WARDEN'S' COURT.

Thames Star, Volume XII, Issue 3949, 25 August 1881, Page 2

WARDEN'S' COURT.

THIS DAY,

(Before H. Keurick, Esq., Warden.) MCILHA.NEY V. WILSON.

This was au application for the forfeiture of a piece of ground, the Alert, on the ground on non-working. Mr Tyler appeared for the plaintiff. Mr Miller said the piece of ground in question was supposed to be a portion of the Waitekauri JNo. 3 Licensed Holding, which was at present protected.

Charles Henry Wilson, mine manager, deposed that he was at one time manager of the Waitekauri G.M.Co. In June, 1877, he had marked out the Success claim at Waitekauri, but had not done any work upon it. The claim was situated between the old Queen of Beauty and the Golden Horn claims. The greater portion of the Alert claim was incorporated in the Waitekauri No. 3 claim, which contained 8 men's grouud, though at first only 4 men's ground had been applied for.

To the Court: He had practically abandoned the claim, but had pegged it out again 12 days later.

Mr Tyler then addressed the Court for the plaintiff contending that there was not the slightest need for the Warden to give an} r notide to third parties, no matter how much they were interested, of the case coming on at the Court; that was their own look out; what the Court had to decide was merely the case between the two parties now before them. He drew the attention of the Warden to his decision in the case of Douglas v. Sullivan, when the third parties had not been informed, but the ground declared forfeited. He quoted from cases heard in Victoria, of exactly the same, nature as the one before the Court, which proved that it was not the custom there to notify third parties. As there was no clause in the " Regulations of the Hauraki Goldfield " which provided for the manner in which unregistered claims were to be abandoned, aud as by them a man pegging out a piece of land had a right to it for twenty-one years., or so long as he required it, he considered that the way to get the notice of pegging out cancelled was to bring the case into Court.

His Worship said he was glad Mr Tyler had mentioned the case of Douglas v. Sullivan^ as it would give him an opportunity of correcting an erroneous opinion there was in the minds of many persons with reference to that case. He wished it to be clearly understood that when he gave judgment in that case he was not aware that a third party was interested, or he would certainly have given them notice. In the present case the defendant plainly admitted that he had practically abandoned the ground, and therefore it was open for anyone to take up. He agreed with Mr Tyler in his opinion that it was intended to provide in the Regulations for the manner in which unregistered claims were to be abandoned, but it had by some means been omitted. He could not in this case declare tbe ground forfeited, and award it to the plaintiff, as the claim in question had not been registered, and was not therefore within his jurisdiction. He held that the claim had been abandoned by defendant, and therefore there was no existing right to forfeit. The application for forfeiture would be refused on that ground.

NICHOILS V. NICHOILS AND MAKJCJBEY. Messrs Tyler, Hesketh and Armstrong for the plaintiff, and Messrs Whitaker and Miller for the defendant. All witnesses were ordered out of Court.

The plaint, which was a very lengthy one, was accepted as read, and Mr Tyler introduced the case, which was an action for £5000 damages, incurred through the defendants not carrying out an agreement made between the plaintiff and defendants, by which the plaintiff was to raise £1500 in a month. He contended that the plaintiff was entitled to an extension of the time, the defendants having on several occasions said time was no object. H. Marjury deposed that he was one of the defendants, and a partner of Nicholls. Knew the complaiuant, and first met him in the month of May at Waihi, on the Martha claim. (Agreement subsequently entered into was put in as evidence.) A battery was wanted, and therefore the agreemeut was signed. Told Nicholls fiat the Karangahake battery was for sale, after the agreement was signed, and it was then arranged that it should be bought, plaintiff to fiud the money. He had not goue with plaintiff to see the battery, but Nicuoils had.

The Court was then adjourned till two o'clock.

Ou the Court resuming, the Warden said, that as this case would take all day, he would adjourn the other eases till tomorrow morniDg.

Examination of Marjurey continued— After the contract of the 3rd of June was made, there was some talk about the battery, but no mention was made about an extension of time.

Mr Whitaker objected to questions relative to the extension of time, and contended that no verb >1 agreement could affect a written agreement. He quoted a number of authorities which bore out his argument. .

Mr Jrlesketh contended that there was no variation of the contract, nor was one sought to be established ; but the plaintiff contended that he was entitled to an extension of time in consequence of the acts of the defendants.

Mr Whitaker replied at some length contending that if the plaintiff relied upon a forbearance of the time, they must under the Statute of Frauds Act, have that assurance in writing.

After further discussion. His Worship nonsuited plaintiff Costs, £12.

POINTS BTJXED UPON

1. That the contract sued upon is within the Statute of Frauds.

2. That it being admitted that the money was not paid within the time limited, any extension of the time must be shown to have been made in writing, signed by the defendants.

3 That evidence of the defendants' conduct showing a waiver of performance within the time limited or of estoppel by defendants is not admissible.

Mr Hesketh gave notice of appeal, aud asked that an injunction might be issued prohibiting the defendants from dealing with the property for a period of ten days, which, after a little discussion, was granted.