A MAORI CLAIM.

Gisborne Times, Volume XXVI, Issue 2181, 4 May 1908, Page 2

A MAORI CLAIM.

KERERU V. W- D. LYSNAR. THE HEARING CONTINUED. . The hearing of tho case brought by Ilape Kereru 'and To Turn Kanui to recover £l7O 16s 5d from W. D. Lysuar, solicitor, 'was further continued in the Magistrate’s Court before Mr W. A. Barton, S.M., on Saturday. Mr Finn appeared for plaintiffs and ilr Rees for defendant. During' the hearing of the case on Friday, Mr ißoes asked for a. nonsuit on .the grounds that plaintiffs had not proved their, right of succession to Pita Tauliau, and the Magistrate on Saturday, delivered the following judgment:—.Defendant claims a non-suit on the ground that plaintiffs have failed to prove a title to the moneys, the subject of this action. Defendant by his fetter of tile 17th of March, 1908, admits that Pare Ar.uhe is tho sole successor to Pita Tauliau in relation to tho lands in question.' By order of tho Native Land Court dated 23rd of May, 1005, the estate/ share, or interest of the said Paro Aruho became vested in tho plaintiffs at the present stage. The effect of the judgment was that defendant must show that ho had n right to hold the money against the plaintiffs and Mr /Barton asked Mr Rees if lie desired to call any evidence. Mr Rees replied in the affirmative. , -f" Mr /Barton: Will it be lengthy? For if it is I am afraid I can’t- hear it to-day. T have to go to Wairoa on Monday. Mi- ltees: I propose to put the defendant in the box. Mr Finn : I understand Mr Rees relies upon the deed of assignment. Mr Rees: I will open my defence so that tho other side of the case can receive publicity. , „ Mr Barton: Very well then,-1 will

hear you. . ~ _ In opening his defence, Mr Kees said the money sued for belonged to the successors of Pare Aruhe, and was portion of the proceeds of the sale of some land to Mr Ormond. At the Validation Court Mr Lysnar appeared- for Pare, and for some time advanced monies to his client. By a deed Pare assigned all monies arising from tho sale, or any other money, to Sir Lysnar as security for his costs and money advanced. Tho deed was signed by deceased, her husband, a Justice of tho Peace, and a licensed interpreter in 1897. Pare died in 1905 and wa6 indebted to defendant -for a substantial amount. All monies recovered by Mr .Lysnar were duly acknowledged. There were still some hundreds of pounds to come from Mr Ormond’s purchase, and a largo balance of Mr Lysnar’s costs were still due and unpaid. All these facts were known to Pare and lier husband, both of whom are now dead. He proposed to put in Fare’s will, as it was the ground for the claim, for it was clear that no one could claim anything except under the will. If the persons were suing under tho will, it would be necessary to prove the will. The will had not been .proved because the parties liad been unable to find the necessary bond. The plaintiffs had full knowledge of the will and had applied for probate. Ho would put Mr Lysnar in the box to prove the deed of assignment and his own .bill of costs. He did this to dispel any impression that, as a solicitor, Mr Lysnar had been guilty of improper use of clients’ money. The defendant, on being sworn, said he remembered Pare Aruhe, who vras the successor of Pita Tauliau, and acted for her as a solicitor from 1894 up to the time of her death. Pare had incurred >a bill of costs -and he had advanced money for lier. He produced the bill of costs and accounts. The costs amounted to £143 9s 4d and disbursements £6l 9s 6d. Her estate, in common with the estate of other natives, was also liable to him for over £2OO. Pare was entitled to over £4OO out of Mr 'Ormond’s purchase money for the Mahia lands which- were sold by order of the Validation Court. Out of that money he had received two sums amounting to over £lO7. He told Pare at the time he had received the money. In February 1897 he received the deed of assignment from Pare as security for bis costs. Mr Finn objected to the deed on the ground that it was not stamped. Mr Pees : It is a mortgage and does not need stamping. Mr Barton decided to admit the deed.

Mr Lysnar: Tlio deed was signed by Pare and witnessed by her.-hus-band.

Mr Finn: That’s all very well; they are both dead. Mr Lysnar: The Justice of -the Peace who witnessed the deed is out of the colony and the interpreter is in the north of Auckland. ■Mr Lysnar, continuing, said he had been endeavoring to get the balance of the money from the Validation Court-, but had been unable to do so. He was now aware that Pare Aruhe had made a will and one of the -plaintiffs had applied to. have it proved in the Native iLand Court. He only became aware of the existence of the will after he had written to Mr Finn in March -last. He also wrote to one of the beneficiaries under the will and stated that if probate was taken out lie would be glad to forward the particulars of -liis account which he had ready. Parc’s estate was heavily indebted to him at the present time.

