THE COURTS.

Mount Ida Chronicle, Volume XVIII, Issue 1053, 6 February 1890, Page 3

THE COURTS.

RESIDENT MAGISTRATE'S COURT, NENTHORN. Wednesday, January 29, 1890. (Before S. Mead Daloleish, Esq., R.M.) Randrup v. Shearer.—Claim £4 10s, board and lodging. Mr. M'Donald for plaintiff. After hearing evidence, His Worship Rave judgment for amount claimed with costs 16a.«d. Connolly v. Pogson.-"-Claiiji £8 7s, damage done by sheep and cattle trespassing. Mr. M'Donald for plaintiff", Mr Hosking for defendant, who pleaded " Not Indebted." John Connolly deposed : I am a small farmer at Cottesbrook—section 8, block X. I grow turnips and grass only. I was in Sossession of the farm in February and [arch, 1889. My nearest neighbors are Pogson and O'Donnell.'.My land is securely fenced, especially on the side next to Mr. Pogson. My claim is for damage done by defendant's cattle aud sheep to my turnips and grass. Mr. Hosking submitted that plaintiff hadno cause of action, sections 5 and 6 of the Impounding Act, 1884, having been brought into force by the Taieri County Council and proclaimed in the "Gazette" of December U3rd, 1886, which he produced ; and on this ground claimed judgment for defendant. Mr. M'Donald submitted that the trespass was committed by sheep coming through the river, and submitted that the land was fenced within the meaning of the Fencing Act', and claimed judgment for his client. _ His Worship said that the principle involved was one which required carefid con-' ■ideration, aud ho would reserve his judgment. Robert Wright v. John Lory, C. M'Erlane, M. Thomas, E. Thornton, Roht. Alexauder and' James A. Petrie.—Claim £9, for work and labor done on Golden Fleece and Golden Age licensed holdings. Mr. M'Donald for plaintiff; Mr. M'Carthy for the defendants Lory and Petrie. Mr. M'Donald applied to withdraw Mr. Pctrie's name without costs, to which Mr. M'Carthy agreed. B. Harper, mining registrar, produced the application (took for licensed holdings, in which he found note of applications on 25th Sept., 1889, for two licensed.holdings, called the Golden Fleece aud -Golden Age Companies, made by Charles M'Erlane tor self and party, and John Bradley for self and party, both of which were granted, but the rent was not paid on either. lie had uo note of any assignments of interests. William Donaldson, mining agent, deposed : I produce a minute book of shareholders in the Golden Age and Golden Fleece claims, which contains a list of the share, holders. At the first meeting 1 was appointed secretary. There was a subsequent meeting during October, at which I was present, and aJso Silas Hore (who, I believe, was a shareholder and represented several Naseby shareholders), Root. Alexander, John Lory, E. Thornton, I think M. Thomas, and John Bradley. Mr. John Lory did most of the talking. I took nc minutes. It was resolved to put oil men to prospect the claim. I don't thinjc there was any. appointed chairman. Robert Alexander was requested to select two men to do the work. Cross-examined : Lory was in the room when the prospecting area was decided upon. I do not know why no minutes were taken. The meetihgl speak of was held in Griffon's Hotel. Robert Alexander said : I put on Bradley and Wright to prospect, as decided by the meeting. I got them tools. I went up t > Bee the work after they had been working 10 or 12 days, and consider that they did fair work. '.".'... Cipss-ex'amined : Robert Wrjght is not a shareholder. I have heard that Mr. Win. Guffle is a shareholder. : I thjnk that.Mr. L. AVNorman is another, also Mr. Bennett. I assigned l-16th to Bradley mysrlf. This was whilst the work was proceeding. I have' not been served with a summons to.. appear as n defendant to this action. Robert Wright deposed that he knew the claim*, and that he did the work for which tie claimed tinder instructions from Alexander. This closed the plaintiffs case. For the defence, W. M'Carthy submitted that all those present at the meeting at which this work was decided upon were equally liable with Lory. Two of those present were not joined in the summons, and none of those who were joiued, except Lory and Petrie, had been served with a summons, as admitted by tho plaintiff's counsel. The rule was that where several persons were jointly liable any one or the whole must be sued.- Ho quoted from " Lindley on Partnerships" (vol. 11., p.p. 482-3) in support of his contention. Plai'.ititrs counsel had admitted tho receipt from Mr. Win. GufKcof a cheque for 255, which had been forwarded as his proportion of the debt, and which he had cashed. That this money had been accepted by plaintiffs' solicitor in full payment of his proportion was fully proved by the fact that although knowing Uufhe to he a partner he had not joined him. And the rule is that where one of several persons jointly liable was released tho whole were released. Mr. M'Donald took exception to Mr. M'Carthy's line of defence. He submitted that his learned friend's defence would perhaps have something in it had there been a recognised firm. He quoted from tho R.M. Court Act (section. 