WARDEN'S COURT.—Yesterday.

Thames Advertiser, Volume VII, Issue 1853, 9 September 1874, Page 3

WARDEN'S COURT.— Yesterday.

(lieforo W. Eraser, Esq., R.M., Warder.) THE DRAINAGE CASES.

All the claims for the drainage contributions were upon the list for hearing as follows: The Imperial Crown and others v. Imperial City G. M. C.; Do. v. Otago G. M. 0.; Do. v. Hazelbank G. M. 0.; Bright Smile and others v. W. Thomas and others; Do. v. City of London; Do. v. Crown Prince; Do. v. Rird-in-hand; Do. v. Exchange; Do. v. Queen of the May; Do. v. QueeD of the Thames.—The first named of the above cases was called on. Mr Macdonald and Mr Tyler appeared for the plaintiffs, and Mr Hesketh and Mr Rogan for the defendants.—Mr Hesketh said he should ask for the authority to bring that action. He was not aware that any authority had been filed for the laying of the plaint. His objection was, that there was no authority before the Court for instituting these proceedings.—Mr Macdonald, in reply, quoted " Abbott on Corporations," contending that the other side was exactly in the same position towards his clients as if they were mdiriduals.—His Worship said that that Court had held over and over again that it was necessary for any person appearing for a company to produce an authority under seal of the company. He must uphold the decisions of the Court already given.—Mr Tyler said that since then authorities had "been discovered by the profession, showing that the authority was a matter entirely between attorney and client.—Mr Hesketh said that under the Joint Stock Companies Act there might be exceptions, and an attorney n.ight appear without authority, but there was no exception in the case of mining companies.—After some further argument, his Worship said he had taken a note of the objection. He thougiit it was rather a serious one himself, but lie would not let the case stop upon that.—Mr Macdonald then putin the certificate of incorporation of the Goldeu Crown, Caledonian, and Imperial Crown companies, the miners' rights of those companies, various gazettes, &c.— Henry Goldsmith deposed: I am Mining Inspector on this gold field. I know the gazette of 6th July, 1872, proclaiming the Hauraki Gold Mining District. I know the boundaries proclaimed by that gazette, as also the boundaries as altered • by a gazette sth December, 1872. I also know the position of the pump owned by the Imperial Crown and other companies. I know the mine, or licensed holding of the Imperial City. Those properties are all within the district. The Imperial City mine is worked, I presume, by the company.—By Mr Hesketh:—The big pump is on the Imperial Crown mine. I am not prepared to say if that is a licensed holding. I have been down the defendant's mine about eleven months ago. I went down the main shaft, and saw the workings. That was on October 17,1873. The shaft was about 240 feet deep. I went 25 feet in one direction, the bottom level, and 46 in the other. There, was a well at the. bottom. The mine was tolerably dry. I did not sound the well. I think there was a little water in the well. I watched the mine, and saw the mullock coming up dry. I had not been down for a long time before that. It was good sinking ground; I should say rather soft. I should say that, I think, with regard to both sides of the shaft. I don't think I saw any reef. I do not remember noticing a bar on the south side of the shaft. The pump itself is entirely on the Imperial Crown mine.— John H. Salmon deposed: I am a mining agent in Grahamstown. I am secretary of the Imperial City Company. I know the mine. It .belongs to the company, and is being worked by them. It has been worked by the company since 1871. At the time the notice was served we were not working, We are working now. We have a shaft of about 236 feet deep. We have no pump. We have no necessity to pump as we have no water. I say there is no water by reason of the puddling. The Duke of Magenta people puddled. I was a shareholder at the time it was puddled. It is my opinion that it by reason of the puddling that we are now free from water. I think the puddling was done before the shaft was 40 feet down. It is continued probably for not more than 30 feet. When the shaft was puddled, it was thought the water was surface water, as the shaft was close to the creek. I thought myself when I first saw the shaft that it wa* mostly soakage water. The water went down when the shaft was puddled and baled. I believe that if the puddling was taken out the creek would come in. That is the reason why I think the mine is free from' water now. I was a shareholder in the Duke of Magenta from September, 1869. I have frequently looked at the mine. For a long time there was surface water coming down. I was a shareholder at the time the mine was puddled. From the time of the puddling, the water steadily decreased. In driving towards the Golden Hill, leaders were met with and a winze was sunk perfectly dry. At that time water was coming into the shaft. I did not bear that the winze was occasionally flooded. The Duke of Magenta people sunk the winze. I think in the latter end of 1869, or early in 1870. Healey was the man who puddled the shaft., I am not aware whether it was intended to stop working immediately the puddling was completed. Iwas not thenjon the directory, but they',did stop shortly afterwards for want of funds. I should think the intention was to puddle the shaft before stopping work. The shaft was twice puddled. When we did knock off for want of funds I do yiot know whether protection was obtained. I think it was then held undor lease, but I don't know. — (His Worship said it was a lease in 1868. It was one of the first leases). I was not then on the directory, and could not tell when work was resumed, but it was necessarily before the claim was sold, or they.would have no right there.—Thomas Millett deposed: 1 am a miner, and have resided here since the first opening of the goldfield, and more or less have a knowledge of all the mining done on the flat, I with my mates were amongst the first to start sinking on the flat in the Little Poverty, between Goodall's battery and the side of the hill. We met with water in sinking that shaft. When wo went down 20 feet we had as much as we could do to bale the water with two largo buckets, and when we got down 50 feet wo could not do so, and afterwards had to get a wooden pump which we had to work constantly to keep the shaft dry. At last, wo had to leave that shaft, as we wero unable to contend with the water. In driving at a depth of 60 foet, wo wero swamped out. A shaft was also sunk near the corner of Tookey's by a man named Bruce to a depth of about 50 feet. I believe they had then to knock off for water. I think Bruce sold out. As iar as I can recollect, they were drowned out. I was one of the original shareholders in a claim callod tho Shannon. Wo started a shaft 20 feet, at this sido of tho Golden Gato shaft, on the flat, between the Govornor Bowen and the beach whero

