DISTRICT COURT CLYDE.

Dunstan Times, Issue 465, 17 March 1871, Page 2

DISTRICT COURT CLYDE.

Monday, March 13, 1871. (Before his Honor Judge Gray). In BankruptcyRe George Prescott —Application for final order and discharge. Mr. Brough appeared for bankrupt. Mr. Pierce, an opposing creditor examined the bankrupt at considerable length in reference to his dealings w xth a house and certain sums of money ho received just prior to his filing his declaration jof bankruptcy ; also in regard to an oiler of a composition of Gs. «d. in the pound. His Honor remarked that nothing had been elicited to show that any fraudulent preference had been given, and granted the application. Re Neil Peyton.—This was a similar ap. plication to the last. The bankrupt did not appear, and the matter Was adjourned. Appeal. Webb and party, appellants, Canfield and party, respondents. This was an appeal from a decision of Mr. Warden Pyko given at Alexandra, whereby respondents were allowed to take uiu vortion of appellant’s Creek. ’ \ \ Mr. Brough appoaredvfor appellants, and having stated his case, called ; Patrick M’Gettigan, one of the appellants, who deposed that he was Webb’s mate in an extended claim at Obelisk Creek. The certificate was granted on May, 2, 18/0. On the IGth May, application was made for an alteration in the head race. On the 16th October, application was made for an alteration in the tail-race, which w T as granted on the 14th November. Since that date, a channel or cut has been made about fifty yards in length, two to four feet deep, and from four to eight feet wide. From tw*c to five men were continuously employed on the claim since the date of the granting Jof the certificate for it. There was a block of ground standing in the course of the tail race about eight to ton feet in height, and a channel or cut has been washed through it about seventeen or eighteen yards in length, and eight to twelve yards in width. It was necessary to wash out the channel to get the tsil M race up to the claim. There were oli. V workings on either side of the hlocCT 1 1 The washing out of the chamiel was com - J menced about the 14th of November, and the work was finished about the end of the year. There are no stones on the ground. The stones required fqr the tail race wore brought on to>ha groundyfrom considerable distances. On* the Gth, when going to work on the cut, about dinner time, witness found a portion of the claim marked off. On going hack shortly afterwards saw four men—Fitzsimmons, Lester, Canfield, and Keuna. On witness asking them if they had marked the ground off they replied they had. Witness then remarked that they were rather smart, as the ground was held under certificate. They said they considered the ground abandoned and would stick to it. Witness then wont away, and on his return, found that the water had been turned off the cut on to another portion of the ground. Witness saw Canfield in the cut, and told him he would want the water next day for the purpose of

