WARDEN'S COURT.

Tuapeka Times, Volume III, Issue 153, 12 January 1871, Page 6

WARDEN'S COURT.

(Bjfore W. h Simp-on, Esq , Warden.)

Thursday, Janv sth.

Ross and Harris v. Labes and mate, each charged in L3O, for dansa^f-s arising from the dofrndnnts working ground, the property of pLiintifi ; and Labes v. Ross, cliim of LLS, being an I 0 U for money due. It was agreed that both actions should be heard together in thp iirsi case.

Mr. M'Coy for plaintiffs, and Mr. Gooday foi-jdefendants.

It appeared that some three months ago Hinds and Cotter were mining mates on the Tuapeka Flat, and some disagreement having taken place, the claim was purchased by Cottar, who sold half of it? to Roas, Cotter subsequently selling the other half to Mr. Harris ; each of the owners had a mm working on the ground. Some time afterwards, L-abes and mate commenced working alongside of Karris and Ko«,s' claim, having first asked about the pegs, which wore pointed out by Cotter, who, at the time, was working for Harris. Matters went on smoothly, both parties believing that they were working their own ground. Shortly, however, both parties met underground, and Libes then considered that Ross and party had encroached. Arbiters were appointed, and the ground examined and tested, and they Kmnd that Ross and party had encroached, and awarded. L 6 1555" as damages, for which lloss gave his lO XT. Subsequently, Ross found out that Cottei had, through ignorance, pointed out the wrong pegs, ajid that Labes and mate were souie twenty yai-ds within the boundaries of his claim proper, and, in consequence, refused to pay the I O U, as the same was given in ignorance of tlie real fact of the case.

In the first case, a verdict was given for the defendant;, on tho ground thui tlieit- claim was not properly pegged, and as a matter of cour.se, diJ not belong to them. In the second case, for LG 15s, tlie Warden, after considering the whole circumstances of the case, Slid that he would not undo what the assessors had clone, and gave judgment for the amount, with costs, and one guiiiaa fee.

Monday, Jan. 9.

Ah Chow v. Johu Fjtzgsrald. — Mr. M'Uoy appeared for plaintuF, and Mr. C >pland for defendant. This was an action brought by the plaintiff against the defendant to recover damages sustained by the plaintiff through an adverse decision given in this Court, in which Ah Pugh was plaintiff, and Ah Cliow defendant, through a misdirection given by Fitzgerald as to the bound iry line of certain land on which Fitzjer.ild luxe!, f.>r th 3 consideration of £60, given An Chowand party permission to mine. Mr. M'Coy produced the agreement b} r which Fitzgerald allowed Ah Chow and party to mine on three acres of land, being part of section 2, block 4, and called

Ah Chow, who said — I entered into an agreement with Fitzgerald for permission to mine on three acres of land. Fitzgerald put. the pegs in showing the northern boundary line. Fitzgerald employed a Mr. Kepp^l to survey the land. I worked for eleven days on the land. I •was then served with a snunnous from Ah Pugh for working on his land. 1 sent or Mr. JS'icoldon"to survey the land. -I

! p lid £12 ];~m o>l in iiiis C -art. Alyself j and parly lost a week's w >vk through attending this Court. Cross-i-A ii. lined by Mr. C <p]..:.'i - Mr. Fitzgerald sailed tho I .v, h^ at Hie time. 1 was not prove.: id v ..^.114 by Fitzgerald, or anyone .-oc, '■:•.<•< £»l through tho decision of this Court. Th<> expenses I now seek to recover weiv- all incurred in the case of Ah Pui;h. J should not have had to pay damages if it had been Fitzgerald's ground.

Duncan Campbell was examined, and said — 1 acced as agent for Ah Chow. I know the land perfectly. I handed over £00 to Fitzgerald for All Cnow, it was for permission to mine on three acres of land.

Mr. Copland, for tho defence, wished the Court to t.ike note ot an objection. He said the Court had no jiiribdicliou i;i this matter, as it infected title to land.

Mr. M'Coy replied it was not competent for an attorney to make this objection. It in n»t be pleaded m person.

The Warden ruled it was only aa agreement to mine on certain land, and in no way affected title.

John Fitzgerald, examined by Mr. Copland, said — I am defeudeut in tins suit. 1 h.ive had charge of this land for my brother, \V. Fitzgerald, for six years pnst. I agreed to let Ah Chow and party mine on three acres of l.mJ.. 1 en.ployed Mr. Keppel to measure oil' ike Liud. I gave them three acres one chain. The one chain was that they should not work on any other- person's ground. I wished them to scad for Mr. Kioulsou to survey tlie land, and I told. them 1 would not be responsible for the corivelneTi of the boundary line. 1 told tluin to measure from the furrow, but the I'm row t'.rned out to be wrong. Cross-examined by Mr. M'Coy — I put in peg? when Mr. Keppel surveyed the land. Ah Chow put in the P.us when they fir&t went. Ido not remember telling"Mr. Campbell the were pegs four or five fest from the boundary.

In answer to thy Court— l pointed out th'i furrow as the boundary line between , allotments 1 and 2. Adiv or two before Ah and yi-wy paid the uioiiey, I told tlionVi ''.Vis doubtful of the furrow being correct. TitS/ promised me they would nor, come close "t8~-t^o mnw. I gave them a chain, beotiuso^Ui. 0 f' m "°w was not straight. I pointed i.lie jTCffs-Ciit to Mr. Campbell as the boundary next to the ten acres.

Air. Copland spoke a very long time for the defence.

Mr. M'Uoy replied. The Magistrate, after going through the whole of the evidence, said this action was brought to recover damages for the dofsndant for certain Inches of his by not marking olf tho ground biiuidenily distinct John Fitzgerald, acting a--, agent for his brother W. Fitz_>:irakl, pre^imed to lnve the power to let the ground for mining purposes. He could not dispose of this* ground ; fcluroforo it was no matter of title, no one having the power to dispose of i<. lie did not think the plamfciiia were altogether frej fro .i b'ame, when there wli\j certain lachet of theirs as well as tlvi defendants. When they purchase or lease ground, it was their duty to see that their boundary lines were correctly defined. Judgment will be for plaintiffs, for LlO 7s. 9d. Professional costs, L 2 2s. ; and costs of Court. JUDGMENT IN CASE OP KKEX V. BASTINGS AXD OTHKKS. After overruling the point for a nonsuit for sueing the defendant} in their private capacity, the Magistrate alluded I te the advertisement whioh w.is couched ! in rather peculiar phraseology, requiring a competent person as asicseor. Mr. Keen undertook the responsibility, professing to do special work, and imi3C looked upon as a skilled expert. In this matter it had been attempted to show that tho assessment was utterly valueless. Mr. Keen contended that tho councillors had no right to an opinion in this matter, but must accept his work, aud, in support of his opinion, read 84th clause in the Ordinance But his Worship could not think the 81st clause of no consideration for the protection of whole comui unities from an absurd and valueless valuation. He w.-i3 not attempting lo show this assessment was from any private feeling not allowed. Mr. Keen himself, when such a tiling was mentioned, stopped ariiy sucli allusion. The gentlemen, defendants in this action, gave Mr. Keen every opportunity of amending his work, but Mr. Keen became angry, and reunod lo do any more. Ki-5 Wurdhip could not think, afier the evidence of Mr. Bastings and .Mr. Ilaye3, the work couid be considered valueless, as they gave Mr. Keen great prai?e for the masmer in which i', was compiled— f.ir better than it had ever been clone before ; therefore, certainly oi sosae v.i^uc to them ; out he could not consider tlie work done worth £L 5. Judgment would therefore ba for £5.