AN OTAGO MINING APPEAL

Evening Star, Issue 12865, 14 July 1906, Page 12

AN OTAGO MINING APPEAL

A ST. BATHANS TRADE.

In the case of the Bank of New Zealand v. the Scandinavian Water Race Company, argued in April last before the Chief Jue-t-ie (Sir R. Stout) and Justices Donniston, Edwards, Cooper, and Chapman, the question arose as to the Bunk's right, as mortgagee of the propei ty. to prosecute the appeal in the place of the mortgagor, John Ewing, and it was then decided that the Bank was a conrpetent party to proceed with the appeal. The fads of the cafe were that John Ewing obtained a license in 1895 to hold for 21 years a certain mining claim at St. Bathans. in Central Otago. A suit for forfeiture of this claim was in-■••tifrn-ted against him by the respondent company in 1903 on several grounds, one bring the non-payment of rent eince 1897, and the Warden's Court, and on appeal the DistTht Court, held ttwt the d'aim had been forfeited. Ewing, however, appealed to the Court of Appeal, and that Court imposed a fine instead of forfeituTC, and the fine was paid on the 18th of October, 1904. The ref-ponde't company then app'ied under the provisions of the Mining Act, 1898. on the 3rd of November, 1904, to the Warden's Court for a, certificate of abandonment of the claim, and the errant of a license of the cbim to itee'f on the gronnd th.it the claim hid been entirelv uifused since the 26th of September, 1905, and that default for 12 months had been made in payment of rent. Fifteen days after this application had been filed._Ewin.tr fi'ed an application to have the claim declared abindoned and regrant"d to himeelf. The applications were heard tocether by the warden, who "ranted a eertifica'e of abandonment of the claim againrt Ewincr as from the Ist of November, 1904, and granted a license of it to the respondent company. Ewing i.npealed a?ain°t this decision to the Supreme Court at Dunedin, his main contention beincr that his license' was granted under the Mining Act* of 1891 and 1895. o ncl therefore the warden had no power to issue a certificate of abandonment under the Mining Act, 1898. which did not a.nply to a license granted prior to its coding into operat ; on. Mr J"«tice Williams held that sec'ions 16 to 99. of the Mining Act Amendment Act, 1895, created a forfpitnre by ooe-ation of law, and that section 151 of the Mining Act. 1898. merely altered the procedure, not the substance of the former law. and thit it purely snbstiru-+ed the ■"•ord "abandonment" 'for "forfeiture." He decided that the claim must be held to have been abandoned by operation of the statute, and that the warden had no choice but io carry out ifc<* provisions, and the apjral. Tnt* wpb an appeal against the decision of Mr Justin Wil-li-rns. Affer tho artrttmejit m the Court of Apnea!, it was bv course! on both .sides that before the application of the rerommiiT to the Warden's Co"rt KVinsr had paid a}] arrears of rent, and the imonev had been by the Crown. A mn-ioritv of the of Ar>re-*l—tho Chief Ji«tice and Justices Edwards and Ooner—held that the appeal nnvt be ■■"owed. The Ch ; ef Justine agreed with 'h° decision n e the Court b"V>w thrt ihe Act. 1898. a cfrn."* in nmredure oriv fmm wlvit was the law und"r the Ant of 1895. an,-! held that the -""dement of the Court of Appeal in the r oT*er action and the payment of the fi"e th"reunder d : d not prevent the operation of s<"rt''on 151. mbs«c«ion (5). of the Act of 1898 as to the abandonment of Ihe claim, bn.t he held trmt since the rent in arre'ir? h"d been pn. ; d before the warden cave hiis and as it had been accepted bv tile Crown, that constituted waiter of the forfeirtire, and the warden had therefore no powiT to <rrant a certificate of abandonTrwnt of the claim.

Mr Justice Edwards delivered the joint judgment of himself and Mr Justice Cooper, in whi-h it wa.» stated that the Mining Act, 1898, altered the s'lbs-t-nee of the previous law. and therefore the n-pplicntion «f the respondent company coHd not lesplly have been m.ide under it. The nid«rment asrrp<vl with that, of the Chief Justice in hHoVw that the pavment of all arrears of rent bv Ewir>*r before {he application was heart! bv the warden prevented an ar>ai-dpnTT>ent of the claim taking place by opTiMon of the law. Mr Justice Chan'mnn delivered a dissenting jndrment. He agreed with the conclusion of the Court be'ow and of the Chi- f Jits'ic in the opinion tlvt the pro(/•dure for abandonment wnp rightlv taken bv the respondent conrpanv under the Mirrms Act. 1898. but be held that the of the arrears of rent bv TCwing th» hparint; of the application bv the warden and its acceptance by the Crown did not amount to a waiver of the

abandonment, and that the appeal should therefore be dismissed. Costs were allowed on the middle scale, with costs in the court below and £ls 15s costs of the motion to test the question whether the Bank of New Zealand could prosecute the appeal.