Continuing the construction of the tail race Respondents gave no reason why they turned the water out of the cut. After his T conver. Ration with Canfield witness returned home, and, afterwards seeing respondents, asked them if they intended to keep possession of +he ground. On their replying in the affirmative witness obtained their names and sent them to Webb who was then in Alexandra. The alteration in the head race was finished in December. Cross - exam ; n-d : The certificate for the alteration of the tail-race was obtained on the 14th of November’ The tail-race was altered from round the block of ground for about twelve months previous to obtaining the grant for alteration. Witness was a partner in the tailrace. On the 9th November, 1870, there was * about eighty yards of the toil-race to construct. On the 9th Jammy about tenor fifteen yards of that distance had been completed, and the cut had been washed through the block of ground. Witness was engaged in milking eleven cows and cultivating about eleven acres of oats and about two acres of potatoes. Had no wages men between the 9th of November and the 9th of January. Could not fix the day when he had wages men employed: A\ itness measured the block of ground after the cut had been washed out. Webb and himself measured the block. Hobert Webb, miner, residing at Obelisk Creek, repeated the statement of the last witness in regard to the dimensions of the of the block of ground, and the amount of work done. From November 14 to January 9 both witness and M'Oettigan were constantly at work on the ground. The reason for making the tnil-mce so wide was to allow the flood water to run off. It was absolutely nccos '.ary for the tail-race to be compktrd before work could be commenced on the claim. All the stones required for the tail-race had to be quarried and carried a distance of from one to four hundred yards. The tail-race at present is completed to the lower boundary of the claim. The ground there is about twelve feet deep. The block of ground is about sixty yards from the claim. On the 9th of January the tail-race was about .thirty yards from the claim. The value of tipe work done between November 14 and January 9 absolutely required for the working of the claim estimating it at £9 per week, is £3O. On the 12th of January, in company with M'Oettigan, went to the c’aim and found Canfield and Kenna, damming up witness’ head water-race. Lester and Fitzsimmons were working in some old ground at the bottom of the claim with the water from witness’ head race, and discharging the tailings into his tail-race. Witness and M'Oettigan commenced to repair the breach in the head-race, and had nearly done so when Fitzsimmons reopened it. Witness asked him if he was aware of what ho was doing. He said he would take all risk, After witness served the summonses and injunction, respondents desisted from interfering. The following afternoon, they : commenced ground sluicing with water ; from Kemp’s race, discharging the tailings j into w itness’s tail-race. Cross-examined : Witness had two mates, | M’Gettigan and Sorenson, and held an in- : terest in two c’aims, one of which is situate in’Coa! Creek about” one hundred and fifty yards from the one in dispute. The latter is an extended claim--two men’s ground. Witness ceased to work in Coal Creek from November 14, and his share in that claim had not been represented from that date until January 9, because for some time one acre of the ground had been worked out, and he believed that one man was sufficient to represent it. On the 11th January, witness engaged a Chinaman, who went to work.the following morning. Wit. ness might have assisted Sorenson occasibetween the 14th and January 9, iu removing large boulders. Witness did not see respondents pass the Coal Creek claim on the 17th or 18th November. About two hundred yards of a tail-race had been completed for about 12 months in Obelisk Creek. A portion of that tail race was constructed in 1806. The ground the tail-race was constructed for has been worked from 1805 till the present time. After that claim was worked out, witness made application for a special claim of seven acres including a portion of the ground in dispute. The application for the special claim was made about twenty months ago and refused. Between November 14, and January 9, the block of ground was washed away, and alterations which took three weeks to complete were made in the head-race. The Court adjourned till the following morning. Tuesday, March 14. The Court resumed sitting at half-past ten o’clock. Andrew Christian Iversen, miner, residing at Conroy’s, stated that he estimated the value of the work done necessary to work the claim at £450. The tail-race V appeared to have been chiefly constructed / . for other claims now worked out. Witness considered it would take two men two months to wash out the channel through the block of ground. Cross-examined—Witness lived eight miles away from Obelisk Creek. Could not say whether the tail-race had been constructed in JSCS or 1860, nor what ground it was constructed to work. Had seen Webb frequently at work, but did not know where his claim was situated. Thought he had seemhim at work in 1866 at the crossing. Could not • tell how much ground Webb has worked at Obelisk Creek. In 1860 Webb was constructing a tail-race below the crossing? -In 1866-was at work at the crossing and in-tSttfi'irbovc it. In 1868 or 1869 there was ’ a tail-race below the crossing, which, witness had heard, belonged to Webb and Sorenson. Michael M'Guiness, miner, Butcher’s Gully, deposed that he visited .Webb’s claim ion the pntpose of estimating * the value of the work required for’'the claim,

