WARDEN’S COURT.—Thursday.

Thames Guardian and Mining Record, Volume I, Issue 10, 18 October 1871, Page 3

WARDEN’S COURT.— Thursday.

; , v -TJcfore W.'Fraser, Esq., R.M.) '‘•• "■ The Hazelbank Case. Fitzgerald v. Crosbis and Others.— For complainant, Mr. Tyler and Mr. MacDonald. For defendants, Mr. .Hcsketh, Mr. Beveridge, and Mr. Lascelles. The complainant in this case, John Daniel Fitzgerald, of sought to obtain possession of all that piece or parcel of ground known as the Hazelbank Claim, on the ground that when the lease was obtained a fraudulent representation was made by Crosbie to the Superintendent to the effect that he, the Baid John Crosbie had, at thetiine of granting the lease', iD all things complied with the regulations for the granting of leases made in conformity with the Act, which" was not the case, and complainant therefore claims that the defendants, John Crosbio, Robert Humphrey Stevenson, and John Black, arc in unlawful possession of the claim, and seeks possession of it himself. Mr Macdonald, in opening the case, ( said of course it was conceded that tho Supetintendent,as the Delegate of the Governor had power to grant leases (and in this case a lease was granted), but it was alleged by complainant that defendants had not complied with the regulations in marking out the gronnd, as required by the Act, but had, nevertheless, represented to the Superintendent, that all that was required by the rules and regulations had been complied with. The Court in this case would have to decide two principal questions, one of law, and one of fact! In the first place, was there a marking out ? and in the second if there was not, what would be the effect upon the lease, tho marking out being a condition precedent to the valid granting of a lease. Doubtless a point would be raised on the other side that this Court had no power to upset the lease when it had once been granted ; but if this Court could not interfere, he took it that no Court could, inasmuch as this action was founded upon the 9th rule. Tho lessor of this lease was in the same position as the donee of a power, who would therefore be bound to exercise sucli power strictly in accordance with the conditions imposed. Evidence would be called to prove that there was no marking out as represented by Crosbie, and this marking out was, he submitted, a condition precedent to the granting of a lease. —John Crosbie, examined by Mr Tyler, deposed : I am one of the defendants in this case, and was also a defendant in a case brought in August last by Mr Tyler. I know the other defendants. Don’t know whether they were shareholders in the Hazelbank. Know the claim known as the Hazelbank. Have worked upon it. Made an application for a lease of it for myself on the 20th October last. The other defendants had nothing to do with the lease. I claim a right to possession under a lease granted on the 2nd lebruary. The other defendants also claim under the same lease. (Application produced). Marked out the ground applied for on the 20th October, 1870, the day the application was made. Marked out the ground after seeing Mr Miller and Mr Lascelles at about half-past 10 a.m. Went straight to the ground and pegged it out and came back about noon. Marked it out with pegs—sawn timber 3 x 4, or perhaps larger, and 3 or 4 feet out of the ground, There werG 12 pegs. The claim is narrow. No one saw me except Mrs. Bain. Slept the previous night at my own house, ifnd left it about eight the following morning. Gave no instructions to one Thomson about it. Some men had been working, but they had been knocked off on the 19th. Wa3 not on the claim on the 19th. Was not on the ground on the morning of the 20th before pegging out. Was at Tararu that morning. Did not go to the ground in the afternoon. Know James Kennedy. He said be bad had a dispute with Fitzgerald and was not going to appear. Saw hint this morning in bed at Gillons about half-past six o’clock. Did not see Robert Davidson at Gillon’s this morning. Did not arrange for Mclntyre and Kennedy to go to Punga Flat to-day. Might have tried to keep Thompson away on a former occasion. Will swear I did not make any arrangements to keep Kennedy out of the way to-day. Neither Thompson or Kennedy were on the claim when I marked it out. If they had been there I must have seen them, unless they were in the drive. Had told Thompson the day before to discharge tho men, and put the tools in order I left the hut that morning before