THIS DAY.

Thames Star, Volume VII, Issue 2037, 15 July 1875, Page 2

THIS DAY.

W.. Eraser Esq., Warden.)? ■ BAIBD V. NEVES AND G-KAHAM. '.!.. The proceedings in this case were . resumed at JO o'clock this morning. :*| Mr Kces for phiinliff; Mr Tyler, with.' Mr Heskcth aud Mr Brassey for defen-.' danls. .' ; On the Warden taking his seat Mr Tyler said lie did not wish to throw anyunnecessary objection in the way of the; case being tried, and so would allow Mr Macdonald's name to be addedjo the list, of" defendants ; but that the case now assumed the character of a suit in equity to set aside the deed of a charge of fraud (the charges of fraud had been amended) that as regarded a suit in equity, the plaint laid was insufficient as, the plaintiff had failed to rhow ".equity'' as.concerned himself whereby he could come to the Court and pray for relief; that he. had nothing to do with the deed, and that the question was serious one, for were the plaintiff allowed to bring this plaint it might be established as a precedent, and that any one might be .allowed to corao into Court and bring a suit for the purposes of upsetting the stockmarket, or any' similar cause. - , - ,- , , > • - Mr Bees argued that the plaintiff, as one of the general public, had an interest in 'the- case and .therefore '■ was justified in bringing this plaint. That this was not a deed inter paries but;a " Statutory Assurance," and closely re--sembled a " patent," and that whereas'a patent might be attacked by any one npt having a direct interest in the patent itself, so might the deed'which he prayed might be set aside ; and further that ther license hacLbeen granted by the Warden beyond his powers. Mr Bees further argued that in reality the Warden was; the lessor in this case, and that he could i, npt be made, a party to any suit in that I Court; (which His Worship remarked he was.pleased to hoar),; he therefore^ re-, quested to be allowed to go on with, the case by calling witnesses to show that the allegations contained in the plaint were true;:. .- - .-■• r " tjv ■• . ,-: .■' Mr Tyler stated that his objection was' that still- there was no cause of action; shown on the face of the plaint, andjalso that the amount of £72 was paid .to the revenue Jwho ' had ; \an, T ' interest in this case, and should therefore 1)V made ia party to it. " ' °' j | Mr Tyler stated that the revenue went \ , to the ProviriciarCouncil. ~" -.His Worship remarked it did ndjjgo to the Provincial Council; he wished it did; but that it went to Messrs Pollen and Puckey for the benefit of the Maories.His Worship also- stated that he should be obliged to be at Ohinemuri to-morrow at 11 o'clock, and''therefore advised the counsel on either side to speak as. much 1 as possible to the case itself; .that he himself wished to hear the evidence, as he thought he should do so, provided he could do so legally. . " *"' '• ■■ Mr Tyler stated that as the case would, perhaps, go to the Supreme Court, he would .ask that a note be made of the objections (viz., that the plaintiff had failed to show- why -he should bring his suit) for his Worship to reserve his judgment, thereon, and then the , case could proceed., . . . „. . , • Mr Macdonald here asked that Kelly might be made surety for their -costs. " Mr Baird thought that they would be under £20. Mr Tyler stat'M"that "they would be decidedly more, which His Worship had no doubt of. Mr Kelly thereupon deposited £25. The objections raised by Mr Tyler being noted, Mr Bees put. in evidence Bairii's miner's right, and applied that ] the fact of Baird having a miner's right be added to the "summons! [ .Mr Tyler objected.. - - . • ■ , After some discussion Mr Rees called. — Mr Macdonald who stated: My name is John-Edwin, Macdonald.^.. I am a solicitor. I went to Tairua on.May sth and came back on J the_J3th._ I know, nothing about the ground I went~"bn. rWickhamwas-the leader,.and I followed^ him. tsl understood' my self to-be on'what I was called., the ' " Prospectors' claim.!' Several persons were with Wickham and myself. I jsimply knew that the Prospectors* .claim was round about where I was, but I" knew nothing- about ;the boundaries. I understood I slept on Bergin's claim. I don't know what pegs the prospectors had put in. If anybody-' did point out^the pegs it was Wickham. JNo one of tlie prospectors pointed put pegs to' me. I saw a great many pegs. I cannot say whether any were the prospectors'. I saw some pegs marked T. I do not know whether they were the, prospectors' pegSv I did not ask any of the prospectors' to show me their pegs. I I knew scarcely any of the prospectors ' then in connection with the claim. (Mr Macdonald stated here that it might save" Mr Bees trouble if he slated"that he went there on purpose to get evidence as regards' ,the pegs, which he had been unable to do.) I measured four pegs marked T. I do not know the size of the pegs. MrTyler here objected to these questions as being inadmissible. Examination resumed —I measured the the pegs with'a piece of rule furnished by my client, which may not have been correct. I have a strong suspicion .of, having seen these pegs since."' ' > I . Mr Tyler here again objected to this , evidence as going behind the license, which ' he urged was indefeasible. , I Mr Bees urged that the objection must I be raised, as to the jurisdiction of the I Court, ana not as to the admission of the evidence. His Worship here stated that the i charges ought to have been brought before the Court before the* granting of the license ; that he knew a great deal —apart from his position of judge—about the" fact 3of this case, and he was now speaking as a private, individual, that the parties who pegged out had done so in perfect good faith. Mr Tyler staled that he had- relied solely upon the license as indefeasible, and pressed his objection. ; - Mr Eees and Mr Hesketh joined in the discussion as regarded the evidence' being admitted; Mr Hesketh urging that the pegs had been examined by the Court, i and that no fraud had been committed. ' Mr Eees said he wished he had been able to procure a- peg, but found that they were "nonest come-at-able in swampum! •' and that he did not think the Warden would place' himself in a false position by receiving the evidence, or that it would put defendants in a false position, if the case were, carried to the Supreme Court. (The' Court here ' adjourned for five minutes,to'allow tune for consultation between the lawyers.) On the Warden resuming his seat Mr Hesketh asked the Court to take a note of their objections, and reserve the rule. This being done —