which had been done some, eight or nine days previous. Ho valued the whole of the work pointed out to him at £172, and estimated it would take nine weeks for two men to wash out the channel through the block of ground. Cross-examined—Witness did not think it necessary that the cut should be washed the width he saw. From the appearance of the ground below the crossing, 1 ; he considered it had been sluiced for gold. Had known as much work to be done for the purpose of working a smaller claim than Webb’s. Ah Chin was called as a n Itness, Chiu Chee nffioiatifisas This witness w<js bowing out a match, and stat^i^vjmtTiaras employed by Webb and M'Oettigan, ancßUved sixty or seventy yards from their claim on November 24. Had seen Webb and M'Oettigan working in their claim. Cross-examined— Remembered seeing respondents pegging off the ground. Was employed by Webb on November 12. This closed appellant’s case. James Fitzsimmons, one of tho respon. dents, deposed that, on the 9th November, he and his mates arrived in the Coal Creek district. They had heard that Webb and M'Oettigan held more ground than they were entitled to. On the 10th November saw Webb and Sorenson in Coal Creek. As soon as Webb saw witness and his mates coming he went up out of the face of the claim into his tent. They saw him looking at them out of the window, and as soon as they passed he went back again. Witness and his mates then went into the claim at Obelisk Creek, and saw that no work had been done in it for a considerable time. On the bottom and on tho sides of the tail-race grass from two to two and a half feet in length was growing There were some tools lying about, which were almost eaten away with rust, and had evidently not been used for months. For nearly six weeks witness and his mates passed the claim in Obelisk Creek nearly every day, but saw no one working there. When they saw the tail-race first, (hey paid particular attention to the work that had been done in constructing it. On the Monday following the Christmas holidays, witness and mates went to the claim and found neither Webb nor M'Oettigan there. From the first day they visited the race, two men could have done all the work completed up to the present time in a day and a half or two days. When witness’s party saw the claim had not been worked according to the regulations, they p-gg;d eff a portion of it. As soon as Webb heard the action taken by witness and hjs mates, s !pe asked them what they meant, they told him they considered abandoned. After finding out they applied for a cancellalion of the certificate, the result of which was the p result action. In reference to the head-race, n.tness was of opinion that all tho work done on it could be done in ten days, and the alterations on tho other race could be made by two men iu two days.

Cross-examined by Mr. Brough : Witness found out ho had committed an error in pegging out the claim liy referring to the Ooid-mining Regulations. On the 9th of November witness and his mates went to live iu Coal Creek Disciict. They came from tho West Coast. Witness obtained his information about Webb’s claim from a farmer named Leslie. Kemp did not give him the information. On going to Coal Creek he saw Webb leave the face of the claim. Saw a pick and shovel, which had evidently been recently used. There was another pick and shovel, and also a fork, on the ground. Sorenson was wrrking with the other pick and shovel. Witness found that no work had boon done at Obelisk Creek. It would be extremely improbable that grass would grow in a tail-race composed of slabs it work had been done in it. Never saw grass growing in a tail-race which was being used. Considered it would take a couple of months for the tools to get so rusty. No other tools were on the ground. On the 10th saw a block of ground on the course of the tail-race. It was necessary to wash away a p artion of it to construct a tail-race. Two men could have done that work in a day and a half. A portion of the side of the block has been washed away. The portion washed away was about eight feet deep, 6fteen or sixteen yards in length, and six or seven feet wide. Webb had about four heads of water at work since this case had been ponding. Samuel Canfield and Peter Kenna, two of respondent’s party, gave evidence similar to that of last witness. John R. Kemp, storekeeper, Spear-grass Flat, deposed that he had worked ground alongside Webb and M'Gettigau’s race. From the 2nd of May to the I4th of November there had been very little work done in their claim. There had been about fiftyfive yards of tail-race constructed. To find stones and do all the work would take about two months. Thought there wore some men working at the head race about the 2nd of May. Two men would make the alteration in the race in about four or five days. Cross-examined: Witness had a head and tail race in the neighborhood of Webb’s claim. Respondents use his water and tail race. It would not suit him very well if Webb kept the ground. Has on many occasions objected to applications made by Webb and party. George Lythgoe, miner, deposed that he worked at Obelisk Creek, a short distance from Webb’s claim, for a period of sixteen or seventeen .weeks, about fourteen Months ago. They had their tail-race then, working some ground onThe opposite side of the flat. About # the 12th of November, at the request of Webb, witness went to see the tail race. There was a block of ground in the course of tho tail-rece. Part of. the block was standing at that Time. It would have taken-about a week for two men to have run it off.

