DISTRICT COURT, WESTPORT.

Westport Times, Volume IV, Issue 700, 20 August 1870, Page 2

DISTRICT COURT, WESTPORT.

APPELLATE JURISDICTION.

Thursday, August 18. (Before Mr Justice Ward.) REHEARING.

Hughes v. Overhagen and party. This was a rehearing of an action heard in the Warden's Court on the 21st ult.

The original plaint was that the Warden cancel the certificate of registration held by the defendants for an abandoned race, formerly tho property of the Pioneer Company, on the ground that it had been obtained by misrepresentation.

Mr Pitt appeared for the complain ant and Mr Button for the defend, ants.

Mr Pitt produced the proposed amendments in the plaint, which were mutually agreed upon. They were as follow:

Ist. That the defendants represented that the race applied for was an abandoned race, whereas in truth and in fact, it was never abandoned by the respondent or those under whom he claimed. 2nd. That the defendants, when they applied for and obtained their certificate, suppressed the fact that the race and fluming in question had been previously seized by the bailiff of the E.M's. Court, and then was in the bailiff's possession. 3rd. That the defendants suppressed from the Warden the fact that they had not served notices upon any of the shareholders in the late Pioneer Company or upon the bailiff in possession or upon any other person interested in the matter of the application. Mr Button stated that he proposed to assume that the facts stated in the pleadings were true, in order to raise a point of law. Looking at the first clause he would submit that the question, as to what constituted abandonment was clearly one of law onlv. Any man could come into tho Warden's Court and apply for a race which he stated to be abandoned ; but, upon the mere statement of an applicant, the AVarden would not conclude that the right was abandoned without ascertaining tho circumstances in connection with tho matter. Having informed himself it would be for the Warden to consider whether there had been an abandoning. It was a question of law not of fact and that being the case, he contended that tho first point fell through. His Honor did not altogether coincide. The Warden must not only be satisfied that the race had been abandoned, but that it shall have so continued for the space of one calendar month before it shall become forfeited. Mr Button contended it all came to the same thing, namely, that the Warden must necessarily have satisfied himself with respect to the abandoning previous to granting the defendants a certificate of registration. The

question whether, in consequence of abandonment, a right was forfeited was, he thought, clearly a question of law only. His Honor concurred and ruled that the first ground must be struck out.

Mr Button thought that he should also succeed in showing that the second ground advanced by the eomplinant's counsel should be struck out. The allegation was that they had suppressed the fact that the bailiff was in possession. Ho failed to see that the records of the Court showed any such thing. Their certificate was not registered until the 23rd of May and the bailiff was in possession on the 21st of May, but their application was dated May 14th.

His Honor was of opinion that the date of the certificate and not the notice of intention to apply for same, was for the Court to consider.

Mr Button urged that it really did not affect the case in the slightest whether the bailiff was or was not in possession. The mere fact of the bailiff seizing could not invest the defendants, whose property he seized, with any better right than they previously possessed. The bailiff could confer no title. If the Warden concluded that the race bad been forfeited— His Honor: Was liable to be forfeited. Mr Button: Was liable to be forfeited early in March, he must have gone in dead opposition to law, if, even cognisant of the bailiff's possession on May 21st, he had taken the slightest notice of it. Anyone claiming through the bailiff could certainly not claim what the bailiff had no power to seize, namely, a water right that had been forfeited months previously. Mr Pitt: He must interrupt his learned friend who would persist in urging that the right had been forfeited, when it had been ruled that it was liable only to forfeiture. Clause 10, page 13, of the Regulations, provided that a certificate may be cancelled, it did not say nrast or shall, but may be cancelled if not brought within thirty days after the expiration of twelve months from the date at which it has been granted to the Warden for renewal, unless satisfactory cause were shown. Pie would also direct his Honor's attention to clause v lls of tho G-oldficlds Act under which fine may substituted for forfeiture His Honor decided to reserve the second ground.

Mr Button contended that the third ground must be abandoned, as it could not be maintained under the original plaint, which directly stated misrepresentation had been resorted the third ground what they had not done, there should be some positive proposition, as the plaint definitely stated there had been misrepresentation.

