DISTRICT COURT.—MINING APPEALS.

Westport Times, Volume III, Issue 408, 20 November 1868, Page 2

DISTRICT COURT.—MINING APPEALS.

"Wednesday, Nov. 18. (Before His Honor, Judge Clarke.) LT/KE V. PEREY. —EItONTAGE SYSTEM. IMPORTANT CASE. His Honor took his seat on the bench at eleven o'clock.

The only case to be heard under the appellate jurisdiction of the Court was the appealed case of Luke and party v. Perry and party, both miners at Giles Terrace. The appeal was made by Luke and party against the decision of the "Warden at "Westport (Dr. G-iles). Luke and party had been the complainants in the case heard in the "Warden's Court, and Perry and party were the defendants. The appeal was heard before four assessors —Messrs Grady, West, Roache, and Bull. Mr Tyler appeared for the appellants and Mr Pitt, with whom was Mr Button, of Hokitika, appeared for the respondents. The grounds of appeal were—that the decision was contrary to the weight of evidence; that it was contrary to the spirit and intention of the Nelson South-West Goldfields Rules and Regulations ; and that it was bad both at

law and in equity, and the appellants were therefore aggrieved by it. Mr Button took objection to two of the grounds of the appeal, one of which was that the decision was " contrary to the spirit of the Jrules and regulations of the South-West Goldfielgs," and was "bad both at law and in equity." He objected to those grounds as too wide and general.

His Honor said it was usual to insert aground of appeal such as the second, although it might have no definite meaning. With regard to the first he thought it too general. Mr Tyler was agreeable to amend the first ground of appeal to the effect that the decision was " contrary to the spirit and intention of the eighth part of the rules and regulations of the Nelson South-West Goldfields;" and this amendment was agreed to. Mr Tyler opened the case for the appellants. Their original complaint, heard before the Warden, was that on the 10th of August last, the defendants unlawfully interfered with their claim, and that they should be adjudged to desist from such interference. This complaint was made under the first clause of the seventeenth part of the Rules and Regulations of the Nelson Goldfields. On that complaint a summons was issued, the case heard, and judgment given for the defendants with costs. He proceeded to state at length the circumstances under which the two parties marked off their claims, and quoted the particular portions of the rules and regulations which were applicable to these circumstances. He called the following witnesses : R. H. Coe, William Luke, Cornelius Gilchrist, George Hume, William Watts, John Gardiner, Richard Hume, Angus Sutherland, Robert Brown, Donald Beaton, and John Mees. The evidence of these witnesses concluded the case for the appellants. The case was so fully reported when before the Warden, and the evidence would be so incomprehensible without references to plans, that we do not repert it.

Thursday, Not. 19. His Honor took his seat upon the bench at eleven o'clock.

Mr Button said that, upon consultation with his learned friend, Mr Pitt, it had been determined to take His Honor's opinion as to whether assessors could properly sit in the Appellate Jurisdiction of the Court. He contended that they could not. The other side might object that it was too late to take the point—that the objection had been waived. He, however, should insist that although an irregularity might be waived, it could never be argued that a jurisdiction which did not exist at law could be conferred by a waiver.

Mr Tyler jhaving replied, His Honor said he did not think it was too late, but considered that assessors could, sit.

A note of the objection was taken at the request of the respondent's counsel. Mr Button then addressed his Honor upon the law, and contended that there was no question of fact to go to the assessors, which could in the least affect the main question at issue. It was purely one of law, involving the construction of the G-oldfields Eegulations. The learned gentleman argued that the ground claimed by the appellants must come either under the tunnelling rules part 8, by which the appellants were, by the

amendment 01 tneir notice, confined, or be considered as an ordinary 'claim under the general regulations. Now it was admitted on the other side, and the evidence abundantly proved, that it was not a tunnelling claim, as contemplated by the rules. The Counsel on the other side had complained of the inapplicability of the rules, and of the distance allowed for tunnels. He was not there to dispute hardship or inapplicability; he found the law, and that they must abide by. Then the ground claimed by the appellants was not a claim under the ordinary regulations. It was, to begin with, about three times the area allowed, and in the next nlace it was nnt rvati

pretended that it was so held; therefore he contended that the ground must be regarded as unoccupied ground, and liable to he pegged off at any moment, "Upon these grounds he very confidently asked his Honor to direct the assessors that the respondents having pegged off this ground were entitled in law to hold it. Mr Tyler, in reply, urged the equities of the appellants' case, and, at considerable length, remarked upon the objects and intentions of the framers of the rules, and their desire to induce miners to expend their time and capital in tunnelling for leads of gold. The learned gentleman remarked upon the conduct of all the parties in taking up ground under the same circumstances, and argued that the appellants