27), by which he claimed that any one of a par;y of persons jointly liable could be sued. He submitted that the present was not a partnership but an unincorporatedcompany.andquoted from " Lindley on Partnerships " (p.p. 500-501) in support of his argument, and profusedly from other works. His Worship said this was one of those unfortunate cases in which a man does work for a party of men whom he does not know, and when he wants to get his money goes for the partner from whom he thought he could best get it. Plaintiff would be nonsuited, without costs. Mr. M'Donald asked for aid obtained leave to appeal againsthis Worship's decision. WARDEN'S COURT, NENTHORN. (Before 8. M. DALOLEisn, Esq., Warden.) LICKNSED HOLDINGS. Tho following applications for licensed holdings of 30a. at Nenthorn were granted. Mr. Hickson appeared for applicant in each cuso : W. Jennings, for Kawar»u Q.M. Co. (two men to bo employed for the first three months); Edward Ashby, for Shotover Co.; W. Dow, for Star of Hope Co. (on condition that extra survey fees required bo deposited); W. G. Buchan, for Star of Nenthorn Co.; Charles M'Grcgor, for Atmim Co. The following applications forlicensed holdings at Marehurn were at tho request of Mr. Hickson, adjourned to next court day at Hyde : John Lavcrty, for Redoubt i o.; Charles M'Gregor, for Bonanza Co. ; W. Hookey, for El Dorado Co. Tho following applications wcro adjourned to the next court at Nenthorn, Mr. Hickson appearing for applicant in each instance except where otherwise stated : B. Cooicerill (Dunback); W. M'Millan.for Sultan Co. ; C. D. Smith, for Mt. Ross Co. ; Daniel Flynn, for M'icandrew Co. ; N. Moloney, for Wilson Grey Co. j Sydney Cttffyn, for Surprise Co. (Mr. Donaldson for applicant) j S. Law, for Onslow Co., to allow or further prospecting; W. G. Buchan, for Orient Co. At the request of Mr. Hickson, who ap--poured for tho various applicants, tbo fol-

lowing applications were adjourned to next cot.rt day at Mac aes:— : •: John Eagle,' for Magnum Bonum. Coy., (Deep Dell), E. Jopson, for Deep Dell Co. ; James Whitton, for Orient Co. (Horse Flat). water-races. Thos. Gately and others applied for a water-rac.e at Horse Flat. Mr. M'Carthy for applicant.—Granted. James Phelan applied for a water-race at Stonebnru.—Adjourned to next court day at Macraes. James Wrigley applied for protection for a water race at Deep Dell. Mr. McCarthy, objected on the ground that this was the same race which was cancelled last court day at Macraes on the 27th September in his favor on the ground of non-nse. Applicant did not appear. —Adjourned to next courtday at Maciaes. mineral lease. John Meincke applied for a mineral lease on block viii., Nenthorn. Mr. Hickson for applicant. Mr. S. E. M'Carthy apprai-ed on behalf of Messrs. Orbell and Hertslet, and applied for an adjournment of one mouth to enable him to lodge an objection. Mr. Hickson (for the applicants) objected nltogether to such an unheard-of proceeding. M\ M'Carthy's clients had had nearly three months in which to lodge an objection, and had not done so. It seemed a very peculiar thing that it was only after such a lapse of time they had discovered they had an interest in: the matter. Mr. Hickson referred His Worship to Regulation 35, regulating the method in which objections should be made. His Worship, upheld Mr. HicksonV contention. Mr. Hickson then applied to have the name of Wm. Browne added to those of Meincke and 'Lyders, and produced the authority'of the latter to such.course. ■ . . After consideration, His Worship granted the application, the lease to issue in the names of John Meincke, F. O. Lyders and Wm. Browne. miscellaneous applications. C. S. Hay, for Maritana Q.M. Co., applied for protection for licensed holding, to enable machinery to. be erected. Mr. Hickson for applicant.—Granted. The Gladstone-and Rising Sun Cos. applied for amalgamation. ' Mr. Harlow for applicants. —Adjourned to nex't court day. Battery Board of the Nenthorn Consolidated, Vietoriaand Break o' Day Q.M. Cos. (Ltd.) applied for a dam. Mr. Hickson for applicant. —Granted. I'arlow Smith applied to be registered as a mining agent. ~Granted, so long as resident in the district.' Thursday, January 30. sutcltffe v. botting. ■■> Mr. M'Donald for complainant; Mr. S. E. M'Carthy for defendant. ' This was a suit for cancellation of a business site on the ground that it had not been occupied us provided by the Regulations. Mr. Harper, Clerk to the Court, produced the applications and application-book. A grant of section 17, block n., was made to defendant on 25th September. A grant of section 9, block 111., was made to complainant on the same date. W. E. Griffin gave evidence of an application made by defendant Rotting at the October sitting of the ( ourt" for protection of section No. 17, block n. Protection was refused. Defendant never posted on the ground' an application for the section, nor had he resided or been in occupation of the ground since the grant was made. Within the last two months a sod hut had been erected something like a stable. It was on one side of the section. No person had lived ' in the hut, which might be used as a store. W. Sutcliffe deposed : I have lived on sec? tton 17,' block n., the ground in dispute. I have lived there continuously since 9th August. I understood the. section was mine. I made an application for it through my agent, Mr. Grirlin, and pegged it off on 24th June. . I thought the grant had beeu made to me iii the Macraes Court, and it wa3 • me'time after that I heard Botting had been granted the section. No one has lived in the hut since it has been erected by Botting before last Saturday night, when a carter slept there, who said that Mr. Botting had given him the key. The carter left on Sunday. The hut was commenced at the end of October, and- was finished about two months ago. Cross-examined : Mr. Griffin told me my application had beeu granted, bat did not Kay what section. I had no business license or miner's right on 24th June, 1889. My business license is dated sth Aigupt, 1889. I know nothing of the application for section 9 dated sth August, 188!?, in my name. The signature W. Sutcliffe is not mine. For the defence, James Dawson said : I made application for a business license and business site for section 9, blojk hi., on behalf of Sutcliffe. I was asked by Mr. Cogan to take out a business license. Cogan didn't say if Sutcliffe wanted a business site. I looked at the plan and picked section 6, block hi., for .him. About the latter end of August, I