DISTRICT COURT.

Grey River Argus, Volume IV, Issue 257, 5 September 1867, Page 2

DISTRICT COURT.

(Before His Honor Judge iGlapke,) Tuesday, Sept. 3. Cakd Brothers v. J. Gurry. -^-Mr O'Loughlin, who appeared for the plaintiffs, aaked that the case might be put back until after the appeals, as his .clients #rer,e detained on the roud by the flooded state of the rivers. His Honor consented J. Jackson y. J. Cleary.— rThis was an interpleader case, to set aside an execution. Mr O'L.oughlin. who appeared for Cleary, drew the attention of the Gonvt i to the fact that the. plaintiff had not complied with the rules of the Court. He i ought to have lodged full particulars of the clai'-n and all documents necessary to prove it with the Clerk of the Gourt not j less than' seven days before the day of ' hearing. This he had not done, and the ■ summons musi fall to the ground. Hi^ ; Honor said the"decision of the Court must be against the plaintiff Jackson. A few minutes after wards Mr Eees appeared in Gourfc, and stated he had been instructed Id appear for J. Jackson in the interpleader case, and he- trusted his Hqnor would open the case atjain, so as to allow him to address, the Gourt. His Honor was understood to say that he niight do so during the day. This was done subsequently, but with the same result. DUNCAN V. ERANKLYN. This was an appeal against a decision given by Mr Warden Kynnersley, at Westporfc. The appellant Duncan had neglected to give up possession of a piece of land at Westport, although ordered to do so by the written authority of the Warden. For disobeying this order he was brought before Mr Warden Kynnersley charged "with disobe3'ing . the order of the Warden," for which offence he was convicted, and the Warden's decision was "fined ten pounds, to be paid immediately, or one month's imprisonment with hard labor." The grounds "of appeal were: — Ist. That the decision was given under and byvirtue of the fifty-third clause of the Gold Fields Act, 1862, which Act' was repealed before the giving of the decision. 2nd. That the Warden had no power under the said fifty-third clause to inflict the punishment of imprisonment. 3rd. That the order for the disobedience of which [ was so punished as aforesaid was under the circumstances ultra vires, and therefore not legal. Mr O'Loughlin appeared for the respondent, and Mr Rees for the appellant. After some discussion the third ground of appeal was disallowed, his Honor deciding that the appellant had not fully informed the respondent of the " circumstances" alluded to. Tlie argument was therefore confined to the other two. Mr O'Loughlin objected that the decision appealed against was not given under the 53rd section of the Gold Fields Act, 1862, but by virtue of the General Rules and Regulations of the Nelson South-wesb Gold Fields, which by the 113 section of the Gold Fields Act, 1866, were preserved in full force, although the Act of 1862 had been repealed. Those rules and regulations gave the Warden power to make orders in all matters relating to the gold fields, and provided penalties for the disobedience of such orders. The recovery of penalties was directed to be the same as with regard to summary proceedings before Justices of the Peacs or a Resident Magistrate. Mr Rees, for the contended that the decision had been made under the 53rd section of the Act of 1862, the regulation of the Nelson South-west Gold Fields being as follows : — "Any person sho shall neglect or refuse to comply ivith any written notice or order of the Wardenduly served and in conformity with these regulations, shall be deemed to, be guilty of a breach thereof, and liable to the penalties imposed by, the 53rd section of the .Gold Fields Act, 1862."