WARDEN'S COURT.

Westport Times, Volume III, Issue 526, 6 July 1869, Page 2

WARDEN'S COURT.

(Before J. Giles, Esq., "Warden.) KEENAN AND OTHERS V. DELAY AND OTIIERS. This was a summons to recover £123 for water alleged to have been used by the defendants out of a race at Addison's Flat, in which race the defendants were also shareholders. Mr Tyler appeared for the complainants. Mr Pitt appeared for the defendants. Mr Tyler shortly opened the case, and put in the miners' rights. It appearecVthat four of the complainants were not present, and no miners' rights produced for them. Mr Pitt then objected to the further progress of the case, on the ground of tho nonproduetion of the miners' rights in question. He said that the Goldtiolds Act required them to be produced before any suit could be heard in that Court. Mr Tyler replied, contending that it was competent for him to prove their existence by reference to the books of the office, whereby it would be shown that the men in question held rights. Before Mr Pitt replied, tho Warden pointed out what appeared to him a difficulty, and he should like to hear Mr Tyler upon it. The complaint on its face showed that the complainants and defendants were partners. Could the Court entertain this question as it was at present before the Court ?

Mr Tyler contended that it could—that the Goldfields Act gave unrestricted jurisdiction to the Warden, in all cases of dispute between miners.

Mr Pitt in reply contended that nothing had been advanced on the other side to weaken the objections he had raised. The Warden had anticipated him in the point suggested But there could be no doubt that that point also was fatal. He admitted that the powers of the Warden were of the amplest character; but the case must be brought properly before the Court. Now the summons in this case disclosed nothing but a common law partnership, and it was admitted that it was not in fact a Registered Company. It being then only a common law partnership, and the cause of action only a matter of contract between partners, it must be governed by the principles and practice applicable to such a state of things. Partners at common law could not sue one another. The remedy for any wrong was to file a Bill in Equity and pray a decree according to the relief required. The Goldfields Act had only by statutory enactment introduced a simpler mode of carrying out the principle. Another course was open, but as the complaint was then framed it was impossible for his Worship to entertain the case.

The Warden said the points taken involved some very nice distinctions, and as they had arisen suddenly he felt it necessary to take a little time before deciding them. He would adjourn the Court for half an hour. Upon resuming His Worship said that he had carefully considered the objections taken, and was of opinion that the defendants were entitled to his judgment. He considered the first point taken by Mr Pitt fatal. He would not say that the production of miners ' rights was absolutely necessary, but he did °not think in this case that their want could be supplied by reference to the registrations of of transfers. It would be impossible to say by that means whether the rights had, or had not, run out. In reference to the question of partnership, he thought there was a great

deal of force in that objection too. There was no doubt the Act gave a wide jurisdiction to the Court, but that is as to the subject in dispute, not as to the mode in whi«h it is presented. Here the defendants were partners with the complainants, and charged, according to the particulars, with the full charges. Now as partners they would be entitled to a portion of th« price for the water, and jfet the judgment of the Court would have to be for the complainants for the whole amount. But it was not necessary to go further in this direction, as he considered the first objection fatal. His Worship then gave judgment for u non-suit; the complainants to pay the defendants' costs.