IN THE SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume IV, Issue 495, 19 August 1890, Page 3

IN THE SUPREME COURT.

On Saturday the action apainst G. R. Moore was dismissed. The defendant suspected that seme young Maoris had stolen goods from his ehcp, and he accompanied Constable Brooking and made search of the house. For this thoughtless act, though Mr Moore said he wat* invited in, £l5O damages were claimed for trespass. Had not the plaintiff’s title to bring en action been quee’ioned Mr Moore would have had a verdict entered against him.

Yesterday morning lhecase cf Karaitiana v. Bennett ar.d others, it junction accounts, e c., was taken b f re a special jury. The names of Mr Finn, Mr Pitt, and Messrs Finn and Cbrisp (as partner?) were added. Mr W. L. Bees and Mi Lusk appeared for the plaintiff, Mr Cooper and Mr Nolan for Messrs Pitt and Bennett, and Mr Bell for Messrs Finn and Cbriep. The following jury were sworn : — Messrs Wm. F. Ciawford (foreman), Paiker, Wilson, Sweet. Ranger, Good, Evans, Allen, Wimer, King, Finneran, Dalrymple Mr Lusk read the statement of claim.

Mr Rees said the statement was to the effect that Messrs Pitt and Bennett had been appt inted trustees on August 28, 1885. From the time of Mr Sheehan’s death, or rather prior to that, Mr Finn bad been acting as solicitor in tbe case. He advised the jury to a’low tbtir minds to be a clean sheet upon which they should lake the facts as brought out. As the other side were represented by the best legal talent at the bar there was no fear that the other side would not be represented as well as possib'e. Mr Finn had actually been acting as mana ging trustee in the estate. He had no wish at the opening of the case to prejudice individuals in any way, but he must in justice refer to some of ‘he facts. Pitt and Bennett were responsible for what they had done, and they were now called upon to give an account of their stewardship. When they took over the estate there was practically £2OOO to credit. Mr Chrisp's defence was that, though his name had been us- d in the firm, he knew n< thing about the business—in fact morally Mr Chri?p was not liable, though he might be responsible in a monetary sense, in case of any judgment given against the firm. Nearly the same position was taken up by Mr Pitt, and practicably the main responsibility as against the trustees was on Mr Bennett. Upon the evidence they would find that practically the only debt p id in the estate was one to Peti Karaitiana. which he would submit was not a proper debt, and was wrongly made against the estate by Mr F»nn. An arrangement had been made to Peti of £3OO a year for the maintenance of her ?on Karaitiana. It would turn out that £17,800 net bad been paid from the estate, and of that the only money that had been pail for necessary purposes was the amount paid to Peti The accounts showed that Mr Finn had received £2,400 beyond that of £18,544 received by the tiustees, making a total of about £20.000. With the exception of the payment to Peti all tbe money had gone to the trustees and solicitor, and the trustees yet claimed £867, and Mr Finn also had a small claim. The balance of £2OOO that the trustees had to credit when the estate was taken over was transferred by four cheques from the trust account in Napier to Messrs Graham, Pitt and Bennett’s trading account in Gisborne. Mr Finn he admitted was entitled to be paid liberally for any work he had done. There was no trace of the first four bills of cost?, that totalled practically £3OOO. It was usual when bills were taxed to file an affidavit. [On Mr Bell’s application Mr Kees was interrup'ed in his reference to the legal, phase of the question, His Honor saying no oith was reqr ? red.] He would show work was ch rged for twice on many occasions, and on one occasion three time?, whi'e in the Karamu case, two bills for exact'y the san-.e work was actually put in and taxed. In one case a fee of £25 was charged in Napier, and £3OO was charged for taxing the one in Gisborne, and with a deduction both bills were paid.

Mr B-ll said the Karamu costs were ordered to be taxed as between solicitor and client, and that it was necessary by order of tie Court to have the general costs taxed •*parately.

