SUPREME COURT.

Evening Star, Issue 3187, 8 May 1873, Page 2

SUPREME COURT.

Wednesday, May 7. (Before his Honor Mr Justice Chapman )

Mr M'Keay appeared on behalf of Mr R. Wilson, a creditor in the estate of Jean Feraud, to petition the Court that the debtor might be allowed to surrender to-morrow, and that Friday, the 16th inst., be the day and time appointed for the first meeting of his creditors. The application was allowed. APPEAL. Chung Tong Fong’ and Co. (appellants) v. Lee Chung and Leon Sam (respondents). Mr Barton, instructed by MrMacasscy, appeared for the appellants ; hnd Mr for the respondents. This was an appeal from a decision of Mr Warden Stratford, made at Arrowlown on 17th February. The appellants and their party (defendants in the Court below) were the holders of an extended claim, for which they held a certificate for five acres of ground. It turned out afterwards that they had more than six acres. Respondents complained before Warden Stratford, that the defendants were holding ground in excess of the certificate, and prayed that the defendants be adjudged to have such part held in excess forfeited and given to complainants. The Warden’s decision was that defendants forfeit surplus ground, and that the excess be given to complainants, as first applicants. Appellants (defendants below) appealed on several grounds, the first of which, and the only one material to the question, was that inasmuch as the complaint prayed for a declaration of forfeiture to complainants, the Warden had no authority or jurisdiction to entertain the complaint or to make any order thereon. At the hearing of the appeal in the District Court, it was. among other contention?, argued for appellants that the jurisdiction given in section 62 of the Act of 1866, was by the last words of that section strictly limited to matter thereinafter more particularly provided for, and that no such subject of jurisdiction as this -was afterwards provided for. The question for the Supreme Court was whether a Warden has any authority or jurisdiction to entertain or make any order on a complaint complaining that the defendants, holders under miners’ rights and a Warden’s certificate of an extended claim, hold ground in excess of the area authorised by their certificate, and praying for a declaration of forfeiture of such excess.

Mr Barton argued at groat length. Ho contended that the Warden had no power to cause the forfeiture, and that as the com plaint prayed for the forfeiture of the portion of ground to the complainants, th<action of the Warden was illegal. It would have been different if the Warden had simply forfeited the ground, thus allowing any person to peg out the surplus. He contended that all the Warden had to do was to declare the forfeiture. The complainants could not apply for the surplus ground unbU the defen dants had elected which part they would give up, which they were entitled to de under the Ist section of Regulation 25 There was really no forfeiture in this case ; it was not a case where a lawful right be came subsequently forfeited by some subsequent event, but a ease where there was no

udginal right. The word “forfeiture” was /aguely used in the Act. There could bt 10 forfeiture of property to which a person iid ho right. If a man wanted to obtain iliece of ground which he considered was icld in excess, ho would have to take two iroceedinga. He would have to go before ho Warden, and get the holder of the ground confined to his proper limit. If ! ( uicceeded, ho could then endeavor to obtain •. title to ground, possibly by taking posses- ■! on. If a miner works a piece of ground, he is entitled to hold it without registration dr Barton cited several cases in support oi ois views, but mainly relied on the fact that the Warden had no right to declare a forfeiture of the ground to the complainants. Mr It'. Cook, for the respondents, argurd on the question before the Court, and con bended that the Warden had authority or jurisdiction to make an order of forfeiture. Granted that the Warden had power to declare an excess, a person must go to the Warden’s Court to get possession of the surplus. There was no reason why the two proceedings should not be done in the one way. ) t was only proper that the Warden should declare the ground forfeited before giving possession of it to another man. Mr Cook cited several c’auses of the Goldfields Act to show the Warden’s power to entertain or make an order concerning excess of ground, and forfeiture, and referred to two regarding compensation to be given for work done on any piece of laud held in excess, which he consnlere 1 showed the Warden had power to forfeit. Presuming he had the power, the question would be, could be or not hand over the forfeited land to another ? The policy of the Act was to give the Warden power to decide all cases of whatever nature that might arise on the Goldfields. The further hearing of the case was postponed until to-day, to which time the Court adjourned.

Thursday, May 8.

APPEAL,

Ching Tong Fong aud Co., appellants v. Lee Chung and Leon Sain. Argument in this case was resumed today. His Honor was of opinion that the Warden had jurisdiction to declare the forfeiture, and so should certify. The question of costs would be for the Court below.