AHENATA TE MAIRE V. LYSNAR.

Poverty Bay Herald, Volume XXXVI, Issue 11819, 5 April 1909, Page 5

AHENATA TE MAIRE V. LYSNAR.

Allenata te Maire and Toko Uihara v. Witliapi Douglas Lysnar (Mr H. J. Finn for piajntinV and" Mr Bunmrd and Mr Kirk for defendant).

This is an action to restrain the defcpdai.it from further appearing and acting .as the plaintiff's solicitor m certair proceedings m the Validation Court These proceedings began m th-o year 1895. It is m dispute arc to whether or ~not» the defendant - was ever Tetained by the , plaintiff Ahenata te Maire to act for her m those proceedings. The- terms upon which tlie retainer, if any, was given are alro m dispute. Two decrees, relating to different blocks of land were made by tho Validation Court on the 28th of June, 1835, under which the plaintiff Ah?nata' te Maiie, and one Tamihana Waitatakino became < entitled to i certain moneys. Tamihana Wnitatakinb fiafi sin-c© died, and the plaintiff Toko Tiihara is the adiniiiiol'nitur of his estate. Il i.j not pretended that. Toko Rilinra bus ev°i' retaitu'd th<> defendant as his .solicitor. The defendant, m the course of the proceedings m the Validation Cuurt, received on. the 6th of November,

1897,. on behalf of the plaintiff Ajieuata to Maire the sum of £43 6s lid, and on behalf of Tamihana Waitatakino, who is now represented by the plaintiff Toko Rihara the sum of £33 18s lOd, making a total received on behalf of the plaintiffs ou that day of £77 5s 9d. On the lOth of March, 1899, the defendant also received on behnlf of the plaintiff Altenata to Maire the sum of £32 17s Id; and on behalf- of Tumihana Waitatakino the sum of £25 14jj, making a\total received -on behalf of the 7)laintinV on that day of £53 lls Id. This sum, together with the sum of £77 5s 9d. received by the defendant on the 6th of November, 1897, made a total received by him up "to the 10th of March, 1899, m behnlf of the plaintiffs of £135 16s lOd. The defendant ditl not account to the plaiptiff Ahenata te Maire or to Tamihana. Waitatakino for the moneys so received b.v him, or any part thereof. Oil the 23rd of January, 1908, the plintiff, Ahenata- te Maire, through her solicitor Mr Finn, demanded from the defendant payment of the sum of £43 6s lid, received by the defendant on her behalf on the 6th of November, 1897 » with interest for the same. On the 25th of the 'same month the defendant wrote to Mr Finn, acknowledging receipt; of his letter, and then proceeded as follows : ".In reply I have to state that I find by my books that I do hold the sum of £43 6<s lid for Ahenata te Maire, and that I wrote to her to this effect immediately after the receipt of the money. At the same time I find that there is a considerable amount of costs due to me by, Ahenata te Maire and others, far m excess of the amount I hold and quite apart from the costs I was paid out of the estate. However so long as she leaves a reasonable amount on account «f my costs outstanding.» I do hot desire to stand on any rights, and retain thi whole, and I would be quite willing to arrange with you what would be a fair amount to be retained. I also find that I have paid Hori te Ihi two sums of £1 each on account of the amount received for Ahenata te Maire." v