saw both Botting aud Sutcliffe's notices on Bection 17. Sutcliffe's notice was for section 9, block 111., and Bitting's notice was for section 17, block 11. I saw Botting's notice lying in the street a few days afterward. G. Botting stated : I made application for section 17, block H. I pegged it out about the 11th July, and the grant was made to me in September. When I pegged off I found notices on the ground, but didn't notice ! whose they were. Sutcliffe ordered my men off the ground when I started building the hut. Michael Bradley remembered seeing the defendant pegging outsection 17 in July last. W. Lory wus with him, and he had pegs. Witness saw him pegging. There is a sod hut on the section, and Mr. Price, contractor, said he had got it from Botting. B. Harper, mining registrar (re-called), said Sutcliffe never lodged an objection to Botting's application. No notice of Sutcliffe's application ever reached him. W. h. Griffen (re-called) swore that he filled in some forms of application altout 4th July. This was on Sutcliffe's behalf for section 17, block 11., and he gave them to Mr. Sutcliffe. W. Sutcliffe (re-called) said he sent one of 'he forms given him by Mr. Griffen per a man named Gilchrist to Macraes to be posted to the Warden, and he posted the other on the ground. Mr. M'Carthy submitted that it was proven by the evidence that defendant became the holder of the section in dispute without any knowledge of Sutcliffe in the matter. On returning to Nenthorn, he found that plaintiff had meanwhile taken possession of the section. If there had been l<to.hrs at all they had been occasioned by the conduct of the plaintiff in asserting a titlo to tho land for which he had no foundation. Mr. Botting did not erect a shop lvecausc the plaintiff continually claimed the section, so meantime arranged with Mr. Craven to use his until this dis pute was settled. Mr. Macdonald said an application was made for protection shortly after it was j granted in September. A few days after, the four walls of a sod hut were erected. In December the roof and a door were added, and about Christmas time it was leased to Mr. Price. He submited that the right bo cancelled, 6900 fide beneficial occupation not having been proved. His Worship said that as Mr. Warden Wood had refused the application for protection, and ho should like to ascertain his reason for such refusal, he would in the meantime reserve his decision. Draper v. Ryan.—Suit for cancellation of

■ection 17, block 1., Nenthorn. - Mr. Macdonald for.,complainant; Mr. M'Carthy for defendant. ' i B. Harper, mining registrar, produced the application book of the Warden's Gourt. Ryan's application for section 17, block 1., was granted on June 26, 1889. Mr. Ryan had two buß ness licenses and two business sites. W.' Draper, butcher, said: I live about 60 or 70 yards from the back end of the section in dispute. I have lived there since -October. There is a sod hut with ah iron .roof on this section, in which no' one has lived since Ist October until last night. Sheep and lambs were penned on the section for a week. I have visited the place night and day for the past two months, and it was never inhabited on any occasion-until last night. The gable end has been.out of the hut from the beginning of November until the 18th January. Cross-examined: I cannot say what the hut would cost. I have kept my eye on the place for some time past very carefully. William Kemp, Richard Coxou and R. Moore gave corroborative evidence. For the defence. Patrick Ryan, hotelkeeper, Nenthorn, deposed : My hotel is on the opposite side of the street to the section in dispute. My object in securing the extra site was to provide extra accommodation for swaggers, and also for some of my owu family, numbering 10. I had not room enough to put up all my Customers. . The hut cost over £3O to erect, its size being 26 x 12. I let the hut to Frank Shearer at 6s per week, on condition that he would allow me to use it when 1 wanted extra room. This was on 24th September last. He- has it still. He is often away pi ospecting about the district. Cr>ss-examined : I'could not swear that 1 have ever had occasion to use' the hut for swaggers, and have never slept in it myself. Shearer has paid me £4 16s as rent. Re-examined: My hotel cost me over £1(<00. •.,-. Frank Shearer, miner, deposed: I know the parties and the section in dispute. I helped to erect the building, which I value at £3O. I rented the place from Ryan on 21st September last at 6s per week, with the condition previously mentioned by Ryan. I have'.been prospecting all round the district, and have often been away from Nenthorn several nights. I do not sleep regularly in the hut. Cross-examined : I believe I have slept in the hut more than 13 nights. I have seen Mr Draper try to get into the hut several times. I pay 6s per week. If Ryan sent up a lot of men every night I should gi>'e the place up. I produce the receipt for rent paid. Thomas M'Guire gave corroborative evidence:-' Mr M'Carthy contended that the occupation was an user according to the spirit of Regulation 184, andthat if his Worship considered that a forfeiture had- been incurred by any neglect of the defendant it was quite competent for him to inflict a fine in lieu of forfeiture, and quoted Frater v. Howe in support of his contention. Air. Macdonald contended that the .case quoted by Mr. did not apply, and. that the hut had never been used for the purpose for which it had been intended. Had the defendant legitimately wanted the section for the purpose, he should have applied for protection, which he had not done.; He asked that a forfeiture be decreed"," and submitted that a penalty would not meet the case. His Worship said that the allegations contained in the complaint had beeu sustained, aud decreed forfeiture.

