SUPREME COURT.—In Banco.

New Zealand Herald, Volume VII, Issue 1900, 17 February 1870, Page 6

SUPREME COURT.—In Banco.

WEDSTSS D~Y, FKBRUaRY 16. (liefore His Honor Sir O. A. Knight* Chi(-f Ju-tiCH ) FTig Honor tco'c his seat on tha Bench at en o'clock. TANTON T. BEID. This was nn npplioiti'-n f r a new- trial, buV. was afijonrmd for a w-ek, owing to the ill- '■ n»s* <rf rhe Inurned coonstl who was to have nude the api Mention. LACON AND OTHRBB V. MCLEOD AND OTHERS. Mr. J. B. Kustll appeared for Mr. Beveii g«, the solicitor ti the appellants ; 11 r. liees appeared for the respondent*. Mr. usboM nai'l the c'ib ■ h<»d been fixed foe hpurins at thi« sitting of th« Court, but he produced an affidavit by Mr. M-»yers.minaging ••l«rk to Mr. Ueveridge, stating thit he had written to Hho'lland for a copy of the Ward n'a decision and a copy of notes of evidence, b t that h*d not ar'ived. He therefore asked for an adjournment. Mr. He.M s lid the of :he application wa« si nply to causa delay. It was perfectly ciear that plenty of time eii-ted to have prorured these docum"iit'i. Be would therefore ask that the cas < should be fixed at the earliest date, that \va> if the Court should see fit lo grant the applicttion, Mr. Ru-salt s-iid there was some mis&pprehpnßion.as to whose duty it was to forward those documents. His Honor : I have not either cage or facts or law bef .re me. I have no knowledge of the gruunds of the appeal. Mr, Kussell: That is the reason we ask for an xdjoumment. JUr. Bees : But we say you hed time to procure these docuni»ntF; that it was your dutv to have secured them. Hia H>nor : I am quite willing to reserve;; the question of the costs of the day AftSC heau e the aitir.avit. I fhoald noi bo dig-. p->sed to deprive the appellant of h<s right. Mr rtusseU thought that t'n affidivit gave a sufficient reason for a grout d for application to the ' ourt. Mr Reen paid he would priy the Oourt ro fix h> ca efor heiri- g a', the earliest possible d'iy. He bcliered thai t'icre was soma other r asnn for the application than not beiug to go on. At all events, the applicant not beiuij ready was not the fault of his client. The case was adjourned for a week. WATTuBi v. BICKS. 'I his was also an appeal from ths Warden's Court, at shor'land. Mr. J. B. Russall appeared for the appellant; Mr. Ifee.i for the respondent. L'he fbcta of this oase are somewhat complicated. From those disclosed by the counsel for the appellant, it would appear that the respondent id interested, under a demiie from the native owners, in a piece of land held for mining pnrpo es. It appeared that the negotiations with Te Moananui and o her aboiiginal natives, was conducted by Mr. Hanson Tarton, who is a solicitor of the Supreme Court, and also an interpreter the Native Lands Court. Tt further appeared that the manner in which Mr. Turton was to be remunerated was by an interest in the ground to the extent of one-twentieth -qubl part. The ground became ultimately tnown as the Golden Gate clai It was stipulated thatTurton was n> t to piy any of the working expenses until payable gold hould be obtained The deed included "go d, silver, and other minerals." But when the claim turned out payaola gold, &c., the expenses (proportionately) were to be deducted before Air Turton could participate in any dividend. Jhe tact that Mr, Kicke, ia pegging out the ground," did certain things from which.it was inferred that h» acknowledged a sleeping interest in Mr. Tort n, was relied up >n establishing the right of the latter beyond all question. Subsequently, the claim known as t&e Golden Qnte was formed into a company, and in the coarse of several change< nnd operations with t-ie shares, Mr. Turton sold his interest to Mr. A'fred Walker for £25, Mr. Walker a few days afterwards valued his purchase at £35, and sold to Watters. A document was read, purporting to bo written by Eiohe, who admitted the HCoaraoy of the description of the interest purchased by the appellant, and j-titing that, he would be happy to recognise the appellant:' a a shareholder. The deed of transfer from Turton to Walker, as well as that from Walker to Watters nude over all tigVts, titles or c.uims eithe- in law or equity. The pinch of the c»se, however, appeared to reside in the following facts In December last Kicke amalgamated the G-dden Gate, as already stated, with the clai n of a person narcel ' Hfsse, and thi amalsamated ground waa known as theG-oldeo G-ite Company. Scrip were all allocated to Mr Watters, as holding :ho interest or'irinally belonging to Turton. cnording to ill© deed under which Turton'a uv.ereat was created, it was ave'red by the upp'-llant's counsel that it was equivalent to wliac is known ai a ' sleeping interest," and that bing tha case tha holder of that; interest should havs re.-fived a specific number of shares *'{< lid up scrip." H.t tiie nharas allotted to- Mr. Wat-t-rs were mt. in " p*id up serin." and it was sought in the C-mrt of the W>rden to make him far £V) oin palls. The Wardfi javo j idgtne t for »h" plaintiff in the

