WESTPORT WARDEN'S COURT.

Westport Times, Volume III, Issue 413, 26 November 1868, Page 2

WESTPORT WARDEN'S COURT.

WEDNESDAY, NOT. 25. (Before J. Giles, Esq. E. M.) Edward Aber complained against John Hayden for neglecting and refusing to put the complainant in possession of a claim purchased by him. The defendant did not appear, Mr Tyler, who appeared for the complainant, stated the case. The complainant and his brother had registered a water-race and claim at the Lyell, put up a hut, and made a garden. After a time they sold a third interest to one Eonald. After He became a partner, they continued making the garden, agreeing at the time that the garden, claim, and water-race should be joint property. Subsequently there was some disagreement, and Eonald sold his share for the sum of £ls, to John Hayden, who is better known as "Dublin Jack." Hayden, however, never took possession, but I

took a look at the ground on a Sunday, in preference to working with Hayden, they determined to sell out or to purchase his share. They offered to sell for £3O each, but agreed to purchase If ay don's share for £lO, Ronald still owing £lO, which Hayden had taken up. Tiiis made £SO for the ■share. On November 3rd, Hayden received 3ozs 4dwt, and on the Bth the balance was paid. The gold was handed over to Haydeu's brother, and Hayden wrote out a receipt, but in that receipt he specified that he did not sell his rights in the garden, although, by the first document which had passed, and by the conversation which had taken place, he had disposed of his whole interest. The complainant objected to the receipt, but, by that time, the gold was in Hayden's possession, aud he was obliged to take it as proof of what had b«en paid. The Warden thought there was a difficulty in dealing with the matter in the Warden's Court. He could not see how the garden, or a canoe which was also in dispute, could be considered part of a claim. Mr Tyler urged that it was a dispute between miners relating to partnership property. The Warden did not know where it would stop, if a garden and such things were to be considered parts of mining claims.

Mr. Tyler : A miner is allowed a residence area. The complainant's party may not have a certificate, but they were living in a hut and were working the ground. The Warden mentioned the point at the outset, because he thought it was a difficulty. Mr Tyler thought that, as the garden was sold with the other things, it was also under the cognisance of the Court.

The complainant's evidence as to the circumstances was taken. He stated that he had not registered a residence site.

The Warden said that, as far as the facts went, there was no difficulty. It was simply a question what could be taken cognisance of i i that Court.

Mr Tyler agreed that the garden was too large to be considered tent gr und.and it could not be considered a registered residence area. Must there be a residence area ?

The Warden remarked that, if the complainant had no strict legal right, neither had Hayden. Mr Tyler: Glearly, he sold what he was not entitled to hold. If the complainant is not entitled to hold, neither can he be.

The Warden: But there is this difficulty—there is no locus standi. There is no title on either side. With regard to the canoe, I do not see how we are to get o\er that in any way. Mr Tyler : It is all mining partner ship property. The Wardens Court's take notice of horses on a claim. The Warden: It has been held so, although the point has never been raised.

Mr Tyler: Miners connot mine without provisions, and without this punt the complainants, 'situated as they are, would be unable to obtain provisions.

The Warden : But the same line of reasoning would effecteverything in life. Mr. Tyler urged the equities of the case, against the merely technical points, as to registration. Moreover, the parties were a long way from Westport; the man with whom they bad to deal was not an ordinary character ; and he might come and walk off with the whole of the produce of the garden. The Warden had been desirous of discussing the matter fully. If he could see his way clear to make an order, he should have been willing to do so. He saw nothing for the complainant to do but to register the ground as a residence area. If Hayden interfered, proceedings could be taken against him. As to the canoe, it could only be dealt with in the Eesident Magistrate's Court. He recommended the complainant to take a non-suit, and to register a residence area; and this was done.

NICHOLS Y. MOLES. Eichard Nichols and party complained of Henry Mole - and party illegally holding too much ground at Giles Terrace. Mr Pitt, who appeared for the defendants, had intimated on Monday that, as he was about to leave for Nelson, and there was no other counsel available, it would bo a manifest injustice to the defendants, seeing that Mr Tyler appeared for the complainants, and he asked for the case to be adjourned. Mr Tyler, by the wish of his clients, objected to the adjournment, but intimated that to prevent delay, they would also dispense with counsel.

I Mr Pitt, on the case being called 'yesterday, explained that he had not

been able to leave,_ and he therefore appeared. Nichols and Malone, two of the complainants, intimated that they were taken by surprise, both by Mr Pitt appearing, and by Mr Tyler now refusing to appear for them. They asked for an adjournment, as they dosired to telegraph to Mr Homo of Charleston, or to Mr Button, at Nelson.

Mr Pitt was agreeable to the adjournment, if the costs of adjournment were paid. There was a difference between this application and the last. The counsel was here, but refused to appear. The parties, if they chose, could submit to a nonsuit until they got counsel. [The case, as it was proceeded with, was utterly incomprehensible to our reporter (as it would be to our readers, without the plans being; referred to, which is impossible). He, therefore, left the Court, but we have received the following notes of the progress of the case : —] The complaiuants resolved to go on with the case, and John Malone, on their part, called two of the defendants, Angus Sutherland and Henry Moles, whom he examined. He contended that Tapley and party (four men) and Bradley and party (four men) were one party, and that Moles and party (four men) and Sutherland and party (four men) were another party ; that they had applied respectively for amalgamation, and were only now attempting to act as separate parties, to hold more ground than the rules would allow.

Mr Pitt pointed out that the evidence showed that the parties of four were distinct, and that, until the complainant could establish that the defendants were working the ground in concert, they could not succeed. The summons was not fitted to the circumstances, and at all events the procedings were premature. The complainant could at the most only complain of the 600 feet across the lead, but in that case the defendants would be en • titled under the rules to the choice of ground.

The Warden suggested that the complainants should take a non-suit. He had given, and the counsel on the other side had allowed, a great latitude in the conduct of their case. He could not see that the complainants had established in any way thai, the defendants were working together. Tiie four men's claims seemed, on the complainants own showing, distinct. If they could have proved that the eight men in Tapley and Bradley's claims were working the claim of Tapley and party, and that Moles and Sutherland were working together to defeat the rules and to obtain more ground than they were eutitled to, he would be disposed to prevent it. He was of opinion that all the parties should mark off chums. The lead was well defined, and it was undesirable that known auriferous ground should be locked up. He ordered that Bradley and party should mark off their claim at once, giving them i ill tomorrow for that purpose. Moles and Sutherland, he suggested, should mark off as soon as possible. A non-suit was taken with costs.