DISTRICT COURT, AHAURA.

Grey River Argus, Volume XIII, Issue 1535, 5 July 1873, Page 2

DISTRICT COURT, AHAURA.

. . . ... Wednesday, July 2. ; . ., T (Before His Honor Judge Harvey.) „'■■■]:, -t-;-: -rIN' APPEAL. A „.,„..; Owens, appellant, v. Dugall, ... r6sporident.—Messrs, Pitt and Staite -for the appellant, Mr A. R/ Guinness ij for, the. respondent. -^This was .appeal from a decision.' giVeh in the 1 Warden's' Court .on 9th May. . " . The respondent sued as 'plaih'tiffinthe'Courfc'b'elbwfbrlj3o; the! price paid for a share in a mining claim,'^ ■Orwell .;Greek.|ti.At,thei^ime:)E!ugail^urr;' chased the share the claim comprised about; 80ft/ pf jSpare t ground between two adjoining claim. In coQsequenfee of disputes i asking- ; after the . authorised rbaser line was laid off, the claim' in to which iliei respondent; purchased was curtailed to nearly one-half its former size. i>urgall . demanded.. his" "money back., and wanted to'Jset' Mdc ! the purchase' oh the general rgr.ound :: of: fraudulent -misrepresentation^ inasmuch^ .that pw.ens=must have \ been aware' 'that' the ''claim was in danger of being reduced in dimensiops,iand;that he concealed this knowledge fronfl)ngall at >ithe itime of ;the contract? sThe; Warden took .thisjyiew,,of ;J the case when it was .befprejfihimj^and^ gave.-j.ayverdict fpr the present resp.pn.den,t;;,i;Mr; Pitt said he rwasr preparedrofor vta .^rehearing Pf the evideuceiytakeix : in : vthe;; Warden's opurfe j His Honor. -objected; la' rehear thb evU -dence.^^lt' was iibt -the -u'suul practice pf the Court. The 11 ' Warden's notes; were always, ., admitt.eji as evidence in similar c^ses^any the practice v would not be de-ipartedj.frbmj;-becauseoifc..wbuld> be pnfair ; to. i jtha, gardens,- to i giye.,litigants an op-' , ; p,prtunityr of . prpduciiig.. fresh o^jiich. if pffe,red in ihe lpwer>;Gpurt jnight ipfluenceV-the decsisipn ; arrived at.,. p[f, on = reading .; <the ; testimony ■■, taken ; '. ai "the previous hearing, < they Court I considered ,the r , yerdict /was ;, against evidence i on a .questionoof.:faot,;.the case would be sent back to rthe ■ Warden ior ; rehearing,, but if aril error in law I 'had been commitied, it was for the 'Cpurt;:tp, set.-it .right. -.The evidence 'of the Warden," the Government' Surveyor, .and pther witnesses, asjtakeri belbw, :^as then 1 reJid ov'efe We published the whole' of ; the evidence!at the fbrnier hearing; 'j of .V-the lease; .After argument by counaelof ' eiblier' side, tlie Court reserved; judgment. «.;/ „.■,.,...•.■..,.■ „,,; \ -„ .-, „ - Oamellatto^ .(appellapt) :V.; Henderson and others (respondents). -nrMrfjGruinness fprthe appfellantij/Messrs Pitt and Staite for the respondents. The appellat t and ;his company .held a full claim, with extra, ground, on the Orwell lead prjyiousto ifplthe laying .off" of /thecGovernmeni base: line. The respondents occupied a piece of spare, or- surplus ground, adjtinirig^ Camellatto's, and between- it sind'ai] otherclaim. Camellatl o and party, .and finding 'they J ha'd ■'"marked out too'miic'h'grbun'd/ tKey'applie^d for i;,^Sdobtained a certificated/of : " registration. When the ( -shif bing, J ; b|.pthe' .parallel took place, 'it Henderson's pegs ; were. within^the bpflndariesi of darnel] atto's claim., . A ;; dispute, iarpse^fiand when r the case came before the Warden, he hel^ that' Camellatto and Co. being the priorjoccupants, they had ; the /best) title, and he directed that they should -be reinstated in ihe ground taken : from; them.;by .Hender-" son and 'party,- at Hhe same time con? firming the -latter party in their title to any surplus ground that ; might remain after the. original occupants; ha<|; : t thepfull ' complement, 4- verdict aQCPrdinglyj went,, for CamellattO; and . party^uij without" costs, because they had *conimit|;ed ;r a { breach of. the •regulations by pullin|g,out Henderson's; pegs without permission.. ' Henderson applied for areh'earing",- which the Warden: granted.- The case was tried^ .again before the Warden, and ipur b,ssessbrsV The 'assessors gave a "verdiGt-for-Heridersbtt iand party,' : but the Warden dissented. Camellatto and party appealed, and his Honor"' now decided that [there was -no case before .him. y According. {to "the Gpld'^ields Act Amended Act of 1872,'' it r - is directed 'that case is tried before the Warden with assessors, : '""■' the '•' judgment ' ' given pf the !prder pv decree made by the Court','shall'b'elgiven^or made"byth"e ' Wardenian'd^to^fess than tvjQ o.fjsuchjrAsSessprsl" In thejlower Court the _ Warden^ disagreed _ wit^i the /finding of. the Assessors, the ypr.d«sl| wasj( therefore, 1 , that- of the; assessors albne,. and was consequently illegal./' .Kp\ judgment, in (For \ cdiitvivudtidndf ii& ibs isee <&th page. )