Thomson. He was there in my employ. He is not so now. Shortly after the case in the Supreme Court be ceased to be so employed. Thomson posted the notice on tho 21st October at my request. Told him some time about noon on the 20th to go and get the application from Mr Miller. Have marked part of tho claim subsequently—after the Supreme Court action. Told Thomson to put in fresh pegs—told him him to put in sawn pegs. Did not tell anybody else to mark it out. Know Jolm Dunsmure, Never told him to mark it out. Told him to tell Thomson to mark it out. Did not say anything to Dunsmure about its not being any matter that the ground had not been marked out, as it was only a matter of fine, and did not affect the lease. Remember an altercation with Patterson about the Marquis of Lorn claim. Patterson did not say anything about not marking ont the Hazelbank. All except one of the pegs were put in the same places as the old pegs. That one was placed on the boundary line. The claim had been pegged out on the sth October of the same year. I saw Thomson in Grahamstown about twenty minutes past 12, noon, on the 20th. Never said I saw him that morning at a quarter to 12. Could not say how long I took to peg out. It is about five minutes walk to the ground. Left here at about a quarter-past 10 and got back at 12. After receiving the summons in August saw Dunsmure. Did not tell Dunsmure to come and swear to the marking out the ground. Did not ask him to keep Thomson out of the way. Did send Dunsmure to Tararu for Thomson.on the 3rd instant, but be could not find him. Did not send Avoid to Thomson not to go to Auckland, but to keep out of the Avay. Was not myself hidiug at Crawford’s bouse to nA*oid service_of summons. Spoke to you and Mr Rees on the day the case Avas going on. Don’t know avlio put the pegs in when the ground Avas surveyed. —William Frederick Thomson, Avho said lie objected to being sworn before lie knew whether a contract he bad made with Fitzgerald be carried out, deposed : I Avas employed by John Crosbie to Avork on the Hazelbank claim. Commenced on the Ist October, 1870. Worked up to the 20th of the same month. Went there about 8 o’clock that morning. Had to go

back for some paper and a pencil, and then Avent back again. Don’t know the exact time. It might be about 10 o’clock, or a little after. Left between twelve and one. Went back again about three. I saw Crosbie at his house near the long drive. He told me to go to Mr Miller’s and get a copy of application for lease and post it . on the ground. Looked round the claim to see if the pegs Avere all right. The object Avas to mark out. I thought it might be necessary in consequence of Avhat Mr Miller had said.-,' Mr Miller had asked me'if the ground had been marked out, and I said no. The pegs that I saw Avere pegs made out of props about four inches in diameter. They were sawn in two. They Avere not scantlings 3 by 4. Pegged it out again in company Avith Mr Jordan on the sth September. It Avas then pegged out Avith split pegs. They were some sarvn timber pegs that had been prit in previous to October. Have marked out the ground again on the Ist August in consequence of intimations from Crosbie, some of tho pegs having been washed away. The pegs put in this time Avere of saAvn timber. Slept in the same hut Avith Crosbie on the 18th. After I got the pencil and paper I Avent to Grahamstown, sarv Crosbie, and then went back to the claim. Did not see Crosbie afterwards until he told me to go to Mr Miller. Did not sec Crosbie on the ground from ten to twelve that day. I Avas on the claim I believe during those hours. I saw Kennedy on the ground. Crosbie might have been bn the ground and pegged out and I might not have seen him, as I was in the Avorkings part of the time. Might have Baid that Crosbie could not have pegged out the ground that morning Avliilst I Avas on the surface of the ground; (Avritton statement of Avitness handed to him to the effect that Crosbie had not pegged out the ground on the morning of the 20th.) This, witness said, Avas not correct. I don’t remember telling you that the claim Avas not pegged out. Don’t remember telling you this morning that I must have seen Crosbie peg out the ground, if he had done so. I told you I did not see him. I never told you I Avas in the Avorkings. You never asked mo. I could not swear positively it Avas not pegged out by Crosbie, because I was partly in the Avorkings. When Kennedy came on to the ground he let me