It will be observed that although the defendant had m addition to the sum demanded by Mr Finn also received on the 10th of March, 1899, the further sum of £32 17s Id on behalf of the plaintiff Ahenata te Maire, and although the receipt of that sum must have been shown by his books, to which' his letter 'shows I -that'' he had referred, he did not think fit to inform, the plaintiff Ahenata- te Maire, or her solicitor, of that fact, while claiming tho right to retain tho whole, and insisting {upon his intention to retail) at least part of the sum of £43 6s lid, payment of which had been demanded. The plaintiff's evidence is that she did not. know that the defendant had received any moneys on her behalf until the beginning of 1908. It is certain that ■even at the time when Mr Finn's letter of the 23rd of January, 1908, was written to the defendant, this -plaintiff did hot know of the sum received by the defendant on her behalf on the 10th of March, 1899. The attendant circumstances show that the evidence of this plaintiff upon this point is true. On the 28th of January, 1908, Mr Finn wrote to the defendant, stating that he had not heard from his client, and "inquiring what* sum the defendant desired to retain I for outstanding costs. On the Ist of February the defendant wrote to -Mr I Finn, stating that he had to go stuith for a few days, and that be would attend to the mutter on his return. On the 31st of January, tho receipt by the defendant of the sum of £32 17s id on the 10th of March, 1899, liuving m the meantime been discovered, Mr Finn wrote to th-j defendant as follows: — "I am instructed by Ahenata Is Maire to demand from you flic immediate payment of the sum of £126 10s, made up as follows : 1897 — Nov. 2, to cheque roceived by you to hand to her, £9 8o ; to cheque do.,* £33 18s; 1899, March 10, to money received by you for her £7 3s lOd ; to money do.* £25 14s; total, £76 4s; interest at 8 per cent on the above sums' to date, £60 6s; total, £136 \os. Khe does not ndniit owing you any mn^icy for co^t-s <vr otherwise. As you have rctallied, ,her money now for *o many, years she insists oil immediate payment of the full amount with intcrtbt. * I Avould be glad to receive ybur cheque for the above sums beJbro the 6th inst." "}'■.

This letter appears to have crowed the defendant's letter of the Ist of February. Oil tho 6th of February Mr Finn, an behalf of tl\e plaintiff Tok«> Rihara,: wrote to tho defendant uV follows: — "I am m Rtructed by Mr Toko Rihara, of Mn.bia,, tho adrainistrator of the estate of, Taanihana Waitatakino to demand -from you the immediate payment of the sum* of £104 4s Bd, beiuj the amount of your indebtedness to him, for motuy r received by you from the Receiver of the Validii,tion Court, which should havo been paid to Tamiliana, with interest th«reon at the rate of £8 pcr -cent from Uuv respective dates you received same to this date. Failing payment. my instructions are to recover the : amount without further notice."' On the 10th of February, 1908, tho defendant wrote to Mr Finn : "(^on-j sidering that I had written you before I left for the south on .the 2nd ihsfc ,ucqua'njtihg you with the fact tluit I \vould be away for a few days, I was soumowhat. •surprised to- find on my return several letters ivoxn you demanding peremptory replies within a time which, owing to my absence; you know full well it was impossible for mo to reply to. You, of course, understiuul that the mattei-H m connection with the trust estate and the: natives — including those for whoni you claim certain suuis, as mentioned m your Cotters — are incomplete and still pending. Only a few weeks ago the prceent trustee informed m? that he .propose.? to hav^e mattei"s ready for .a settlement 'shortly, as the Judgs of th* Validation Court had these matters under consideration f which would brin.3 these and other matters to a- close. If your clients -desire accounts, so far as the have gone, I will be pleased to have them made up and renaered, and if necessary, taxed. Since receipt of yonr last letter, and afl?r considering tho matter, I think it better to oujrije.st having' the costs completed and taxed rather th«n t<> act on the suggestion contained m mine to you of the 25th frist. Y<nV must distinctly underetand that until the whole matter is completed, I claim a lien over any money I have m hand.', I must say I am very much surprised at the attitude tn.ken up by those individual not- 1 ives, as they arc fully awa.ro of the- position, and the cause of the delay m the final settlement." '

0» the 10th of February also a writ was issued against tho defendant on behalf of the plaintiff Ahenata \*s Mmrei claiming to , recover from the defendant the sums received on her behalf;. with interest at £8 per cent per annum, amounting -to £60 6s Id, On the same day a writ was mued against the defendant on behnlf of the plaintiff Toko Riliarn , fts ndminjstrator of the -estate of Tamiliaritt Waitatakino deceassd, claiming tc recover tbo sums received by the defendant on b-ehalf of Tnmihnnu '■ Wnitatakino, with interest at £8 per cent per annum, amounting 'to £46 lls-lOd. (Continued on page 7.)