having been given by the Court;below, ■ /and .there being nothing to appeal^against, the appeal before the Court would be-dis-missed. Offthe question of costs be j«g,, raised, his Honor said he: would not allow * costs on either side, and the result of the suit must be attributedtp the state^f the la#, and was ho' fault of the litigants. His Honor further ''remarked on the- : wording of the Apt, and said it was not only unworkable but it was a " curiosity in legislation." Dnder it the Warden „! could rehear and rehear cases, 1 until ;he got assessors who .would agree with him. ffe' trusted the fault in the law. would be brought under the' notice of the Legisla- . ture. — Mr Warden ; Whitefoord said he would take care the matter was jbrought) before the Government with, a view to; further amendment. —His Honor said the Warden by taking such action would be curtailing his own powers. — The Warden said he would in all pases be only too glad to leave the decision in matters which were purely questions of fact to the assessors, if the> law allowed him. In the present case; he, had to dissent from, the finding, of the assessors, to avoid stutifying himself, because at the previous sitting of the Warden's Court, an entirely opposite verdict was given on, the same evidence. In Bankruptcy. Re Henry PRiDGEON.-fMr Pitfc, for Mr Staite, applied for the, final order of discharge of the bankrupt. Mr Guinness opposed for James Marshall, a creditor. The. bankrupt was examined with reference to a legacy left him in England. He said that -he was entitled to LSO 15s. a year coming as rental from an entailed 'estate. The instalment first due was hypothecated for . the benefit of his daughter, who was at school in England. He gave ah order some time , previous to his bankruptcy that another" instalment should b& applied towards'the liquidation i of debts; ,due to ;: ; Thomas JRlaiscott. arid Woolfe and Austin, creditors.-,; -He only i held a life interest in thY entail," the remainder was to his eldest son. The batik-" rupt was . subjected to a strict examination by the Court with respect to his „..., transactions. He denied, distinctly that he induced the opposing creditor io trust-v ' ' ' him by making representation thatijhej :<•' i (thel^f:Hpo^ l !a ! i[ega^,pJJCiSslOO left ! '''him. in' England. ''The 'account 'between Marshall and himself was'" tunning- for /yea'rs>-' arid long 1 before he even heard of . i, nthe legacy. ; flis Honor-expressed himself J satisfied with the statements of the banW 1- ■ ! ,] (rupt.;; inhere , was, inop, attempt) of eonfiealment of anything on his part, (arid there was no reason for suspending his certificate on account of fraudulent conduct. But it was desirable that the creditors;; should get a portion of the proceeds of • ' • ' *tlie'bankrupt's income from England, and -•' •- :: ■ with a view to enabling sdme arrangement ; l being mf^de'the case wbuld be :i adjiaurned to the Bth July. The Court. would suggest that an order be given by the bankrupt on his agent in England' for the amount^ ;,-.. of one year's Jncome (the. next), which; „ would pay, the cred itdrs a fair , proportion „ of their claims. If this arrangement ■ i were .imade, the bankntpt •: might take '■: his discharge,: in the ■■ meantime pro- ."; I tec'tiori' would be given. ; Mr Guinness '■'■ suggested that in' the event - bf- ' the death-, of the ; bankrupt before the , "next iustalmerit. became due, coinplica- ',: ' , tibns would arise on ..acc'quri't of the entail.. ; 'His Honor remarked, that in the event of^ ■■' ; ■ \ such a contingency; occiirririg as the de-" -,!;'.! ,. :> cease";of.tbe bankrupt, ,, the matter would ■?'; „be /simplified, ,;because bis .debts jWOuld „ij s , then;be paid in full. During the hearing of the.case, this Honor pointed out certain i . statements' in the -rejporK -of ; tth'e Provi- - " 'sional Trustee! Iwhichhe-found^'on ex- ! ' : 'aminatiorij were : not born e oiuV'tiy the books' of the estate. Froiri the' Trustee's repbrt, 1 it' would appear that the insolvent: ■ ' i had rendered incorrect information as to his estate, when r in reality l it 'was not shown that there was any 1 attempt at concealment. The Trustee: explained that it ' waj only the day before he received all ' . the documents in the estate, although he ■ directed the bankrupt to surrender them some time ago. He (the Trustee) found * 1 ' it impossible to amend; the 'report in the" : - ! interval elapsing after 1 receiving the docu- • : -"--i mehts arid the sitting' bf-the i Court. : „ RE.PETER,BE>;oTTi.-^Mr ; Pitt^ for Mr • . Staite, applied for complete execution of a deed of arrangement in this case. The ; application was granted. The Court then !adjpurned. ; , - Thursday, July- 3. .--,], ->;■: IK. JLVVEAIi. Owens v. Dugall. — Judge Harvey de- . '•'■ livered the following judgment in this: case to-day. ■ ' His Honor said:— "Owens being the registered owner of a share in a mining /.-ji^claim, sold his interest to^Dagall ; bn the '" '24th' March, J873, arid "on the" same day the transfer was effected in the Warden's !; , • .books, to Dugall, who entered. into possession and applied for and obtain registra(!...;'.tion: if rom the Warden on -the 16th of April. Dugall worked in the claim for a ■' considerable time, when the owner of an .adjoining claim interfered with Dugall's^ • rights by removing his pegs. : Dugall's partner laid a complaint .. before the. • Warden against the owner of the adjoining claim, which was heard and dismissed • ;on the 18th April. V, pon . this/ ; Dugall "'.' appears to have corisidere^ ,that he was r absqlutely busted, ,from, his' claim, and 1 erititled to rescind the contract' arid receive back the purchase-money, ;; ; with damages for loss of time in working in the claims on the grounds of fraudulent mis\ * representation at the time of the makingf -■- of the contract, the fraudulent" conceal-* ment of the fact that his right was liable to be disputed arid Bet aside, and of failure of considerationr -j It .appeared r ; , th^t the miners who took !up. claims^ upon ; I!) the supposed lead' had left a spare piece i of ground, 40ft, which was takeniup by Owens and his partner, who also^-taped off the owners of the adjoining claim, ' Cairiellatto and others, and found that he - i was holding 42ft too riiuch r ground. They , accordingly applied for ,and obtained regis- ; tration of this 82ft of ground, and I must ' suppose that was obtained in the regular way, and after compliance with the Regu- ' latioris. 'There is no coniiitiori whatever attached to the Registration, and I am of „ opinion .that Owens and hisipartner. then : ' became possessed of as good a title to thp i -r ground mentioned : iri ! the fr certiffcat'e of , registration as any, of the oth^c registered owners of claims along the lead, had to the ground for which they were registered, i It appears that it became necessary afterwards, and after the sale by Owens to Dugall, to change the base line, which , necessarily occasioned a change in the position of the parallels i of the^various J clainiß. .^Hence has. ariaen this dispute*; '

