WARDEN'S COURT.

Thames Star, Volume IIII, Issue 1762, 26 August 1874, Page 2

WARDEN'S COURT.

■ -.' -• THIS>DA?V: - V ' (Before W. Fbaser^ Esq., Warden.}WILLIAM THOMAS AND. OTHJSBS V. ; GKOEEK SMITH. -■ . This case was brought; to. recover damages, the defendant, having removed certain stone not mentioned in the contract between the two parties, and arose -out of the other cases which have -been tried, with the position of the present litigants reversed. -A..number.of witnesses were heard on last Court day. Messrs. Hesketh and Meyers for tb.6 complainants; Messrs. Macdonald and Tyler for the defendants*:-•- .^ ■•.;>.;:;,>.. <-r. \ Mr. Heskcth asked permission of the ..Cour^to recall,the defendant,.whoge evif dence had been interrupted at last hearing. .-,.,. , I George Smith, sworn, deposed—Thai about 100 tons was obtained from tb> little leader : that was at the junction to which he was entitled iby the agreement. The rest got out of the little leader was takqn by Mace onald and ■ carted away-. About half of the last crushing came from the little leader—-within ten feet of thfe fjunction—where he was entitled to take it ':rom. On the 16fch of February finished No. 2 leader. . He then got the agree--ment, and found that No. 1 only was in the agreement, lie consulted his solicitor on that day. > My. Macdonald-objected to this evidence, unless the document was put in. i Mr. Hesketh produced the contract. \ The Clerk had, on a previons occasion, refused to receive this contract in evidence, as it was not stamped. The "Court had overruled the objection, p His Worship now said that, the Clerk having shewed him-the Act, it appeared they had been wrong, and that they had beaten; all round the point without hitting The Clerk then, pointed out the section to Mr. Meyers, and the examination was then resumed— X > i Prior to the 10th, when Macdonald had knocked him off, lie was working bri the junction, and up to the time he had been finally knocked off/ he had been working on the little leader and N0,.1* He did not commence on the rise until the 12th. He got close to the junction. •He >;t66k out'lo feet of stuff,: which h<? sent to the surface ; and. he also sent t$ the surface stuff that came from JNo. 1 leader; both lots were stacked in the same paddock. He sunk beyond the 10 feet, and left tha,Btuff ; in the mine and on the surface. During the night, witness em*ployed about six menon the little'leader i at day less. He had worked on the little leader about sixdweeks. Her worked on the ten feet from the commencement of the contract until Macdonald knocked him off on the 12th of January. After that he commenced to drive on the facei the stuff from which was sent to the sur? face. Only about a ton of quartz cam| from the 18 feet. He had been working on No. 1 reef alone, but not after the first crushing. In the first and second crusbi ings the quartz on the surface was all crushed. The quartz came, from No. t little leader, and the 10 fee£ or junction^ Could'nt say up to what date quartz had beehicrushed before the last crushing! AllstufffromthelO feet had not been taken up to the surface. He left aboui 20 tons down in the mine. The quartz from No. 1 crushing came;from $o. 1 to the junction. At the tinje of the first crushing he had not commenced >on thd littlelleader. The stuff from No 1 and the little leader might have been stacked together. He sent up n<?; stuff from the -engine r block^h«r did r ; np(tr-'land vit 1,. The company had stoped up from the junction>to where witness, put in the rise-Trhe only had the scrapings of' the wall there. The company,had continued to haul his stuff during 1 !the time he worked, with the .exception of one Saturday immediately, before; be knocked foff. After the first crushing 'he continued wdrking on Noi l.reef. He put the. rails down for the tramway in the mine at ihe time of the second crushing. The stuff for. the first and second,crushings came from ; No. J leader ? a,nd the junction.' The third crushing would, have' been a good one. About 35 .tons of; stuff was toft ii the mine from JN o, 1 and the little leaded .^•Patrick ; Walsh was not present,' and Mr. Meyers tendered,- his (Welsh's) miner's right.'M: :, . .'-: .a w, ; John McCabe—one of the: (Jueen of Beauty shareholders — was,next called,; arid, havitig been swbrn, ]deposerl~That the miner's right was issued in. favor of Patrick-Walsh—who, was a i shareholder in;the Queen of Beauty 5. I Some discussion arose between counsel as to., what proved the possession of- a miner's right. r Mr. Tyler, contended that the last witness swearing"to the document did not prove ihat it was Walsh's4might be fifty Walshs.;; : It was jjitiipately agreed to admit tbje validity ot'the document bjr thp appear--"ance. ■;■'.',_';';'; '^',_.' ■!...'■.'.:,'•.,■.}*'•,■..-Z" ' *■'] Kobert Macdonald deposed that he was a shareholder in the Queen, of Beauty ,k and produced his miner's ; right;,' He' knew George Smith— defendaiif^-who haft been;workingin the. Queen of Beauty mine. Smith had put in; a nse on the little leader—should say it was more than 40j3e|m^ght|je 2sor over 30. He hid not been aware that anyone )Braa until he had heard the men "workingr'■""■H[e. thought it was the junction side of th6^ little leader; The face had been worke&ohafter the company and before; Smith. The company,had hauled for Smith up to: the Saturday stated jn S^ f ith's evidence.^ Any quartz left in the slibSis "by Smith had not been removed, .land' was tMe Vet;" rCou)& 'not aiy whether any 'qiiartfc had; lbeteh left' in Ihe City end pi Not -^-Hehad riot examined :|h/y|hoif>t| ijfrthe sinajll'leader^'; Qould: inbf )say,v IS)jy long it frafoijp ■Shocked off that the tram was put domfiio