RESIDENT MAGISTRATE'S COURT, NASEBY.. MONPA.T, EEBKaARY v 3, 1890. ? (Before S. Meap Palgujishj Esq., R.M.) WARNING TO PARENTS. John Bradley, Naseby, was charged with fai'ing to send his son Hugh to school in terms of section 92 of the Education Act. 1877. Accused pleaded "Guilty," but stated that he had been absent from the district for some months, and was unaware of the fact that the boy was not attending schaoL Mr. M'Carthy, who appeared qn.behaVf of the Naseby School Committee; stated that the case was brought as a warning to those parents whose children were allowed to remaiu away from school without cause, and be would merely ask that the defendant be ordered to send his child to sclool forthwith, and to pay the. ordinary costs of courtsamounting to 17s. • • Order made accordingly. . . LICENSING ACT. John M'Kay, licensee of the Melbourne Hotel, was charged, on the information of Constable Willis, with having, at the Naseby racecourse, on January 23rd, 1890, unlawfully sold liquor, he not being authorised by license to do so. J. H. Schoen deposed that he was the town clerk of the borough of Naseby, and it was part of his duty to issue licenses and receive fees. He did not issue a license to defendant to sell liquor at the racecourse on the date named. He had several conversations with Vl'Kay regarding the matter, during which the latter informed him that he had received a certificate authorising the issue of a conditional license from the Liceusiug Committee, and that although no amount was stated therein he would " make it all right." Cross-examined by Mr. M'Kay: Witness was shown the certificate produced by defendant, but told him that he could not issue a license o i it, as the amount to be charged was not stated. Constable Johnstone gave evidence as to the defendant having sold liquor it the racecourse on Jan. 23. Constable Willis deposed that he was the officer in charge of the police district cf Mt. Ida, and produced a copy of the •• Gazette" of Jan. 20, 1882, defining the boundaries of the Maniototo licensing district. On Dec. 28 defendant purchased the privilege of the publican's booth at the racecourse, and on the evening previous to th& races witness inquired whether or not he had obtained a license to sell liquor on the following day. M'Kay produced a certificate signed by two members of the Licensing Committee, but witness cautioned nim distinctly that he would not be allowed to sell unless he procured a license. Cross-examined : It was part of witness's duty to see that defendant had a. license to sell at the races. He understood that Mr. Schoen informed M'Kay the document was informal and requested that he should have it rectified. John M'Kay, the defendant in the present case, gave evidence as to having obtained from two members of the Licensing Committee a certificate authorising the issue of a conditional license, which, on presenting to the town clerk, the latter refused to do. No sum was mentioned in the document, and he was under the impression that, as he had paid a heavy price for the privilege, the committee did not intend charging him for the license. Had the amount charged been inserted, he would certainly have paid it. His Worship said that, as defendant had admitted having sold liquor without the possession of a license authorising him to do so, he would have to give judgment against him. It was certainly his duty to see that the sum waa mentioned in the certificate. As the police did not press for a heavy penalty, defendant would be fined 40s (the amount usually charged for tho issue of a conditional license for two days) and costs 7b. ;

- . *" CmU'OASES." l Ar long list of debt'cases'was'dealt with. ; SHEEP RATES. R. Hull, Bheep inspector,'brought a number of cases against sheepowriers for non-pay* mentof rates, all of which, .with the exeep--tion oi the case reported below, were withdrawn, as the various amounts had been paid into court. R. Hull sued Euphemia Brown to recover the sum of 18s due as sheep rates. .... ' Mr. M'Carthy, who appeared for defendant, admitted that fee sum was due to the Sheep Department, but also said that the amount had been paid to Mr. Comerford, late postmaster at Naseby, who was authorised to receive sheep rates up to September: 30thi~ : - ' "" : 'Mr. Hull, examined by Mr. M'Carthy, said that on the notices sent to the various sheepowners a notification was given' thai the rate could be paid to any postmaster. Witness had received notice from Mr. Robt. Inder that the amount in dispute had been paid, but it had not yet been received by the Sheep Department. James Brown deposed that he was a farmer at Gimmerburn and the son of defendant. In September last he came in to Naseby for the purpose of paying the rate, hut as he found he was too late he handed the money to Mr. Robert Inder, who promised to attend to the matter. Robert Inder, auctioneer, gave evidence as to having received 18s from the last witness for the purpose of paying sheep rates. The' money was placed in his safe aiid was over-' looked for a few days, when he paid it to Mr. Comerford, who was then postmaster,obtaining a receipt for the same, which had since been lost. After Mr. M'Carthy had addressed the Court, His Worship gave" judgment for defendant. AN IMPORTANT CASE. James Mitchell (claimant) v. James Brown (execution creditor). —.This was an interpleader summons to determine whether a residencte area seized by the execution creditor under warrant of distress issued in the case of Brown.y. Gallery does or .does not belong to the claimant, James Mitchell. Mr. S. E. M'Carthy appeared on behalf of M>\ Brown; and Mr. W. Kerr