De Hirsch afterwards had his tailing machine. We sunk it there because it was the nearest to the Golden Gate and Duke of Magenta. Wo got down 25 feet, and could get down no deeper on account of water. We afterwards started another shaft at the opposite side of the creek. This shaft was still worse; we only got down 15 feet and we were then swamped out. Tho Golden Gate were working close to us. I bolieve they were sinking. I saw them working tho windlass, hauling stuff and water, but mostly water. Matthew Kit was a shareholder with me. The Golden Gate afterwards got an engine and pumps, but they were at that time baling with buckets. I think they kept on after we knocked off.—Cross-examined: I cannot give any date. We started tho Little Poverty shaft about five years ago. We sunk three shafts. I believe it was in' 68. The first shaft we sunk in the Shannon was about 300 or 400 feet from the Duke of Magenta shaft. We sunk this shaft in '69. The first shaft was within 2 or 3 feet from the creek, and the second one might be about 20 feet from the creek. The country in the first shaft was blue clay, which we got when down 15 feet. We got an iron box made, which we drove down before us. We did not try puddling in any of the shafts, but I believe it' we had tried puddling it would have been no good there until we got to solid ground. The water came in heavy. We puddled somo of the shaft in the Little Poverty down to the solid, at a depth of about 20 feet. We had the puddling stuff convenient. : We had not the pump at this time. Wo used the iron box in the Shannon shaft to prevent the sides of the shaft from falling in.— Matthew Kitt deposed: I have been a miner on this field almost from tho first, and was one of the shareholders in the Shannon claim. In that claim we began to sink within two or three feet of the creek. We did not get down many feet before wo got water. We had to get a drift-box made to keep the sides from falling in. Wo got down about 25 feet, and then had to knock off on account of water and stuff coming in. 'We then commenced to sink another shaft, and had to knock off at a depth of about 15 feet. I saw people working at the Golden Gate shaft. They were continually pulling up water, and a little mullock amongst it. They afterwards got an engine. I have lived on the Crown Prince ground about two and a-half years. I was working in the Crown Prince two years ago, the time John McDermott was manager. I think the drive in which I worked was at a depth of 100 feet. A winze was sunk in the drive to a depth of 7 or 8 feet, but the gas was bad, and we could not continue. The shaft was within about 50 feet of the corner of Albert-street. The mine was then dry. I worked in a shaft sunk by John Lundon near the Golden Crown boundary. They were sinking iu the Golden Crown shaft when I was working in John Lundon's shaft. The distance between the two shafts is 60 or 70 feet. I do not reeollect the date, it is between four and five years since. Ido not know whether the Caledonian pumps were then going, but the Golden Crown machine was not up. We had to bail water continuously day and night, and after a time we knocked off as we could not very well sink any further on account of water. We got down about 50 feet, and opened out 10 or 12 feet above that. Baling was kept on at intervals of about 20 minutes, day and night, while we were driving. I left the mine shortly after that.

