DISTRICT COURT.

Grey River Argus, Volume XII, Issue 1158, 15 April 1872, Page 2

DISTRICT COURT.

Friday, April 12. (Before His Honor Judge Harvey.) DRURY T. COONEY AND PARTY. \ This was a claim forL6o0 > the supposed j value of a one-eighth share in what is known as Kelly's claim, Murray Creek, j which the plaintiff alleged the defendants agreed in writing to transfer to him in July 1870, for legal services to be rendered. Messrs Guinness and Newton appeared for the plaintiff, and Mr Pitt for the defendants. The assessors summoned were dismissed, as the fees were not paid in by the plaintiff. The Judge then heard the case under the 84th section of the Gold Fields Act, which gives the Judge of the District Court a jurisdiction concurrent with the Judges of Wardens' Courts. During the opening of the case, it was stated that in July, ■ 1870, the plaintiff was practising as a mining agent at the Wardens' Courts in the Grey Valley. The defendants, had then a dispute with Anderson and party coricerriinga quartz claim, and asked the plaintiff to take the case through the Court. As they represented that they had no money, a written agreement was entered into by which the defendants were to give the plaintiff a one-eighth share in the claim, in consideration of the payment of ss, that he should see the case through the Court, and also fulßl all the other duties which came within the scope of those of a legal manager of a company. The defendants had pleaded that the consideration was bad in law, and the plaintiff could not recover. A long legal argument took place as to whether a mining agent could sue for his fees. The Judge said if he was to be allowed to sue, he must be placed upon the same footing as a solicitor, and a solicitor could not sue for a lump sum ; his fees must- be taxed ; and it was jv question whether a mining agent could sue at all for payment for services rendered. During the opening of the case, the argument as to the legality of the consideration continued at considerable length. Mr Pitt then moved that on the plaintiff 's own case he was out of Court ; .but it was agreed to take the evidence. Edward Alfred Drury, said— At the time this agreement was made I held a miner's right which I produce, which has since been renewed. On the 7th July, 1870, I was practising as a mining agent at the Courts at Camptown, Ahaura, and Napoleon. I made an .application to Mr Warden Lowe to be admitted to practise as a mining agent, as no solicitors then attended the Courts. I practised before all the Wardens who have been in that district, both before and after that application. On the 7th July I saw Cooney, Kennedy/Armstrong, and James Mooney, (who is since dead). They told me they were summoned by Anderson and party, and wanted me to appear in a ca3e that would come on the following morning in Warden's Court, at the Ahaura, in which they were defendants, and Anderson and party were complainants. I asked them for ; pre-payment oi ten guineas for my services, but they said they were unable to pay that amount, ' and I then came down to six guineas, and then to four. They said they had no money, . and oftered to give me a share in the claim known as "Rory of the Hills," situated at Murray Creek. I declined, and told them I thought they would lose their case. They then told me they had surplus ground held under two other certificates, which were not involved in that case, and if I would undertake to do. all the legal work in forming a company, they wonld give me a full one-eighth share in the interest they held in tlie reef. I was to do all the business in obtaining transfers and certificates, and such other work as falls to the duty of a legal manager. I was to appear in Court for them next morning and conduct their case against Anderson and party. James Byrne witnessed the agreement, which was reduced to writing in his presence. I paid 5b as consideration— money either to Arm- j