for Mr. Mitchell. Mr. K<*rr stated, that "the facts of the case were as follow■:—In October, 1889, a resi- | dence area in Home Gully, Naseby, was' granted to Thomas Callery, who subser quently entered into a building contract with the interpleading plaintiff to build a house.at'Nenthorn, he giving Mr. Mitchell a. transfer of the residence area owned by him :: by way of security. Some months afterward Mr. James Brown obtained a judg ment against Callery and seized the area, on which a brick house wrs erected, and which had been duly registered and transferred to Mr. Mitchell. The. whole case would 'turn on the interpretation of the document which purported to be a transfer of the area from Callery to Mitchell. The assignment, which was prepared by . Mr. Brooke Hickson. was for.the amount of,£Bo, aud was duly stamped according to the Stamp Act. Mr. M'Carthy agreed that the onlv part to be considered was the" interpretatioirof the transfer, and proceeded to address the court, as follows : The deed under which the claimant lays his claim to the property seized is insensible, and contradictory, and therefore a nullity. The operative part of the deed-expresses that the assignor, Thos. Callery, assigns to. James'-. Mitchell, the claimant, all the interest of. the former in and to certain gold-mining privileges set out in'the schedule to the deed: What /* set out in the schedule is simply the certificate i and licensefor a certain residence site; ueither the site nor the improvements are even mentioned. If we assume; for th,e sake of argument, that the assignment of the certificate for, a residence site operates as'an assignment of the site itself arid the buildings erected thereon, we have still to .determine whether a residence site is a gold-mining privilege. I submitit is not. A gold-mining privilege is > something out of which or by means of which gold is extracted ; such as an extended claim, a tail race or a head race. A residence.site is not a srold-mining privilege. It is, indeed,-something which can" only be held by the holder of a miner's right,-but then the holder of a miner's right need not necessarily be a gcld-miner. Further, if we look to the interpretation clause of " The Mining Act, 1886," we cao easily discover that a residence site does not.come within the various interpretations given to the. words " mine "and' " mining." ,'lf, then, a, residence site does come within the scope of the term " gold-mining privilege," there is nothing in the schedule, on which the operative words of the deed can take effect. The deed is therefore, as it stands, void. But, further, no other provisions can be read into it. It must he taken as it stands. _ And if there is no meaning in what the paitiej have said the/Court cannot in the I present proceedings correct a blunder or assign a meaning not warrauted by the terms in which the parties have expressed themselves. But, again, not only has the residence site been seized, but the buildings and improvements thereon. Even if the deed is held to operate as an assignment of the site, the buildii.gs and other improvements have not passed, inasmuch as no mention of them is made iu the assignment. This is not like ' the conveyance of a freehold or the assignment of a leasehold where the land passes. Here the land does not pass only a right to reside on it. Consequently, unless the improvements are expressly assigned, they do not pass by implication. The next contention is that, if anything at all has passed to Mitchell under the assignment it is simply the right to the possession of the certificate and license. The site aud improvements have not passed. It is admitted that the assignment, although absolute in terms, is by way of security only. Now, it has already beer, held that a creditor can have a good lien on the title deeds of land without any right as against the land itself. This much can be accomplished by a simple deposit of the deeds without any writing whatever ; and I contend that if any right at allhas passed to Mitchell by the assignment in dispute it is simply a right cf lien over the evidences of title to the property—a mere right to retaiu possession of these titles until his moneys are paid. He has on this view of the case no claim on either the iar-d or the buildings. Consequently, a sale of the latter must at any rate be ordered. The contentions, on behalf of Mr. Brown, the execution creditor, are as follows :--(!) That the deed has absolutely failed to express the intention of the parties ; is insensible in its terms ; and therefore void. (2) That in any view of the cas-: the improvements erected on the site have not passed to Mitchell, and musk therefore be sold under the warrant. (3) That if the two former contentions are .held to be bad, the transaction between Mitchell and Gallery, being by way of security oidy, and only the evidences of title being purported to be assigned, the only right passing to Mitchell under the deed is the bare right to retain the evidences of title until the debt due to him by Callery is discharged. If the first contention is correct, the site and the improvements tfcereon must be sold, and _M itchell must deliver up the evidences of title in his possession. If the second contention is upheld, only theimprovementscan be sold. If the third contention is the soundest view of all, then the site and the improvements must be sold, and Mitchell will be left to his > bare right of retaining the evidences of title. | But, whichever view is upheld; Mr. Brown,) the execution creditor, must partially sue-' cjed, and will bo entitled to costs. ./>' -.;.„ . .. . ._y . ..,.

