SUPREME COURT.

Gisborne Times, Volume V, Issue 97, 3 May 1901, Page 3

SUPREME COURT.

MATEROA V. FINN. it [Before His Honor Mr Justice Conolly.] The Supreme Court was occupied the :h whole of yesterday with the case of Mateie roa v. Finn. n Mr W. D. Lysnar opened the case for tho defendant Bennett. Ho said, as Mr ie Bell had spoken at considerable length on questions of law in his opening, he would >s noLat the present stage occupy the time e of the Court at any length. There would h be practically three defences set up for n Bennett. First: There was no evidence of any fraud or dishonesty against Ben,l nett; second, and if there had been a breach of trust or a breach of duty it had y not been wilful; -third, the claim was . barred by the statute of limitation. y Evidence was given by Frederick Jones, ] licensed interpreter, with regard to the deed of revocation, and by George Grant, surveyor, as to tho value of the section in IS3B. The latter stated that he was Government valuator for 12 years, and was ■ valuator in 1886. He knew section 334, Kaiti, well, having valued it in 1888. The valuation then was only £125 for the 67 1 acres. In 1891 the value of the land was , £l6O. These valuations were generally ; 10 or 15 per cent, below the actual selling value. In 1897 the value of the pro--1 perty was £BSO, the improvements being 1 £230. His Honor : What caused the land to 1 increase in value so very largely in these six years from 1891 to 1897 ? Witness : There was a great “ jump ” ill the value of suburban land between 1891 and 1897. It had been valued as pastoral land at £4 or £5 an acre ; that is, the improved part. His Honor : When the “ jump ” took place, what was it valued at then ? Why was it valued at £OOO ? That would be something like £9 an aero. Witness : Small dairy farms began to appear there, also some good houses. Ilia Honor : It was in 1890 that I first visited hero, and there has been an immense alteration since that time. Evidence was also given by C. D. Bennett, one of the defendauts. Dir Lysnar gave an analysis of tho evi- 1 dunce, and stated that tho statute of limi- 1 tation had an important bearing on the 1 case at this lapse of time. This Honor : It is of very great ira- J portance, as air Bell pointed out yester- 1 day. That clearly applies, unless there is fraud shown. [ Mr Lysnar : Unless my friends can | show that the action was concealed. His Honor : Captain Tucker’s evidence J is very vaguo as to dates. He says that ho heard remarks that there were deeds s from one interpreter years ago—that it a might he live, six, or eight years ago ; 1 that it was affcor Kataraina's death, which . was in 1888. It is probablo that there was ‘ talk about tho matter fonr, five, or six years after. But I will leave that till I hear what Mr llecs has to say. 11 Mr Lysnar : Yes ; hut I was forestalling my friend in that. Continuing, Mr Lysnar said lie submitted that tho evidence showed that eight yoars ago Mr Carroll knew of the transactions, and therefore was now barred by the statute of limitations. When Captain Tucker know eight years ago, he should have looked into the ® thing thoroughly. They could not rest on their oars until last year. The fact of their not having soon tho trust was not 1 pertinent to the question. Tho dis- J eiepancy between the’ evidence of Mr n Finn -and Mr Bennett was rather a a corroboration than otherwise. Mr Finn ft said that the amount was in full dis- tl charge of costs, while Mr Bennett said el that it was to he transferred to anybody, \\ hut that whatever money was obtained tl was to he paid to Mr Finn for costs. Mr cl Finn's memory, ho submitted, would be h more active than that of Mr Bonnott, as ti he had taken the deed to Auckland, proparing it on the way. L His Honor : Mr Bennett took a very ft subordinate part in the matter. You u might have moved for a law suit as far as Mr Bennett is concerned. However, I shall not enter into that now ; it is for you to say what cuso is made out., against Mr Bennett. ft Mr Lysnar : They have made out none s j at all. I His Honor : Next to none. S : Mr Lysnar : I had [purposed asking for a nonsuit, hut thought it bettor to lot it ] (