Mr Rees continued his examination ia chief of Mr Macdonald'who said—Unless the pegs I saw were the pegs of the Tairua Prospectors I am unable to identify ■ them. The . settlement was, .made between everybody who -had '" any interest that I know of. Ido not remember telling any; :of-. the,:,prospectors their p'og^ were not of the right size. I only spoke to twp of the prospectors. Nothing was said about the pegs in the settlement, <even afterwards Jackson maintained that his pegs were all right, and we should not Lave had a ghost of a show had *~we' gdne' on. Mr.Wickhain.was present at. the settlement". 5 VI had'ho- interest „untlf after the license was granted. I had rojnterest ia the' action", nor bad Mr Miller^ although the action was in .his,name. I did not know nor'had'l the means "of knowledge at the time of granting the license tha^, the pegs, : used were not: pegs withur-thjjf meaning of the Act,,although I shoula have tried to.prove. it. Cross-examined by Mr, Heaketh—Mr Neves was cross-examined by hVe daring the action." I heard Neves then Estate that he pegged out on -April Bth. He , adhered to that statement. -On the^hear- , ing of the application certain pegs were produced by the; Bailiff of the Court, on the application !-of-Neves',' -who' asked' to have-jus pegs brought into Court; - Neves identified^one of the only as being the peg he put in.' ' ; • John ,;Bergin examined byj^Mr Bees said—l am a miner residing at Tairua. I know the Prospectors' Claim .at, Tairua. .T never, saw the prospectora'put _any" pegs in. .They were never pointed out' to Tjme by the prospectors/ I sa"jv M r3Vickb?am and Mr Macdohald" on "' the ground measuring pegs branded with the letter " T." As near as I could judge the .same pegs'were produced'in this Coart, though I couldn't swear so.'*'l'do riot know the measurements; —1~ saw~no- one- -bestde measure the pegs, neither did I do so myself-:'- v \\ • -: "' <-" -'* sK'Q ■ Cross-examined by Mr Tyler—l^was . "in Codrt"during the "case" Miller.V.-4STe»es, when the pegs were-brought in. I was at r'tlie other efid-'of. the'^COTtft I v couldn't' say' from the .disiiiioe/JDifiiß at ;whether there was a'♦ T' 1 on rt4i pigs or not. „ . , ....... VV'- 1' The. Court then adjourfced p untii 2 o'clock'.' "'' "' ' ."'".. '■.; f^. n H' r '""'. °- V - On the Warden resuming Ws^eat, 'Mr Eees said that, on ,the present jplaint he did not see. any. chance, of his client succeedingTirter^ hea'rjng'Jthe. evidence of Mr Macdbnald and'Bergin;" and as the pegs'were ndt; in existence, as far as he inew,.he saw. no .hope of upsetting^ the license, and therefore had advised Saird to submit to anbhsuit:,/,-" JO;.*"' . .The .Warden said he was very glad _t^at 'Mr Rees'had elected Ho be norisuitec^ as he had no occasion'then to send the "case out of Court. - r.o\£A nfo ys/l Nonsuit entered; accordingly, the costs to go with the suit. Mr Tyler then- rapplied to^ tiafe the question of cost*, allowed in the case of Kelly v. Neves settled, first. Mf'Be'es objected fo'someTifeml^of"the costs, which were, however, allowed by His Worship,%ho.*tat«d that law was an expensive luxuiy, AncL in this case he had not that sympathy irith the plaintiffs which he would haTe^ith poor people who came there to defend'iheir rights. Some passages; of words took place between Mr IMapdonald^nd Mr Bees anal the cost wwre fixedjOui^the case of Kelly T» Neveg and^Graham'at £18 12s, and in the. .case of Kelly.,v. Macdonajd at £9- 17s, in. all at £28 9s.•' '''"' * - - {-^- : In reference to the costs in the case* of Baird v. Neve's; 'Gra'naniV and Macdonald, —after-objections had } been Raised by Mr Bees, who stated that the amount claimed .by,,cqunsej.:rwasjust ,three ts ..t;|m^i. that which' would have" been allowed in J tha .District, Court... ■ .-» ... rr , p . ; ; Mr Hesketh stated that had this "case been brought to thei.Suprome.Cour^Jte had no doubt that with preliminary ex* peases thescosts would : ha^;e amounted^to between two and three hundred 'pounds. \;: They were ultimately fixed at £22 l?s. In the case of Baird t. Wickham, judgment was entered for defendant without costs..,. „,^ -■ 'The case; of Neves V. Kelly for trespass was also withdrawn." Kelly also withdrew his application for the Welcome claim. " ~ \ '-' A license 1 was granted to JV'D. Wick- ' ham" for 9 men's^ ground for, the Commonwealth, and the Court adjourned;. Jj*