i Mr. Kerr : Your "Worship, I will first deal sgith the last of Mr. McCarthy's positions. He has asked-your .Worsiiip to look with suspicion upon a transaction of this kind. Why, it has never been pretended that there was 'auy fraudulent' preference given to Mitchell by the assignment. The moneys to secure payment of which the assignment was made was in the nature of a present advance and uot for an antecedent debt. All the facts as stated by me were admitted by Mr. .M'Carthy, and show that the transaction was in perfectly good faith. My learned friend, quoted the case of "Hare v. Tiffen " to support the view that Mitchell has'only a lieivbver the certificates of-title, but there is not the: slightest betw.een the. :two. cases. In 'iHare v.Tiffen" there was merely a deposit of title deeds' with the bank with a memo, stating with what object they had' been-' deposited—a state-of things-which-ih -England would.haveoperated jisan.equitable, mortgage, but which in New Zealand does not bind the land. In the present.case, however, what took place was very different, Here the transaction is even invested with more solemnity than the law requires to make the assignment efficacious. It has been clothed with all the attributes of a deed. Mr. M'Carthy contends that, as no mention is made of the building and improvements i.i the assignment, these do not pass ; nut,the better opinion would seem to be that they do, for we find in " Stephen's Commentaries " the authority of Lord Coke for the proposition that the transfer of land carries with it "all the castles, buildings and messuages that have been erected thereon." The question, then, which the Court has to determine is: Do the terms in which the' deed is couched sufficiently express an intention to assign the residence area ? I submit they do, for what does "the term "privilege" mean? The first rule of construction is that words are to be understood in their plain and literal meaning. "Privilege " we find in auy standard dictionary to mean " a right or advantage enjoyed by a person or body of persons in respect of something which cannot be. interfered with by others" ; "a peculiar advantage " ; " to authorise"; "to license." Clearly, then, a residence area is a priyilpge. My learned friend says it is not a min-no privilege. I reply that, inasmuch as the residence area derives its title from and owes.its existence to the Mining Act aud to no other, therefore the privilege is a mining privilege, created by mining law, and there can surely exist no doubt in the mind of the Court that in this sense the expression is used. And Courts both of law aud equity will assign to words susceptible of two meanings that meaning which vill make the instrument valid V" Haigh v. Brooks," 10. A. and E. 326). Another rule of construction is that the deed ought to receive that construction which will bi st effectuate the intention of the parties to be c :lleoted from the whole instrument. Now, we find in the schedule to the deed express mention of a residence, area, and also of the certificate containing its description. It is clear,'therefore, what the iutentionof theparties if,' The douument must be favorably and literally, interpreted, and so that it shall rath r live thin perish. The deed, then, is good as igiinst the world. The only right outstanding in Callery is the right of redeeming the area called the equ ty of redemp on; which the hailiff cannot sell. ("Mit.. If v. Scholey.''2, N.R., 461.) His Worship said there were points raised ii: this case which he had never seen in any precedent on the Goldfields, nnil he .vould take time to fully consider the matter. ■ BROWS V. COYLE. This was a case in which James Brown, storekeeper, sued John Coyle, of Kyeburn, for £8 17s lid for. goods sold anddeivered. £5 15s had been paid into -:ourt, and the de T fendant pleaded " Not Indebted" in the remainder. Mr. M'Carthy for plaintiff; and Mr. Kerr for defendant. The evidence of plaintiff was to the effect that defendant had authorised him to supply goods on his behalf to a man in his employ, which he had done. The receipt produced for £8 17s sd; dated July 19, 1887, was the acknowledgment of payment by Messrs. E. ami J. Coyle of John Coyle's account, but was not in settlement of Coyle's account np to that date. The debt sued for had been incurred previous to the settling np of tho old account, but it had not been rendered to defendant. The letter produced, dated 10th November, demanding the sum of £3 0s Bd, was in witness's handwriting. He admitted a receipt had been given for that amount previous to sending tne letter, and this fact appeared to have escaped his notice. r~ John Coyle denied that he had received a number of the articles enumerated in the; account, and stated distinctly thut he had neither authorised any body to receive goods -on his account nor Mr. Brown to supply them-. During the tiire the goods were alleged to have been obtained witness was contracting en the roads. Although the con tract v. as taken up in the name of E. and J. Coyle, witness was really the contractor and was paying his brother wages. Ke also had a man named James Bodkin working for him. He; was certain he had not authorised the latter to {jet goods from plaintiff, and his brother told that he had not obtained tho articles. His Worship said it was simply a ense of oath against oath, and he would much prefer that the defendant's brother should give evidence on the matter. Mr. M'Carthy said his client felt sure, for certain reasons, that the evidence given by Coyle's brother would be unfavorable to him, and sooner than incur any extra expense he would accept judgment for the amount paid into Court. His Worship accordingly gave judgment for plaintiff for £5 15s. without costs. - ■♦ THE WARDEN'S COURT, NASEBY. Monday, Feb. 3. (BeforeS. M. Dalgleish, Esq., Wardes.) WATER-RACE. Wilson and Wilson Mawliinney (forwhom Mr. W. Kerr appeared) appl : ed for a water race heading out of Swampy Creek on run 222. The application was objected to by the Naseby Pastoral In\estment Company (for whom Mr. M'Carthy appeared) on the ground that they already hold a right to two Government heads of water in the same locality, and that during the dry summer months there is only sullicient water in the creek to s.ipply this right. William Newman deposed that he was a director of the Pastoral Investment Company and knew both Swampy and Ewelmrn Creeks. The company's right took its rise below where the former discharged into the latter. The water was used for driving machinery, wool sconring, etc., and was principally required in the months of November, December, January, February and March. The lifti.ig point of the present application was about two miles higher up the creek than the objectors', and were it granted it would deprive them of the water. In the months named there was not sufficient water to supply the company's right. Cross-examined by Mr. Kerr:—Witness was aware the applicants had been in the habit of taking a little water from the creek ina race which th»y had ploughed, and did not object to their doing so so long as the company received a sufficient supply for their purposes. There were other rights above that held by the company, but the latter was the first to take advantage of the water out of Swampy Creek. Wilson Mawhinney stated that he and his brother desired the right simply for irrigation and domestic purposes. They had made an application some time ago, and ploughed

