THE Thames Guardian AND MINING RECORD. THURSDAY, OCTOBER 19, 1871.

Thames Guardian and Mining Record, Volume I, Issue 11, 19 October 1871, Page 2

THE Thames Guardian AND MINING RECORD. THURSDAY, OCTOBER 19, 1871.

Oxe branch of the trco of litigation ■which lias grown out of the Hazelbank case was cut oil’ by the Warden yesterday. Whether it will grow again, or whether another twig will shoot once more fronffthe parent stem, does not at present appear, but seemingly we have for "a time done with Fitzgerald v. Crosbie. This case, which must be tolerably familiar to our readers by this time, was, it will be remembered, an action to obtain possession of the Hazelbank claim on the ground that when the lease was obtained a fraudulent representation was made by Crosbie to the Superintendent, as the ground had not been marked out, and that as “'mhrkin£-out” is au essential condition precedent to the granting of a lease the fact of the ground not being marked out rendered the lease void. _ The argument of learned counsel for the'defence was on this point—that the lease having been granted it could not be set aside. “'To put the<strongest case,” said Mr Hcsketh, “ suppose the ground had not been marked out at all, and before the hearing of the, objection before the Warden, sitting ministerially, 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 lit; therefore, as the lease had been granted it must lie taken that all objections had been heard and disposed ol.” This is a very, important point indeed, and is the same as was raised in the Tokatea case ; but it was not decided, for'the W arden gave judgment for defendant “ on the merits of the case” on the ground that he was not satisfied that there was sufficient evidence that Crosbie had not marked out the ground. His Worship added that Crosbie’s evidence and acts were both suspicious, and that his testimony was contradictory, still it did not justify him in saying there was no pegging out in the face of the positive swearing of Crosbie that he did peg it out.•-• The result of this judgment is,

that the defendants, Crosbie and others, remain in possession, which trill be regarded, we believe, upon the whole as satisfactory; but still, if the question of the validity of the lease had been decided, it would have been more, satisfactory still. In the Tokatea case (Snell v. Tokatea) it will be remembered, perhaps, that the Chief Justice decided that the proceedings were bad from the beginning, and that Snell could not charge the defendants with encroachment,'he being himself a trespasser, and in this way his Honor carefully, as it were, avoided the real question at issue could the lease be upset or not ? Mr. Rees on that occasion contended as Mr. Tylet did yesterday, that “ fraud” was a collateral issue which would upset “any” deed. We should certainly like to hear this poiiit decided, for we believe if it were 'once set at rest, it would settle a great amount of pending litigation, a consummation to be desired by every well wisher of the goldfield,. Whether any appfeal is to be made'against the decision yesterday we have not heard—nothing was said in court as to that. We believe the judgment pronounced to be sound on the merits, but we should like to have heard the Warden’s ruling on the question of the lease.