DISTRICT COURT, CLYDE.

Dunstan Times, Issue 644, 21 August 1874, Page 2

DISTRICT COURT, CLYDE.

Monday, August 17. (Before His Honor Judge Gray.)

Sun You and others, appellants, r. Koch . and party, respondents.—This was an appeal against a decision of Mr Warden Simpson, given atjCromwoll, wherein ho decreed forfeiture of a certificate for an extended claim of three acres at Smith’s Gully, Bannockburn. Mr G. B. Barton solicitor, appeared for the appellants : Mr F. J. Wilson for respondents. Mr Wilson, after reading tho grounds of appeal (Ist. That the summons to the Court below was defective and insufficient, inas much as that the parties’ names to the suit were not individually given, the plaintiffs in the Court below, and now respondents, being styled C. Koch and party and the defendants below, and now appellants, being only Sun You ; 2nd. That the decree of forfeiture was beyond the jurosdio: diction of the Warden) submitted that tho first ground of appeal was waived in the Court below, and contended that the point being once waived could not again bo taken advantage of. With respect to the second ground of appeal, he would make no comment ; but de. pond on the evidence. Ho then gave the details of the ease, as beard in the Warden’s Court, as follows :—Two parties of Chinese, Ah Cheong and party and Sun You and party, in November, 1873, applied for and obtained certificates for two extended claims in Smith’s Gully, Bannockburn—one of six acres, the other of three acres, and which are supposed to join each other. In M fty following. Kook and party, wan ting a fresh claim, pegged out ths one of three acres adjoining that of Cheong and party (the six-acre claim). When doing so, Sun You and party, who were working in the adjoining claim, interfered, and said that the ground was theirs; but they could only show one peg. Shortly, however, they pegged out thegrouud. Koch and paty discovering this proceeded to the Warden's Court, and whilst there learnt that Sun You and party have a certificate for the ground, whereupon they apply for the same to be cancelled. During the hearing the evidence as to the existence of pegs was directly contradictatory, and it was urged against the concellation that they were engaged bringing up a tail-race through the adjoining claim. On the other side it was urged that Sun You and party had never worked within the four corners of their supposed claim ; that they had no pegs, and that though they were working in the adjoining claim they were all one party.

Evidence of witnesses was then taken for the respondents. As each is corroborative, we only give that of the chief witness Charles Koch, who, on being sworn deposed : Am one of the respondents. Have lived iu Smith’s Gully, Bannockburn, for the past ten years. Know the ground in dispute. For the past three years have had to walk over it twice a day in going and returning from my work. Previous to my party marking out the ground I never saw any pegs or other marks, or any other indication that it had been marked out. Had there been any I must have seen them from the fact of my passing over the ground so repeatedly. My party marked out the claim on the ISth May, I assisting. The application was duly lodged in the Warden’s office, and notices posted on the ground. Whilst maiking out the ground some Chinamen, Who were working in tho claim below, camo and told us the ground belonged to them. They pointed out their boundary, but could oidy point out one peg that was stuck in a bush, and about two inches high. On tho 22nd of same month I saw some Chinamen working on the ground. They had commenced sinking a paddock. I asked them to desist until our application was heard. They refused to do so ; and also to toll their names. I then went to the Warden’s Court Cromwell, to lay an information for interference_ Mr Colclough gave me tho names of the parties, and informed me they had a certificate for the ground, iu due course our application was heard, and the Warden granted it to us.. Tho Chinese names on the certificate arc Sun You, Lock Si, anl Ah Kow. 1 have seen them all working iu the claim below.

For tho Appellants, Charles Colclough deposed that he acted as Agent for both parties of Chinese, and obtained for them the certificates for the 6 acre and the 3 acre claims. I told Sun You and party they would not want a tail-race certificate as they could use Ah ChingV, when it was brought through their claim. 1 also told them they need not obtain protection for their claim Us it Was sufficiently protected by their working at the tail-race. Ou tho 22ud of May t visited tho claim when I saw thd pegs ; they were pointed out to me by San You and party.

A number of Chinese were also examined whoso evidence respecting the pegs was directly at variance with that of the witness for the respondents. Mr Barton for the Appellants argued at some length on the first ground of appeal, contending that when the summons and complaint were at variance, it affects the Warden’s jurisdiction, and would on that point alone ask that the appeal be allowed. On the allegation in the summons that the ground w T as unworked and unpegged, he contended that was merely u breach of the regulations, and should have been met with a penalty and not a decree of forfeiture, and cited the Gold-fields’ regulations and number# of cases on the question of forfeiture and abandonment decided both in New Zealand and Victoria ; he urged that the plaintiffs in the Court below, and and now respondents had no footing in the Court below, they having contrary to the rules and regulations taken possession of the claim before the certificate was cancelled, they having taken possession on the 18th May, and not applied for cancellation till the 22nd ; he argued that alone was

sufficient to set aside theWarden’a decision Who was not entitled to forfeit, only to in* fliot a monetary penalty ; he further urged that the Warden before forfeiture must do so in the presence of all parties concerned, and contended that by this, it was implied that the Warden must visit the ground as being ths only place where all parties concerned were likely to be. With regard to the facts of the case which he said required no eulogy from him, he said the Appellants were engaged as by tho evidence in workiug in their tail-race ;it was attempted to be set up that they had been working with another party ; the Court might deem them remiss, if so, he would hope for a penalty to he inflicted in lieu of forfeiture.

