WARDEN'S COURT, CLYDE.

Dunstan Times, Issue 298, 10 January 1868, Page 2

WARDEN'S COURT, CLYDE.

Saturday, Jan. 4. (Bafore Mr. Warden Robinson.) John Cox v. John Doraii and Mary O'Connell.—Claim for £IOO damages for encroachment upon and interference with a claim or right to occupy a certain piece of ground, being Sections 7 and 8. Block 3, Leaning Koek District Mr. W. L. Bailey conducted the case for the plaintiff. In opening the case Mr. Bailey stated that the land in dispute had been applied for previously by the dfjen 'ant Dornn, he

having purchased the right of a previous occupant, but no lease had been granted by the Government as yet. His client paid £ll to the Bailiff for defendant's right, title, and interest in and to the property, and possession was given to him by the Bailiff, Defendants not only obstructed him in taking possession, but had actually began cutting a crop of oats growing on the land. Hence arose the present action. Arthur David Harvey, Clerk to the Resident Magistrate's Court at Clyde, sworn, deposed that on the Ist of October, 1867, a judgment for £8 18s. was obtained against the defendant Doran, and that a warrant of distress was issued. Daniel Courtney, Bailiff to the Resident Magistrate's Court, Clyde, sworn, deposed, that, in pursuance of a distress warrant, he siezed Doran's property at Rocky Point on the 9th of October last. The sale of the property was duly advertised, and the property was sold on the 16th of the same month by Mr. Henry John Cope, a licensed auctioneer. Cross-examined by Doran f I siezed upon a house besides the land. 1 produced the warrant. You told me that you had no property, and that the beßt thing 1 could do was to take yourself. Cross-examined by Mary O'Connell: You said the property belonged to you. That was on the day of the sale. You did not show me any receipt when I made the seizure, but you did so on the day of the sale. By the Bench ; I was quite long enough on the premises on the day of seizure for Mrs. O'Connell to have produced a receipt. She did tell me that day that the property belonged to her, but showed me ho document to that effect. Henry John Cope, an auctioneer, residing at Clyde, sworn, deposed that, in the early part of October last, he sold the property in dispute, uuder instructions received from the Bailiff. Sold Doran's right, title, and interest in the land to the plaintiff CoxRecognised the document produced as a memorandum of the sale - At the time of the sale the defendant, Mary O'Connell, remarked that she had purchased the pro' perty of Doran. She also showed a receipt, or what purported to be one, but it was not stamped or attested. The document showed a balance of some £l6 due to Doran. I considered the matter as a ruse to prevent the sale. Sold defendant's right, title, and interest. Cross-examined by Mary O'Connell : Did not observe any stamp on the paper you produced. I John Cox, the plaintiff, sworn, deposed j that he was an hotelkeeper, residing at I Clyde. Was not the holder of a miner's right or business license. The Court here drew attention to Section 112 of the Goldfields'Act, 1866, which debars any one suing in a Warden's Court unless the owner of a miner's right, business license, or an agricultural lease. Mr. Bailey, in reply, urged that his client had purchased the right to the lease whenever it should be issued, and that he must be regarded as the holder of the lease within the meaning of the Act. The Court reserved the point. | Examination continued : Had made application to the Warden of the district for a transfer to himself of the lease of the land. He applied about the 30th December last. Received the paper marked A from the witness Cope as a sale note. Paid £ll for the land. The Bailiff put him in possession on the day of sale. Had retained possession, and had done some work about the ground, such as repairing the fence, &c. There is a self-sown crop of oats growing on the ground. It is not yet fit to mow. To the best of his (witness's) belief about an acre had been cut. The defendant, Mary O'Connell, had told him that the oats had been cut by Doran, by her orders. On Tuesday last Doran was outside the fence, sharpening a scythe. Plaintiff cautioned him not to interfere with tho crop, but he took no notice. Cross-examined by Doran : On the Ist of October last, when the case was heard and the judgment obtained, I heard you swear that the land was yours, and that you did not want to make away with it. 1 will not be sure that you were on your oath. By the Bench : I estimate my loss at £lO or £ll, and the value of the hay cut at about £3 more. George Ross, a laborer, residing at Rocky Point sworn, deposed that on the 25th of December last Cox gave into his (witness's) charge a paddock at Rocky Point. On the Monday following he saw Doran getting a scythe in readiness for work. He said that he was going to cut the oats in the paddock By tho next time he saw Doran about an acre of the oats had been cut- The value of the oats cut is about two or three pounds. Cross-examined by Doran : You said yon were employed by Mrs. O'Connell to cut the oats. For the defence, James Doran, sworn, deposed that he was not the holder of a business license or miner's right, nor of any lease. He held a document as a certificate for a lease. That document is now i-< the hands of the Warden. Had sold his interest in the document to Mary O'Connell for the sum of £6O. Had received £34 on account, and there was a balance of £26 due. Gave a receipt for the money and one for the land, and placed two penny stamps upon each document. Cut the oats by order of Mrs. O'Connell. On Tuesday last she told him to desist from cutting the oats. Cross-examined by Mr. Bailey : I drew up the papers mentioned myself oh the Ist of October last, after judgment had been given against me. Remember that Cox, by his agent, pressed for immediate execution. Then said that I did not intend to dispose of the property. Did dispose of it the same day. Received the mpney, but did not pay any of it to Cor. No one witnessed the agreement between Mrs. O'Connell and my-

