WARDEN’S COURT.—Yesterday

Thames Guardian and Mining Record, Volume I, Issue 41, 23 November 1871, Page 3

WARDEN’S COURT.— Yesterday

(Before W. Fraser, Esq., Warden.) A. Walker v J. R. Hunter and Others. —Mr Tyler and Mr James Russell for complainant and Mr Macdonald for defendant.. In this case the complainant as liquidator of the Evening Star G.M.C., sued the defendant for encroachment, and prayed the Warden to eject them from posossion, and to assess such amount of damages as may seem just in the premises. The certificate of incorporation of the company, the plaintiff’s 'miner’s rights and the companies’ miners’right’s and the certificate appointing the plaintiff liquidator, were put in. The registratio iof the company as owners of the ground was admitted, and that the defendants were in possession at the time of the lodging the complaint and arc so still. —Alfred Walker deposed, I am plaintiff in this case, I am here in a fiduciary character as official liquidator of the Evening Star. The winding up was voluntary. The company is not wound up yet, There has been an order obtained. This was not obtained for the purpose of getting rid of the tributers. It was obtained because the directors could not get a call, and the company was in debt. I believe there is an arrangement for some of the old directors to buy in— The company was insolvent from the begining—Lent them £2O last June, and there were other debts—Never got it back—The company got the properly about the 12th June —There was no money to pay wages—The ground was protected in June, July, and August—Witness offered to apply for a lease, but the directors Mr Wilson, and Mr Hunter—objected. There was a directors meeting held, and an agreement was come to, to let the mine on tribute—(memorandum of agreement produced)—The tributers then went on to the claim, to work under the agreement:—Mr Tyler objected to the reception of the document, as being no contract whatever on behalf of the company so as as to be binding upon them, and could not be used agaiust them : —Mr Macdonald said, he admitted that it was not a lease, binding the company, unless he could show it to be so by surrounding circumstances. —The documents was received,and a note made of the objection.— It was under that document the men took possession, and the difficulty of the working on the ground was got over in that way. Know Mr Evans. Don’t know if tiie mine was offered to him on tribute. — Don’t know whether he refused to have anything to do with so poor a transaction. He was chairman of directors —The shareholders in Auckland _ were making complaints about this tribute, and intended to make a “ fuss ” about it, and to have the company wound up. By Mr Tyler: As legal manager I was servant of the directors. —J. R. Hunter was one of them ; George Hays was a shareholder; J. C. Wilson was a director; John Walsh was a shareholder ; Peter Aro Avas a director; Benjamin Greemvood and R. Fitzgerald Avere shareholders. —[Rules produced made at extraordinary meeting, and signed by directors, also minute book, time book, etc.]— Did not myself let this mine on tribute : had no authority to do so —Don’t remember anything being said about the claim being jumped in the event of the shareholders in Auckland making a “ fuss.” Received £275 3s 5d the result of the labor of the tributers. Don t knoAV positively Avhethcr the Auckland directors kneAV of this.