doAvn and pulled me up again. I might have been doAvn half or three quarters of an hour, Put Ml the tools into a place of safety on the Avorkings. I had seen Crosbie to-day—see him every day. Have not been talking to him today about the case. Have been in his employ since. Have agreed to receive 7s per day. Had no guarantee, only a verbal promise that these Avages will be paid. Know Mr. Black. He told me my Avages Avould be paid. Nothing Avas said about my being paid for giving evidence. Have been paid by Crosbie for 20 days Avork at Gs. Bd. per day. Neither Stevenson nor Black have in any Avay made me any promise, or he'd out to me any expectations Avhatever that I shook! receive anything for my evidonce. KnoAV that Crosbie and Black Avere sued by you in August. I had occasion to go to Wairoa about that time. Went to Auckland Avith Crosbie. Did not go to avoid being subpoenaed. I was not very anxious about the matter. Crosbie said if I did uot Avish to appear I could keep out of the Avay. Did not hide in Crosbie’s house for a day or two. Was there for an hour or tAvo. I Avas on the street the same night.—By Mr. Hcsketh — The contract I spoke of Avas, that I meant to have nothing to do Avith the matter unless I had £l5O from Fitzgerald. I have received £SO in Mr. McCormicks office on signing the statement (produced.) A clerk Avas present in the office. —a young man with a rather big nose, whose name I don’t know. It Avas arranged through Dunsmore. I Avent to Auckland in consequence of a telegram to the effect that Fitjq erald agreed to the terms. Got the £SO in gold and notes. I would not have anything to do Avith this matter unless I got £l5O. Have had no conversation Avith Fitzgerald as to the balance. Have not made any agreement for anything beyond the £l5O. I shall expect an interest in the ground if Fitzgerald Avins the case. When I made the statement I understood I Avas to get £SO. I Avas to get another £SO to-day, and the balance on Fitzgerald getting his case. —By Mr. Macdonald. —If I had had the other £IOO I Avould not have sworn to a statement in that paper, because I am not certain that it’s all correct. At the time it Avas draAvn out there Avere many interruptions. It Avas written doAvn as I dictated. The part that states that Crosbie could not have been on the ground is not correct, because he might have been there, but I did not see him. I did sign the document as a correct statement. [The Court here adjourned for half an hour, and resumed.] James Kennedy Avas called, but did not appear. Frank Amodeo was also called but did not appear.—John Dunsmure deposed : I knoAV the defendant in this action. I knoAV the Hazelbank ground. I remember a suit being brought by the Company against Stevenson in June last. Knew -Crosbie before that. Had some conversation Avith him about the application for the lease. Was stopping in the same house with him. Crosbie told ine to go along Avith CraAvforJ and slioav him the pegs, in order to mark out the ground. This Avas subsequent to the action. He said all they could do Avas to fine him for not having his pegs in. Thomson received £1 to peg out the ground. In August, the day before the case came on (Tyler v. Crosbie), a convcrsattion took place between Crosbie and myself. Crosbie said there Avas a subpoena out for Thomson, and I Avas to tell him to keep out of the Avay- I Avert to look for him, and found him and Crosbie next morning. Thomson went towards Tararu, to keep out of the way. Crosbie said if Thomson was kept out of the Avay, there Avonld be no case. He said afterwards that if Avas called upon in Court, I Avas to say I had pegged out the ground. Crosbie got under hiding at Skeene’s office, to keep out of the Avay of the subpoena. I Avent to tell him lioav the thing Avas getting on. The case Avas postponed for a Aveek. Mr Stevenson sent me backAvards and forwards to let Crosbie knoAV Avliat was doing. This Avas the day of the adjournment of the case. I saw Crosbie as he Avas going to Auckland. He and Thomson Avent up together. Have been on the claim after the 20th October. Have seen some of the pegs. They were not sawn timber.—By Mr Hesketh: I Avorkcd in the Long Drive prior to October, 1870. Don’t remember Avhen I left off, 1 have made a written statement of the evidence I Avas to give to-day, in Mr Mac Cormack’s office. I got no mouey for so doing, nor any promise of interest. The statement Avas Avritten and signed in the presence of Mr Mac Cormack’s clerk. Don’t knoAV his name. Left the statement at his office. Got it into my own hands scbsequently about Thursday or Friday. Got it so as to ha\'e a look over it; wanted to see Avliat I had said. Mr Fitzgerald Avas in the boat Arith me on the passage from Aucklund. Did not give the statement to him on hoard the steamer that I remember. I did give it

