DISTRICT COURT.

Grey River Argus, Volume XII, Issue 1219, 17 June 1872, Page 2

DISTRICT COURT.

(Before His Honor JudgeiHarvey.) Saturday, June 15. Joyce v kenrick.— (appeal). The appellant and respondent are residents of Greymouth, in the County of Westknd, and the case has been before the Court for some days. We must summarise the facts, which were, shortly, these:— On the 20th March, 1872, the appellant Joyce purchased from Messrs Nancarrow, Henderson, and Co., mining agents, a quarter of a full share in a quartz claim at Inangahua, in the Nelson South- West Gold Fields, for the sum of L160,'L5 being paid as a deposit thereon, and the following document was written : "Received from Mr Thos. Joyce, the sum of five pounds, sterling, as a deposit upon the purchase of a quarter of a full share in the Victoria Quartz Mining Company, Inangahua reefs, for Ll6O sterling (one hundred and sixty pounds), the balance of purchase money to be paid upon the transfer of the said interest being completed. Grey, 20th March, 3872.— Nancarrow, Henderson, and Co." Across the face of this document there was written, " This interest is a sleeping interest.— N.&H." ; and it was throughout maintained, by the. appellant that he purchased the interest as a sleeping interest, freed and discharged of and from the payment of any future expenses. An agreement was then made and submitted to Kenrick for ; but he declined to sign the same, and commenced an action in the District Court, which was, however, discontinued, and instituted in the Warden's Court, Greymouth, County of Westland. The appellant was not represented by counsel in the Court below, and judgment was entered for the respondent, lor the' amount , claimed and costs. Mr Joyce then gave notice of appeal, on the following grounds :-^-lst, That the verdict was against the weight of evidence. 2. That the Warden's Court at Greymouth had no jurisdiction to try and determine the aaid suit.' 3. That a copy of the transfer of the saicL quarter-share -was improperly admitted in evidence by the said Warden. 4. That the plaintiff, in the Court below, was not entitled to recover the amount sued for by him until thejperformance of the condition that he would sell and transfer to the appellant such quarter-share in the Victoria, claim, Inangahua, as a sleeping share' or interest therein.. 5. That the transfer alleged to have been made from the respondent to . the complainant" was not a transfer of a sleeping quarter-share in the Victoria quartz claim,, and that the said transfer was effected . without the consent of the appellant.— Wherefore, the respondent was called upon to show cause why the said decision should not be totally reversed, and judgment entered for the appellant. . : : Mr Guinness appeared to support the appeal, and Mr Heber Newton for the respondent. The first witness called was ! the Warden, but the evidence given was in the main a recapitulation of that already published, with the exception of that of the respondent in one particular, viz , in the Warden's Court he was reported to have said that he not only was content to give Joyce Ll6O for the share, but also an additional LIOO and pay all calls. This the respondent now denied, and said he offered to take back the' share for the same price and give Joyce LIOO for the share he said be sold to him. His Honor did not think it material, but Mr Guinness could call evidence to prove that such a statement had been made, and it would then be for the Court to consider the effect it was calculated to have upon the assessors. Mr Guinness thanked his Honor, and proceeded to submit that the questions the Court would be called upon to answ.er were— Had the Warden's Court of the County of Westland holden at Greymouth jurisdiction, or should the action hiaye been brought in a Court constituted for the Nelson South- West Gold ; Fields, within which the mining property was situate. 2nd. The respondent at the time the action was brought not being the holder of a miner's right for the Westland Gold Fields, and the Court in which! the action was tried being a Warden's Court for the Westland Gold Fields, and not for -the