Robert Evans, miner, deposed : I Avas chairman of directors of the Co. —There Avere 3 Aveeks Avages due to the men Avorking on the claim, and no money to pay them with at the time this tribute Avas made.TheCo.Avas not in a position toniake calls, and the directors Avould not advance, and it Avas resoA’ed in October to let the mine on tribute. —Mr Walker offered the mine on tribute to Avitness, but the offer Avas not accepted. It Avas then offered to Hunter, Avh.o said he must take time for consideration. —Eventually the mine Avas let on tribute to Hunter and party—Had 200 scrip in the concern. —Several of the tributers Avere shareholders. —The men succeeded in their tribute, and paid their per centage ; the back Avages Avere paid. By Mr Russell: Am not a tributcr, and have no interest in the concern. — Had 100 shares at the time of the tribute, nnd another 100 stood in my name. Don’t remember the date Avlien I ceased to be a shareholder. Did not advertise this tribute; there Avas no time for that, nor Avas there any money. The ground Avould have been jumped if something had net been done. I sold because I Avanted the money. The men had a crushing about three Aveoks after taking the claim on tribute. It Avas a good crushing. Don’t remember lioav many ozs. it turned out. It Avas a specimen crushing. The men paid ten per cent. —The Court here adjourned for half an hour, and resumed. —EdAvard Gibbs deposed : —I Avas one of the directors of the company at the time of the tribute. Have no interest in it now. The tributers held a large proportion of the stock. The directors Avere obliged to let the ground on tribute.—Mr Macdonald addressed tho court for the defence, arguing that there hed been no encroachment, and that the tributers Avere entitled, under the circumstances ot a specific performance of their con tract Avhich otherwisemight notbebinding. —Mr Tyler for the plaintiff replied on the Avhole case, contending that plaintiff Avas entitled to possession of the ground, and could nor be ousted by defendants, nor Avas there evidence of any contract with private parties binding upon the company, upon Avhich these parties Avould be entitled to specific performance, as contended tor on the otner side.—The Court reserved judgment. J. Allen v. J. Ross and others.— This was an action for non Avoriring in the Fides claim, and Avas adjourned for a week, one of the defendants not haA-ing been served. 11. Davidson v. Multum-Ix-Parvo G.M. Co. —Mr Macdonald aiul Mr Tyler for complainant—and Mr Hesketh for defendant. The plaint set forth that the defendants are in possession of a claim situated on the Karaka block, comprising 8 men’s

