A MAORI CLAIM.

Gisborne Times, Volume XXVI, Issue 2191, 15 May 1908, Page 2

A MAORI CLAIM.

KERERU V. W. D. LYSNAR.

JUDGMENT RESERVED

The hearing of the case in -which Hape Kereru and Te Taru Kanui (Mr Filin) seeks to recover -from W. D._Lysnar, solicitor (Mr W. L. Rees) £l7O 16‘s sd, was continued in the Magistrate’s Court before Mr -W.'A. Barton, 5.M.,. yesterday. In continuing his defence,. Mr Rees said that since the case was last before the Court, he had further opportunity to obtain documents and fresh evidence/ and had no hesitation in saying that the case was one in which plaintiffs sought to obtain money by means of false pretences, and with the full knowledge that they had no claim- to the amount, the plaintiffs had obtained a succession order in the Validation Court from knowledge they obtained through perusing a will, and now came forward and made -use of that knowledge to attack the professional honesty of Mr Lysnar, and lie desired the Court to know -what liad taken place and would call evidence to support liis statement.

Mr Filin said that as the evidence for the defence had -been clo.sed, fresh evidence could, not he called. Mr Rees: I did not close the hearing of evidence. Mr Barton said the hearing had only been adjourned. Continuing, /Mr ißees said that in 190-5 Hape Kereru made an application for inquiry into the will of Pare Aruhe, and now claimed succession under the will, whereas that document left all deceased’s personal property to another person. Mr Barton: I will probably ask for a cony of that will for my own information, for I can’t see how I can decide tlie case without it. Harold. Carr, recalled, produced the' -application filed in the Validation Court by Hape Kereru for probate for the will of Pare Arulic, and also the proceedings of the Court upon tlie application. Witness handed in a copy of Pare Aruhe’s will. Mr Itees: Has a caveat been lodged against the.will? Witness ( Yes. By Mr Finn. nilliam -Douglas Lysuar, defendant, recalled, . produced a bill of costs against a number of natives in-c-udiug Pare Aruhe. The total of the hill was £253 19s 8d of which £34 nad been paid leaving a balance of £219 19s Sd. The-defendant sa"d the charges were all in connection with the sale of the Maliia lauds, and wero payable by the natives. None " e I * ;em s had been allowed in the bills of, costs taxed in the Validation Court, fas they were judged to be not recoverable from the receivers. c e >i"' or k ) vas done with the consent of Pare Aruhe aud he had never waived his right under the mortgage security to retain the money tor his costs. He had frequently discussed the matter with -Pare Aruhe and her husband, and they approved ot the retention of tlie money as part payment of the costs incurred. They wero anxious that he should recover the balance due on the sale of the lands, and retain what was due to him and -pay his client the balance. Pare never made anv demand for the money, ,but obtained loans an account of money that might 'bo received in the future. He . had received no demand to pay the money to anyone -until ho heard from Mr Finn in March last. • }^ ero any of the items 'k'/ 1 of costs included in the Inn filed m the Validation Court? Mr Lysnar: les. But some were Soimck out on taxation on the ground that they should he -paid -hv the natives.

Mr Finn: These items were included in a hill filed in 1895 or 1896 were they not? Mr Lysnar: Yes. About that time. Mr Finn: Did you ever deliver a copy of the taxed hill of costs to any of the natives?

Mr Lysnar: No! not to the natives, hut to the receivers in the trust estate. ...

Mr Finn:' Have you ever delivered a copy of the present bill of costs t-o the natives concerned F Mr Lysnar: Yes, to one of the na-tive-s.

Mr Finn: When? Dysnar: A few days ago. ili I 1 urn: Since this action was commenced ?

Mr Lysnar: Yes. Eight or nine days ago. I had not made tip -be charges because tho business was not complete. There is about £llOO due from the trust estate still to he paid, and it was in consequence of these proceedings 1 made up the bill. Mr Roes.:}He was aware that the duty had .been laid on the Judge of the Validation Court to devise a scheme, to be presented to Parliament to settle all outstanding claims oil the land.

This closed tho evidence for tho defence.

In addressing the Bench, Mr Rees f \ d . OV V“. * lle Plaintiffs had a ugh. to claim the lien protected the defendant, but the plaintiffs were only receivers under the will and were bound by Pare Andie’s action Hindi gave them no interest in the personal estate, but decreed that all moneys should go to her child and husband. Plaintiffs knew this, and tried to suppress the will. Whoever administered the estate must pay Mr Lysnar what was duo to him unless the items were proved to have been pan! bmore. Plaintiffs had no claim to the money and know it, but delilerately attacked tho defendant in tile hope that the fear of an action would make him pay them. In reply, Mr Finn said the defendant had admitted the facts. In his evidence ho showed there had beep two bills of costs, but these had never been delivered. Mr 'Lysnar had held the money for eleven years and had never rendered an account. He was in the position of a bailee, and when plaintiffs brought a cliam, sought to show tho money belonged to a third party.

Mr Filin then quoted authorities to show that plaintiff’s were entitled io recover under the facts.

Continuing, Mr Finn said the defendant had money in trust and if judgment was given in his favor he would be entitled, to retain it. The hill of costs had not boon rendered, and under the statute of limitations become invalid. 'Hie lien was not entitled to consideration as it bound Pare A rube to a contract to defendant without any independent local advice. The real question was: Had plaintiffs a better right to the money, than defendant? A peculiar thing about the bill of costs was that most of Hie items were rejects from the \ ahdation Court and J had never een. rendered to the natives until the action was commenced. He would ask for judgment, i-i dir ! l ' ion said ho would reserve his decision .and would try and give judgment this week. -