to the little leader—h« bad thought that it was pnt down to car. mullock. Up to the time Smith knocked off, ho 1 (witness) had been generally superintending the mine. Ihe shareholders had had posses«bV£ J he" ?ine about lhree rears.Smith had worked m the mine during the whole of that time, and he-knew thetnino well. On erery occasion while witness was in the mine he had hauled quartz for Smith when asked. The quartz was .placed. ; lediscriminately.... in O ne - pad--■dock-he had received .no directions from Sgifu to. keep * ;the lots senapt|-- Witness ._beliered. tiat Smith had, upon; one occasion, . said "that he could not get his,'quartzhauled' np. bmilh was required by ;tho agreement' to give notice .when 'he wanted the stuff ha^e&.wt. and witness had.! told* him (bmith) that T there would be no.difficulty if -he gave proper* notice: ' When Smith , wasjfnpcl ed ,off 15th. r<Febrnary there nughfrhaVe; bceri some quartzfntfii etopes for all he'We^ Witi, esg & w the.-staje of v t|e mine : whcn SmifclsJlas knocked off. He knew of nothing having been done p to. alter s t.h Or sl ate of the little leader ' 4 '"■ -■' L /r" :., .CTOBMxaminj d^by--;' M*.*Macdonald—l knew that a,tramway .wagbeing put down ; .to.the little leader.,,,, I knew,that stopes w i cre,beinor;:pufc^p;/ I;kneV also'that quartz ;y\ as comin^dow.n. . I.saw a; man wording on^the little leader ]„he had no right the.o, and X told him to knock off. I am not aware that T put a candle-mark .on the little leader. Sims was the man' I told to knock off working the little leader^: Sims; it was false about the marks. I sa.id.to:,Smith k - ",From the junctioii for 90 feet you. must touch nothing." He pointed out amark'fd Sinis. He did not point out a mark to Palmer. He couldn't sayaatoth? color of the: mark; I oily recollect one occasion upon which I made i-efercrice-io a mark or to the 90 feet; -1 knew of a cross-cut being put in No. 1 —one reason,for this, was to,fill up the mine, and the other to get rbunct tothe slip. This was Smith's job. Timber might have been suppliedl for the crosscut. I neves told him the company would supply the timber, I will not swear I did not. The mullock-came Tout of the cross-cut. I certainly; think Smith put antho crosscut for the sake of the mul.lock, but there: was also-; a; dig alongside it. I suppose the tramway from ,) ihe moutu PC tte cross-cut to ,the face of the little leader was either for bringing mullock or quartz. Th^aVfirst time, I the tramway ,1 ,'thoiighi; it, was;for carryinir mullQck. toldbysSnjith^bat/that was thereason. ' „?;: The Court then adjourned for an hour, and resumedl business at :2 o'clock^ when ' the examination in chief of Kpbarfc lilacdon aid was continued by^Mf: Heskethi Mr. Meyers then tendered in evidence the license of the Queen of Beauty mine. Mr.; Macdonald Submitted" that the other side must prp^eithp .affixing of the seal; they must bring the attesting witness to-provc the seal of the deed, or show' that, ho was dead or otherwise not to be got at. ' . *• Mr. Hesketh contended that he was not obliged to bring 1 such proof—the Court would surely take cognizance of its own document. Mr. Tyler showed .that there was a different argument—the signing as well as the sealing of the deed. .Supposing the Court took cognizance of its seal, it would simply find its seal attached to a deed: but the signing must be proved. Mr. Hesketh said he supposed the objection was valid, and supposedhis learned ■iriends , would know the. course ther had pursued in such cases before. , M£', Tyler referred to the custom of the oupreine Court. His Worship said He thought it was no^ necessary in,this case .as it" was in'the Supreme pourt. He did not wish a witness to prove that it was'his seal. He was judge of the WardenVCourt, and as judge he had, signed that, and he considered it good and sound law for hinilto recognise that deed as sealed under nis hand; ' - • . Some further argument ensued. Frederick Burgess, clerk of the JSlining Registrar's Office, was called to prove tho reg ls ter of the Queen of Beauty Gr.M.'Co.'s licenied owners. . This was the case for the pomplainant, Mr. Tyler opened th» case for the de« fence. r He had to take ..several points for nonsuit, which he thought would be fatal to the other side. The first was that the complainant had not proved the constitution of the district. The second was that the Court's jurisdiction was limited, but as there was no proof that the action came within the district over which the Court had jurisdiction, tho Couct could, not adjudicate upon it. Another ' argument as to jurisdiction was that the encroachment was not made to ground held nnder the jGoldmining District Act The;next 'point to,bring was tho 174 th section, the complainanant; not .having miners' rights under the Act of 187^^or under some Act previously in&rqt Jqu't stituting the goldmining district unde; that Act —there wss no evidence to prove the Acts identical. The next point he took was that there was not sufficient evidence to justify ihe Court in assessing damages.' < There was no evidence to show either that there had been a trespass, or how 1 far that trespass had extended. The evidence of Smith remained uncontradicted thai he' had not drawn to the surface any quartz" broken" down from tfce ground alleged to be trespassed upon. His Worship, reminded Counsel-that it did not require that they should have bronght the, stuff to the vsurlace~the mere putting in a pick was sufficient. Mr. Tylenadmittedthis, and concluded &JWB&-K H}h^ eTitaoi the case« that one *t the 1 shareholders not havine signed the agreetnerifc wks sujjjcicnj; a# gutrie'ht iii favor 6t a nonsuit.'' ' " V ' Mr. Hesketh replied at s6me length Left aitting, l ' ' " t--tIJ: ' '* ¥