- He (Mr Rees) contended that so much of the regulation in question as had reference to the Goldfields Act of 1862 was invalid, as that Act had no existence at the time the Warden gave his decision. The' rule gave power to impose penalties under a certain Act ; that Act having been repealed and swept from the statute book at the time of the decision, there was no authority for the penalty. As to the second ground, of appeal, that the Warden • had no power to imprison, even the 53rd section of the old Act did not give power to imprison. It was directed that the recovery of penalties should follow the same procedure as was laid down in the 40th section of the Justices of the Peace Act. That Act gave power to Justices to recover fines and imprison ; but it was only in such cases where fines or imprisonment were provided" for by statute. There was a great difference between the right" of enforcing an order or decision, and that of making the decision. He (Mr Rees) contended that the Warden had no power to make the decision appealed against, neither under the Gjoldfields Act or any other statute. After a lengthy argument between the respective counsel, his Honor disallowed the first ground of appeal, as he considered that, the, evident meaning pf the regulation was, that for disobedience of a Warden's orders, penalties equal to certain penalties imposed.by ahy-gone Act should be enforced. The reference to the 53rd section of the repealed Act was one of comparison only. He considered, however, that the appeal must be allowed on the ground that the Warden's decision •was against law. The Gold Fields Regulations merely provided for penalties, and directed that their recovery should be I regulated by the law relating to summary proceedings befare Justices. In the present case the decision " fined LlO to be paid immediately or one "month's imprisonment with hard labor, was contrary to the 40th section of the Justices of the Peace Act. Appeal allowed. DUNCAN V. OOMISKEY. This was also an appeal case, the particulars of which appear below. Objection was taken by Mr O'Loughlin to the minute of the Warden's decision lodged in Court. The Act provided that " a copy of the minute of such decision certified under the hand of a Warden" should be produced in Court. The minute produced was merely a copy of the decision signed by Mr Kynnersley, instead of being, as it ought to be, a certificate that such copy was correct. After some argument His Honor allowed the objection, but suggested to Mr Rees, that he might apply to have the case re r heard when the formality had been supplied. It was ultimately agreed to adjourn the Court until the next morning, by which time the necessary formal certificate could be obtained. The Court then adjourned.

'"w, Sept. 4. (Before L Jndge.Clarke.) PT fiOMISKEY. • ThisA^ 9 4 indertlie 81st action of the (M AcCj 1860> aga i ns t the decision ». v.u .d en Kynnersley, m a case fetA. itl t i, e Warden's Court at vm lv Reeg appeare d for the appelKj,, O'Loughlin for the responded The facts p« nit of wlucn aroße this appeal Krtly these :— Mr ConnskeypuM section in Westport from.M| but afterwards authorised hu*L s hia agent# Mr 'Duncan pnvch^ ctioil paid a de . posit of LsQ,t|[ t0 be paicllna fortnight ML fortnight Mr Yates. died; aairK r Comislcey saw Mr Duncan heliLion of the sec . tion ; and wheiffi|i ega i occupation he swore in ConjL purc hased the land for LSQ irom s . The Warden decided against Si ordered him to give up p.Q§sessifflL c i are d the deposit of LSO fogHe then defen-. dant now appSli the f on o wing grounds : That t«| o f the Warden was against the c m ha t the plaintiff m the case ha® cd his occupa . tion of the sectiofl& on . tliat the plaintiff's agent dIL to the defendant possession oj|| S e C tion ; that the plaintiff was "Elation of the section before the || the case ftnd that the Warden m nver t o order possession Jo be giM t h e piaintifl', legal possession aW mt i on being : proved to have bef Jy the defen °_ dant for some tin)l the p i aillt iff -having abandpned lotion long before the hearing m e ij ne fo £ lowing evidence was jS ; Patrick Coraiskem in t Grey mouth. : On the 29th | a 4ut thaf time, I purchased MaW agent for the Bank of New RrX ' a % c . i • -»-r - ,-. . , K CllpO. d SCO tion, No. IS, with twffi f 0 1! L2OO and got possession oiffi- Ipaid the money. I gave Mr m, uctions to sell this section form*. abo ut the 27th June MrYates wl t t er to my manager in GreynioutlK lieariug of Mr Yates' death I procfwestpurh where I arrived on tlj uly antt called o^Mr Horsey,iy.f or the wank 01 New Zealand, aK lc , prmpilP p ot a conversation with lffi e d on Mr Duncan, the appellant ffiLk ec j j^n, either to pay me the b«[ ie on t h e section, or