IMPORTANT MINING DECISION.

Greymouth Evening Star, Volume XXXI, 23 April 1901, Page 2

IMPORTANT MINING DECISION.

Monday, Ai'iiir- 22xi>.

(Before Warden Hawkins.)

In the case of William Claughesey v. ][. A. Wicks, (lie Warden delivered the following judgment: - It is necessary for the complete understanding of this application and objection to go back to the proceedings in (lie Warden's Cmr! out of which they arose.

On the 27th July, 1899, one Boss obtained a prospecting license over 30 acres of land on Nelson Creek. On the 2Gth October, 1899, 11. A. Wicks obtained a prospecting licenseover 70 acres on the .same Creek adjoining the :30 acres of Ross. Ross and Wicks became partners in the two prospecting areas. On the 2nd April, WOO, H. A. Wicks filed an application for a special claim for 100 acres, winch lie described in his application and stated to be held under prospecting license which would bo surrendered, ' meaning the ..prospecting licenses above referred to. In May, 1900, one of Wicks' sons suggested to one O'Brien that he should peg out a plot of ground, which he said contained 16 acres and which he said was not taken in in Wicks' claim. O'Brien pegged out a claim which he believed and stated in his application to contain 15 acres. For this ground stated to contain 15 acres he

obtained on the 28tli June, 1900, a license for a special claim. As the land was alleged to be only 15 acres and there was no objection to the application, no survey was ordered and the applicant's sketch plan was accepted by the Warden. And it does not appear that Wick was aware thai O'Brien had pegged out more than 15 acres as stated in his notice of application. Wick s application was heard by the Warden on the 2Gth April, 1900, and adjourned for survey.

The survey of Wicks special claim was certified by the District Surveyor on 4th July, 1900, and the application was brought n]) at the Warden's Court at Ahanra on the 26th clay of July, 1900. On 23rd July, 1900, O'Brien lodged an objection to Wicks application on the ground that the surveyed area covered a portion of the land held under his special claim license of 28th June, 1900. At the hearing of that objection on the 23rd August, 1900, it was referred back to the surveyor to certify at objector's expense the boundary of the land granted as special claim number 8">!> (to O'brien) and whether it is encroached on by application 184 )Wicks area). After completion of Wickes survey it was found that O'Brien had pegged out and was holding 40 acres instead of 15 acres, and that the precise situation of his 15 acres was nowhere defined.

On the 27th September the hearing was further adjourned to enable Wick to tile a suit for cancellation of O'Brien's claim

Wick on 17th October, 1900, filed a suit against O'Brien to declare his license void on the grounds that Wicks had lodged his application for his special claim before O'Brien, and, therefore, that in so far as O'Brien's special claim lay inside Wick's the license was bad and should be cancelled. On the 3rd of October, 1900, a suit was filed of Claughcsey against O'Brien for forfeiture of the excess over 15 acres of O'Brien's claim of 40 acres ; the statement of claim being apparently signed by Claughcsey himself. The application of Wick and the suits of Wick v. O'Brien and Claughcsey and O'Brien were heard at Greymouth on the 29th October, 1900, and judgment formerly entered up at Ahaura on 24th November, 1900.

