WARDEN'S COURT (Before Mr Warden Kenrick.)

Te Aroha News, Volume III, Issue 121, 26 September 1885, Page 7

WARDEN'S COURT (Before Mr Warden Kenrick.)

Tuesday, September 15, 1885. T. F. Fenton v. Th<>s. Gavin : Plaint, set forth that defendant had pegged out Ca claim called the Purotarau in an ilI'ps?al -mflnnpr, and sought to he placed in possession of same. O«-e withdrawn at plaintiff's request. I Same r. H. Me Liver : Mr »i. A. i Miller, solicitor, for defendant. In this case plaintiff complained that on the 11th August defendant marked out a claim called the Silver King .situated at Waiorongomai, in an illegal manner, viz. : That such claim was marked out surrounding a claim known | ns the Sunny Corner then in possession of and niaiked out by John Hawuins and not abandoned by him, aud also I that the other part of such claim was marked out on tlh* 7th August b} Thos Gavin, and called tin Purotarau ; and j furtuer, by failing to cau.^e to be erected at every angle (hereof a post as required bylaw; upon which grounds plaintiff sought to have possession of the claim awarded him The following documents were put in Q8 evidence : Notice of pegging out of Sunny Comer claim by Jol.n Hawkins on July 13th. Abandonme.it of the ISunny Corner by John H.iwkius on August 1 1 at 11.30 .i in. Notice of pt?ggiiitf out ±43|mny Corner claim by Thos. Feu ton o;u August 20th. M-.irking out of > Purotarau claim oa 7th August b^ T.

(t vul Marking out of the Silver King by Hngu MoLiwr on lUh August nt 11 o in. PlftinbiS claimed to bo put iv possession of the Silver King on the gr )und that the Sunny Corner was not abandone I till one hour after the Silver 1 Kins? had been pegged out. by defendant. Mr Miller here took objection to ti.o case being gone on with, on the grounds I that supposing what plaintiff had just ; stated was correct, Fenton as an outsider, and supposed not to be an interested party, would not thereby be entitled to possession of the ground. The matter re ted between the parties who marked out the ground and not with an outsider. The ground claimed by Pen ton was part of Hawkins's ground, mid part of Gavin's, all the ground having been taken up, it was nut unoccupied giouud. If it hal been Gavin i who applied to be put in possession ho ' could have understwo 1 it, but. could nob I see why an outsider shonl \ come forward and ask to be put in possession of ground , said to have been illegally marked out by others. A plan of the ground vns produced, j and it was admitted by defendant that the pegs (as shown on the plan) were all inside one nnother. A MeMizies, clerk, swoin, stated : He received a notic of pegging out of the Silver Kin# about 12 o'ebek on the day stated, from McLiver. Hawkins had s^iven notice of abandoning the Sunny Corner alout half an hour previously. In reply to Mr Miller : MoLivor saw hi. n the previous day an! informed him he was purchasing Hawkins's interest i:i the Sunny Corner, and asked him the best way to #ct his name substituted for Haw kin?. He said he wanted to aho include some more ground. Suggested as the easiest way, that he should get Hawkins to abandon the Sunny Corner and for him to pet? out the larger area. It was in o.der 10 cany out ihis suggestion that both McLiver an I Hawkins arne in ne~t day. He could not say of his own knowletlg * tue ex.ict time the Sunny Coruer Wa& abandoned, but the intention was that the fresh marking should be after the abandonment. Hugh McLiver, sworn, stated the Silver King claim was marked out and registered in his own and H. H. Adams' name. The Silver King included the Sunny Corner claim. Previous to marking out the Silver King he purchased the Sunny Corner for £10 from J. Hawkins, viz., on August 10th. Hawkins was to receive a further sum of £5 if the quartz sent away for treatment proved payable. It was on the suggestion of Menzies as being the easiest way, the abandonment and re- pegging was carried out. Arranged to have the claim repegged by C. Guy. Told Guy we were going to abandon the Sunny Corner. Came to Te Aroha with Hawkins and got to Warden's office about 10 to 11. The abandonment was signed by Hawkins about a quarter past 11. We waited till about 12, so as to give Guy time to pe# out afresh and then I gave notice. The time should be 12 and not 11 on the notice of marking out paper for the Silver Kini? ; and I always thought it was put down as 12. Putting down 11 as the time of marking out by me was a mistake. Christopher Guy, sworn, in reply to Mr Miller, stated that he remembered McLiver insUuctiug him Co mark out a a claim of eight men's ground called the Silver King:, and he did so on 11th August. McLiver told him to start at 11 o'clock and get his p^gs ready ; he said he was going to Te Aroha with Hawkins to fix up matters, and give notice of pegging out the Silver King. I finished pegging the ground at 10 to 12. The intention was to first abandon the one and then mark ont the other. It took me about 20 minutes to iret my pegs ready. 1 have been working on the ground every day since, and another man with me, en the Sunny Corner portion of it. Hawkins showed us the Sunny Corner petes. This ground was included in the Silver King claim. John Hawkins, sworn, stated that he sold McLiver the Sunny Corner claim for £10, and an additional £5 if the quartz proved payable. He had heard McLiver and Guy's evidence about instruction re pegging out, abandonment, etc., which was correct. He and McLiver readied the Warden's office about 10 to 11. After giving in notice of abandonment, waited some littleiime,then put in notice of marking out the Silver King between II 30 and 12. It was my intention to abandon the Sunny Corner, to enable McLiver to mark out afresh — never to abandon it to the public. His Worship, in giving judgment, remirked that tue case nad narrowe 1 down to a dispute respecting one man's ground. Fun ton had shown thai McLiver pegged out ground which had previously been marked out by Gavin, but that gave him no leason for awarding the ground to Fenton, as an outsider, and he could not therefore make an order re the Silver King. With regard to the Sunny Corner, one m.m s ground : It appealed that Hawkins abandoned the claim between 11 and 11.30, and McLiver had arranged w.t i Guy to peg out for him. ALCUordin^ to Menztes they waited a little while bo a-; to allow some time to elapse between abandonment and giviug notice of tiie ir'Sh pegging. It is quite clear from the evidence that the time on the notice paper of pegging out by McLiver should have iieen 12 and not 11. The facts showed that the pegging took place between 11 and 11.80. As regards the. Sunny Corner McLivtr u*-i marked it out in a valid and legal manner. His title to Gavin's ground mi^ht be a matter j for further litigation. As regards F«nt ou's claim, it had been shown tnat he took no steps in the nmttei for three weeke, till '6 1st August), McLiver

hiwingiieeifjih 'possession L all (lv» >in< and working tie ground, and j>it'i:?| s the ground iv that time bud prove va ualile. 1> wa. c \v>t as if I'oth parti - liud pogyod out tlie uume ground in die? pute on the same dny, and within n.\ l\our or so of each other. He failed t< see upon what, grounds Fento'i cam Itoforo him and claimed another mM\\ ground. Plaintiff was nonsuited, uud ordered to pay costs £4 19s.