a race, but finding that Mrs Allison's consent was necessary they made a re-applica-tiou. Were the right giarted it would benefit not oiily applicants hut also a considerable number of-settlers at Eweburn. It was abso lutely necessary thib from November to March applicants should have water to Work their stock and irrigate their land. M rs. Allison, occupierof the section through which it was proposed to the race, stated that'she y,ave her unqualified consent to the race being cut. Mr. M'Carthy said that-the company did not object altogether to the right being granted, but during the months of the year when they most required water there was barely sufficient to supply their owu-rights, Rnd they wished thegrant limited to those ..periods of the year'outside the months named. : Mr. Kerr said his Worship must be satisfied that a real uecesaity existed for the Eweburn settlers having a grant o water. There was not the slightest Wish on the part of applicants to interfere with .pre-existing rights, and he contended that public utility must take precedence of any little trouble that might be occasioned to the objectors- by having to see, if granted, that the proper quantity of watei was coming down. It was much better that one individual should suffer a little inconvenience than that a number of settlers should be put to great loss through their stock dying for want of water. He asked that the right should be granted subject to the right of ths company. After some suggestions had been made by the parties concerned, His Worship granted the right subject to all existing rights. .... Tuesday, February 4. . wet.gdtj.y. Michael Lennane applied for an extended claim of la. in the east branch of Wet Gully. An objection was lodged by W." Newman, manager of the Enterprise W.R.. ou the ground that the granting of the application would interfere with the working of. the company's tail-race. The objector produced the certificate of registration for a tail-race in Wet Gully, and stated that the race, had not been in use for about three years, as the company were unable to utilise it owing to the Government water-race running between it and the ground which was being worked. They were now, however, ready to work the ground.on the opposite side, and would require the tail-race to run into. "•" In cross-examination - Mr. Newman stated that the race h_a.il. been filled up .with tailings in order to keep .it clear from Chinamen, ?s he considered th'ere : were 25ois. of gold in it 7' The applicaut.coiitended that the race had been abandoned by the company ; but His Worship remarked that if Lennane held that opinion he should have applied for . cancellation of lite race. The application must be refused. BUTCHER'S GULLY. Michael Lennane applied for a.tail-race in Butcher's Gully. An objection was lodged by the Mt. Ida W.R. Trust (for whom .\ r. Kerr appeared) on the grouuds that if the application were granted it would take all the drainage to which the Trust had a right, and would also endanger the safety of the Government head-race. Jacob Lory, the manager of the Surprise W.R. Co., also objected, as the right, if • granted, would take all the water for which a right had been granted to the company. Mr. Kerr, addressing the Bench, stated that there existed a • body known as the Mount Ida Water-race Trust, which was created by Act of Parliament in IS7B. This Trust was created with the view of taking over from Gover ment. large public works in the shape of a water-race heading between Hogburri mountains and St. Bathans ranges. lii the "Gazette" of .1877 appeared a proclamation by the Governor .defining the area and extent of ihe race and reserving on each file'of the race a certain area of ground. The (iovernme-it had expended about £60,000 in the construction of the race. The Trust claimed the right to all the dr.ii.iage on the northern side of the race. The race for which applicant applied was hi the very heart of Butcher's Gully and crossed the Government race, over which Lennane intended to flume. Evidence would be gi -en that if the r -ce were granted and cut t > the depth stated in the applieuion name! , (ift.—it would take all the drainage, whi< h onld be picked up at a point lower down v.her; Lennane had a race running paraiJei With the Government head-race. Apart from the vital question to be considered chat it would deprive the Trust of water, there would also exist, if granted, the danger of the head-race being filled up with tailings, and endless annoyance would be caused to the Trust. Edward Wood, manager of the Monn*- Ida Water-race Trust, gave evidence to the effect that if a tail-race six feet deep were constructed ail the water in Butcher's Gully would naturally drain into it, and there would also be danger of the Government race breaking away in flood time through' applicant's tailings. In cross-examination Mr. Wood stated that he was out at Butchers Gully a few days ago but saw no signs of sluicing operations being carried on, neither was he aware that sluicing had ever been done there. There was no water in the gully at the time of his last visit owing to the exceptionally dry season, but he had previously seen over a head running down. Other rights existed higher up the gully. Jacob Lory said that if the race were granted to Lennane the Surprise Company would be deprived of the water to which they held a fight. In reply to Mr. Lennane, Mr. Lory stated that in ordinary seasons there was generally a good supply of water in the gully—suiticent for about six months work. The applicant stated that he had spejit some time in prospecting the ground in the vicinity of Butcher's Gully, and had found payable gold. He would not injure the Government race, as he intended fluming over it, and if &uch frivolous objections held good His Worship: The objections are not frivolous by any means, Mr. Lennane. The Government have spont many thousands of pounds in the construction of the race, and all their rijhts must be conserved very rigidly indeed in the interests of the miners in the district. Not being acquainted with the geography of the locality, I am rather at a disadvantage, and would like to hear an expert's opinion on the matter. It was ultimately agreed that the case should be adjourned till the afternoon for the production of Mi. R. H. Browne, C.E. On resuming at two o'clock, R. H. Browne stated that he was resident engineer during the construction of the Government head-race, and knew Butcher's Gully. If a tail-race six- feet deep were constructed in the bed of the gully tho effect would naturally be to take all the drainage in the locality. As to damage resulting to the Government race, that would depend entirely on the position of the claim. Cross-examined by Mr. Lennane: Some 10 or 12 years had perhaps elapsed since witness was in the locality of the rac", and although he knew there were some workings in the gully he could not recollect whether they were above or below the race applied for. To the Bench : If the rnce were granted, the effect would certainly be to deprivo iho Government race of the drainage of the gully. His Worship said that in the face of the ; evidenco he would have to refuse the application.

