WARDEN’S COURT.—Thursday.

Thames Guardian and Mining Record, Volume I, Issue 11, 19 October 1871, Page 3

WARDEN’S COURT.— Thursday.

Before W. Fraser, Esq., R.M.) .** The Hazelbank Case. Fitsgerald v. Crosbie and Others. —For complainant, Mr Macdonald and Mr Tyler ; for the defendants, Mr Hesketh, Mr Beveridge, and Mr Lascelles. l This case, which ad journed from the previous day, was again resumed. For the defence Mr Stevenson was called. Mr Tyler said Mr Stevenson was in Court all the previous day, when witnesses were ordered out. * The Warden said he could not refuse to hear witnesses, but would bear this in mind.—R. R. Stephenson : I have the leaseholder’s miner’s right for this lease. I know John Dunsmuir. Remember the case of Tyler v. Crosbie being adjourned on 3rd August. Never tent a message to Crosbie by Dunsmuir.—By Mr Tyler : I saw Ctosbie' the same morning at Captain SkeeneV store. The defendant’s claim under the lease. Don’t remember seeing Dunsmuir on the 3rd August.—James Ferguson deposed : I am a sharebroker. I understand this to be an action to upset the lease. I have endeavoured o get evidence iu support of the case. I did succeed in getting the evidence of Dunsmuir and Thomson. Have had several conversations about the mallei. Don’t know where the Marine Hotel is. Had some conversation with Thomson at an hotel on the beach about this matter, but dont remember an stipulation being made. Don’t i ember either Thomson or Dunsmuir sax kig that they wanted so much for giving evidence. Don’t remember telling Fitzgerald about this. Remember Fitzgerald saying "ns Hazelbank ground had not been pegged out, and he wanted evidence about it. I did not advise him to get Thomson and Dunsmuiv’s evidence. I only know of the £3O being paid to Thomson from what he said himself. I have lent money to Dunsmuir because he was hard up—some £lO or £l2. I was negotiating a sale of an interest for him. I gave him £lO on Saturday, when he came down with Fitzgerald. Don’t remember talking to Fitzgerald about what ought to be paid to Thomson, and whether his terms should be complied with, nor whether Dunsmuir should be paid. I was at Mr Mac Cormack’s office when Dunsmuir made Ids written statement. The £lO was not given to him to get back the written statement from Idm which he had made in Mr MacCoimack’s office. The £lO was given to him because he was hard up. I said, “ If you’re short of money, I’ll let you have £10,” and I wrote a cheque. I did not see the statement in writing handed over to Fitzgerald by Dunsmuir. I had nothing to do with the matter. If Thomson got £SO from Fitzgerald, I suppose Fitzgerald found the money. I don’t know that Mr Amadeo found half of it. I did not myself give £25 to Fitzgerald, nor any other man in connection with this case. I was myself a sharebroker in the Hazelbank Company, and thinking Crosbie was not entitled to the ground, I thought somebody else ought to, have tt. I was in arrears for calls. I suppose 1 paid. I don’t know whether it was because I saw Mount Eden in the distance. I never heard a proposition made by Thomson that he was to receive £l5O for his evidence.—Examined by Mr Tyler:—l saw Thomson before I saw Fitzgerald. Thomson wanted me to get up a case against Crosbie because the ground was pegged out. I said I was a shareholder, and was bound to stick to the claim. I saw Thomson yesterday. What did he say about his statement? Question objected to by Mr Hesketh, and disallowed.—Mr Hesketh, for the defence, commented on the evidence offered on the other side, going carefully over what was deposed to the previous day. It was admitted that Thomson had got £SO for his written statement of what he was going to say, which statement he admitted was not correct. There was not a particle of evidence to show that Crosbie might have not marked out the ground, whilst the man on the claim was in the workings underground, and therefore could not see him. Ten pounds, it appear, had been given' to Dunsmuir to give up the statement which he had got back from Mac Cormack’s office. The evidence went went to show that Dunsmuir was bribed to give his evidence. Thomson, it was admitted, had received £SO. As to the witness Rowlay,ho was evidently well primed with his version of the matter, and a most extraordinary story his was—that he sat on the claim forseveial hours waiting for Mr. Crosbie, but never went to Crosbid’s. house, which was close by. Upon the testimony of the witnesses as to the fact of pegging out, Crosbie swore positively that he did peg it out. Had the witnesses for the other side satisfactorily made out that such was not the case. He submitted/ that Crosbie’s evidence was no’- iritradicted. The lease having been g . .rted it must be taken that all objections had been heard and disposed of, and it could not now be set aside by this Court on the ground that the regulations had not been complied with. The learned counsel repeated his argument of the previous day as to the construction of sections 9 and 21 of the Goldfields Act. Neither the Goldfields Act nor regulations aulhorissd the Warden to upset a lease when it had once been granted. The complainants allegation that there had been a false representation had'not been made out, at all events every other application had been made in precisely the same manner as this, and every other lease must be held to be invalid if this was. As to the lessor in this case being in the same position as the donee of a power. It was not so, because there was power in the Superintendent to grant a lease at his discretion, unfettered by restrictions. This was not an objection to the granting of a lease but an objection to a lease when granted. He asked the Warden to say by his judgment that the lease having been once granted, it could not now be set aside.—Mr. Tyler replied, saying that a similar case had been before the Court when it was argued by Mr: Rees. This Court, he submitted, had a power co-extensive with the Supreme Court in this matter. ’ "Fraud as an issue which, if proved, would upset any deed. The defenants here claimed under a lease. Was it to be argued that the complainants could not make replication to this lease which was set up, that it was obtained by false representation? It was laid down in the rules that the ground must be marked out 48 hours beiore ap plication. This had not been done. Was not then the lease void? In the case of Snell v. Tokotea the Chief. Justice never, hinted that the Warden bad no power to upset a lease ; but he ruled that the proceedings were bad from beginning. If the lease were void on the face of it, or if it were proved to be so by extrinsic evidence, this Court, the same as any other Court, must hold it to be void. The question was if it was void ernot, and he submit ted that there could he no doubt of it. Here 'here bad been no “ marking out,” and marking out was the ground work of every applii ntion for lease, and without marking out there never could be an applicant. The marking out was the basis of every lease, and without it there was no lease,

