WARDEN'S COURT.

Cromwell Argus, Volume V, Issue 269, 24 November 1874, Page 6

WARDEN'S COURT.

Friday, November 20, 1874. f Before W. Lawrence Simpson, Esq., Warden.) APPLICATIONS. Extended Claims. —Samuel Latimer and another, two acres at head of Smith’s gully: granted.—Ly Chow and three others, four acres at Coal Creek, ISevis: granted.—Ah Kew and three others, four adjoining above; granted.— Fow Loow and another, two acres at Bannockburn : granted. Water Race. —James Hancockand threeothers, two sluiceheads from Stewart and Menzies’ dam, Bannockburn : granted.—Ah Sin and another, two sluiceheads from Nevis river: granted. Residence Area. —William Linewood, one acre at Bannockburn : no appearance, refused. ENCROACHMENT. The now famous Smith’s Gully dispute between the Chinese and the Europeans again came on, this time in the form of a complaint by Henrich Behrens against Tim Pang and others for encroachment,' - Mr Johnston appeared for complainant, and Mr Wilson for defendants. The complainant produced evidence (Behrens, Smiddy, Thomson, Ferguson, and Marshall being examined) to show that on the 21st of September Behrens pegged out a piece of ground for an extended claim; that then there was no other mark or peg on the ground ; that there was no such mark until November 2nd, when pegs and trenches appeared on it; that the Chinese then commenced driving in the ground, and had since driven some forty feet. In opening the case for the defence, M r Wilson said he failed to find wherein the case for the complainant lay. He complained that the Chinese had encroached on his “claim.” Now, he never had a claim ; the application for it was refused by the Warden. The Warden said a greater might include a less. It often happened that an applicant pegged out a gold-mining lease, but the application for the lease being withdrawn or refused, the pegging was held good so far as an ordinary claim was concerned. —Mr Wilson argued that the application made by Behrens for an extended claim referred to no ground; was held by the Warden on the previous court-day to refer to no ground ; because he had not marked it out prior to putting in his application for it. The facta were narrowed to these : On September 21 complainant marked out a dairn, and on November 13 he issued a summons to the Chinese for encroachment ; but between those dates he had not proved in evidence' that he had done any work in connection witl it, and the ground was not protected in any vay, so that he had really no claim, and no occupancy whatever beyond what his pegs gave him. The defendants were prepared to prove that they had marked out the ground before Behrens, but there was no occasion for them jo prove anything; they had no case to answer.' Mr Johnstoi explained that the ground had been applied f)r by com'plainant as an extended claim, and otjected to ; so that the ground was sub judice until last Friday. The Wardbn: Yes, but when his application came on for decision, it came out that he had not applied for any particular piece of ground. I! it were held that the posting of notice protected the ground, that argument was fatally rait by the objection that such notice revered to no particular ground. By his own lacks , (as shown last Court-day,) in not mark ingout the ground before ho applied for it, he had placed the Court in the position that it could tike no notice of any previous proceedings in coniection with the ground, Mr Johnston would then direct attention to sub-smtion 8, which provides that while .work is behg done in any way connected with a claim, sue! claim is protected. He was informed that a tiil-race was in course of construction to the cl.im, and asked to be allowed to supplement in ths particular the evidence previously given for complainants. The Warden would not grant this allowance ; it was a bad practice, and opened a wide door for the manufacture of evidence. Perhaps Mr Johnston had better take a nonsuit, and if it were thought fit to bring evidence regarding the construction of the tail-race (with which Behrens must be shown to be closely connected), a fresh case might be brought on. Mr Johnston took this advice, and a nonsuit was therefore recorded, with professional costs to dt 'ornldint' s .