Mr Rees, continuing, said he was referring to the disparity of charges, saying that in one case only £25 had been charged and in Gisborne it was fixed at £3OO. He repealed that the same work had been charged for twice, and been paid for. A pica of one sheet of foolscap that Kar itiana submit himself to the order of the Court cost £7O or £BO. All the part Mr Finn took in the case was to appear and say he would reserve his defence if necessary. Mr Rees then went on refer to the borrowing of money from Mr Glyn, end said he wr u’d get Mr Cotterell to give evidence about the deed. Tae very day tbe trustees borrowed the £3OOO th’yeave Mr Finn a cheque for £4OO. On July 22, 1886, he had received £2.138, and at that time be had in his hands £l5OO. According to his own statement he had in July £3OOO, of which no account had teen rendered to the trustee?; he would show them it amounted to about £4OOO. [Mr Bell laughed ] Mr Rees; Mr Bell laughs—he would not do that if he knew his case.

Mr Bell: I ihink I know it better than you do yours, evidently, Mr Rees : Well, we’ll see that—on some points no doubt you do. MrR continued: If the solicitor was getting paid in this way there was no necessity to borrow in the estate. Messrs Pitt and Bennett clsimed that over £5.100 had been paid to Peti. Supposing £3OO a year was a proper sum for the maintenance of a schoolboy, the amount would only come, making every allowance, to £3.500. Messrs Pitt and Bennett had received five guineas a day for every day they had been away, this arrangement being made between Messrs Bennett and Finn and Pitt—the work that was done being mainly attending the races in Napier. (Laugh’er). Then a bookkeeper bad been kept at £2OO a year, Mr Davies being employed, but he had been kept mainly for Messrs Graham, Pitt and Bennett’s books. The whole bookkeeping for the estate would not take more than half an hour a week. There v as also an interpreter, Mr Jones, wha was engaged for £2OO a year, mainly, he wa« instructed, doing Mr Finn’s work. Tbe only work required in interpre'iog for the estate would amount to one week. Besides the fees of the interpreter had been charged in Mr Finn’s bill. Under the

Equitable Owner’s Act Mr Finn advised ’hat an assigment and reaarigment be made of the properties, and Mr Finn had in some cases charged three times for work done, and these bills had actually passed taxation. Th’ £3OOO borrowed hiving been exhausted in this way it was decided to borrow another £5OOO. Only £4,500 of that had been paid to the trustees by Mr Finn. He did nnt know what that was for. [Mr Ball: You’ll find out, Mr Rees]. In July a further sum of £3.500 was borrowed, and more fees charged. So far from the estate wanting money at this time over £5OOO had been paid to the cred t of the estate, leaving at least £l6OO net to credit, and Mr Finn had received that. Mr Finn bad actually received £2 500 that did not appear on the accounts at all. The only thiea ways in which ?ke mon*y would go was to Peti, the trustees and Mr Finn. Over £17.000 had gone, and there were still large claims against tbe estate. In one item £263 had been charged for rent rf office, for the little *oom the Union Company used to occupy. Then Mr R*ea went on to deal with ifca legal costs charged. Albert Karaitiana

only came of age in March, and meanwhile peti was gefe'ing her goods and so on and they oould judge vhat influence she was under. As io the taxation the Registrar had OW ruled every objection made. Mr B’ll said that the jury were not going to be asked io act as taxing masters, nor had Hia Honor the power. His Honor said it oould not be done, excepting Mr Rees was trying to prove collusion. The jury were no judges as to whether tbe charges were reasonable or not. Mr Rets said tbe jury would require to have the facts to gain an idea of the whole case.

Hia Honor said it would be better to leave whatever there was to come out in evidence, Mr Rees concluded by a summary, alleging that tbe taxation was a collusive one. The serious part practically was the way the estate had been managed on Mr Finn’s advice. Mr Bell said, according to Mr Rees, Peti

had been overpaid, and his» clients ought to have the ri-jht to put in a contra against her to recover the amount. Mr Cooper claimed the same right, which His Honor granted. C. D. Bennett was called, but did not appear. Mr Cooper said he had not been subpoenaed. Mr Rees said he made sure Mr Bennett would be there. Mr Cooper said he had been there until a short time ago. [Mr Bennett came in a few minutes later, on learning that he was wanted.!