His Honor was of opinion that the third gronud might be good under another plaint, but could not he sustained under the present one. On the face of the pleadings the second ground only should stand. Mr Button: The facts then will be these—That on the 14th May the defendants lodged a notice with the Warden: on the 21st May the bailiff went into possession; on the 23rd May the application was granted ; and the certificate under which the bailiff sold expired on March 4th. He was in a position to argue that the second ground availed thera nothing. It had been ruled by his Honor, and he was prepared to admit that there might be circumstances under which it would be competent for the holder of a miner's right dated subsequent to the certifi cate of a registered right, to show that he was injured by such registered right, but only when the circumstances were continuous. In the present case the circumstances were not continuous, but were resolved into a mere question of title through the bailiff. It had been ruled that the bailiff was in a position, on May 27th, to confer a certificate which was subject to forfeiture on March 4; and'though not forfeited owing to an irregularity, its existence was practically ignored by the Warden on May 23, as also at the previous hearing on June 21, when the prior right of the defendants was confirmed. On May 27, the bailiff sold to Hughes, and the latter first holds a miner's right on the 28th. It was clear then that Hughes could not claim a title, such as it was, through the bailiff. Part 1, clause 6, of the Goldfields' Act clearly sets forth that a miner's right is the necessary qualification to the possession of mining property. Any party not the possessor of a miner's right is subject to a penalty under the Act, and a penalty implies prohibition. Mr Pitt stated that he should bo able to call evidence to show that Overhagen had suppressed facts within his knowledgo which would have led to the Warden refusing his application. He contended, if he succeeded in showing that, the case being a re-hearing, it must result in the certificate being cancelled.

The following witnesses were then examined:—

Thomas Cooper: lam bailiff of this Court, also the K.M. Court. I acted under the distress warrant produced. On May 21 I sent John Temperly with the warrant as my assistant bailiff. 1 sold on May 27th to Mr Hughes.

By Mr Button : I put the following advertisement in the paper. (" Westport Times " produced.) John Temperly : I am an assistant bailiff of the E.M. Court. I executed the warrant produced. I took an in-

ventory of the things. I posted two notices with tackß. I received a notice from the bailiff. I copied the notice. I saw Overhagen there on the 21st after I seized. I had no conversation with him. The property I seized was sold. Mr Hughes purchased the lot. By Mr Button: I either saw Overhagen in the hut or on the claim. I am speaking of the company's hut about 150 feet above the machinery. The hut is, I believe, on the lease. The claim is on the lease. It was either Overhagen or his partner that I saw.

Be-examined: I was present at the sale. I believe Overhagen was there. Henry Overhagen, sworn: I was the defendant in the case below. I obtained a certificate for a water-race at Waimangaroa on May 23rd. I made application for it on May 14. ; I met the bailiff twice on the 21st, once three miles from the claim, a second time about a mile from the claim. I did not see him after, until the sale. There was not a man in possession of the claim. I saw no notices.

By Mr Button: I did not know the bailiff had seized the race. At the sale I understood the fluming only was sold.

The complainant called no other evidence.

Mr Button stated that he was prepared to leave the case in his Honor's hands. His Honor said it would have saved much trouble of they could have taken the evidence at the outset of the case. It certainly did not bear out the allegations set forth in the second ground by the complainant. The real ground, which was not, however, before the Court, was that the prior certificate had not been forfeited.

Judgment for the defendants with costs.

BANKRUPTCY JURISDICTION. In re oweh o'neill. Bankrupt had been put back from the previous sitting of the Court, in order to file proper particulars of account. Mr Home opposed the discharge on behalf of the creditors, and objected to the statement filed as incomplete. The bankrupt was put back till the next sitting, and ordered to produce a full statement. Protection continued. In re geoege limbbick. Mr Pitt, who appeared for the bankrupt, applied for his final discharge. He stated that under the Act a deed of arrangement had been entered into with the creditors, and two instalpaid. His Honor refused discharge until the remaining instalment had been paid up. In re chaeles haute* fox. The bankrupt surrendered for final examination and order of discharge. Mr Pitt, on behalf of the supervisors, opposed the bankrupt and requested his Honor to withdraw bankrupt's protection, he having failed to furnish particulars of accouut as ordered at the last sitting of the Court. Protection withdrawn. In re paeeb and aeenas. Mr Pitt, on behalf of the bankrupts, applied for their discharge. No opposition. Order granted. In re cjesaee nosei. Mr Pitt appeared for the bankrupt, and applied for an adjournment till next sitting to file a statement. Adjournment granted.