THE HOROWHENUA DISPUTE.

New Zealand Times, Volume LXVI, Issue 3260, 18 October 1897, Page 3

THE HOROWHENUA DISPUTE.

THE PUBLIC TRUSTEE EXAMINED. A BAILIFF TO BE PUT IX POSSESSION, The examination of Mr J, C. Martin, Public Trustee, took place before His Honor the Chief Justice in Chambers on Saturday morning in connection with the Horowhenua ciso. Tho examination was directed to show -whether the Public Trustee had funds or property to pay the costs in the recent litigation between tho Public Trustee and Sir Walter Buller and Major Kemp. Mr Skerrett conducted tho examination. James Crosby Martin deposed that PubUo Trustee he was interested in the recent litigation with Sir Walter Buller and Major Kemp. He was aware that the costs in the case which were awarded against hiiii anioilnted to is3s 17s Od. lie also knew that the defendants obtained a decree by consent of counsel representing himself.

MrSkerrett: Why? Did you not pay any costs ? Witness: Because I am advised by my lawyers that I have no property that I can legally use for the’paymont of that money, nor will the auditor pass the payments, nor without tho Minister's approval will ho allow rao to make any payment. Mr Skerrett: What steps have you taken to obtain the fees ?

V/ituoss : I have no objection to stating what steps I Have taken. Before tho proceedings were commenced I had noticed in looking up the Act that no provision had been made for the payment of costs, and as the property was not in any way vested in mo, I doubted whether X could legally pay under the provisions of tho Trust Office Act. On the 18th of December last I wrote to Messrs Stafford, Treadwell and Field asking whether I had any right to devote tho funds of tho Fublic Trust O/llce to carrying on the proceedings. In answer I received word that I could not apply any public trust funds to tho carrying on of the action, but that I should apply to the Government. I sent a copy of the letter to tho Government and was referred to Mr Sheridan, who, I believed, was a native land purchase officer, and I was told that any funds tho Public Trustee should require could be had on application to him. Subsequently I required money. I wrote to Mr Sheridan but he was out of town, and X received a telegram from him that I could have as much money as I liked when he carno bac*c. I had no reason to doubt the money being forthcoming. Subsequently I applied for it, but received no answer. I consequently did nothing further until after the decree was served upon mo. I forwarded it to the Government, with tho request that I should be put in funds to pay the costs. Mr Stafford, in forwarding the decree, said the defendants would require tho payment of these costs at once. I forwarded the decree to tho Government, bub 1 did nob get any reply, and I consequently sent the accountant in my office to endeavour to draw tho money. Ho wont several times, and came back and eaid that Mr Sheridan was not able to give me thy money. I then wroto direct to Mr Sheridan on the Gth September, informing him that tho money having been promised me was required at once and pressing for payment and that tho Minister’s approval might bo obtained. To that memorandum I received no reply, but X received a message that the Minister wished to delay the payment of the money until my own solicitor’s costs were received j that ho wished to consider those costs and the costs of Messrs Buller and Bedard at tho same time. On the 9th September I wrote asking that the Government would place me in a position to pay tho costs, and stating that I had no power to apply the office funds towards them. Between the 3rd and 9bh September tho accountant wont morning and afternoon to endeavour to get this money, but without result. Subsequently Mr Stafford wroto to me stating that ho would finally urge tho Government should pay the fees, as it would be a deplorable position it' the Public Trustee was charged with disputing tho decree of the Supreme Court and an execution was pub in for the costs. I forwarded that to the Hon the Premier, still with no result. I thought then that if I could gob the consent of the Audit Office to pay it out of the general fund, I would pay it without further reference to the Government, so I laid it before the Audit Inspector of my office. On September 20&h he informed me that the Auditor-General and the Audit Office would not pass the payment except as unauthorised expenditure, and then only on the approval of the Minister. The Minister of Lands being out of town, I wrote direct to the Premier, and forwarded him a copy of all the past correspondence, and received back a memorandum that as. soon as the coats of my solicitors wore rendered and taxed the whole thing would be considered. Then the application was made to the Court for my examination, and I wrote bo the Government informing it of the action of the Chief Justice in adjourning the order. In the meantime Mr Stafford’s costs had been rendered and taxod by the Registrar. Then on October 9 th. I received the Registrar’s allocatur, and I forwarded that to the Government. I do not know that I could do anything more. I had done all that I could to arrange the costs. MrSkerrett: I understand, Mr Martin, that so far the Government has given you no reply to your application either to provide the funds or to intimate whether it would ask Parliament for authority to appropriate tho money for payment of these costs.