H. J. Finn, solicitor, was then called. Peti had under his advice been appointed I guardian, it being deemed necessary because he considered the infant should have a guardian, Mr Sheehan having formerly acted in that capacity. Her appointment aud that of the trustees were made on the same day. There was no transfer of the estate—an order was made—and he appeared to make the application, witness acting both for Peti and in the appointment of trustees. Had not at that time made any enquiries as to the monetary position of the estate. Anapplica tion was originaly made to have Dignan and King}appointed, but the order was refused, and then he applied to have Pitt and Bennett appointed. In September there was be. ween £llOO and £l2OO to the credit of the estate. Had advised the trustees to borrow for the purposes of paying the debts on the estate. On October sth, ISBS, gave the trustees a written report upon the claim of Karaitiana, with accounts attached. Besides Peti's claim (£637 3s 5d with'interest) there was one from Wikon and Cotterill of about £llOO. Izird and Bell (for Mr Sheehan) had a claim for about the same. There were other small claims, which he could not remember. Oa October sth did not know the revenue of the estate, there would be £BOO or £9OO coming in. Did not know at any time what the revenue was. At that time the whole claims were about £4OOO. In addition to the money in the Bank £1595 odd had been paid to credit of the estate, in the case Karaitiana v. Sutton. It had been in the hands of the Court and they could not get it for years—he did not know the amount till 1881. Izard and Bell’s costs were paid out of that. Tbe payment of those costs was not mentioned when the money was borrowed. [Mr Bell object ei to the witness having leading questions put to him, His Honor trphoMinj? the objection ] The firat sum, £3OOO, was borrowed to pay Wilson and Cotterill’s costs, if those costs were correct and the estate liable. Peti’a claim was also mentioned. Wi’eon and Cbtterili’s costs were not paid out of i\ The costs had not been paid up to the present, so far as he knew ’ Oa the day the money was borrowed had received £lO7 for owing to him by the former trustee. Did not know what had become of the first four bills. They were taxed in the Supreme Court. He had had copies, but oould not find them now. Had searched for his copybook, but could not find P, but he believed Mr Kenny had a copy. [Mr Kenny said it mirht ba among his papers in Westport. | He had the draft copy of the bill for £2,138. When the £3OOO was borrowed he received a cheque on the same day for £4OO. Mr Bannett had arranged the terms with Mr Glyn, witness being present, in witness’ office; they also went into Mr Bennett’s office. The £5O deduc ed was for costs and for procuration fee, he thought. Could not say to whom the fee was paid. Advised the trustees to borrow a fur!her sum, after certain representations had heen made to him, in March, 1886, The loan, so far as he remembered, was raised by Mr Bennett, but Re oould not remember for what purpose it was required. One purpose was to pay back the £3OOO previously borrowed. Witne.-s was aleo pressing the trustees for some money on account, as his costs against the estate exceeded £2OOO. Received Mr Glyn’s cheque for the £5OOO, and paid £4500 in to the trustees. In June delivered his bill of coats, and the trustees told him they had no money io pay him with. Had not, until this action, seen the accounts between Graham, Pitt and Bennett and the estate. Very' of'en went over Peti’s account with them ; also went through the claims made by Sheehan’s executors against, the estate, which it took them seven months., to go through. He was also instructed to give written advice on each claim. The accounts amounted to £30,000, the balance in favor of Sheehan’s estate being £6OOO. Knew of these claims in November, 1885. When the

trustees told him they had no money to pay him, he said they would have to get it Messrs Glynn and Bennett arranged for bor rowing the £2,500 in July, 1886. Mr Bennett made arrangements for all, the loans. Mr Bennett had told him they had paid away all the money in the estate for the debts. The bill of coats was taxed bn Ju’y 20, and he received a cheque on the 22nd. He had received the £3,500 when borrowed, and deducted costs therefrom. [Luncheon Adjournment.; Witness continued: In the bill of £2,138 he did not think any charges were made for; interpreter’s fees. The reason why he hid received £l2OO above the bill taxed on the date referred to wa?, because that was owing otherwise. Up to July 18. 1887; as against his taxed costs amounting to between £2.700 and £2,800, had not in hand £6OOO. Had then