After the adjournment, Mathew Kit was cross-examined by Mr Hesketh as follows:—The Golden Gate were between 90 and 100 feet wlien they were baling oat. I do not know how deep they were before they got the engine. The Golden Gate shaft was about 100 yards from the Duke of Mr,genta, and Lundon's shaft .about 70 or 80 yards from that. Lundon's shaft was about 50 feet deep when I left it about five years ago. Lundon's shaft was about 20 or 30 feet down when I went to work. There was heavy .water when I went to work. There was an injunction put on the shaft when I left. I worked three or four months in the Grown Prince. It was then about 100 feet deep. That was about two years ago. We were not troubled with water; we met with drift in the Shannon shaft, The ground was top, shells, and when we went a piece we camo on blue mullock. About 20 or 25 feet we met with the most drift. The water came in easily.—By Mr Macdonald: The Golden Gate were down 90 or 100 feet. I was working in Lundon's shaft before they took up the Shannon.—Charles Tothill deposed; I am secretary of the Pumping Association. I have been so for some time. I am also secretary or manager for each of those companies. Those four companies are the owners of pumping machinery. I have a knowledge of the cost of maintaining the machinery. The cost of the machine up to the time of bringing this action has been upwards of £65,000. The estimated cost for the maintenance and pumping is about £1,000 per month. That would be the actual cost without accidents. I am secretary of the Tookey Quartz Mining 'Company (Limited). That company has an office in Shortlandstreet, Auckland. It has had an office there for about three years. It was incorporated ii Victoria. There are directors in Auckland. That company is one of the joint owners of "this machine. I know that it is incorporated in Victoria, by the Victoria gazette, and by the certificate of incorporation. I know _ the registered office in Victoria, which is at Eldon Chambers, Ballarat. The company has been carrying on business cn this goldfield, and hold a lease of gound. I he mine has been let on numerous occasions on tribute, and the company has been carrying on business under the name of the Tookey Quartz Mining Company (Limited). Its capital is divided into scrip shares, and those shares have been circulated here and in Auckland.— Cross-examined ■ by Mr Hesketh: The Tookey Company has a common seal. It has had a common seal since its incorporation. As secretary of the company, I have not, and never have had, the common seal. The seal is at Ballarat. (Seal on document shown to witness.) This is not the common seal, but 1 had instructions to affix a.seal. The Pumping Association is not incorporated. Its business is to drain mines. I am not aware that they make profit. The Caledonian Company is one of the owners. There is a joint deed. Tlieso mines have been associated for upwards of three years. The business of the Tookey Company is to mine the Tookey claim. I saw the Victorian Gazette within a few days, Auckland. I have also seen a certificate of incorporation in Auckland about throe weeks ago. I believe the Tookey Company is formed under the Victorian law. I believe I can produce documents showing the incorporation of the company. I was able to produce them about three weeks ago. The object of the Pumping Association whon it commenced was to drain themselves and tho surrounding country. The Tookey chim