Witness: So far I have received no advice. If I had had the power to pay the coats I should of course have paid them immediately. Mr Skerrett: What accounts have you ? Witness t One called the Public Trust Office account, kept under the provisions of the statute as provided by section 3C of the Public .Trust Act, under which all capital moneys become one common fund. It is kept in the Bank of' New Zealand. It is operated upon by cheque drawn by myself, or in my absence by my deputy. Last night at closing time £17,593 3s 7d was in cash to the credit of that account. MrSkerrett: You are required by the statute to keep a profit and loss account. Witness: Yes. Mr Skerrett: I ask you to stale generally what the profit and loss account shows.

Witness : It shows the profit made by the working of the department, ’there is’ a balance to credit of the profit aud loss account. It is an account to which everything coming to the credit of the office goes, and out of which all disbursements are made. The balance standing to the credit of that account would represent the net earnings of the office. Mr Skerrett: To what amount is the profit aud loss account in credit ? Witness: I cannot give you the exact figures up to to-day. We balance by law once a year on tho 31st March, but I have had a balance taken out for my own information up to tho 31st September to see what the office was doing, and that shows a balance to tho credit of the profit and loss account of .£Bll7 15s 3d, including the balance carried forward from previous years. That balance to the credit of the account is represented by the funds in the harids of the banker to the credit of tho Public Trust Office account. I am bound at the statutory balance on the Slat of March to take a fourth of that amount and pass it to tho credit of the assurance fund. Then, the reserve and assurance fund account has to meet any deficiencies there might be on securities, and if the assurance fund account is not sufficient the consolidated fund is answerable for the balance. The remaining three-, fourths of the profit and loss account I hold to the order of the Colonial Treasurer, at least I balance on his asking me for it, and then pay it to him. The amount lying to the credit of the reserve and assurance fund as at 30th September is J 31169 Os 9d. .£IB,OOO had been paid to the consolidated fund prior to the Act of 189-I, but something has been paid since, as we have been asked for it.

•Mr Skerrett * If this judgment is properly payable out of the reserve and assurance fund, is that money sufficient to, pay the amount?-. ' Witness: Yes, more than sufficient., There are more than sufficient funds in the hands of the banker to the credit of tho profit and loss account to pay the judgment. * Mr Skerrett: Is the Public Trustee the beneficial owner of any .property ? Witness: Ido not know of any, hut we have got some mortgages which have fallen in. Tho moneys are all part of a common fund. There is no separation of the actual account, bub merely bookkeeping entries.- Tho reserve and insurance fund is invested As part of tho common fund.

Mr Skerrett; Has the Public Trustee any interest in property for tho purpose of carrying on his business P Witness: No; Puller and Anderson asked me to produce my lease. There is no lease. There was one for two years, which expired in February last. 1 hold the offices under a verbal tenancy until tho 31st of March next at £4:76 a year, and the same applies to the ofjees in the other centres. Some of them are not even verbal tenancies. The unexplred lease of the offices at Wellington are from the Insurance Commissioner to the Public Trustee, so that anything which now subsists is a tenancy from the Commissioner to myself as Public Trustee.

'Mr Skerrett: I suppose you have a quantity of personal property belonging to tho Public Trustee, office furniture, &o. ?

Witness : Yes, T presume there is. Mr Skerrett: Have you any objection to facilitate the settlement of the legal ques-

tion as to whether you have power to pay the judgment in this action out ot any funds under your control. .. , Witness : Nob the slightest. I shall be glad in any way to do so. It is nothing to me personally. I told you I had tried my best to get authority to pay the money, and I cannot do it. I believe the SolicitorGeneral has also advised that the fund is not liable. Mr Stafford has advised me so. 'i he Audit Office has refused to pass the payment, but I shall be glad facilitate it in any way I can. The Government has, hoWever, sent mo no authority. , Hr Skerrett : There is no other property that you know of ? Witness: The bulk of the property 1 have is furniture. I don’t know of anything else. This concluded the examination. •i Jt is piobable now that a charging order on the property in the Public Trust Office and tho profit and loss account will be made, necessitating an execution in the Public Trust Office, as well as a nhndamus to compel payment of the money.