give me posffijc He said that all his transK^tii Mr "Yates were in black and vL\ ie Bank of »New South Wales. ®L there I found there were no doclLf errulw to the matter. I heard |L vear in . the Warden's Court them rcnase d the section for LSO, whicHh The section had two cottages K n d was worth more- than I paidH t was . /v> n , l K ■•- WAS offered an advance on nm ase by several parties. m . Cross-examined by Mr 3|believe Mr Yates sold the section aw. u t on or about the 24th June. "TOy cn t to see Mr Duncan I believe h«{ ng on the section. I met himjL fc i ie ground. At the former tria«d that the supposed balance of lL c i n s c money was to be paid; by Duffi n ir \ n 10, or 14 days, 'l don't remlL"j en ' On the occasion referred tol[ mo t ; Duncan I told him wlfo I wal^gjj ' him for the balance of the' pur JL ney < otherwise I would not give hinl 3 i on ' : ' or words to that effect. lm neS a : license is not produced there aaL t ne ( hands of my solicitor at Westi|You have seen my business licen»that . 1 section specially. ■ ( By the Court : I received ]E th e purchase money, LSO, which w« n t 0 .1 the Bank of New South WaljMr I Yates when he received it fronm au i I never heard Duncan say wh»' ur ' « chased the sectiqn from Yates fS j ie 1 was in Court. Ido not kno\« iei , £ Duncan ever took ppssession. j. ■ I '■■-John L. Horsey: I was actm, n t for the Bank of New South J.^ i Westport at the time of the previl^ I have seen Duncan in conversatilh' a the deceased Mr Yates. About "1^ g or 20th of June Duncan called' fr& v v with reference to the proposed mL of Comiskey's. section, and on one % n 8 I heard Duncan offer L 250 for » r 0 Yates soon afterwards fell ill, anfi c , c ill he desired me to see Duncan. 4, either on the 6th or 7th July 5j c street, and told him I had been in c by Mr Yates to apply for the bal* the purchase money for the section! • ' replied ih^xt it was not due yet. I were two cottages on Comiskey's sec d Johnston lived in one of them. Da got.from me the key of one of the cotl by Mr Yates's instructions. At the | den's Court ¥ heard Duncan sal bought this section from Mr Yatesl| LSO. I know that Mr Comiskey |0 - L2oofor it, and it has since advance! n value. 1^ Cross-examined : I am not aiial whether Mr Yates was treating i|il Duncan for the purchase of any otiU property than Comiskey's .section. l a i stated in Court that I had heard that Ifcl balance of the money was to be paiclfi ten days or a fortnight. . By the Court : By my qwn knowledic "[■" cannot say whether.the balance was dX when T applied tq Duncan for it ; but | was j nst about due. He did not del; that there was a balance due. | Robert Hope : I have known Mr. Dul can for some time. About the 24tn jTutl I had a conversation with him witl reference to his purchasing the section il dispute. He said he purchased it fron Mr Yates for. L 275. I consider the allott ment was worth . at least L2OO, and thi cottages were worth LSO more. By the Court : Duncan told me he hac paid a deposit on the purchase, but die not mention the. balance or when it was due. Duncan was not then in.ppssessior of the land, but I know that he afterwards was in possession. He was living in on< of the cottages, and had the other full ol oats. John Leslie, agent for Bank pf New Zealand at Westport, and was so on o] about the 24th June last. : About thai time Duncan and Yates came to the banli on a business transaction. Duncan ther paid Yates LSO, and he also gave me j temporary receipt and asked me to colled the deposit receipts mentiened in it ther at Hokitika. Mr Yates said to Dnncai at the time that if he did l net tak"e th< section he woxild forfeit the LSO, which ] understood was a deposit paid on the purchase of a section. Cross-examined : I was not aware thai Duncan was in treaty with Yates for th< purchase, of Kirkwood's store ; it was 1 section, that was mentioned at the time. This closed the case for the respondent