him, but I don’t remember when. Got nothing in exchange for it. Did not refuse to give up the document to Mr Fitzgerald unless Mr Fitgerald gave a written guarantee for an interest in the claim. Went to Mr J. B. Russell with the document. He read it. After that did not say to Mr Fitzgerald, “ You Avont get me to give back tha£~ document unless you give me a written guarantee for my interest.” Mr Fitzgerald has asked for the document. Did not give it him. Had no particular reason for refusing. I told him I Avould give it him Avlieu I got down here. I don’t know Avhen I gave it him. I saw Mr Fitzgerald on Sunday. 1 arrived here on Saturday, and parted from Mr Fitzgerald in the street. Did not go to the Theatre that night. Do not remember anything being said about my having two shares in the claim. Did not see Mr Thomas Russell in the matter, and explain that I was only to have two sha es instead of one, and then go to Mr J. B. Russell’s office. Something might have been said at Mr J. B. Russell’s office about not giviug up the statement unless a Avritten guarantee was given to me by Fitzgerald that I should have an interest in the ground if gained. Mr Stevenson told me to take a message to Mr. Crosbie about the case. . Was not manager of the Whau at this time. Crosbie told me to tell Thomson not to go to Auckland, but to keep out of the Avay. Found Crosbie in Mr. Skene’s office in a place Avhere there is a bed. _ Could not say if Captain Skene Avas there. Don’t remember seeing Captain Sellars there. George Rowley, carpenter, Grahamstown, deposed : I know the Hazelbank Claim. KnoAV Crosbie, the defendant. Worked there from the 3rd to 20th October. Was then knocked off by Crosbio’s orders. Then Avent home and then went back and looked out for Crosbie to pay Avages. If Crosbie went on to the ground and pegged out on the morning of the 2nd October I must have seen him. I did not see him. There Avas no saAvn timber pegs on the ground or the road. I had put pegs into the ground myself on the sth or 6th October. (They Avere not saAvn timber. I made tho pegs myself. Witness Avas cross-examined by Mr. Beveridge as to the length of time he was on the claim on the 20th, and said he remained there until about 2 o’clock in tlie day smoking a pipe, but saAV nothing of Crosbie during that time. Crosbie’s house is about 500 yards off, but did not go there at the time, as Avitness was waiting for the other men, so as all should go together to Crosbie’s to look after the wages. Went to Crosbie’s in the evening. Did not get paid, and subsequently sued the company and got the Avages. Never got paid for that half day on the 20th October, but is. ready to* take it noAV if Mr. Beveridge Avill pay it (A laugh).—Hugh Patterson, miner, Grahamstown, deposed that lie kneAv the defendant and also the Hazelbank Claim both very well. Remember the day on Avhich Crosbie applied for a lease. SaAV him in Grahamstown that same morning. Left him as he was going to Mr Miller’s office. Don’t remember seeing him again that day. Had a conversation Avith him about the Hazelbank claim. He said it did not matter about marking out, that he had got the lease, and that I could do my damnedest. —James Kennedy Avas called, hut did not appear. —Mr Tyler said the Avitness had) been subpoenaed, and it Avonld he necessary for him to show cause Avhy lie should not he fined £5. —Frank Amodeo Avas called to prove service of summons, and stated that all flic witnesses expenses had been paid from Maraitai. Mr. Tyler baid he should Avish the Court to make a note of this, Avith a vieAV to witness being.called upon to show cause why lie should not be fined £5. —John David Fitzgerald deposed: I am complainant in this action, and am the holder of a miners right. The statement of Thomson that he had been offered Ll5O is untrue. Gave him LSO to defray his expenses, and prevent him going aAvay. Have not agreed to give him any more than tlie one sum of LSO. He Avas not to receivo LSO to-day, and LSO if he Avon the case. Never promissed him an interest in the ground nor anybody else for their evidence to day. Never promised Dunsmuir any interest.