Mr. Lennane stated that by doing so two square miles of country, most of it payable, would be locked up. All the ground about Naseby had been worked, and the only chancf. for miners now was to go a considerable distance out of the town. His Worship remarked that he greatly regretted to think that by refusing- the application he would be locking up a considcisibls area of ground, but as he had already ' observed existing rights must l<e preserved. The application would be refused. MINING PRIVILEGES. The following unopposed applications fcr miuiiig privileges wer«s granted r Extended C aims. M'Kerrenand Caxadore, 2a.,Gimrnerburn. Mr. Hickson for applicant. Alexander Buchanan, la., Wet Gully. Mr. Kerr for applicant. John Donaldson and another, 2a., Scott's Grlly. John Wilson and another 2a., Golden Gully, Serpentine, Mr. Hickson for applicant. All Chung and others, 3a., Home Gully. Mr. M'Carthy for applicant. ~ _ A. M'G. Brown, 4a., between Surprise and Enterprise Gully. John Noble, la., Milkman's Gully. James M'Lennan, fca., Houndburn Gaily. Mr. Hijkson for applicant. Cornelius Rumble, la., EnterpnsrGnlly. Chung Hee and another, 3a., Home Gully. Mr. M-C'arthy for applicant. Robert- Logan, la., Houndburn. Mr. Hickson for applicant. A. M'Lennan, la., Houndburn. Mr. Hickson for applicant. Lee Kim and another, 2a., NasebyHamilton road. Mr. M'Carthy for applicant. •> trc Kin Hem, la., Naseby-Hamilton" road. Mr. M'Carthy for applicant. Moses Hews! t, la., Surface Hill. W. Brown, Scandinavian Gully, Serpentine. Mr. Hickson for applicant. Tail-races. Alexander Buchanan, Wet Gully. Mr. - Kerr for applicant. A. M'G Brown, Snrpri«e Gully. John Cogan, .Serpentine Creek, Mr. M'Carthy for applicant, ; Cornelius Rumble, Enterprise Gully. John Noble, Aiilkman's Gully. Alex. M'Lennan, Houndburn. Mr. Hickson for applicant. Robert LogaD, Houndburn. Mr. Hickson for applicant. . > Alex. iVi 'Lennan, Houndburn. Mr. Hick-" son for applicant. Kin He-n, Nasel.y-Hamilton road. Mr. M'Carthy for applicant. Lee Kim, Naseby-Hamilton road. Mr.-M'Carthy-for applicant. JJams. Golden Gully Co., Long Valley, Serpentine. Mr. Hickson for applicant.' John Cogan, Serpentine. Mr. M'Carthy for applicant. .. ■.-.?.■ Tommy Hoy, Main Gully. Mr. M'Carthy for applicant. James M'Lennan, Houndburn. Mr Hickson for applicant. Moses Brown, James Hore's Gully. Mr. M'Carthy for applicant. Residence Stirs. R. S. Mosan, la., Serpentine. Mr. S. E, M'Carthy for applicant. " " James M'Laren, Aa., southeast corner of" Leveii and Ren wick-streets, in. the Borough - of Naseby. Objected to by J. H. Schoen, town clerk. Mr. Hickson for applicant j Mr, - M'Carthy for objectors.—Granted with the proviso l hat the pe,__s are to be so altered that the grant will uot interfere with the: water-course or channel in Leveri stresfc. Naseby. Water-races. Golden Gully Q.M. Co., Long Valley, Serpentine. Mr. Hickson for applicant. James M'Kerren, Giuimerburn Creek. Mr. Hickson for applicant. James M'Lennan, Houndburn- Gully. Mr. Hickson for applicant. Richard Ai 'Garroyle, Lihburn Creek. Mr. Hickson for applicaut. Alexander M'Lennan, Upper Shag Valley. Mr. Hickson for applicant. William Aysnn, above the Puketoi-Linn-burn ford. Mr. Kerr for applicant. APPLICATIONS ADJOURNED. , The application of H. E. John for a-resi-dence site at Gimmerburn was adjourned to the next Court day.' John Hambly's application for a fesulence" site at Hamilton was adjourned to the next ' sitting of the Court at Hamilton. CANCELLATION. Robert Johnstone applied to surrender licensed holding section 24, block iv. Blackstone. Mr. M'Carthy for appl-cant.. The license was ordered to be cancelled on payment of rent due up to 2?th Dec. > 1889.