To Mr Finn : Ho had never rendered a bill of costs to Pare or any others interested in the estate, because the balance of flic money had not been collected from tho Validation Court. Mr Finn: 'Was not Pita Tauliau dead when you appeared for him? Does not your deed filed say you appeared for Pita ? He was dead twenty years before.

Mr Lysnar: I did file an -appearance for Pita Tauliau whom J knew was dead, but J put in a qualification that it was also -for his probable successors.

Mr Fiuu: Who instructed you to appear? Mr Lysnar: I don't remember. It is too long -ago. (Mr Finn: Now, is it not a fact that von appeared for tlio general body of natives interested in these cases without instructions?

Mr Lysnar: No, it is n'ot. Mr Finn: ils it not a fact that you agreed with some natives to get your costs from the bank, and -would charge them nothing? Mr. Lysnar: No, it is not. Mr Finn: Were you 'instructed' to appear on behalf of all the natives? Mr Lysnar: No. Another solicitor appeared. Herewinn Patera had a solicitor; but I appeared for all excepting ifiim. To the Bench: il was instructed by the representatives of the original grantees, as some were dead. A large -hotly of natives were 'Present in Court.

Mr Finn: Did not a great many object to you appearing on their behalf?

Mr Lysnar: 'Not to my knowledge. Mr Finn: You received money on behalf of other natives did you hot? Dir Rees objected to this question and the objection was upheld. Mr Barton : If the question has anything to do with cases outside this ope d cannot allow it. We shall have trouble enough over this without going outside the question at issue. Air in u : Was not t*his money ipaid .or the purchase of the Nak-autarau a lid M outerc blocks ? Mr Lysnar: Yes. Mr Finn: Did you not deliver a bill of costs for £I2OO for work done in cases to the Validation Court in 189 1 .? Mr Lysnar: Not -for this work. , 1 r’ 11111 • Have yovi not delivered tutls ot costs -amounting to thousands of pounds and been paid them in connection with these cases? are no items -in tins bill that- have been rendered betore. Dh Barton : Have you ever been paid any of the -amounts in this bill through the Court? ■Mr. Lysnar: No. Dir Barton: Well, that is all wo want to iget at. Mr Finn: Did you prepare this deed of assignment yourself? Mr Lysnar: Yes,

Mr Finn : Had' Parc t-lio benefit of independent legal advice iiefore •signing ?

Mr Lysnar: I don’t know. I prepared tlie deed and, as far as I know, she iiad no other, advice. To Mr flees : The Validation Court decreed what should he paid to him and what amount to tho Natives. The Natives for 'whom he appeared or tlieir representatives were present at the Validation Court. _ None of the Natives objected to his appearance and Mi - Finn’s question was tho first lie had heard of it. Harold ■Carr, Registrar of the Validation Court, recalled (by Mr Rees, produced the minute hook granting letters of administration to the will of Parc Arn-lie on November 24, 1905 to Pita Morete and Erai Ilia Matakihi. .. Mr Finn objected to any cvideuco of the will. , Mr Barton : You had hotter he prepared to argue that point, Mr Kees. Mr lines quoted authorities in favor of the will being admitted. Mr Barton-held that tho will could not he admitted as evidence. ,Mr Carr: The application, for letters of administration was signed by Hapu Kereru and Erai iMutakihi. Mr Hoes: The will, if admitted, will show the plaintiffs’ have no claim. Mr Barton: /I still-think the .will cannot be admitted. The .witness produced the application for -probate of Fare’s will signed by H ape Kereru. Mr Finn: There is no evidence that it is Hape Kereru’s signature. The muffing will need to be proved. Lysnar was at this time talking to ilr Carr who was in tho box. Mr Finn: Mr Lysnar, I object to you speaking to the -witness while ho is in the box. . Mr Barton: Yes, it is very ableMr Carr, continuing his evidence, said the Court acted upon the application produced and ordered letters of administration to issue, hut they had not been taken out-. Nothing had. been done since 1905. It was then close upon noon, and. as there was a sitting of the Licensing Committee to follow, -and' as -Mr .Barton would leave for Wairoa on Monday the further hearing of the case was adjourned until Wednesday, May 13.