— By Mr. Hesketh: Did exchange telegrams Avith Thomson about this matter, . Asked him Avliat evidence he could give. He said he could give good evidence, but Avanted his expenses to be paid. Ultimately it Avas arranged that he was to make a Avritten statement of his evidence, and he Avas to recerfe LSO for his expenses. Mr. McCormick is umvcll I believe. He is not here to-day. He did not refuse to come because LSO had been paid in his office that I am aAvare of. He is engaged in hearing another case in Auckland. Mr. Dafaur, clerk to Mr. McCormick, paid the mouey. It was paid in the office in my presence, and I Avas not in tlie passage Avhen the £SO Avas paid. Do’nt remember sending a telegram offering to give Thomson L 75 doAvn. Did send him a telegram. Never offered him more than LSO. Never heard of the Ll5O until this day in Court. If I had offered Thomson £75, lie Avould liaA-e taken it. I myself offered the £SO. No man in Auckland, and no one but myself has paid any money that I know of in support of the case. Have not giveu Dnnsmure an 1.0. U. for any money for his statement. Don’t know lie got it aAvay again from the laAvyer’s office. He gave it back to me in Grahamstown, I think, outside the Empire Hotel, but I can’t swear. I heard that Dunsmure Avas going to sue for £236, and I understood your offer on Crosbie’s behalf Avas to pay £SO in full discharge of the £236. Thomson lias applied to me for more money, hut I have not complied Avith his request.—This Avas complainant’s case.—For the defence Mr Hesketh said no lease had been produced, and therefore complainants must he nonsuited. Moreover, Avhen a lease had been once granted it was not tlie law here that it could he assailed on the ground that the regulations had not been complied with. The lease having been granted, it must be assumed that all objections to it had been heard and disposed of. The application for the lease in this case had been put in in the ordinary Avay. The day for hearing objections had gone by and the Superintendent had granted the lease, and it could not noAV be upset because tlie ground had not been pegged out. It Avas absurd to say after a lease Avas once granted by the Superintendent it Avas necessary to presen*e the evidence of the marking out and tlie performance of all the preliminaries required by the regulations. To put the strongest case : suppose the ground had not been marked out at all, and before the hearing of the objections before the Warden sitting unintentionally he found it had not been marked out, and so reported to the Superintendent; yet, nevertheless the Superintendent had power under rule 21 to grant or refuse the lease as he thought fit in spite of the absence of marking out. After the exercise of such a discretion by tlie Superintendent, no Court Avould interfere Avith the lease. Moreover, there Avas np evidence Avhatever of any false representations made to the Superintendeut.—Mr. Macdonald submitted that it

was not necessary to produce the lease, as tliey had secondary evidence of it.—Mr. Tyler said the complainant declined to take a nonsuit on the second point raised by Mr. Hesketh, that the lease having been once granted it could not be assailed in this Court on the ground that the regulations had not been complied with.—The Court declined to grant a nonsuit on the first point, being of opinion that there was sufficient evidence of the lease, but expressed no opinion on the second point, at this stage of the proceedings, but asked the counsel for the defence if they were prepared to go on. —Mr. Hesketh said certainly, but suggested an adjournment of the case until next day, as it would probably take some hours.—The other learned gentlemen agreed, and the Court accordingly adjourned at 20 minutes to 5 p.m., until this morning. Mcllhone v. Moa G.M.C. —In this case Hugh Mcllhone, Inspector of Miners Rights, charged the Moa G.M.C., Registered, with mining from the 25th September to the 7th October, without leaseholders miners rights, wherefore the complainant prays that defendants be adjudged to have forfeited for every day such mining was carried on, any sum not exceeding five pounds. The Warden said he proposed to take this case the first thing next morning.—Mr, Beveridge said it had been settled, and would be withdrawn by leave of the Court.—The Warden said on receiving a letter from Mr. Puckcy to the effect that he was satisfied on behalf of tho natives, lie would allow the case to be withdrawn.