Cross-examined! There wa‘s a part of the

■block of ground run off when Webb asded bim to see it. To run off the whole of the block for mining purposes might have taken about a week. Had not come prepared to swear that the ground had been abandoned by Webb. Mr. Warden Pyke said that he had inspected'the claim belonging to Webb the previous day. The onljfswork to be seen upon it was two old shaftsJVvvnfch might have been sunk prospecting some years ago. No work whatever, as far as can be seen, had been done in the claim by Webb and M'Oettigan, and the tail-race spoken of did not reach it. The tail-race spoken of is not the property of Webb and M'Oettigan, therefore it has no connexion with the claim. Consequently, to the best of hV knowledge and observation, and had done no work whatever in connexion with the claim. Witness explained that there two distinct mining partnerships—Webb and M'Gettigan and Webb and Sorenson. The former held the certificate for the extended claim; and the latter for the tail race. At the hearing in the Warden’s Court at Alexandra the appellant. Webb, requested the name of Sorenson to be taken out of the summons, as he (Sorenson) was not a partner in the claim. The summons was amended accordingly. Webb and Sorenson hold a claim below the Teviot road. By means of races—head and tail—they have managed so as to prevent any one setting in above them having any flow for their tailings.

Cross-examined: Witness based bis statement that M'Cettigan had no interest in the tail-racanpon the certificate and Webb’s statement i™?pen Court. Webb’s statement had amiiVjveight in giving bis decision at AlexMdV. \Webb and M'Gettigau’s claim couMnot iVve been worked without a tail-iace. \ ' Mr. ErmigH re-called Robert Webb, who deposed that M ‘Gettigan was a partner in the tail-race, and that the reason his name did not appear on the certificate was because it was taken out before he (M'Gettigan) had a share in it, and it was not thought necessary to get a transfer. Sorenson’s name was struck out of the summons because his name was not on the certificate o the claim.

Mr. Brough summed up the case for the appellants. His Honor intimated that he would take time to look over his notes, and would give his judgment on Thursday. The Court then adjourned.

Thursday, March 16.

His Honor sat, at half-past twelve o’clock, to give judgement in this case. He said he had heldtheeascoverthat, by examining his notes of the evidence, he might come to a more careful conclusion as to the matter of fact involved in the appeal. Two questions had come under the consideration of the Warden—one a question of law, and the other a question of fact. Ho actual work had been done in the actual claim ; but the defendants in the Court below contended that sufficient work had been done in connexion with the claim, though outsi !e of it, to save any forfeiture. Thi i work, such as it was, had been done upon head-races leading to it or a tail-race leading from it, especially in the tail-racs. This tail-race, however, was not, as to both its owners, in the same ownership as the claim, and the Warden was disposed to doubt whether work done upon it would avail to save forfeiture of the claim, which was owned by a somewhat different set of partners. His Honor was of opinion that if the work was bona-fido done for the use of the claim, and under arrangements that promised to secure for the working of the claim the benefit of the work dons, it might be considered to be work done in connexion with the claim, and, if sufficient in amount, would save \ Then came the question cf fast mHad work been done in the claim or iiMcmexion with it sufficient to comply with Tfleteegulations. On this point, he said, the conflict of evidence was painful. He had read over his notes twice, and with great care, in hope of arriving at a satisfactory conclusion, and yet he came to his conclusion with great hesitation. He believed that a great deal of evidence had been brought before him that had not been before the Warden. His Honor here reviewed parts of the evidence on each side at considerable length, and said that on the balance of evidence, ho agreed with the decision of the Warden that a forfeiture had been incurred. The claim had been worked since the date of the grant in a loitering and unsatisfactory manner, and he believed that latterly a forfeiture han been incurred. In such case the Act gave the Warden a discretionary power to forfeit the w-hole claim, to forfeit a part of it, or to substitute for forfeiture a pecuniary penalty. The Warden had given a mitigated judgment by forfeiting a portion of the claim only. He was disposed to vary the Warden’s decision so far as to substitute a pecuniary penalty, and, if the defendants below r were prepared to pay the costs of the appeal, which would be about £l4, and £lO penalty to be paid to the complainants below, ho would vary the Warden's decision accordingly. Mr, Brough presvmed his clients would pay the penalty, and save the claim ; but asked for time to communicate with them and ascertain their election.

His Honor ga.\c time accordingly, reserving his formal judgment until Tuesday evening, at eight o clock, to which time he adjourned the Court, stating, however, that if the appellants elected to pay the penalty they must pay it at once.