IMPORTANT MINING JUDGMENT.

Dunstan Times, Issue 1109, 3 August 1883, Page 3

IMPORTANT MINING JUDGMENT.

I In the Warden’s (J urt,Cromwell, recently, hnf ire Major Redded, a case vris heard, wherein Chus. Cololough, as a friend lor the Vincent County Council,sought forcancella- ' tion of the certificate of a dam, si uato at ! Quae z Reef Point, of which one Jamieson was idle holder, on the grounds that the pets and trenches of snue had not been maintained for 1 month previous to the suit. Jamieson contended there was nothing to answer as he ha • purged the off.-noo by pegging and trenching the boundaries ot the said dam on the morning of, and some hours before the summons was issued. The Warden gave judgment, cancelling the cer* tifioate. Aga os' this decision Jamieson appealed to the District Court at Queenstown, and the following is the writt'-n judgment of His Hmor Indue Harvey as taken from the Lake County P.es*: — “ From the case slated by tbe Warden it is admitted that appelant hud not roamtained the pens and trenches during the whole time of his occupancy, but that he had purged the offence by pegging an I trenching tbe bounda ies of sai l dam on"he morning of the said 10, hj day of February and some houis before the summons was issued. “ft is a'so admitted that respondent applied for his summons on the evening of the £th, between the hours ot 5 and 6 o’clock in the aflernoon. and requested the C'erk ot the Court to issue the summons on that day, but the summons was not actuary issued nn il the 10th. •• The Warden he'd that the proceedings in in's Court ha I commenced on the 9.h February, although tbe summons was not actually issued until the 10th, inasmuch as the respondent ha 1 done all the law require 1 him to do,, and therefore the re pegging and re-trenching the dam was an act subsequent to the commencement ot the proceedings. “ The Warden also held that it was necessary for the appellant to maintain the pegs and trenches to h’S said dam. “I am of opinion that the Woden was wrong in holding that the proceedings bad Iven commenced on the 9th, and, indeed, this contention was virtually abandoned by leipondent's counsel, who had taken up the nosition that ihe summons which was issued on the 10th February, being a judieial act, must be held to relate back to tbe very earliest moment of that day, viz., 'o immediately after midnight of the 9 oh. “ Respondents’s counsel cited the case of ‘Wright v. Mills. 28 I J., Ex. 223’, in support ot this view, and argued that the summons took precedence of the re-pegging and re-trenching. “ This case, which appears to support this contention, has been since commented upon and modified, if not overruled, by various subiequeut decisions aud autlioiities. “In Chitty’s ‘ Archbold’s Practice, 164, 12 Ed , it is laid down that ‘ The Court will take notice of a fraction of a day if it he necessary for the purposes of justice.' •• In Campbell v. Straugeways, 47 L. D., M.C. 6, it was held “ that the offence of keeping an unregistered dog w thout a I'cense having been commuted the same day as the license having been committed the same day as the license was taken out, the court could look at the order of events, and consequently the offence which ha I al» leady been committed cou'cl not be purged by a license oemg subsequently taken out.’ “ The converse of this case seems to be that an offence previously purged can not he revived by a summons subsequently taken out. “ The latest case on the subject is ‘ Clarke v. Bradluugh, 51 L.J , Q. 8., 678,’aud there in all the casts in point are cited aud oum> mealed upon. It was alleged in tbe statement of claim that the c use ot action occurreil be f ora the issuing of the writ, which, as a fact, was issued ou the same day. “ T), femiaut demurred on the ground that the writ, being a judicial act, must be token to date from the earliest moment of he day, and therefore to have been issued before the cause of act occurred. But it was held that the doctrine on which the demurrer was founded did not app y, and that the plaintiff was entitled to show that the cause of action accrued before the issuing of the writ. “By parity of reasoning it would appear that (as is the case here), a plaintiff would he entitled to show tnat the offence had beau purged and therefore the cause of com plaint removed before the issuing of the writ. “ I am therefore ot opinion that the respondent ha 1 no cause of complaint at the time of the issue of the writ. “ With regard to the holder of a certificate for a dam to maintain pegs and trenches during his occupancy, 1 am of opinion that such is not the case.

“ Doubtless the holder of ordinary claims must do so. but the rule relating to dams is silent as to maintenance, ami although it ■ drects the pegs and trenches to be put in as required for claims, I am of opinion that they are merely required for the purposes of application and need not be maintained a ter the dam has been constructed. “ I conceive the distinction as to the necessity for maintaining the boundary marks between ordinary claims and da ns to have been made for the very sufficient reason that it the boundaries of a claim are not marked ami always distinguishable, disputes would invariably and constantly arise, but when a dam is once made and formed it is patent to ail and maiks itself. “ ihe judgment will therefore be for the appellant with costs.”