WARDEN'S COURT.

Westport Times, Volume III, Issue 340, 2 September 1868, Page 2

WARDEN'S COURT.

Tuesday, oeptdmber 1. 18GS. (Before J. Giles Esq., Warden.) LUKIi AJTD PARTY Y. PERRY NICIIOLLS AND PARTY. Mi' Tyler in reference to this case stated that he had served a notice on Mr Pitt, counsel for the defendants in the above suit, intimating that he would apply for an injunction in this case, to prevent the defendants from working the disputed claim. The circumstances of the case would be within the knowledge of the Court, and had reference to the possession of ground at G-iles' Terrace, which both parties claimed. The plaintiffs, Luke and party had appealed against the former decision, the required £lO had been paid in, notice had been duly served, and all the necessary forms complied with. They now asked for an injunction to restrain Perry and party from working the ground in dispute till the hearing of the appeal on the 17tb of November next. He proceeded to quote authorities showing that Courts of Equity had power to issue such injunctions in reference to property that was pending litigation.

The Warden said he must first be satisfied that the District Court could do nothing in the matterf or if it could he would not entertain the application.

Mr Tyler remarked that under any circumstances, the warden had concurrent jurisdiction.

The Warden had no doubt that he could issue an injunction, but he was doubtful whether he ought to interfere with a matter now before another court. If the District Court had no power in the matter there might be some reason for his doing so.

Mr Tyler thought it doubtful whether that Court had or not. It was very important that the ground should remain as it was, pending the appeal. The Warden would like to hear particulars from the other si de, for an arrangement might be made if security was lodged. Mr Pitt said, that out of respect to the Court hehad appeared as he had had uotice served upon him, but he would point out to his worship that no notice had been served on the parties themselves. It was time that he had been retained by them in the previous case, and might be retained still, he might not be and had not been actually retained. He therefore would not assme to be their solicitor, and could not bind the parties without notice- having been given them. The present was no earthly notice to them. The Warden agreed with Mr Pitt, but thought the Court might go so far as to decide whether it should interfere at all or not.

Mr Tyler wouldshowgoodgroundsfor this. It was within the knowledge of the Court that a suit was pending in reference to ground on Giles' Terrace. He had also shown that courts of equity did restrain working mines pending litigation, and in this instance no injury would be done, for the disputed ground was only about onethird of the defendants' claim. The tunnel was not in the disputed claim, so the whole remaining portion could be worked during the interval before the appeal was heard, and it was very improbable that Perry and party would be able to work it out during that time.

After some further discussion, Mr Tyler remarked that the original warden's decision was not final, that the case might have to be reheard, and that in fact it was partially in the Warden's Court now.

Mr Pitt objected to the application on principle, and on the facts. He admitted that the law justified the interference of courts of equity to prevent irreparable injury, but such a supposition must be founded on reason which did not appear in this case. A court of equity would only interfere where irreparable injury could be shown, and where the applicant shewed reasonable grounds for a right to the property in dispute. There was not a shadow of a chance in this case, in law or iu reason of applicant's success. The case had been long and fully argued, and the facts had been thoroughly exhausted before the Warden gave his decision. The practical inconvenience of granting such an application must be obvious, for in that case a quantity of ground must there-" by be locked up, and a large number o parties prevented from working till the decision of the District Court was obtained. It would not only affect this particular party, but large numbers of miners as well, and the party, seeking the injunction, as far as they knew, had no possible right to stop their working for three months.

The Warden remarked that was a point to ascertain, whether the remainder was worth working. Mr Pitt said they were totally in the dark in this respect, and that was why the matter should net have come bofore the court in that way. There were a variety of considerations before deciding the question, and ho could not seo that the slightest good would arise through the court's interference. It had been stated that the case might be sent back, but it had been settled by the warden, and they were not to imagine possibilities. Either Luke and party had a right to the ground or they had not, and the decision already come to would either be reversed or upheld. As far as that court was concerned the matter was completed. Mr Tyler said that if they were permitted, Perry and party might work out the ground in dispute in three months, and all he asked was that that ground should be preserved till the question of leg.d right to it bad been established. All that his clients should be called on to do was to prosecute the appeal with all due diligence. The Warden thought tnat the question depended on whether or not the respondents (Perry and party) would be prejudiced by such an injunction. If they showed that they would be by the appeal, it was only reasonable that theother side shouldgive some security, indemnifying them for loss of time. He would not make any definite order without information as to the facts. The only matter to determine now was the general principle as to whether there should be interference.

In reply to an enquiry as to whether the summonses were served, Mr Tyler said they were not, but that the money had been deposited, and he would serve them at once if required, though it was only necessary to do so seven days before the hearing. The Warden, in some preliminary remarks expressed himself satisfied as to the bona fides of the appellants in prosecuting the appeal, and therefore although he held a strong opinion of his own on the case, he considered that the appellants were perfectly justified in the course they had taken. If however, the whole claim had beenincluded in the inj unction sought, it would certainly have materially altered the state of things, and he should certainly have required some very substantial security from the other party, and have had money paid into Court to remunerate the respondents for loss of time, if such had been the case. In the present case only one third of Perry and party's claim was in dispute, but it was desirable to know whether the other portion was valuable. In the absence of information from the parties themselves, he did not see his way clearly to make a definite order. He was inclined to make an order, but what that order would be he could not say, without hearing the parties interested. He was of opinion that the appellants should give substantial security to indemnify the others from any injury they might sustain. He would adjourn the case till counse had had time to communicate with clients, and would then give an opinion on the facts put before him. Some further conversation ensued a3 to the object of the security referred to, and it was stated that it meant sufficient to compensate respondents for loss, in ease of the decision being upheld, or the appeal rot being prosecuted.

The case was then adjourned for a week.