in band, inclusive cf amount paid, £3,391. Besides that there were the procuration fees. Did not remember ever going over the bill of costs with the trustees, nor had he rendered them an account. He had never been asked for one until about a fortnight ago. MrBennett knew ef every sixpence he had received. Told Mr Bennett on every occasion that he received money, and sometimes told Mr Pitt. Most of the money was paid by cheque from the trustees. Nearly £3,000 he had otherwise received from the estate, but they were perfectly aware of it. Did not know of receiving money from Ped, for a portion of these costs, in connection with the Pakowhai mortgage. There was an item in the book for £lOO 18? received from Peti, but he di I not know what it was for, in September, 1886. Was acting for Peti long before the trustees were appointed. Hod given her a statement of the costs. Remembered the conveyances of some properties from Peti to the trustees, aud back again to Peti. Saw on bills of costs items of £132, £2O 16s 61, £B7 6s. £l7. The trustees, or one of them, had given him specific instructions. Had received specific instructions at the commencement of each class. Had told Mr Bennett he (witness) was responsible for all moneys received from the estate. Did not remember whether he had told Mr Bennett, as trustee, whether he would ba responsible for all moneys received. When Mr Bennett was appointed, told him what his duties would be—had advised him to be very careful. Had always received instructions from the trustees (both or one of them) for attending at any distance. They were nearly always in his office. Should think he had performed the actual work for which, he hud charged. Could not say he had done everything, but was prepared to go into each item and explain, as he had gone into it before the Registrar, Had undertaken special attendance at Napier, searched the Registry office, etc,, as charged for in the item [Mr Bell several times protested against Mr R?es treating the witness as hostile, and His Honor ruled that Mr Rees must desist.] Mr Reee said he had no wish to overstep the bounds of what he was permitted to do.

Mr Bell raised further objection to raising the question of costs. There was sufficient authority to show that the Court could not deal with the question of taxed costs. His Honor said Mr Rees' contention was that he wished to establish collusion, How could this prove collusion ? Mr Rees said it might prove collusion on the face of it.

His Honor said that could not be. Neither he nor the jury could decide that point. Each one might have a different opinion on the subject. How could he prove collusion by asking the jury or him whether the items were fair? Mr Rees was beginning from the wrong end. Mr Rees said he could only get the evidence in this way—all he wiehed was to bring out the facts. Mr Bell said the question of of costs must be brought up in a proper way, upon a motion made to review’ the taxed coats. His Honor said he had refused, e.vparte, to hear a charge of collusion. Mr Bell applied that the evidence be ruled as irrelevant. His Honor Baid ho would rule accordingly-

Mr Rees said he desired to allow the bills to go in. His Honor said in that case he would direct ’he jury that the bills were only bills for certain amounts, and they could not siy whether they were fair or not. Mr Rees said he wished to show that costs had been charged for work never done. Mr Bell repeated that there was a proper tribunal for these bills to be judged. Argument ensued upon the subject, His Honor ruling that any coMunion must be shown otherwise than by the bi 1 of costs. He did not think any bill taxed by the

Registrar would prove evidence of collusion. Witness continued : Either Mr Pitt or Mr Bennett knew when he had delivered his bill for the Karamu costs. Believed the Karamu bill was delivered long before it wa« taxed. The first bill was sent in June, 1886, and taxed in July. He could not say as to the other bill. The trustees took no s'eps to tax the bill, and he had made the application himself. The fi st'in the Karamu estate was taxed first. Did not re own her, but did not think he had acquainted Mr Bennett with the contents of the hili. They knew it was to be paid out of the Karamu estate and not out of Karai'iana’s. The bill against the trustees had included some of th? same item”, but they had been given credit for the difference, showing it in his books. Had given them no account of it, but told Mr Bennett about it. Mr Watson was the solicitor who had taxed the bill for £2.348, but he w*s not sure upon whose instruc'ions. la 1836 Mr Jones was in the employment of the trustee The interpreter’s fees charged (£l6) were paid to Mr Jones. There was some talk about it, and it was considered this did not come within Mr Jones’ duties. He had paid Mr Jones and then charged it to tbe estate, because he considered the work done was for the benefit of the estate. He paid him some time after the deeds had been completed, they were all stamped. [There was another controversy here about the questions being put to the witness. His Honor allowed the deeds to be put in, the witness attesting that he had only charged for the deeds that were stamped.] The £250 alluded to was incurred for work on his advice, because he considered the application under the Equitable Owners’ Act was for the benefit of the estate. Several natives had endeavored to oust Albert from bis claim to the block, but had not proceeded with the action He could not siy why they had stopped. Did not know the land had been assigned to Major Heaphy, Did not remember whether he had fi : cd any affidavits for the bills. Was not placed on oath about anj' of the bills, but was asked to produce the documents for which he was charged, and bad produced all he was asked to produce. Mr Bennett, he believed, paid him the last bill taxed. Did not.tell Mr Watson, or anyone, it was a friendly taxation. Had no conversation with Mr Bennett about it, or asked anyone to be lenient—in fact Mr Watson and he had a serious dispute during the taxation, and he believed it was over the Karamu brief, which Mr Kenny and he had objected to being cut down. The trustees, or one of them, had authorised him to receive all moneys except £lO for rent, which he had received when in Napier. Mr Bees having concluded, Mr Bell said he was in a rather difficult position, his client brirg in the box. H? would like to postpone hia cross r-ximination, on the condition Mr Finn should not be in Court or cmsult with any of the other witnesses. Mr Rees sni-l the papers would have ths evidence pub’i'hed. The witness said he would undertake not to read the papers. (Laughter.)