Nelson South-West Gold Fields, was the respondent entitled to maintain the action in such Court. 3rd. The certificate of transfer having been left at the appellant's store under cover, and he being no party in obtaining the same, ' and never having legally accepted such transfer, can it be held that "-". he' acquiesced or accepted such transfer as the transfer bargained for. 4. The transfer alleged to have been made to the appellant not being for "a sleeping interest" in a quarter-share r in the Victoria . claim, can it be said that the sleeping interest referred to in the deposit receipt was so tranferred as to entitle the respondent to maintain the action. 5. Should the action have been by writ of prohibition, and not appeal. (Sec. 81 G. F, Act, 1866, and Queen of Spain v. Wadsworth). 6. Since the quarter-share was transferred to the appellant in the books of the Warden's Court, Inangahua, as an ordinary share only, the shareholders in the claim, ' without the knowledge or consent of the appellant caused themselves to be regis- . tered as a company, under the Limited Liability Act (the name of the appellant appearing in the memoranda for 500 scrip), could the shareholders, without the consent of the appellant, legally cause themselves and the appellant to be registered or formed into a company under the Mining Companies Limited Liability Act. His Honor thought that the appellant must be confined to the grounds mentioned in the notice of appeal, and^ that the Court could not be asked to consider other questions. ■•;:.' ■', \ '■ '.. ■•• ':■ Mr Guinness contended that there was nothing in the question submitted repugnant to those contained in the notice of appeal. ~. ; ■■-,''■.:.?:.■■. "M?.-. Mr Newton would point out that the notice itself was informal, as the appellant not only asked for a total reversion of the decision of the Court below, but also that judgment should be entered up for the appellant, and, while admitting the present Court had power to alter the decision f or order a re-hearing, he could not concede that any power was conferred to enter up judgment for the appellant. His Honor concurred, aud Mr Guinness applied to have these words erased, which, after long argument, was permitted. -: : ; Mr Newton thought that the case could not proceed, as objection was not taken: in the Warden's Court to such evidence, -\ and it was not adduced by any misrepre- . A - sentation of the respondent or his counsel. That the point involved only -amounted i to a re-hearing in the original notice of * appeal, whereas the respondent was called upon to show cause, not. against a rehearing being granted, but why the judgment should not be totally reversed, and . entered for the. appellant, which was virtually asking the Court to enter judgment for the appellant, which he respectfully submitted the Court had no power to grant. , Again, that no appeal liesfrom the Warden's Court on the ground of improper reception or admission of evidence, the Gold Fields Act expressly providing that a Warden is . not bound by any ryle of law. or equity. . That the evidence admitted and referred to by Mr Guinness, was not material, there being Buflicient evidence to support the .decision, .if such evidence had not been admitted. • Mr Guinness-having replied, His Honor ruled that the appeal must proc3ed upon the first point contained in the notice, viz., that the verdict was against the weight of evidence,, and unless the Court were informed of the : exact nature of the evidence given, it , would be utterly impossible for it to judge -whether such decision had been rightly given, or otherwise. . He must, however, say that no doubt existed in his mind as to the copy sale note bearing the seal of the Court at the Inangahua, being sufficiently authenticated to admit of its reception ; in evidence, and he therefore thought it had been- properly admitted. The Court would like to know whether the [town .of '-Gi^ymouinV'b'eingthe Dla^;aivin«tL"'tne ; contract was entered into, was situate within the limits of any proclaimed, gold field. ;? Mr Guinness said he intended to call evidence upon the matter. . '• His Honor said he could not regard the purchase-receipt, other than ai evidence of payment, and would not take; J,any notice of the words written across as to <v its being a " Bleeping interest' unless it * " was stamped with a shilling duty stamp, and not a2d receipt stamp. ' ; ; Mr Guinness undertook to produce authorities against this ruling, ..,,.., ,... While Mr Joyce was under examination by Mr Guinness, he distinctly swore ' that Mr Kenrick, under examination in the Court, never stated that he would give him the full price of the share. and an ■ additional LIOO and pay all future calls if he (Mr Joyce) would give it back to ~ him. His Honor said that, to his mind, ■* Mr Keririck's version was the most reasonable one, and he would accept it. Mr * Guinness said he intended to produce four witnesses who would swear that Mr Kenrick made such a statement as that alleged by Mr Joyce. / His Honor would accept Mr Kenrick's--version, as he could not believe'that he would have been so stupid as to Bell a share for Ll6O, and then offer to repurchase it for L 260 and pay all future calls. At this stage of the case, Mr Guinness applied for an adjournment till eleven o'clock on Tuesday next, which was granted, and: the Court adjourned, but will sit for bankruptcy business today,