My decision on the case Wick v. O'Brien was as follows: —"I find that defendant O'Brien did not encroach on plaintiff Wick's area as pegged _ out at the time when O'Brien pegged his area, and I give judgment for defendant." I did not attempt to settle where Wick's pegs were put in nor how much ground they covered, but I was in fact satisfied that when O'Brien pegged out his area, he did not interfere with Wick's pegs, either of his prospecting area, or special claim applications. In the suit of Claughesey v. O'Brien no evidence was adduced, no defence was made and judgment was given for plaintiff, and I added : " I decide that the defendant is entitled to hold his 15 acres in a rectangular block, taking the western boundary of his area of 40 acres as a base." I then proceeded to deal with Wick's application. Mr Hannan, 1 should note, was solicitor for O'Brien on the hearing of the suits of Wick v. O'Brien, and for .both parties in the suit of Claughesey v. O'Brien on Wick's application. Then I gave-this decision : " I understand Mr Hannan not to make any claim on behalf of Claughesey, but frankly to stale that it was a mere friendly suit to enable the Court to locate the 15 acres to be retained by O'Brien. If that be so I may perhaps pass over all irregularities in respect of Wick's application for special claim and grant it, excluding the 15 acres." T certainly appealed to Mr Hannan to confirm what 1 had as above quoted understood him to say and he did confirm it. And although I cannot say that lie gave any expressed consent to the concluding paragraph, making the grant io Wick of all but the 15 acres, I certainly believed that I had his tacit consent to the course I had taken. The order actually entered on Wick's application was as follows: — "Referred back to the surveyor to correct boundaries in accordance with order. In the suits of Wick v. O'Brien and Claughesey v. O'Brien and thereto referred to the Minister." This was, I hold, a judgment or order of the Court. Before the surveyor had completed his plan as so ordered by me as aforesaid an appeal was lodged in the District Court of Westland, which was heard on the 14th day of December WOO, in which Claughesey was 'made plaintiff, and O'Brien defendant, at the hearing Mr Hannan appeared for the plaintiff, and Mr Joyce for defendant. This was Mr .Joyce's first appearance in the matter it will be seen that he appeared for O'Brien who had hitherto throughout been represented by Mr Hannan. The judgment of the Court was as follows :—" Judgment to stand merely as judgment for plaintiff (without costs) in the Warden's Court." It is right that I should stvte concisely from the evidence given on tins application what took place before his Honor the Judge in the District Court. Mr Wake as Counsel on behalf of Wick asked to be heard and His Honor decided that lie could not hear any but a party to the suit, Mr Hannan told His Honor that it was a collusive suit—that there was another suit before the Warden's Court by Wick and Boss to cancel O'Brien's claim in which they were unsuccessful and that Claugliesey's only ground of complaint against the Warden's order, was that his client was not made first applicant for the surplus, and that no evidence hadbeen given in Claughesey v. O'Brien in the Warden's Court and thai the facts were admitted It was also proved that Mr Joyce appeared for O'Brien and in answer to His Honor the Judge, slated that no special circumstances under Section 110 of the Mining Act, existed iif the case - and that thereupon His Honor made the order as above slated. It will be observed lhat_ the Judge was not informed of the decision of the Warden on Wick's claim, nor were the very material statements in it read to him. !

Having obtained llio decision of the District Court, Claughcse.y's registered agent signrd'as for him and in his name and lodged an application on 20th December, 1900, for the 2") aeros excess of tho 40 acres over and above O'Brien's 15 acres.

To thi.sir. A. Wick by his solicitor on the 7th February, 1901, filed an objection alleging fraud and covin or collusion in the suits of Olaughoscy v O'Brien.

To this objection Mr. Hannan on the part of C'aughcsey appetrod under protest, alleging that the Warden had to obey the dceit-ion of His Honor the Judge of the District Court, and that even if that order had been obtained by fraud covin or collusion the Warden had no power to set it aside. I have now t'o consider tho evidence given 'by Claughcsey. The obstacles thrown in the way of Claughcsey being put'jn the witness box on the 28sh March when an attempt wa3 made by the objectors Counsel to get his evidence coupled with his manner in tho box at tho subsequent sitting on the Ist April, and (ho matter of his evidence wero ca'culatcd to creato an unsatisfactory impression on the Court, as to his bias and the value of his evidence. With all that, the admissions which be did mako wevo highly material.

He said : " I remember signing an appeal notice in the suit Claughesey v O'Brien, I don't recollect either O.Brien or Hannan coming to me, I think Hannan suggested that was the best course. I only surmised it. That there should be a friendly suit. Asked what for ? He said to get the land on my behalf. Asked who suggested it, he said Hannan didn't. Then being further pressed who it was, he saidp'Brien spoke to mo. It came up in conversation. It was before the suit. I didn't go and see Mr. Hannan. I had nothing to do with the original suit."