as his Worship had held on a former occasion. His learned friend’s argument was that nothing at all could upset any lease whatever which the Superintendent granted. Such a power was never conferred upon him. The Superintendent had certain statutory powers, to the exercise of which certain things were essential which must be strictly pursued. [See Hawkes r. Kent, 3 East 440.] Statutory powers must be exercised in accordance with the statute conferring the power. If there was no marking out there could be no notice given to parties interested, which it was evidenty the intention of the legislature'should be given, and for this reason prescribed how many and what sort of pegs should be used in marking out ground. Suppose a lease were applied for ground which had not been marked out, would the Warden recommend favourably to the Superintendent upon it? Would not his Worship .say, I cannot treat this as an application, because there has been no marking out.” —[The Warden said he must treat it. as an application nevertheless, but he might report that there had been no marking out, and recommend that it be not granted.]— Mr Tyler proceeded to argue that the Crown had been misled in this matter by misrepresentation on the part of Crosbie, which rendered the lease invalid, and this Court he submitted had power to upset it. There could be no doubt that there had been no marking out in this case, the testimony of Crosbie himself to the contrary, notwithstanding. In all other cases before the Court, where the question of marking out was involved, such as the Gladstone, Smiling Beauty, Hidden Treasure, and others, there was some corroborated testimony offered as to the main fact of pegging out, but here the only evidence that the claim was marked out was the unsupported testimony of Crosbie himself. If Crosbie did mark it out as he said, it was a singular thing that his bosom friend Mr Thomson did not know it. If Crosbie did mark out the claim, James Kennedy must have seen him, but James Kennedy was not produced. His evidence had been suppressed by Crosbie. —[Mr Hesketh said there was no evidence whatever to support this statement.] Mr Tyler repeated that Kennedy’s testimony had been suppressed. He had been brought all the way from Maraitai, and was in Mr Crosbie’s bedroom on Tuesday morning, but he was not visible afterwards, which was sufficient to warrant him (Mr Tyler) in saying that lie was kept out of the way by John Crosbie in the same way that Thompson had been kept of the way by him on a former occasion.—[Mr Hesketh objected to his learned friend’s comments, saying lie believed,Kennedy was, and had been since his arrival, at the hotel where he stopped, kept out of the way.—The Warden said, considering the circumstances, he thought Mr Tyler was warranted in commenting on the absence of Kennedy.]—Mr Tyler resumed, reviewing carefully the evidence adduced on the other side, contending that there cculd be no doubt that this lease had been obtained by false representation, as to the marking out that it was invalid, arid that the Warden ought to set it aside. The evidence of Crosbie as to'the marking out was, he submitted, untrue. He had never marked out the claim although he had sworn he had done so. At the outset of his evidence he opened his mouth with barefaced lies iu saying he did not know that Thomson was a shareholder in the Hazelbank. That was lie No. 1. Then he swore that Thomson was not in his employ, but Thomson swore he was in Crosbic’s employ, and was to get 7s per day. Then again, Crosbie was contradicted by Patterson ; and, in fact, his testimony was a mass of contradictions and was unworthy of credence. The Court was sitting in this ease as a judge and jury, and would any jury in the world believe that the claim was marked out on the 20th October by Crosbie as sworn to by him ? Certainly not. Then there was a fraudulent misrepresentation which would upset the lease.—The Warden said it would not be necessary for him to decide upon the points of law, as it would be decided upon the facts. This case differed greatly as to the marking out from other cases of the kind, as the marking out in th’s case took place 12 months ago. Crosbie swore positively that he had marked out the ground, and, although his evidence was very suspicious as to the pegging out, and so were his acts in connection, yGt he (the Wardon) did not think there was sufficient testimony before him for him to say that there had not been a pegging out, therefore he must give judgment for defendant with costs, £24 Bs. ' Mcllhone v Moa G. M Co.—ln this case Hugh Mcllhone, Inspector of Miners’ Rights, charged the Moa G. M. Co., registered, with mining from the 25th September until the 7th October, without leaseholders’ miners’ lights. Mr. Beveridge said Mr. Puckey, the Native Minister was, he understood, satisfied, in this matter. A leaseholder’s miner’s right had been taken out. In reference to the remarks made in this case by the court on the previous clay, Mr. Mcllhone said : “ In reply to the remarks made bp the Court with regard to this case yesterday, I may he pemiitled to observe that there was no compromise attempted or intended, the simple fact being that the legal manager of the company having stated to Mr. Puckey and myself that their company would plead guilty to the information of complaint, and would take out the rights at once, and that it was only an oversight there not being taken out. There was no instructions on my part, or any one acting for me, to assume the functions of tlio Court in dealing with rhe complaint; but, from the representations made on behalf of the company, the Inspector felt himself justified in instructing me to ask your Worship to deal leniently with the defendants.” No objection being offered, the case was accordingly-withdrawn,, and it was understood that the fresh miners’ rights would be dated so that the government should not be defrauded of any portion of revenue for the time there was uc right takon out: Emerson andothers v. Stanton and OTHERS. —The complainants in this, case were Alfred Emerson, Hugh Fisher, Henry Cook, W. D. Reed, Gisborne, Babbington, aud William Ellis ; and the defendants were George Stanton, James Gould, Richard Willis, Thomas Davies, Francis Shcrf, and John Jones. Ihe plaint set forth that the defendants were registered owners of the Pretty Nelly claim, on the Hape Creek, aud had neglected to fairly work ihe same during the period of their occupancy, the claim having been iinworked beyond the space of one day preceding the day upon which the complaint was laid: wherefore the complainants seek to be placed in possession of the ground. The only defendant who appeared was Janies Goukl, who said ho hail no objection to offer why an order should not be granted giving complainants what they asked for, and said if defendants liked to purchase a shoot which was on the ground they could do so. —Alfred' Emerson, 'one of the plaintiffs, was then sworn, . and having produced his miner’s right, deposed

