WHOSE PROPERTY?

Dominion, Volume 2, Issue 563, 19 July 1909, Page 7

WHOSE PROPERTY?

MAORI WILL:CASE, '•'""■

FRAUD ALLECED ON EACH SIDE. ' J. WrMATTJA'S LATTER .DAYS./ The hearing of the application, for a now trial of proceedings relating to - the will of Wi Ifatna, dcoeasod, wasrestuncd on Satur-! day morning bV the : Native Appellate Court. The, Bench was occupied by Judges Riweon' and Jones, with Or. Hemi Enioti aa asnceaorJ Tho apph'cants wore represented by Mr.". P. E; Baldwin;, with whom Mr. C. -Longlinaa acted as counsel for Charles Reardon,' a party interested in tho application. Certain,, respondents (near relatives of Wi Mataa)*were represented by •■ Mr. C. P. Skorrett, K;O:,' with him Mr. P:|B. Sharp, while Mr.' A;' L; D. Eraser appoarod for obbcor relatives of tho testator. .iTio Native Appellate- Court, in a pa3yious judgment, had refused, probate of the -will,! on tho ground that, suspicion, was. attachable to tho actions of Reardon, tie i principal beneficiary. Large interests in real estate were involved. ;/ ;. '■. ;: , .; ,;; , Mr. Skorrett Contlnusj. /v

Mr. Skerrott, continuing his address,,.said ho had shown that: new evidence 'did not Buffice to remove the suspicion attaching to - the actions of,Reardon. Counsel for tfie' applicants had "suggested that all tiat Iwaa I required to justify the granting of a new ,trial, ; and set aside the succession orders'that had been mado, was the establishing, of a prima facie, case of perjury., "More than thisy however, should be required;-; Otherwise there would be perfect-chaos in'judgments and; titles. .Moreover, some of; the requisite evidence might not be" obtainable,- sinoo two years had .elapsed since judgment was given. A Court could.not,; on a motion:for l a new; trial, determine whether perjury .had 'been committed,' and, therefore,-; a' nowi'trial Was never granted, on; the. ground that a judgment had been, obtained by fraud..; The ap-' plicants : Blibuld tako substantive proceedings to upset the judgment. Counsel quoted cases to show that it .would be' necessary for applicants to. prove in a legal manner that'; fraud, ,had been committed. Proceeding toreview the- affidavits, on which; the applica-tion-was based, .Mr.:Skerrett said the statement by Tuiti Macdbuald was' mert hearsay, "and emanated;from' interested parties. -'The : Court could; hardly, believe that this\was not as joint -proceeding between the Native'; applicants >. and Reardon. Though the voice i was, tho voice of Mi - .' Baldwin, • tho words i were, the words of .Reardon. The; now bvi-'i dencq of Hcnato To' Atua did not contain'at-;', legations'of perjury at tho trial.-■; Counsel)' reviewed ■ evidence of To Atua ;. and j; Ratama's wife, and concludod that the evi-;. donee in ', question was not, given'': in V. pr<x,l: coedings which-, ;yere. ( sought to.be retired,'' was '.not referred to inthe judgment ! of the. 'i Appellate' Court,'.,and did not the ■ result.; was hot entitled to .look ' at the dvideneb given at,the previous, hear- i • irig, except, that given by witnesses who also I came \ before": hint. To suppose that Judge J Palmer did so would beto impute to-him a'; want: of, knowledge of. the''rules -of j Further, the, evidonce' was not material.. If i was, merely ..hearsay, and even as; hearsay, .was not; proved,! The Hon. Wi Pore's stato-i raent (in his affidavit) that Wi Matua .had i told him long before the will was'made that ' he meant to leave property to Reardon, was |; immaterial.. It did,not affect the question|. whether Wi Matua was under the, domin-i ion of ->Reardon; when' the ; will was, made.;l The statement was vagueras to dates and, details. : Notone of the witnesses previously hoard had said that Wi Matua told thorn he; ■ would make a -will in ''favour of Reardon, though one had testified that Wi Matua tola, ;him lie would' make his will in, favour of his near rojativo Rora. The .affidavit, of.-Wi Pe're,:, who , knew nothing of. thei events at. Waitbtara, could carry, no, weight. .The affidavit : of Simpson,! who at .Waitotara, - was wholly and the fact that ' Reardon.tpok.Wv Matua; to-.y?aitptara and kept':,him'.,there,was undißturlJe^i" : ;Tne affi-;.. davit of the constable'who said;he: saw no sign',of liquor about < Wi;'Matua touldVbo, ujiseV; of.other;evidenoe, and. was:>. quite ;"uhimportant."<Passing again to ques- I tions of law,' Mi;' Skerrett jnsisfed that, once ' a case was r decided by a -Court of Appeal. I. the decision, was'binding, on that Court ana j all 'others.,!, Authorities (quoted) showed { that if now; evidence' were brought; it; was j : necessary to show .when such "new evidence | transpired;, and why it had not been brought j forward at first. This had not been done in ; th'o" : present case.'* 'The judgment of •'Judge Palmer' was; a righteous, ; one; and ;if 'the; Court was not coerced to grant;a new trial l it.ought;.nbt'-.to:.db.'so.::.;'- •".'■■■' ■'?■,'\-'. ":;•'.;'':;; ;l Address,by. 'fir.'F.rasaty ■.■'■'■':' w, .- ' ';': Mr.: Fraser. addressing the Court in op-' | 'position to tho application, said the case I .w.as.= bo nauseating, that one hardly liked to', speak in: iti-. He argued from the legislation ;■ on tho subject that the Cburt had no, power j to.,grant a;,,prehearing;. Ho commented'' strongly on- the action of - counsel ■ for- the ,' applicants not putting their informants into >" the witness-box. : If, these men would- ex. 1 ;: pose themselves to: charges of-. perjury' by ': apr^aring,;in .that .Court; as witnesses, they I 'would) be.in .the- same danger, by' giving, evi- . dence;in the new'trial that ;'was' asked for.- : In rfegaid to Mr. Baldwin's,appeal for Bym-.* pathy ? .for::Pamoa, the adopted, child of .Wi; .Matua, counsel' contended- that : Pamoa would: havb no claim, as the adoption was; not gi-sterod. 'Finally, Mr.., Fraser ; submitted' s - : that the Court.iiad-.;no jurisdiction, to gra^t: - : . a ; new trial, and if it had, the merits would: i not ■ justify the Court in. doing-so.- -;'.,:

