CORRESPONDENCE.

Gisborne Times, Volume XXVII, Issue 2441, 4 March 1909, Page 2

CORRESPONDENCE.

" on public matters is welcomed at all times, but it must be distinctly understood that this journal is in no way associated with the opinions of its correspondents.] REREKAIPUKE v. LYSNAR and COLEMAN. (To the Editor.) ' Sir, —I beg to acknowledge your act or rairness in permitting me the privilege. on behalf of my client, of correctiu</ those portions of your report of 26tli inst., which tend to place ail unfair construction upon and lead to incorrect inferences being drawn ir< m the evidence adduced in above c/sc. First, then, you are wrong in stating the nature of the action to be, to compel Defendants “to produce all deeds, etc., relating to estate of Pirihi Tutekohi and sale of Ruangarehu block, valued at £3,348.” No men , tion of such a value .appears in tin pleading nor was such a sum ever mentioned in the Court, so that thin, information was not gained as a resuitv of the labours of your reporter in the Court. . . - Second. After Mr Hutchison had concluded his opening address he proposed to call evidence whereupon the following argument, took placer H.s Honor: What is the. exact purport of the action; is it to calf for .account s partly in respect, of matter settled when Coleman came to a settlements That settlement is impeached. Mr Hutchison: The deed of settlement is impeached. Mr Bell: The deed is neither referred to nor impeached in the statement of claim. It is set up by the defence. There is no allegation of fraud from first' to last -except the allegation against Defendant Lysnar in respect of the sale by the administrar of this block. l_-don.it want to rely on that defect in the plainiff\s case, but I insist that he.amend. Upon the face of his case he has nothing impeaching the deed, and 1 insist that he amend his statement, of claim and expressly, and for the reasons which he alleges, impeach the deed.

Mr Johnston: The settlement is an estoppel. We refused to join with Plaintiff in this action. We are asked for nothing. We are here to see that nothing is re-opened prior to the deed of settlement. If Mr Hutchison says the deed is to be impeached, it is an .allegation of fraud against us. His Honor: I cannot see that Mr Hutchison can succeed unless lie proves fraud against Lysnar and Coleman or that Coleman was “swamped” by Lysnar. (To Mr Hutchison): \ T ou must attend to the true issues. Mr Hutchison: I admit the execution of the deed, but I impeach it on ground of fraud. His Honor: A man should not be .charged with fraud except with an allegation to that effect. The deed has the effect of conveying something. A rule of fairness requires that you should state the .grounds. Mr Hutchison: It would be going back upon our pleading. His Honor: I can’t help that. It seems to me to be quite obvious that something must be alleged. Mr Hutchison said he would do so] and was asked by His Honor to draft a paragraph which he did, the particulars of which you have published.

If you refer to your report you will find that you have put words into the mouth of the Judge which he never used( particularly in referring to Mr Lysnar as administrator, which he never was), -also you suggest that Mr 801 l attempted to ‘protect’ liis client. You will see that Mr Bell could lcie taken advantage of the defect in Plaintiff's case and moved for nonsuit but, so that the case might lie heard, insisted upon plaintiff’s Counsel alleging fraud, which he did (the grounds of which being referred to by Mr Bell in his address as ‘ludicrous’).

Third. Mr Lysnar being asked by Mr Hutchison whether a payment of £5 to Mr Symes was for commission for negotiating a loan, replied that he was not certain; that it might have been so; ho could not remember, and (upon reflection), that it was more probably -a valuation fee. This latter does not appear in your report. Fourth. Throughout your report of Mr Lysnar’s evidence the word “costs” is frequently used, whereas the word should be "moneys.’ Your reporter has, perhaps, not unnaturally imagined that as moneys were owing to -a lawyer they would be. for costs, but it appeared from the evidence that defendant Lysnar -acted also as Pirihi’s banker, disbursing moneys to- his order in settlement of his various debts. Fifth. You further report £457 16s was to pay witness’s (Lysnar’s) costs and disbursements. This is incorrect. Mr Lysnar stated that £457 16s W2.s received by him from Pirihi in part payment of Pirihi’s mortgage to him leaving a balance of £79 7s still due by Pirihi as appeared by settlement (produced), and witnessed by a Justice of the Peace and an Interpreter. Sixth. You further report: Y'ou (Lysnar) were the Executor of Pirihi’s will, and as such, you advanced money on the security of the property"? “Yes.” His Honor: “It surely is very improper that a Trustee and a Solicitor should advance money on property for which he is administrator. Witness: “It was at the deceased’s request that I was appointed as administrator.” I am completely at a- loss to understand how this got into your report. As a matter of fact Mr Lysnar was never administrator of the estate, and certainly did not mean that he was, while. His Honor on no occasion mado such a remark as he is credited with.