Phe following evidence was'" giveii|aß iuppoit of the .appeal : — '•SBP Jane Harmon: In the month of ffiUßt asfc 1 was living in a little" cottage 'on^jHn •: iUotment sold by Mr Yates to MrDuticMß ! remember them coining together.jqnjjj^Hl . he ground, and Mr ; Yates told - old the ground to Mr Dvincarij: an«BK rave Mr Duncan the key of the^t^El • ittle cottage. Duncan gave me'pernaj^W^^ o stop there a few days longer ,'andj^^Bßj ' left I gave the key to him. - _ *4^^B^ ' Cross-examined : I had permissid^^Kp Hr- Yatesto live in the cottage. jj^^B| lorent, and I know that Mr Jc^^Mp >aid none for the other cottage. J9^H| By the Court : After I left tli|g<|M| Duncan occupied one, and had-gffigg|^K he other one. ..._^^sjjj^K* ' * Francis Duncan : I am the.' a P$jPMp * n this case. I know the alljjtmeffl^Ri; lispute. On the 24th June I ; P ul ||fM| **' his allotment, and paid LSO °n al||Mfe if it. Yates and I then went i^^K pound, and -Yates took the key -l|^Bf| me of the doors and gave it to.me,iHM«|' ;ot the key of the other one afterwarM|' fhe conversation then took place refer^Ht^ oby Mrs Hannoh. Gn the eveningjßr he same day I proceeded to • erec^B| : , himney to one of the cottages, on Wm ;round. Johnston was not living Ol^^w; and when I bought it. After Mrisflani^R • • eft, I occiipied it as a store-room, a^B ? ived in the other one. I held p'6ssess^H|' if that property until I saw Mr ComislME; lither on the 21st or 22nd of ;; July^Kfc' nonth after I had purchased the l_ anc^-|HKv tiade ho arrangement with Mr Yal^H| ►bout forfeiting the LSO if I did not ta^H^. Cross-examined : 1 purchased'-the aU^^K; nentfromMr Yates for LSO. /lund^^ake to swear that I never purchased tmMp.' ' and for L 275, and I am not aware that|Bray , sver told Mr Hope I had done so. I d^^p lot hearMr Yates say that the ii^O woul^pl' le forfeited if I did not pay theibalanc^^p; . got no receipt for the LSO from M^^; fates because- he had no stamp at th^^* ime, and he was to give it me afterwards.^^: dr Leslie was in the bank when I paidf he money. At the same time lgave him -^|: he temporary receipt to collect money / : " rom Hokitika. That was riot for the mrpose of paying any balance : on this iroperty. -,i'- ■ ■ Re-examjhed : I bank with the\Ba^kof"few Zealand, and it was not remarkable or mo to give in the temporary .receipts or collection. : \V Mr Eees moved that the judgment of ♦ he Court below be reversed. HS^argued hat the summons was for illegal]iposses.- . ion, which must be untenable; becajuse^all lie parties agreed in this, that po^gession lad been given, and the appellijjt: held fis he ground in lawful possessioi^for a | >eriod of one month The qiieijfon _q£ ' "M he amount of the purchase .riiomfr w *^^fei% lot in the case, and if anything -wK he respondent had his lawful reiM^it»^|g^ ecover the balance. It could 8p .^^^fe-^ naintained that Mr Duncan was not4tt||#*£f[ jossession because a balance of the pur-j^|j hase money was still owing.. It would JpSf >c remembered that when the land .waaSp;; )urchased no title, passed, save the simpla^^ lossession, as they were Crown lands helqE > inder a business license. It was admitted^ hat Mr Yates sold the land on the 24tbl^ • Tune to Mr Duncan, who held it till tKel !2nd July, before his rightful: possession.! \/ iras questioned by Mr Comiskey.. .Novg.iy,^^ s the judgment appealed against was thq| flr lecision of the Warden that Duncan^was |B lot in possession, it must be reversed b'^fcmg ause all the witnesses proved distinctly thal<|r here was a valid bargain and sale between ft he parties. They all recognised the fact 1 if the puijliase and the appellant being i ii possession. It was even allowed by 1 he Court that he, was in possession, or I c could not be summoned for being, in >. legal possession. He moved for judsc- ; lent on two grounds,: — First, that the md was sold tq Duncan, and possession ivenf and, second, that he had. beeit in ossession for one month. • * - Mr O'Loughlin axgued at some length i support of the Warden's decision, i ' The Judge reviewed the case very ttjly... nd stated his opinion on each' of^thie rounds of appeal at greater length than c have space for. He believed the harden to be perfectly right in the decion he had given, and he therefore rderedthe appeal p be dismissed with Card Brps. v^ J. Curry. -r-This was a aim of J+LftT Is, for goods supplied, jp^d ish lent. The. defendant did not appear, id judgment was given, for'the . pjaintifts ith costs. . ' , " ' The Court adjourned till the. first 1 Tueaxy in October. !