'y/.'y '''Replies'.'for,' the. Applicants. ; .' V.',''' i • ,On, Mr. Loughiian rising to/reply,- Mr. i.Skerrett; objected . that > Mr. Loughnan and ; '; Mr. Baldwin could not, both reply; ■ b*ut tho ■; Court- ruled that of .them could deal withhis.oVi'n branch of-the caso..'•':.'•!■.\ V'';' '.' :; : Mr.oLougliriau argued against the conton-' ; ; tion that the evidence given before Judge • - '■■', Butlor did not effect ttoo hearing by the Ap-. .'.'■'.-' I>bllat6 Court. The minute-book of:;,' tho Court showed that : certain evidence was'put- V in and'citod before the Appellate Court. /, The chief judge had said that thovwitnossW were, cross-examined on tho evidence' given" - by_ t'dem'before' Judge Sutler,' and .that that",•'..",■'■ evidence thus became evidenco >at tho fresh '■'„' -' hearing* Tho evidenco complained of by tho J -V; applicants.-!wasV wholly before tho. Appellate Court. The version of events given by Mr.. • Skcrrett was that'.concocted /by- the con- '■:; spiracy; which the applicants complained \ of: - ;; lue Court could compare Mr. Skorrett's un- ;, \ measured language': with tbo', findings', of .'" Judge Palmer and the Appellate Oourfc. Mr. Baldwin,- in his -reply, observed that j ''■'[■- tho allegations of conspiracy had not been ; : '.' contradicted. ' The Court, was one of ex-, elusive' jurisdiction,, and if tho facts eot up :••'■■' had been sot up before the Supremo Court, " ' that tribunal Would have been obliged, iu more justice, to grant a rehearing. ;On : these grounds the course taken in tho: appli- ■ ■ ; '.' ■; catioh was the' correct one. " In regard to ' the suggestion that his clients and Reardon V wore in and that ho was virtually - ' acting for Roardon, ho would stato that tho Natives were as much opposed to Reardon ■' as thoy had always been.■• They were only'■:.,-. '.'-.' temporarily in tho, same boat,-; as it were, : l; : for tho purpose of the then proceedings. Ho Imd . acted, for Reardon on previous occa-,' "'.'' 'sions, and knew of nothing that should mako 1 him ashamed of doing so; but at present ha V was opposed to him. If tho applicationwero' granted, • it/ ■ would bo for the applicants to ' •■' take- further steps to' secure : success at 1 tho ' <~& Hew trial. .;.,', '■'.':' ' ' - .-.'.-■. .;•; y. ■>'; '■■-, _ Tho reserved its decision, and ad-' - - journed at' 12.40 p.m.-i. '..''-,