Mr Bell said <h? cross-examination must take more than that day. His Honoi took tim? to consider whether he could permit- Mr Finn to be called by Mr Bell as a witness. Mr B 11 said he mainly referred to the point as he wa? anxious to elear up the imputation made in th? opening of the case—h? had no wish to prevent the fullest enquiry. His Honor said he quite understood that. C. D. Bennett, trustee in the estate, deposed that Mr Pitt knew as much about the affairs as he did ; though Mr Pitt was away for 18 month”. Mr Finn had acted as solicitor. Knew nothing of the debts until he went down to Napier in September (1885) —of course there were a great many claims The only debt he cou’d remember at that moment was one to Wilson and Cotteri'l. [Witness corroborated the evidence as to the amount that was in credit at the end of 1885, and the borrowing of the money from Mr Glynn. I The negotiations for the loans were conducted by Mr Finn —witness only fixed the rate of interest. Altogether £BOOO

was borrowed, Mr Finn suggesting the borrowing of all three amounts. Further argument ensued here, raised by Mr Cooper, and His Honor said he could hardly see what there was against Pitt and Bennett to go to a jury. What issue was there to go to a jury, besides the question of collusion on the taxed costs ? Mr Rees said Pitt and Bennett had assented to the accounts. His Honor said they could not possibly tell whether th? accounts were just or not before they had been taxed. The only evidence they could get against M?s=rs Pitt and Bennett was that of collusion, and he did not see how asking apout taxed bills would do that. As he had said the jury could not go into the question of whether the co-ts, being tajxecl, were reasonable or not. He wanted to know what i?sue he could submit to the jury.

Mr Rees said h? would ask leave to amend the pleadings, ?o that he could bring in the point of assenting to money being pail twice over for the same w uk. His Honor said that ought to have been done before. Mr Rees remarked that he could only get out the fictsin evidence. His Honor: TKen you should nnt have charged Mr Finn with fraud, and Mr Bennett with collusion and impending bankruptcy, without evidence. You say ynu commenced your action before ynu knew th? case | Mr Rees explained that he had asked for a full statement of accounts, which he had nnt been able to get in time to amend his pleadings. Hi? Honor • That took gome lime to prepare, and you went on with the case before you knetfr your position, Mr Rees was explaining, when His Honor said : However, you have not answered my question as to what issues I am to put to the jury regarding Pitt and Bennett. It seems to me they have assented to all you want. They have assented to be removed from the position of trust, they have assented to give accounts, no doubt they wish to give delivery of the papers, they consent to the restraining of farther dealings, and no doubt they will repay any moneys in hand—these go into an examination of accounts. So what can be the issues for the jury ?

Mr Rees : After cons'dering what has fallen from your Honor, I would ask—it is half-past four—the Court to adjourn till ten to-morrow morning. His Honor; It appears to me the only question is whether this taxation was dishonest taxation. If you Can show that, Mr Rees— it the jury find that to be so, I would be inclined to refer the whole accounts to some other Registrar. Mr Rees repeated his app’ication for an adjournment—it would probably shorten the proceedings. His Honor said he did not like making these adjournments, but, as Mr Rees said, he thought it would save time, and he would therefore grant it. The Court then adjourned until ten this morning,