" The first time I saw Hannan to be mixed np in any way with the original case was when I gave him the money to lodgo the appeal. I did not instruct Hannan to issue the suit against O'Brien, but it was an understanding between mo and O'Brien that he should instruct him it was a friendly suit so that I would secure tho 25 acres. Asked who for ? For myself. There was no suggestion O'Brien and I should go halves. That may come off yet. I got the £2O I lodged for the appeal from O'Brien. I think I paid the exact £2O to Mr. Hannan. I didn't employ any agont at Ahaura to issue tho summons against O'Brien."

Now bearing in mind the manner oE the witness throughout and the circumstances under which his appearance in the witness box was prevented on the Ist hearing and delayed till tho day of the adjournment, and looking at the answers, I can only draw one conclusion and that is as follows, viz : that

Claughesey's admissions that he bad nothing to do with the original suit (tho suit that is in the Warden's Court), that; the first time ho saw Mr. Hannan to bet mixed up in the original suit was when ho gave him the money for the appeal, and his declaration that O'Brien gave him JE2O to carry tho appeal and he paid ill; Hannan showed conclusively that Claughesey's name only was used by O'Brien for his own purposes. It is hard to believe that he ever handled £2O irk this matter or ever paid it over to Mr. Hannan, but taking him at his own word it is impossible to question the certainty that Claughesey had no interest in the, suit.

In any case it is from his evidence certain th<it Claughesey was nothing but a name for O'Brion. ' That it was O'Brien's suit and O'Brien's only. That alone on the authority of Girdleston v. Brighton Aquariam Company, 4 Exchequer, Div 107, avoids the judgment given in the Warden's Court. To take the words used by L.J.Brett, "He did notexercise any judgment upon the action," "He exercised no control," "He did not instruct anybody," "He did not become liable to anybody for what was done," "He did not know of the course of the action."

The plaintiff was plaintiff and defendant and the judgments of Brett, L.J.,, and Cotton, L.J., expressly declare & judgment so obtained to be in fact no jndgment. All three of the Lord Justices point out that there may have been no fraudulent intent at all nothing improper in the intentions of the parties, and yet it might be a covinous and collusive action to the extent of avoiding ilie judgment obtained.

And it must be noted that covin and collusion do come in in this case. Since O'Brien was endeavoring by a collusive action not, as I was given to understand at the hearing, only to secure to O'Brisn the location of his 15 acres, but to obtain for him the excess he had by an extraordinary misconception of area included in his claim to shut out all other miners from applying for the 25 acres. Both L.J.'s Thcsigcr and Cotton dwelt on this point. Lord Justice Thesiger says:— " The intention to prejudice or defraud a class of persons including the plaintiff must equally establish the allegation (of covin or collusion) though the plaintiff was not known to form one of the class to be prejudiced or defrauded." That was why a judgment so obtained could not be pleaded in bar.

It is not necessary that I should deal with the order of the District Court. I may have my own opinion as to whether His Honor the Judge of the District Court would have made the order ho did if he had had the full facts of the case before him. The order of the District Court stands on the order made by me iu my Court. It in express words affirms that order, it does not reverse it but it orders the omission only of that part which refers to. the 15 acres. If my order is void, or if it was to use the words of Lord Justice Brett "No Judgment" the order of the Court of Appeal must fall with it for the order was not one of original jurisdiction of the District Court.

I, therefore, hold that the excess ground of O'Brien has never been forfeited and I refuse the application with" costs.

As to Wick's application the order of the 25 th November, 1900, is clearly in thq, nature of a judgment against which an appeal would lie, see Giffen and Leggatt and Mein Gazolts Law Reports Vol 3, page 186. I therefore rnu3t leave it to be dealt with accordingly. K. S. Hawkins, Warden. 20sh April, 1901. CO 3TS. Claughosoy ... No Claim Larlcin. iriner ... 14s 4d Court Fees 9s Professional Fee 3 ... '£'> 5s Od £3 8s 4d