Mr Wilson said on tho question of waiver he would serpectfully request that Mr Warden Simpson be called. W. L. Simpson being sworn said I heard this case in tho Court below at Cromwell; there was an objection raised to the form of summons, and I believe it was agreed to waive it, as it would necessitate another summons, it being a careless ait of the Clerk of the Court. Mr Cowan, the then Solicitor for the Appellants, agreed to waive it. 1 think it may be considered a waiver complete ; the exact cam o of complaint made 1 cannot now say, but I agreed with Mr Cowan that it was a most slovenly act, and 1 think on my saying it was tba act of the Clerk, Mr Cowan waived the point, but 1 made no ruling at the time.

Mr Wilson said the point once waived cannot he again brought forward ;he did not consider it necessary to dilate on tho facts of the case.

Hia Honor in giving judgment sail! that, to found himself unexpectedly confronted with certain formal objections to the proceedings that he scarcely thought would have been pressed, but, as they had been pressed, he must deal with them, and ho saw no escape from the conclusion that they must prove fatal to this suit, though not to the plaintiff’s case. In the proceedings of a summary Court, especially a Court like the Warden’s Court, where so much business had to be done in a ve limited time, and nearly all of it withe, the assistance of professional persons, it must need happen that in the proceedings commenced by the parties themselves, many things would be done informally, and many things would be left imperfect through haste. When these things did not touch the merits of the case, advantage was seldom taken of thorn in the after proceedings, and oven when professional gentlemen became charged with the conduct of the case in Court, they commonly waived the objections that might bo taken-they did not oven amend where amendments might be made, but treated the case as if the amendments had been made. This course greatly expedited business, and in nineteen cases out of twenty, no inconvenience followed. Now in the present case, the summons was of the most defective kind, though the complaint was comparatively free from defects. At the trial, which was conducted by professional gentlemen, some at least of the defects of the summons were noticed ; but counsel agreed to go on, waiving the defecls that had been so noticed ; but it did not now appear which of the defects had been so noticed and so waived. The professional gentlemen before him to-day were not the same who had acted below. Thus it came that the summons was now before him wiih all its defects unamended. It did not appear what defects had been waived below. I ho Warden, who had boon examined before him, was only able to say that some objections to form had been taken, ho could not now specify what; but the parties had agreed to proceed, waiving these defects. The defects, however, were now before him, as he had said, unamended. The appellants (respondents below) insisted upon taking advantage of them, and, although they were of a kind that the Warden might have amended, he (tie Judge) did not think the District Court, as a Court of Appeal, had power to amerul; perhaps, not even if it could be male to appear that there had been a waiver below, and what had been waived. The waiver, whatever it was, had not been followed up by amendments, and the party to be advantaged by the defects now insisted on objecting to them. He had further to notice, as an important element in the conclusion that he had now come to, that it had long since been decided that in these appeals the appellant was at liberty, if ho so chose, to make an entirely new case upon the appeal, restrained only by the grounds of appeal assigned by him, so that in the present case the appellant was at liberty to take those objections now, even though ho had not taken them below, as they were covered by the general statement of his grounds of appeal. He esneeived, therefore, that he was bound to yield to the objections now taken. 33is Honor proceeded to say that the defects in this case were such as, unamended, would leave all the after proceedings of tho Court wild and undirected, and depending upon information to bo supplied by memory or parol. Tho plaintiffs were not named in tho summons; but only designated s9 Chas. Koch and party ; eo too of the defendants ; and the subject of tho suit, the three-acre claim, and tho certificate for that claim which it was sought to cancel, were not specified. These defects were, so to say, organic defects which unamended, left the Court without aid or guidance in the after process of execution. He believed he had no power to amend them, and that ho was bound to treat the proceedings as unciircd below, and not curable hero. He expressed this opinion as to tho want of power in the Appeal Court to amend, not altogether without hesitation ; but in tbc absence of authority to the contrary he felt bound to act upon the view ho had taken. Ho might send the case for a new trial before tho At arden, whore from a certain point the defects could bo amended, but ho thought it better, on the whole, that the plain-

tiffs should commence anew, and his judgment would be that the judgment of the Warden be turned into a judgment dismissing the complaint without prejudice, withlibertyto the plaintiffs to take the same proceedings anew, or any other proceedings which they might be advised, no costs in the Court below, and no coals in this appeal. His Honor added th»t if he had been able to give judgment on the merits of the case he would have had no hesitation in confirming the judgment of the Warden. He thought that "'the evidence as produced before him in this appeal was overwhelming to the effect that the appellants had not duly pegged their claim. G. Morse v. B. Naylor.—Claim, LOO ; L7O being the purchase money of a waterrace, situate on the west bank of the Molyneux, and L2O special damages. Mr Cowan, solicitor for the plaintiff; and Mr F. J Wilson for the defendant.

Mr Cowan asked tor permission to amend the summons, to include L2O for interest, and 130 alleged excess of the purchase money of said water-races received by defendant.

Mr Wilson objected. Mr Cowan elected to proceed with the case as it stood, and, if necessary, to institute another c’sa

[The evidence, which is of considerable length, we are compelled to bold over to our next issue. We may, however, state that the judgment is postponed for four months, awaiting replies to correspondence from Canada, the residence of the plaintiff.]