strong or Kennedy. We had a drink over it. (The Judge : There were five present, and the sum is very suggestive.) T consider that at that time the share was not worth L 5, as nothing was proved in it. At that time I knew what certificates the party held. Mr Graham Greenwood, "Warden's ;' Clerk &t< Ahaura, here produced the blocks of certain certificate books, and said : I produce these blocks of registra-, ;tion of claims, one for three men's ground 'and another" 'f or five men's' ground. These .'blocks, are the only record kept in the ■ I Warden's office, Ahaura, of the rescistrif tion of claims. There is no such thing as . a registry kept, with the exception of the ; application book. (The Judge could not I hold that this was legal registration of the .claim in question, but allowed it to go ' for what it was worth, Mr Pitt objecting that the production of a registry was the only evidence;) Skelton G. Rowley, Warden's Clerk and Mining Registrar at Cobden, produced a mining register, iD which the certificates held by the defendants were duly entered. The Court then adjourned. ' Saturday, April 13. On the Court reassembling, Mr Newton raised an objection to the line of defence on the second plea — "That there never was any good or valuable con- '■ sideration for the transfer alleged to have ' been made in and by the agreement men- * tioned in the plaintiff's particulars," and then again pleading that the agreement: was void on the ground of champerty andmaintenance. He complained that the defendants, in endeavoring to set up thej second plea in such general words, and; urging the illegality of the contract without stating specifically the illegality com-j plained of, and relied upon Rule 95 of the ■ District Court, and "that the defence of illegality in the contract must be specially; pleaded, R, 8 T. T. 1853, and that the ob-i jection cannot be raised under the general; issue, Potts v. Sparrow, Fenwick v. Lay-i cock; He also held that the Judge of the' Court had no right to raise the plea of j illegality, of consideration— it must be) specifically set out in'the pleas. •' j The Judge said that the Court was not; bound by the specific rules of pleading.As surprise afcthe plea was now pleaded,; the single question for him to decide wasj whether or not there was sufficient notice given of the defence intended to be raised! on the second plea. If he thought there had not, he would simply adjourn the case. - r; - ;i ■ --'-^ ■■■ ■■ ':• ';: ■-■';': '• '■■: : --~ j Mr Newton pleaded surprise that the plea of illegality of consideration should have been raised in the case. j Mr Pitt replied that the argument was without fou ndation . By the Golds Fields Act no pleadings whatever were required in that Court, and he could have set up the same defence as he could in any Warden's Court in the country. I The Judge 3aid the question was whether the defence was stated with a sufficient degree of particularity. He thought it was, but as surprise was pleaded, he would adjourn the case to any date the plaintiff named. • ; Mr Newton would rather go on with the case than that the adjournment should be at the cost of the plaintiff. ; The Judge then ordered the cost 3 of the adjournment to be costs in the cause. < It was then agreed that the case should be adjourned until Tuesday, but. the following evidence was taken in order to allow the witness to leave town : — James Bowie, miner at Reef ton, said:: I was formerly a hotelkeeper at Ahaura, and know Cooney, Kennedy, and the other members of the defendants' party. They went by the name of Cooney and party. ;I remember in July, 187:0, that party being down at the Ahaura and stopping at my place. They had a case in Court, and wanted Drury to conduct it for them; Drury was then practising as a mining agent in the Wafden's""C6urt. I was called in to witness a verbal agreement made between them, but I refused to do so unless it was reduced to writing. The agreement was signed the morning the Court sat, and I witnessed it. At the time I saw 5s on the table. I did not take that money up for drinks. I knowwhere the claim is, and had previously been on the ground. This is a copy of the document I then witnessed. I remember the name "Rory of the Hill" now,' but I don't think it was mentioned at the time the agreement was made. I know the claim held by the defendants and the four other men mentioned, also the claim known as Westfield's or Anderson's, which was the prospecting: claim. Cooney showed me the ground where he had got the reef in his claim. I think it was three men's ground Cooney then held. This was a few days before the agreement was made. Cooney. showed me another claim adjoining this one, which was five men's ground. -In ? this second party: there! were Kennedy, Armstrong, Mooney, and Frank Cooney. In the three men's party there were Thomas Cooney, Kelly, and Kelligan. I wanted to see if I could get a share in any claim convenient to it, Thomas Cooney took me out to the next claim and told me it was Rody Ryan's. Cooney .applied for and obtained a certificate for a'prospecting claim, and. this. was. the claim the lawsuit was about that Drury was involved in. .Previous to his coming to the 1 Ahaura there were two separate . parties, and Cooney told me they were going to app?y for all the ground they then held, and some adjoining 1 it, as a prospecting claim: Other parties claimed the adjoining ground, and the lawsuit then took place. Some time afterwards Cooney came down to the Ahaura on business connected with the claim, and met Drury at my place. Drury asked why he had gone to the expense and trouble of coming down, -when he could have done the business for him. Cooney then said that he (Drury) had no interest in the claim. High words ensued between them. I was up at the claim afterwards, and saw that the same ground which was held by the five and the three men was thrown into one company, and is now known as Kelly's claim. The case was then adjourned until Tuesday, but the bankruptcy, business will be proceeded with at ten* o'clock this morning. ... ....' . j