WARDEN'S COURT.

Thames Star, Volume XII, Issue 3773, 31 January 1881, Page 2

WARDEN'S COURT.

THIS DAY.

(Before H. Kenrick, Esq., Warden.) Alleged False Representations, Mr H. E. Campbell applied that a contract entered into by himself with James Hosie be set aside on the ground of fraudulent representations. Mr Campbell conducted his owa case. Mr E. K. Tyler defended, and said he had two pleas to plead. One was that the Court had not power to adjudicate. The second was that there was not sufficient cause for the action. The complaint was as follows :— 1. That, on or about the 23rd day of December, 1880, the complainant was possessed of the licensed holding called the G-olden Hill, within the meaning of the G-oldmining Districts Act, 1873, situated at Owharoa in the said .district, and the defendant at the Thames aforesaid, with the intent to deceive and defraud the complainant, to induce the complainant to sell to the defendant the said licensed holding at a nominal sum, did, on or- about the said 23rd day of Decem ber, 1880, falsely and fraudulently represent to the complainant after inquiries made by the complainant of him, the defendant, that the workings in the drive in the adjoining licensed holding called the " Eadical," of which the said defendant is owner, and in which he had let a tribute to Michael May and others, were then sixty feet from the boundary of the Golden Hill, which representation was false to the defendant's knowledge, the said workings being in truth and in fact within ten feet of the said boundary.

2. That the defendant did on the said 23rd day of December, 1880,. further falsely and fraudulently represent to the complainant, witb the like intent ta deceive and defraud the complainant, and as further inducement to him to sell the said licensed holding to the defendant for a nominal sum, that' the then return from the said tribute in the Radical was only moderate, whereas in truth and in fact-it was a remarkably rich return of ten ounces to the ton to the defendant's knowledge, the return then referred to amounting altogether to 2SO ounces or thereabouts.

3. The defendant did on the said 23rd day of December, 1880 with the like intent and inducement falsely and fraudulently represent to the complainant, that the said Michael May, one of the said tributers in the Eadical, and with whom the complainant informed the defendant he was in negotiation for a sale otthe said Golden Hill Licensed Holding, had gone to Auckland, and was going to Tauranga for the benefit of his health, when in truth and in fact, he, the defendant at the time he made the representation to the complainant, knew of his own knowledge that such representation was felse and untrue.

4. By the said false and fraudulent' representations and concealments the complainant' was led to believe and did believe that the said Golden Hill licensed holding was of little value, and that the said Michael May hadabandoned bis intention of negotiating for the purchase of the same by going to Auckland without

communicating with the complainant, and was induced to sell to the defendant all his interest in the said Golden Hill licensed holding for the sum of twentytwo pounds ten shillings as the real value of the same, whereas in truth and in fact that sum did not represent such value, as the defendant well knew, and in making such sale the complainant relied wholly upon the truthfulness of the defendant's representations as he had no means of ascertaining their correctness except from information derived from defendant and sold and transferred the said licensed holding to the defendant relying upon therepresentations so made by him to be true and given in good faith when iv truth, and in fact the same were made falsely and fraudulently with intent to deceive and defraud the complainant, and to induce him to sell tbe same at a price wholly inadequate to the the real value.

Wherefore the complainant claims—

1. That the defendant be adjudged to have knowingly made the false and frau dulent representation above mentioned, and by such false and fraudulent representations and concealments, well knowing them to be false aud fraudulent with the intention of inducing the complainant on or about the 23rd day of December, 1880, to sell to him the said licensed holding for a nominal gum, namely, £22 10s with intent to deceive the complainant and defraud him of the actual value thereof, well knowing he was so defrauding the complainant.

2. That the memorandum of transfer of the said licensed holding be adjudged to be fraudulent and void,, and the defendant be ordered to re-convey the said licensed holding to the complainant and return to him the deed of license of the sum upon payment of the said sum of £22 10s, and that the complainant be put in possession of the said licensed holding. 3. That in the meantime and until further order of this Court an injunction may be issued against the said defendant restraining him from working the said licensed holding.

4. That the complainant, have such further and other relief in the premises as the Court may deem just."

Mr Tyler submitted that the Court could not adjudicate on ' the matter, because it was a dispute of a licensed holding and not a dispute of gold mining. Mr Campbell said the Court had jurisdiction over all matters relating to goldmining and licensed holding.