were entitled to an equitable consideration at the hands of the Court. By the rules, protection was granted for tunnelling for a distauco of 600 feet, but the selection of that number had been made evidently on the supposition that the leads of gold were usually struck within that distance from the face of the hill or terraces on the West Coast. But in this case the conditions did not admit of the rules being so carried out. They were not applicable to the circumstances, for two reasons—it was neither practicable to get at the gold with a tunnel of 600 feet, and it was impossible, if the ground were to be worked profitably, to drive at right angles to the lead. In that case, was it not the province of the Court to apply the rules, as far as they could be applied, to the existing state of things ? Knowing the difficulties of the case, the parties had explained them to the Warden at the time, and they all proceeded to tunnel the ground on a mutual understanding that they were driving to the claims which they had marked out on the face of the terrace. On that understanding Perry and party had also driven, and, for their numbers, were really occupying a much larger area of ground than was occupied by Luke and party —in fact six times as much as they were entitled to. Were they, when coinciding with this arrangement up to the , moment they struck gold, to be allowed to abandon the agreement and design which were imposed upon all parties by the peculiar conditions of the ground—to act a lie—and to posses s themselves of the gold found in the claims of others, when driving to their own ?

Mr Button replied, and asked his Honor to sustain the objections he had made.

His Honor said that, whatever might be his opinion, it would be unsatisfactory for him now to withdraw the case from the assessors.

The Court was adjourned until two o'clock.

On the Court resuming, Mr Button stated that it was not his intention to call any evidence to establish the case of the respondents. Mr Tyler urged that the respondent's case should be gone into, believing that it would tend further to establish that for the appellants. Mr Button insisted that the case rested entirely upon the points of law which had been raised. ,

His Honor, addressing the assessors, said it might be somewhat satisfactory to them that they were relieved from giving any decision in the matter. The ; real points in the case were admitted. It, therefore, rested upon a point of law, and it would not be necessary for him to go so fully into it as if it had taken a different turn. He might ; state this—that the principal fact relied upon by the appellants was the circumstance of their having taken up thi» piece of ground, and—as it was represented in the opening, although it did not satisfy him—of their having been granted an extension of that ground by the Warden. Supposing, however, that the "Warden had made such a grant, he had no power to do so ; he had no power to grant any extension of ground. In fact the question whether this piece of ground was extended or not had nothing to do with the ease. If the appellants moved their pegs for the purpose of extending their ground, they did so illegally. The ground was, therefore, vacant. It appeared, then, that Perry and party, as soon as gold was struck, marked off what was called a block claim. That was the first time that they knew anything about block claims under these rules. The object in taking up such large areas was to give the parties a chance of striking gold, and, when they did so, to mark off these block claims. That was done by Perry and party. Whether they had. a right to the ground which they occupied by doing so, it was not for the Court to decide. The whole thing was obviously a mistake from beginning to end, and on the part of all parties concerned. This, however, did not improve the position, or establish the right, of Luke and party. It was incumbent upon Luke and party to upset the claim of Perry and party by proving their own title. They had failed, however, to show their grounds of title. In short, upon the point of law, all the facts amounted to nothing. Besides the other circumstances, reference had been made to an arrangement between the parties, but of that arrangement he had had no evidence. Even if there were evidence, it was an arrangement which could not hold good; it was an arrangement which could not be binding on any of the parties. The law, in such a case, could not be strained to suit particular parties. Equity could be administered so as to

tone down the full effect of the law to a certain extent, but it could not overturn an Act of Parliament. However desirous these parties might have been to act under a frontage system, the system in this case was not a frontage system —a system which, in the colony of Victoria, had led to the greatest amount of litigation. Here there' was nothing to guide them as to the frontage system. At all events, whether Perry and party had the right or not, they had done as far as the rules required—that as soon as the gold might be struck, they should mark oft'a claim. It was not necessary for him to go into particulars as to how these blocks were laid out. They were obviously inconsistent with the rules and regulations. They were not taken from the face of the hill, and the blocks were altogether much more extensive than the parties had any right to hold They were, as he had said, altogether in a mistake. This, howevor, did not specially affect the question before the Court. The question was, had the appellants made out their case or not? Had there been such an interference as that which was complained of? In his opinion there had not been such interference. The ground of appeal had not been proved. It was of no use his alluding to the question of facts, because these were admitted. As to the question of law, it was simply against the appellants. Therefore, the appeal must be dismissed. He would take the sanction of the assessors on that point. The assessors, after consultation, said they agreed with His Honor. His Honor allowed £l2 as fees for counsel on the part of the respondents, £lO of which had been paid into Court by the appellants, Luke and party. The appellants had also to pay the fees of Court, and their own witnesses.

The assessors contributed their fees to the Hospital funds.

ESTATES Ttf BAKKBTTPTCY. Mr Harris and Mr Whiteford explained to His Honor that there seemed to be some misapprehension as to the payment of fees to provisional trustees in bankruptcy. They had refused to make up reports until the fees were paid, and they wished to know whether they were justified in that course.

His Honor considered that the course should be followed which was followed in the jurisdiction of the Supreme Court—that trustees were not bound to furnish reports until the fees were paid. The Court was then adjourned until noon to-day, when His Honor will hold a sitting for the hearing of applications under the Bankruptcy Act.