However', ; with the merits of the case heard and decided by the Warden on the 18lh April, I have \n this case nothing to do. ' ThVqu<wt?oris I have to decide upon ■the evidence : giveri on ihe ihearing of this case are-^st Did the appellant Owens make ;s {fraudulent misrepresentation to the respondent at the time of the contract, -that /he .was! possessed! of a share on the said lead. This ! in' my opinion has not ; been proved;^ On the contrary, the evidence is that he was registered as the Qwnerafte'r com pliance with the Regulations,' arid that he actually gave possession to the purchaser, who held and worked it. ,2nd Did V the. appellant fraudulently conceal from the respondent fact that the title was defeasible. ;There is no. evidence of. this, but on the contrary I think: the appellant had every reason to believe that his title was indefeasible. Moreover the respondent must be taken' to have been aware of the appellants title, and of the manner hi which it was acquired ; having been acquired in ; accordance with ; the Gold Fields Act and; •Regulations. ' 3rd. With regard to the failure of consideration, it has nofrbeen proved, and I do not find it from the Warden's notes that his decisipn of 18th April conclusively ousted. the appellant from the whole of the. B2ft of ground for which he was registered. If it concludes anything, it merely goes to the 42ft taken , off.f rom Camaletto's originalclaim, leaving the appellant's assigned (the respondents) in: possession of 40ft. There would, therefore, only be a partial failure of consideration, and in order to avoid such a contract ■as this there ought to be a total failure of 'consideration. I am of opinion that the maxim of caveat emptor will apply in this case;, .that the; respondent had a full opporturiity of making himself acquainted with all|the facts, and it is not shown that he was not ; that' there is ; great presumption, that he was acquainted with them ; and that finding the 1 Warden's' r view^bf the law of the case riot differing from his own, he brought his action, which is Jn the nature of an actioiri for money had and received. But, " ignorance of the law is no excuse.'' For the above reasons, 1 am of opinion that the decision of the Warden ought to be rgvtsfaed, and .]ydgHen^trentered, f |Qr pie ■appellant (the -^lefenda'rit^ in tKe^Cburt below) with costs and with costs of appeal. ■;/ >