Mr Tyler said Mr Campbell had not shown that the plaint in the most remote sense related to goldmining.

His Worship said he must rule that he had jurisdiction in the mattter. He thought it was the intention of the Act to give iull and ample power to Wardens to adjudicate on all matter* relating to goldmining. He would take a note of Mr Tyler's objection.

Mr Tyler asked the Court if, supposing all the facts set forth on the plaint were true 3 whether there would be sufficient to call it. a fraudulent and deceitful action. The document was full of the words •' fraudulent," etc, but he was not to be frightened by such a numerous use of the word. He quoted several high authorities on the matter of fraud to prove that this action could not be considered a " fraudulent" one.

The Court said that the evidence might prove otherwise. Patrick Donnelly said he went to Owharoa by the instructions of Mr Campbell, and saw Mr Hosie, and handed him the document transferring the Golden Hill to him. Hosie said Mr Campbell was " cracked." He looked at one of the documents, but did not read it through. Witaeas put down £22 10s, but Hosie would not accept it, and he consequently took back the money. To Mr Tyler: I cannot read, but know that this was the document Mr Hosie road.

Mr Tyler: Well read it!

Witness : Oh I can't read it

Mr Tylsr : And yet you will swear that this is the document you gave to Hosie to read.

Witness : Yes

Mr Hosie, being sworn, said that John Blanc told him he had no authority to sign the deed, Mr Campbell wanted £50 for the ground. I offered him £20. Mr Campbell never mentioned tbat the ground was under negotiations. When I left, Mr Catnpbell followed me, and said " You shall have the ground for £25." I don't recollect what was said about May. I told Mr Campbell I would give him a cheque right off as he said he was short of money. The last time May eaoie to me vras when he asked for his account. May never went to the Bank with me. I do not know whether May came down by the steamer with me or not. I saw him at night. I said nothing to Mr Campbell about May going to Tauranga as far as I recollect. May told me he was going to the Hot Springs.

Cross-examined by Mr Tyler—l never told Mr Campbell that the workings of it were within 60-feet from the Eadical. I never mentioned that the return had been moderate. I never told Mr Campbell that May was going to Tauranga for his health. The result of the surrey of Mr Thorpe was that there were 60 feet between the claims. My belief was that we were 60 feet from the Gblden Hill. That is the document alluded to by me as shown. The result of the transaction between Blanc and Campbell was that I lost my quarter, share.

Re-examined by Mr Campbell—-Wood said, he did not recognise me as a shareholder. I assisted Mr Thorpe in his survey. I have stated all that took place as near I can recollect.

To His Worship—l brought the gold down the same day that I made the purchase off Mr Campbell. The reason I went to Mr Campbell on that day was to see if I was not to have some share in the profits. At the time I bought the share I was under the impression that I was 60 feet from the Golden Hill.

Michael May deposed : I am a shareholder in Campbell's tribute. I came down in the steamer with him. I parted with him at the Corner of the Bank of New Zealand. This was about 2 o'clock, about 7 or 8 o'clock in the evening I saw Hosie again.

Mr H. Bayldon, mining surveyor, said there was an encroachment of seven feet.

Mr Campbell gave further evidence. Cross-examined by Mr Tyler: , I don't know who pegged the ground out. I did not know that Blanc had sold any part of his share to Howe. Blanc and I aid not conspire to do the defendant out of his share. I don't want to "do " anybody.

Mr Tyler : It looks very much like it. Witness: Ido not want to get but of tny arrangement with Hosie —I was swindled.

Mr Tyler : You have sold the land, and a few minutes afterwards, like a child, you wish to have it back again. Mr Tyler moved for a nonsuit. He

said the facts set out in the complaint had not been borne out by the evideuce. The defendant at the time had no intention of purchasing the Golden Hill, and that he believed that the workings were not within 60 feet of the claim. This evidence shows that he believed that this was true, and Mr May also believed there was 60 feet. He thought the Court would see there was no evidence on which to set aside the document.

Mr Campbell then addressed the Court He contested that Mr Thorpe's- plan war not to be relied on, and that there was fraud in it.

His Worship said the question was a very simple one. The plaintiff seta out three grounds for alleged false representation. There was no evidence to show that the defendant was not honestly of the opinion that the statements he made were true. The plainliff would be nonsuited, with costs.

Mr Campbell gave notice of appeal Court adjourned.