ground, and knoAvn as tlio Multum-in Parvo or Harmouic claim, or thoMullmn-in-Parvo and Harmonic claims amalgamated, Avithout any title thereto : Wliereforo the complainant claims that the defendant be adjudged to liaA'e no title to tlio said claim, aud that tlio complainant may havo mado and given to him an authority of the Warden in writing, authorising him to tako possession of the said claim, and that he may have such other relief as the Court may deem just. In opening the case Mr Macdonald said certain statements had appeared in tho public press (Southern Crons, 15th No a-.), which Avcro highly improper, and reed as follows :—“Multum-in-Parvo Case.—Another incident has occurred to shake faith in mining property and prejudice the goldfield in the eyes of strangers. Wo are reluctant to enter into tho merits of the present jumping of the Multum-in-Parvo claim, ns it seems a case that is likely to come before the luav courts ; but A\'e cannot refrain from deploring the disastrous effect that such occurrences are calculated to produce. 000 We liaA’e a flood of harpies avlio are Avatching to sivoop down on anything that is left for a moment exposed, and that our magistrates, and Avnrdens, and Irav courts arc in connivance,and lend their assistance to the immoral act.” 0 0 0 But pending the coming in force of tin's legislation avc protest that nothing Avill Avarrant the alienation of tire rightful property of the shareholders of the Mul-tum-in-Parvo, and Avlicn justico and law conflict,'the more ephemeral arrangements should gh'e Avay to the eternal principles of justice. —The Warden said the editors of' the Auckand papers appeared to be a’or A’ generally ignorant on goldfields matters, but it Avas different AA'ith the press at. the. Thames Avho understood the matter better, and he must say usually acted very properly in not commenting on cases pending a decision, Avhich Avas most improper, and the Avritcr in the Auckland paper Avas to be pitied.— Mr Hcsketh said he regreited that any such article should have appeared. Tho matter then dropped.—Henry Chapman, manager of the corny any since its formation iu September 1569, said he kneAV tho affairs of the company and their property. The original shareholders gave up the ground to the company by deed of transfer. The original shareholders have confirmed this subsequently by receiving calls &c. The transfer Avas registered since the commencement of this action. The delay arose from ignorance on the part of Avitness nnd from necessity. (Deed produced, Avitli tAVO stamps on it, originally insufficiently stamped, subsequenty rectified on payment of line,&c.) —By Mr. Hcsketh : The mine has been Avorked Avithouthindrancefrom September, 18G9, until hoav. The original shareholders Avere Avorking the ground—White, Davis, and others—for some time after the formation of the company. IVo left and then tAVO other Avorkmemvere employed. The original shareholders had all miners rights. They arc all resident here or in Auckland. Witness can speak for all but one—Richard Taylor. Srav tho parties sign the transfer. It Avas signed on tho 2Gth September by the first avlio signed, and it was a Aveek or fortnight aftei'Avards before all the rest signed.—By Mr. Macdonald : I ca’nt say Avhcn James Wallace signed unless he Avas one of the first eight avlio signed, and if so, he signed on the 26th September. There Avas a preliminary meeting held in August to make arrangements for forming thcCompany at Mrßolters Mr McNaughton Avas present at it. Don’t think he Avas at the second meeting. —Mr Burgess, clerk in the Registrar’s office, produced the register of the Multum-in-Parvo and Harmonic Amalgamated Claims. The Multum-in-Parvo G.M.C. are tho registered OAvners ; but some of the persons transferring to them are not registered. Samuel Warrington is registered for one share ; Thomas Hide, half share ; John Malabone,one share,in the Harmonic. In the Multum-in-Parvo, James Wallis, B. Scanlon, E. Walker, J. Davis, M. Saxton, McNaughton,and another. —ByMrHesketli: Of the original shareholders, Warrington has 21-3Gths ; Joseph Malabone, the same. —Wm. J. Robinson, Receiver of Goldfields Revenue, produced a record of miners’ rights. The Multum-in-Parvo Company first took out miners’ rights on the 13th December, 1869. From the 26th September to the present date, none of tho shareholders have had continuous miners’ rights. Samuel Warrington had no miners’ right since Apiil, 1869, nor Mr. Joseph Malabone since December, 1868. Thomas Hide had a right dated 24th February, 1869. J. Malabonc had a right on the 30th July, 18G9. The Avitness Avcnt through the list of shareholders, and proved that none of them had continuous miners’ rights. —By Mr. Hcsketh ; Rights might be issued at Coromandel and transferred here, of which I might not know, but I should knoAV if rights from here Avere transferred to Coromandel. —Mr. Hcsketh said this Avas the first case of the kind in which he had appeared iu this Court. Hie complainant, he argued, had not proved that defendants Avere in possession without a title. The man avlio had a transfer in his pocket, although it had not passed through the Registrar’s office, had. a title, although it required registration to make it perfect, and non-registration rendered him liable to penalty. The sole object of registration Avas to regulate inconsistent transfers, and to give priority, and the Court had poAver to inflict a fine for non-registration. But Avhy should the Court have power to do more i* Suppose this transfer from the original shareholders Avas not registered until the 14th inst., and Avas then registered, the company had then a good title. The Court, lie contended, could not comply with tho prayer of the complainant by saying the defendants had no title, but could impose a fine for non-registration, and that Avas all—Mr Tyler replied, contending that tho defendants’ possession of this ground Avas illegal, and that they had no legal title, either under miners’ right or by transfer. Miners’ rights could give right to possession before they Avere nottakcu outor after they expired. The company did not take out miners’ rights until the 13th December, 1869; but they derived their title from the 26th September, and they really never had a legal title. As to the imposition of fine, no proceedings Avere taken asking for a fine, nor Avould the infliction of a fine patch up a defective title. Nor Avas any forfeiture asked for in this case, for it Avould be a manifest absurdity to do so, as there was nothing to forfeit. He confidently asked for .tho decision of the Court “ notAvithstanding the ravings of the Auckland press.”—The Warden said if the title had been challenged betAveen tho 26th September to the 13tli December, 1869, clearly they had no title, but from the 13th December until the present time the company had been in possession. He Avas of opinion that the judgment—a very learned one —of Mr. Warden Davey m a case similar to this, Brennan v. Bruce, Avas a sound one; and he felt inclined to give his judgment in accordance with it. Arte getting over the difficulty as to title and fherc was great difficulty in he felt himself justified in ordering a fo ]* el Jure to be remitted on payment of * penalty of £2O, within 3 dajs.