At no period during the trial did .the learned Judge make any remark whatever in any way reflecting upon tim conduct of either of the Defendants. Seventh. £l2 mentioned as owing to 'Mr Lysnar for cash disbursements should read £72. Eighth. Referring to Mr Coleman's evidence, the. complaint is that you have too briefly dealt with; it, leaving out really trio crux of it as follows: “There- is no foundation for tho charge that Lysnar was excessively paid. I could not accurately say what profit costs could properly be. charged, but I could say as an acountant as to the disbursements. I have recently examined the books for that purpose. I have examined I’them 1 ’them as an accountant. These figures (produced), I verify as the result of my examination. The balance of Disbursements over Receipts amounts to £72 odd. I have seen some lawyers’ hills. For 10 years Mr Lysnar was engaged. It would not astonish nie. to find that £3OO costs were due to him for that time. I do not think that Hiraina made a bad bargain in the . settlement she made with Lysnar.. Lysnar took no advantage of either Chrisp or myself. Hiraina was represented by an iiulcpcndent solicitor. Chrisp insisted that she should be so represented. Mr Lysnar accounted to Chrisp. Ninth. In concluding your report you say “Mr Bell frequently sought the Judge’s protection for his client but His Honor always ruled against Mr Bell.” I am sorry to have again to join issue with you. On only one occasion did Mr Bell protest to the Court, and under tne following circumstances : Counsel for Plaintiff had called Defendant Lysnar so that the witness was his own .witness, and the rule in such a case is that a party calling a witness cannot discredit his own witness. Mr Hutchison was persistent in a .certain question, instead of accepting the witness’s answer, and was raising his voice, when Mr Bell (more jocularly than otlierwise. I imagine) mentioned the matter to His Honor, who directed Mr Hutchison to ‘lower his voice.’ Never on any occasion did Mr Bell seek any protection for the witness, for protection was quite unnecessary, and certainly His Honor did not “always rule against Mr Bell.”

There are several other minor discrepancies, but these may pass. I again tender you my thank.s. believing a.s I do that the publication of the foregoing, - which I attest as being a true report of the occasions which they purport to report, will do much towards showing your readers the true facts which were, brought out in evidence and may possibly prevent wrong impressions from being drawn as a result of accepting your report as accurate. I am, etc., JAMES R. KIRK. Gisborne, 2nd March. [While pleased to give Mr. Kirk every opportunity to protect the interests of his client, we cannot unreservedly accept his version of the proceedings. Having seen tho notes taken by our reporter at the hearing in Wellington we are satisfied that the report- -originally published by us was on the whole a fair and accurate summary of the case. —Ed. “Gisborne Times.”] LICENSING COMMITTEE ELECTION. [To the Editor.] Sir, —Although I Jiave considerable antipathy to press controversy, I cannot let the letter appearing in today’s “Times” pass unchallenged, as far >as lam directly concerned. Upon the day on which the nominations closed, I was notified by a friend that an election was inevitable, and was asked for consent to nomination. Upon the assurance that an election would certainly take place irrespective of whether I stood or not,. I consented, not as tho representative of any particular faction," but purely on my rights of citizenship. No’doubt many will agree with the Rev. Mr. Lamb’s suggestion, with which I fully concur, that had due publicity been given other sections of our community would have been represented, but under the existing circumstances that in itself does not justify the inference implied by him, and readily accepted by tho public, that- tho coterie -of citizens nominated at the last moment were -a sort of secret society with deep and dark designs upon the public welfare. As a matter of fact, the writer can assure Mr. Lamb and the public generally that he has never upon any occasion met with any of the other nominees to discuss this question, or any other question in connection with licenses or licensing elections, and further' one exception the gentlemen 'nominated are known to him by sight only. ” Had I anticipated that base motives would have been imputed, my acquiescence to nomination would not have been given, as my actions do not usually run in grooves that are of a suspicious or shady character. However asmiy consent has evidently raised the ire of a section of the community, who have suddenly become extremely solicitous -about the borough finances, they may, in compliance to the wishes of Mr. Lamb/ express their disapproval of my action by returning me at the bottom of the poll. Personally I shall be quite satisfied that • the five who are returned are there by the voice of the people.—l am, etc., . FORBES W. MACH.