to the fact' of the non-working of the claim by the defendants, as stated in the plaint.—Frederick Burgess, clerk in Mining Registrar’s office, produced the register of the claim,six men’s ground, and stated the names of the shareholders, which were the same on the 2nd. October as those mentioned in the plaint.—The R.M. gave judgment for complainant, but without costs, and said-he-hoped the parties would come to an amicable arrangement about the shoot. —The defendant Gould said he expected to get his day’s expenses. — The R.M. said Mr. Gould ought to think himself lucky that he and and his mates were not mulcteo in costs instead of being let off for nothing. George Maslin v. Tiios. Keel an.— This was also a claim for possession of a half share in the Black Forest Cl aim,Hape Creek, on the ground of its not having been fairly worked by defendant. —Mr. Dodd appeared for defendant. —The plaintiff was sworn, and having produced his miners’ right, deposed to a half share in the above named claim, of which defen dant was registered owner. Was not worked nor represented on the 9th October. —Mr. Burgess produced the registrar, and proved that defendant appeared as the owner of a half-share in the Black Forest. —-For the defence Mr Dodd called Patrick South, manager, to prove that Keelan’s half share was represented on the day in question by Mr Quadry.—Plaintiff was nonsuited without costs. John Stanford y. John Hanstow. — This was an action to recover the sum of £2 10s, being a balance of account for work and labour done.—This case was called on and the Warden said he would take it the first case to-morrow (this day) The Court then adjourned at 4.15 p.m. until this (Thursday) morning.