court on behalf of Pita Tauhau, of whom plaintiffs wore the lawful successors. The full statement of claim was: “Between Haipo Kororu and TeTuruKanui, both of Mahia, plaintiffs, and AVilliam Douglas Lyisnar, of Gisborne, solicitor. (1) Tho plaintiffs say that Pita Tauhau, late of Mahia, Native chief, was one of the owners of Nakautania and Moutero No. 1 blocks, situate at Mahia, and aforesaid is now dead. (2) The plaintiffs are now entitled' to tho real and personal estate of tho said 'Pita Tauhau. (3) 'On or about tho 2nd day of November, 1897. the defendant received a cheque on the Bank of New Zealand, Gisborne, for tho sum of £6l 4a 6d from Henry Chetham Jackson, tho receiver of the Validation Court at Gisborne, being -a portion of tho purchase money of the share of tin.' said Pita Tauhau in the said Nukutaurau and Moutero No. 1 blocks, for the use of tho said Pita Tauhau. (1) On or about tho lOtli day of March, 1899, tho defendant received from tho said receiver the •further sum of £46 6s 9d, being a furthor portion of tho said purchase .inonoy for tho use of the said Pita Tauahu. (5) The defendant lias not paid the said Pita Tauhau nor any other .person the said sums of money nor any portion of it, nor has ho accounted to tho said Pita Tauhau or any other person therefor. (6) The plaintiffs are the persons entitled to receive the said sums of £6l 4s 6d and £4O 6s 9d. (7) The plaintiffs were not aware until the month of January last past that the defendant received the said moneys for the purpose aforesaid.” Tho plaintiffs pray judgment 'for the said sum of t'6l 4s 6d, with interest thereon at t'6 per centum per annum from the 2nd day of November, 1897, to date, i mounting to £3B 8s Gd; for the sum |if £46 Gs 9d, with interest thereon lit £6 per centum iper annum from tho 10th day of 'March, 1899, to date, amounting to £24 16s Bd, amounting in the whole to £l7O 16s od.”

In opening the case, (Mr. Finn said that in 1893, an Act called the Validation Act was passed. Large areas of land were sot apart entirely for the benefit of the natives, and Mr. Lysnnr appeared at the Validation Court •w the interests of several natives, among whom was Pita Tauhau. The Validation Court made an order for tbe payment of £42 17s Gd, with inerest £3 9s 3d, to Pita Tauhau, and. liter on, the .Receiver of the Court

•aid defendant £6l 4s Gd as part •inyment of moneys due. The plaintiffs allege that defendant had nevor aoooanted for the money to anyone, and, as they are the lawful successors of Pita Tauhau, now ask for judgments for the amount with interest at 6 per cent. Mr. Roes said the plaintiffs must first prove they were entitled to claim.

Mr. Finn: I havo evidence to prove the claim. Continuing his address, Mr. Finn said a demand had been made upon Mr. Lysnar for the amount, and the following .reply had been received: “Ro Pita Tauhau’s successors: In reply to your letter I beg to state that Pare Aruhe is the sole successor to Pita Tauhau, and after the receipt of the money referred to, I applied .the same in part satisfaction of Pare Aruhe’s indebtedness to me in torms of a- deed' of assignment dated February loth, 1897, and duly executed by Pare Aruhe. There are other moneys still due to me under the assignment, particulars of which 1 will in due course let Pare Aruhe’s successors (if there are any appointed) have. In tho meantime tlio assignment, which is by way of security, protects the balance due to me out of any further money the said Pare_ Aruhe is entitled to out of the Mahia lands.”

Mr. Rees: Your 'Worship will now see we hold the money under an assignment. Mr. Finn: I have a complete answer to that.

Continuing, Mr. Finn said he saw Air. Lysnar on Tuesday last, and Air. Lysnar showed him a document which •ho said was a copy of ,a- will, but he would not, and the Court could not, accept the will until probate was proven. Air. Lysnar .also said he had an assignment, but there was no counter claim, and the question was whether Air. Lysnar could hold the money under a deed of assignment. Air. Rees: The plaintiffs must show they are the legal successors, or they have no more claim than the man in the street.

Air. Finn called Harold' Carr, Registrar of tlio Validation Court at Gisborne, who produced the authority for defendant to appear for Pita Tauhau in the matter of the Nakautarua and iAloutiri No. 1 blocks, and produced tho appointments of plaintiffs as successors to Pare Aruhe. Air. Rees asked for a nonsuit on the ground that tho case was one in which plaintiffs should show their right to proceed, and' that they were ontitled to the real and personal estate of Pita 'Tauhau and Pare Aruhe.

The witness produced the succession order of Hap© Kereru and another to Pare Aruhe. A will had been made by Pare Aruhe, hut probate was not complete. Mr. Finn quoted Taylor on Evidence to show that the will could notin' received as evidence in the case. Air. Rees: If the will is the foundation of the claim, it must be produced.

The Bench upheld Air. Finn’s objection to tho production of the will.

Air. Carr, further examined, said he had not searched to see if there was any order vesting the persona] estate of Pita Tauhau in Pare Aruhe. Air. Rees handed in a will to which probate had been .granted, giving Pare Aruhe succession to Pita Tauhau.

•Mr.. Finn called Air. iHenry Chet’uun Jackson, Receiver of the Validation Court when the money was alleged to liavo been paid. Mr. Rees again asked for .a nonsuit, on the ground .that the plaintiff's had no interest in Pita Tauhau’s estate, except on the order vesting a block of land at Nakautarau. and there was no proof they had any interest in that portion of the estate under defendant’s control. “We don’t deny receiving the money,” emphasis’d Mr. Rees, “and we don’t deny plaintiffs’ right to the block of land, but they have no other interests.” The Bench decided to hear the evidence of Mr Jackson, who produced .receipts from Mr Lvsnar dated November G, 1897 for £6l 4s 6d, and on -March .10. 1899, for £330 11s (id due to various natives, which amount Pita Taliban's share was £42 17s 6d. and, as interest, £3 9s 3d. He could not say when (Pita Tauliau died. The money was paid out of the purchase by 'Mr Ormond of an interest in the blocks. Air Rees said he would admit that Pita Tauliau died in 189-5. Air Rees again raised the point that plaintiffs had no claim. Pita was tlio owner of the blocks, but had apponted Pare Aruhe his successor. The Validation Court had agreed to the sale of the Nukautarau >and Mouterc blocks to Air. Ormond for a certain sum of money, reserving two sub-sections. The plaintiff's could not claim under the estate of Pita Tauliau, and had no interest in any personal or real estate, but must prove their lawful succession before the Court could admit their right to proceed. Air. Finn: If tho plaintiffs are not tli- lawful successors*, who then are? Defendant- admits having received the money, Air. Barton: The question at present is: Are the plaintiffs entitled to sue? I don’t- say they are not. Air. Finn : The defendant, as a solicitor of the Supreme Court, holds certain money, and niv clients say they have a rigid- to call upon him to account for them. Who has that right if not the plaintiffs? Defendant in bis letter states that he appropriated tho money towards his costs, but- has *hs ever rendered a

bill of costs? The defendant lias tho money in his possession, and tho question was. Can Mr. Lysnar retain tlio money .against tlio plaintiffs? Mr. Barton: I have got those facts, but havo tho plaintiffs a right to sue for recovery P Mr. Finn: Tho plaintiff's have a better right to tlio money than Mr. Lysnar. Mr. Barton : I will look into the point raised by Mr, Bees, and give a decision in tho morning. . •If iMr. Barton decides that plaintiffs havo a right to claim tho money tho caso will furthor proceed this morning. .