is held under lease. The Imperial. Crown is not working the mine for gold. A. portion of the ground is being worked on tribute. They have been working about five months. It is the piece called the Golden Hill. In the shaft where the pumping machinery is, sinking has been going on for some time. It is proposed to go 300 feet further. I do not know the Prince Imperial mine. We are charging them for drainage, and the Waiotahi. I am not aware if the ; Herald Company is being charged.—By Mr Tyler: That seal shown me is not the seal of the company. I have seen an impression of the seal. (Witness produced Yictorian Gazette containing notification, of incorporation of the Tookey Company, and the certificate of incorporation of the company. I received them from Victoria. They came from Melbourne by order of the manager.—Edward King; Tyler deposed: I am a solicitor, pracfcising in Grahamstown, and barrister of the: Supreme Court in Victoria. By the law of Victoria there is a statute called the. Companies' Statute, 1864, under which companies and other associations may be incorporated, and under which by such incorporation such companies have perpetual succession, and a common seal, and power to hold land. In order ' to effect incorporation, memorandums of association have to be filed, and lodged with the Registrar-General of the colony. - On those preliminaries being done, the ' Kegistrar-General, or any duly appointed deputy, notifies in the Gazette that the'. company is incorporated, and by such notification such company becomes incorporated, and such notification becomes conclusive evidence that all the preliminaries have been complied with. I left-,-' Victoria in 1866, and at that time John Ferris was the Government, Printer, and the Government Gazette was at that time printed and got up precisely similar to the one I now hold, which' purports to be a - Government Gazette of Victoria, published by John .Ferris, Government Printer. The production of this gazette,., assuming it to be the Government Gazette of the colony of Victoria, containing the notification, would be conclusive evidence of the incorporation of the Tookey Com' pany, in the Courts of that colony. —By Mr Hesketh: I cannot say that • that statute I have referred, to is in ope- ' ration now. It was in operation when I left in 1866.' It is an Act passed by the Legislature of Victoria! I do not know that it is required under the Act to have a common seal, but power is given to 5 have a common seal. Provision is made ~ for the execution of deeds out of the colony. An attorney may be appointed. under the common seal. The Act pre-; scribes that the company shall have an - office, and it infers that it shall have a secretary. It is not enacted that it shall have a secretary or manager. There is no : enactment prescribing what shall be on seal. I see there is a provision that the name shall be engraved on the seal. I-;" cannot find any provision as to the effect of a certificate of incorporation. .. (Wit- : ness read provisions as to what mast be : stated in the memorandum of association.) It must state the object of the company. There is nothing to show that it is intended to confine the operations of the company to the colony. The section as to holding land out of the colony would lead us to infer that operations may be carried on out of the colony. I am not aware that the Tookey Company is incorporated under any law in New Zealand. —By Mr Macdonald: Since I left the colony Ihave seen the Act referred to in force. That statute was in force when I arrived here.— Alexander Dewar deposed: I am the mining manager of Tookey's Quartz Mining Company. That compauy has been carrying on business here for five - years this month, and during the whole of that I have been connected with it. Every year I have taken out lease- ■ holders' miners' rights in the name of the company. I was appointed in Victoria : in July 1869, and came here in September. I was appointed in Baliarat by .' the Victorian directors of the Tookey Quartz Company. I believe the com- • pany is incorporated in Victoria. I saw the original memorandum of 'association . with the , I brought the deed of association, and three Government gazettes of " the . colony. I have searched for those gazettes, but could not find , them.' This is a Gazette similar to. those . I brought, and which , were entrusted to me by the legal manager. _ The Gazette I brought contained the notification of the incorporation of the Tookey Company, as in this Gazette I hold. In reply to my , inquiry from the directors for a certificate of incorporation, they said the Gazette was the only document required! ]?or the last five years the company has been carrying on business notoriously,-as the Tookey Quartz Mining Company, and , has acquired property and issued scrip. They hold under a lease originally granted r to Daniel Tookey, and assigned by him to the company. (Gazette and certificate of incorporation attested by a notary, ten- . dered in evidence.)—By Mr Hesketh: When I came here I was the secretary of the'company, and acted in that capacity for about eighteen months after I first came. That Gazette and certificate, was : sent to me in answer to my request. I am not aware that the gazettes I had . were certified. I got them from the legal; manager, Mr Spain. It was about a year ' ' and nine months after I came that the " Tookey Company embarked in this Pumping Association. The documents were addressed to Mr Tothill, and I had a notification that they had .been sent. - I had no idea of embarking in this Pumping Association when I came down. In embarking in this they became owners by contributing their proportion. The companics hold their interests by deed.—By ' Mr Tyler: The original object of the Association was to drain those four mines and other mines in the neighbourhood. . It was first determined to put up their machinery in March, 1871. There , was evidence taken as to the contributions which might be expected from other mines.~Mr Hesketh then objected to the - reception of the documents tendered in evidence. He contended that the company could not sue without giving, clear evidence of incorporation quite of a different character which would have to be given in the case of suing a shareholder. He contended that this company could not go beyond Victoria. Mr Hesketh cited a number of cases from the' books in support of his view.—Mr Mac- 1 douald contended that there was sufficient evidence that the company was incor- ■ porated, and that they had power to . enter into an association for drainage of mines.—Mr Macdonald contended that, the sole question at present was, were the Tookey Company the owners of that machine.—Mr Tyler then, addressed the Court on the evidence of incorporation.— His Worship said that he was more than' : ever satisfied that they had failed to prove . , the incorporation of the Toftkey Company,; but although he was sure that his decision:' would be overridden in .the Supreme Court, yot sooner than that it should be : ' said that that Court sM in the way of

Waw" »wwt—T'-jff —*r^i—'iVs»a«w«yaiV*F*c the Pumping Association establishing their claims and recouping their losses, he would rule that the incorporation was proved, and let the ease proceed.—Mr Hesketh then said that there was another objection which he had to raise, that was with regard to the notices which had been served. The notice was signed by Charles Tothill, secretary of the Imporial Crown G.M.C. ; (Limited);. Charles Tothill, secretary of the Tookey Quartz Mining Company (Limited); Charles Tothill, legal, manager of the Golden Crown G.M.C. (Registered); Charles Tothill, legal of the Caledonian G.M.C. (Registered). Air Hesketh contended that although the Joint stock Company's Act authorised a secretary's signature in suoh cases,' the Mining Companies' Limited Liability Act of 1865 gave no such power to legal managers -that such notice should hare been issued under the seal of the companies, which had not been done in this case.—His Worship took a : note of the objection, and the Court then adjourned uniil to-day.