WARDEN'S COURT.

Tuapeka Times, Volume II, Issue 102, 22 January 1870, Page 5

WARDEN'S COURT.

(Before W. L. Simpson, Esq., Warden.)

Thursday, January 13. •

Morrison and Evans v. Campbell as manager to the Otago Gold Mining Company (registered). Mr. Mouat (from Mr. M'Keay's office) for plaintiffs; and Mr. Keen (from Mr. Ward's office) for defendant.

The information charged the defendant aa manager of the aforesaid company. 1. That on the 21st October, 1868, the defendant applied to the Warden for permission to cut a certain tail race (described at length) at the Blue Spur. 2. That on the 10th November, 1868, the defendant falsely and fraudulently made a declaration before the Warden that the ground had been marked and the notices posted ; and by means of which the defendant did fraudulently obtain from the Warden a certificate cor the construction of the said tail-race. 3. That the defendant in his said application, did not, as regarded by law, mark out the ground, and post and •jrive the notices, &c. 4. That the defendant did not, as required bylaw, within one month commence the formation of the said tail-race.

Tn stating the case for the plaintiffs, Mr. Mouat concluded that the reference made relative to tail-races in section 20 of Regulation 10 to sub-section 1 of the regulation, rendered it binding upon applicants for tail-races to follow exactly the mode of application prescribed in the said sub-section regardin ? head-races . He would be able to prove that this had not been done. He called several witnesses who proved that they had never seen any notices for this tail-race posted on the ground, although they were over it daily — had never seen any pegs ; and that no notice had ever been served upon the adjoining clnim-holders. One witness for the plaintiff, however, stated that he had seen one peg, and that he saw a notice which he did not read, but which he understood to be defendant's notice of intention to construct this tail-race. It was also proved that defendant did not commence constructing the race till more than a month after their certificate was granted ; but it was likewise admitted by all the witnesses that this was not unusnal on the Spur ; in fact that it was unavoidable ; and that it was in many cases actually to "continue" constructing, as the levels of the portions formed had from time to time to be elevated, causing delay in the extension of the race.

Mr. Keen concluded that the plaintiffs had no case and must be non-suited. In the first place Campbell was proceeded against as manager of this registered company for acts committed prior to the existence of the company, which would of itßelf be fatal to the case in its present form. Then in the second count, Campbell was charged with making a declaration which he never did make ; the only declaration ever made in connection with the matter having been made by M'Kinlay, not on the 10th November as alleged, but on the 24th. The document was before the Court and spoke for itself. Again, the plaintiffs had failed to prove that the notices had not been posted. It was impossible for' them to do so ; but on the contrary, if necessary, he (Mr. Keen) could prove beyond all doubt, that they had been posted. Then, as regards the non-service of notices on the plaintiffs, he contended that sub-section 1 of Regulation 10 did not apply in this particular, and even if it did, the plaintiffs would have to show that defendant knew that the construction of this race would affect plaintiffs interests, the wording of that portion of the clause being, "and any person, whose interests may be affected." As to the last count, it had been proved by plaintiffs own witnesses that it was impossible to cut or perhaps even to commence such a race within a month. He subtnjited tfe&t there vu no

case to answer, and asked for the ruling of the Court on that point before taking up time with evidence.

Mr. Mouat replied at some length, concluding generally that he was entitled to a verdict if only upon the point admitted by defendant, viz., that no notices had been given to plaintiffs. His Worship ssvd that the only point upon which h» o.u.'tl, lw judgment for plaintiffs, wjis t'iw u-m s-rvice of notice upon plaintiu's ; bur. tins had been so interwoven in tiie complaint with another charge, Viz., the non-pusting of notices, which had not by any means been sustained that he was in great doubt aa to whether he would give a verdict adverso to defendant upon it. Then again, he doubted whether the clause referred to, would justify him in strictly enforcing it against persons unaccustomed to construing strictly such very ambiguous language. He thought not. He could not now call on defendant for any defence. He would take time to consider the point, and if necessary, would ask defendant for evidence prior to giving judgment.