self. Paid money away to other people, but decline to say to whom. John Brown, sworn, deposed that he had been placed in possession of the land in question by the Bailiff. Mary O'Connell showed him a paper purporting to be a note of sale to her from Doran. Mr. Bailey, In addressing the Be*ch for the plaintiff, said that his client was obliged to come to this Court; that the alleged sale to Mary O'Connell was made (if at all) after the judgment in the case "Cox versus Doran), and that such sale was evidently made to defeat that judgment ; and that his client having possession from the bailiff, was the lawful owner. As regards the point raised by the Court about incompetency to sue, Mr. Bailey argtied that UieJh ground was protected during application. W The Bench reserved its decision till Thursday, the 9th inst., which was then given as follows s—There appears to bean ii.occuracy in the description of the claim, in the com' plaint the "claim" being described as the right, title, &e,, to occupy a certain piece of ground ; whereas, according to the 2nd section of the Goldfields Act, 1860, the word claim is defined to mean " the portion of land which each person is entitled to occupy," &e. Waiving this technical defect, the Court is willing to consider that the complaint is for the interference with the land—with the claim proper. The complainant does hot produce any miner's right, business license, lease, or evidence that he held such on the day when the cause of action arose ; but it is argued that, as no lease Was in existence, it Was impossible for him to have complied with the 112 th section of the Goldfields' Act, and that the law does not require anyone to perform ah possibility. Moreover, it is-argued that the 108 section expressly proves that the applicant for any land may bring an action of trespass for interference with the land applied for, and that the complainant, hav- . ing purchased the rights of the defendant Doran when the same had been sold under a warrant of execution, in accordance with Section 111 of the Gol fields' <ict, - rtands really in the positiou of the applicant. His position is to some extent fortified by the fact "that he has made an application for a transfer The Court inclines to the view, that the Complainant has a standing in Court as an application under Section 108 of the Goldfields Act, and rules accordingly. One of the two defendants (James Doran) pleads that he was acting only as the hired servant of the other (Mary O'Connor) She on her part does not deny this, nor the fact, - of the interference, but alleges that the claim was hers, she having purchased the claim of Doran for a valuable consideration before the execution, under which the property was sold to Cox. If this sale had been bona-fide and regular, it would of course defeat the present action, for the plaintiff claims to derive his title from Do. ran. The Plaintiff Cox had purchased at Auction the right ic of James Doran to the property, which had been seixed, nnd sold under a Warrant from the Resilient Magistrate's Court at Clyde, which sale is proved, the Plaintiff also save, that he has . held rosrefsicn, iqiired the fences &c. John Doran informs the Court, that he sold i the property on Oct. Ist, after Judgment had gore against Lim, there Was r.o witnes*j to this transaction, but a memorandum in writing, which document was shown to tha Bailiff and the Auctioneer before the Sale. The Sale by Doran, the Court is b mid to consider as fraudulent, anil ma- c for the purpose of defeating the just claim of the Judgment creditor, Cox. It was needless for the Court to discuss the absence if the document, which should have been the best evidence of it. The alleged right of Mary O'Connell, being thus dispose of, the Court is bound to holi that the Plaintiff ig in the position of the applicant for tho claim, and therefore entitled to i amages. Verdict for Plaintiff for £2 10 0 with costs ani expences, damage to the hay. Amount to be lodged with the Receiver of Gold Revenue, plaintiff being in the position of applicant for a lease. Defendants or cred to abstaiu from further interference.