go Oil, His Honor: No doubt that is the best thing. I think Bennett is not liable. Mr Lysnnv said the slight discrepancies in the evidence showed that there had been no collusion between Finn and .Bennett, His Honor said ho could hardly say that there was not a revocation after the letters that had passed between Mr Finn and Mr Justice Cooper. Mr By soar : Particularly as they admit that these contained a doubt that there was a revocation. His Honor: No one can read the letters without admitting that. Mr llees: I do not admit the alleged contents of the deed of revocation, but allowed the lettors to go in to show that there was in existence a document which was called a revocation. His Honor: You admit the existence of a deed, though not its contents, but Mr Finn has fully described what was in the deed, and has not been contradicted by anybody. MrLysnar: Mr Finn says that he was to get the land, while Mr Bennett says it was to be sold, and Mr Finn was to get the proceeds. His Honor: Evidently Mr Bennett had forgotten all about it until recent matters had brought it to his mind. lam not at ail surprised that things that occurred 14 years ago should not be clearly remembered. I should be sorry to be examined about some deeds which I prepared when in practice years ago. Mr Bees : Mr Bennett said that he had read the deed last October. His Honor: That is so. I had forgotten that. _ Mr Lysnar : But lie had oidy seen it once, while Mr Finn had the document in his possession, and carried it to Auckland with him. His Honor: And through somebody’s carelessness it had disappeared. Mr Lysnar said that no doubt the document had been placed in the wrong bundle of papers, and might yet turn up. His Honor : It is a curious thing that all the documents arc scattered about; they appear to have been everywhere they should not be. One was under a counter, and another lost altogether. Mr Lysnar said that Mr Bees himself had lost an affidavit that Mr Finn had made. Lven assuming that there was no revocation by deed, the second transfer produced was a revocation. His Honor said ho was not at all clear about that the second transfer was consistent with that contention. The ovi- ; donee was clear that one deed had not been registered, and what had appeared on the face of it might have been put on by anyone in Court. Mr Lysnar said it was quite clear that there was a second transfer, and it was only reasonable to suppose that it was made to get rid of the first one, and that the second transfer was not registered, owing to the duty not being paid. The litigation over that very section showed that there had been no concealment. There had been no act on the part of the plaintiff to keep the statute of limitations alive. His Honor said that it was only reasonable for a solicitor to whom £2lO was owing to say Fiat he would not take up a fresh action unless the money owing were paid. The most mysterious thing was why Mr Turton had not taken up the case. Mr Lysnar said that Mr Finn having had security over the title which was attacked had to take up the defence to protect himself. His Honor said that in these delayed actions it was often the case that material witnesses were dead. If Turton had been alive the whole thing in this case could have been settled at once. Mr Lysnar : It could have been settled immediately, but the delay is not our fault.

His Honor: At present we have Mr Finn’s evidence that Mr Turton was acting for Kataraina, and Mr Tnrton is not here to affirm or deny it. Mr Lysnar: But we have other witnesses —Messrs Jones, Bennett and Chrisp. TTig Honor said there was no doubt that Turton had acted for Kataraina, and that at that particular period Mr

Finn had not. Mr Lysnar went on to show that the Land Company case was not one in which Mr Finn had gone into litigation on the chance of getting something out of the proceeds. He had been defending a good title which somebody had been trying to attack. Continuing, Mr Lysnar said that in the letters from plaintiffs counsel they were trying to draw Mr Finn out without telling him that they held the trust deed, and no matter how much he had looked he could not have found the trust. His Honor said that he did not know what the re-examination was intended for if it was not to discredit Mr Finn as to his acting for Kataraina. Mr Lysnar: That is what I should gather.

His Honor: If that was not intended the cross-examination was a very peculiar one. I do not know if lam going to be asked to disbelieve Mr Finn. Mr Lysnar : Not only him, but all the other witnesses. His Honor : Yes, but that was since the cross-examination, and it may be set on one side.

Mr Lysnar said that Mr Turton did not have a clerk, which would account for there being no letters. His Honor: Mr Finn has not suggested that a line of writing passed between them.

Continuing, Mr Lysnar said that a portion of the £390 was for costs in connection with the action with the Native Land Company. Mr Finn was bound to do what he had done, in order to protect the security he held for past indebtedness. His Honor said that the evidence of Mr Jones was fairly and clearly given as to Mr Turton’s acting. Mr Lysnar said that he had expected that Mr Jones would have been called to give evidence on the other side, hut they had preferred to try and win the case without that evidence. His Honor i I am not surprised at their not calling Mr Jones, his evidence being materially in favor of the defence. I do not think there is any imputation against Mrs Carroll. Mr Lysnar: No. His Honor : Her memory is not so clear as that of Mr Jones, and there was no attempt to discredit the latter in crossexamination. Mr Rees said that he would not attempt to discredit the evidence of Mr Jones in any way. His Honor : I would not discredit anyone for having a bad memory. It would bo hard to say whose memory is the “ foggiest " —Captain Tucker's or Mr Bennett’s. Mr Lysnar continued an ably-sustained series of arguments for the defence, and at 5 the Court adjourned until 10 this morning. Mr llees was given leave to amend tho date set down as that of the death of Kataraina. Mr Rees will commence his address this morning.