"Urt t>el<-w, «i d a judi».-d th»t Mr. WaUers waa ent iK d to 300 ncrio, liable to culls Ht £1 euch I'his was de-ioribei a» a jul,»iaent of the Wmde i in liealim* with tfeequi'y of the <a*e. Mr. Russell n>w contended that this w.i- a veniicfc against the w-ii't t of evidence.

*e said that thi) language of the deed was clear as to the riutu r c of Turton'a interest. '<ut that. Tnrton's interest -seas ufFectrd by acts suhsequ ntly done by Kicfce, iiien Mr. Kieko whs r»."p'nsible if Eicke ■vnhrarte i wi.h Turton to aiv« him a certain b mefit for v ilu'ihla consideration, iind Eioke sub equently did S'.mctliitiur which put it out •il hii power to fulfil his contract, then Eicke would te responsible fr the C'>nseqnem:eg foll wing the t-»nsf«r of Turton'a interest.

'ir:on sold his interest to WaUer, aad VV il.'.cr sold the same interest to Wattets. . If hn cdU ci ul 1 no be enforce 1 again t Turton, •icUher ciuld they against Wallers, fo- the i-iJtt-r c lull not be pitted ii any other P sitir.n than that in which the purchase of iiis int«res r - place) him. £> he had been u'.>- -.sl"1 to take up more lan i 'han was in- • u !.-d in tli > lease to forn a . omnany. and to "ita hijfli value '£60 i'()f)) upon the claim as t wh«ltj hu', nliiteVt-r mig'at. prove to ho real y.iluß ot th-> claim, the -ivins of scrip in it suhj-c.t to calls comd not be regarded as i rl'>:iiii ■!* a contract, whioh wan throughout ■ > the 1-ff ct, " Whitever of scrio I may get, li. v mtb! be p-iiti up. so that I may. not be ■ Id liable to pay into a thing wli ch is r.05 .'Tovfl to be of v.'il io.' >;r Keis c that the writing ••••gin-i-ari "' n 'h" event of a company '■ iii'.; f iuni'd," which appeared on t! * • cd of agreement, below the sighavt-» no part of lhe deed. It wtß ; ii.Ht ia': wliat it amounted t", as i irndu I on the other t-ide, wis thil E i a- to ; i so 1 urion p i'i-up 'Clip, with nit L' .rt in aureei'ig to yive up his interest un- J " «! U'n*!', which ui'e est Wstr-ranow c'aimed > h da and hud certainly not off. rt-d to i«i up. he lose whi h Turto i ufatained .»u> ' f> Moananui had nothing to d > with ' .o tiU'j to the ground ol the Gil'lfa n'e Oom.-anv ; Kuj*« had abin*o::.-ii th r -: -den -10-ii the nativeß; and tlie"3i>!den Gate >:Ky.-inv'a 1 .nd was very mu h Jirger tliaa t •' which was inc.'uie-i in the lease. %Vriat i£ ..-cm contriCted to tiiv^s~Tu r '"a who oae-»#n-ieth of the procao is uudor ihe vh'ch L'urlo > obtained $ but'ihat leaso waa almsl-si; so tlut what, was to be given was . u .iw;Milia;hof uoihins?. Viad, in fact, .viiiMi ihe .•xtenr. .d w.mt.koa un ier miners' rights, put Turton down tov ha -urne propoi'.ion ol the greUly mo.ova u.•>io t'OU 1.1. as'.he was >® a'eh din the '.natter sr -ua-l iao ude i in the lea-1. i ur on , iiii-'t have kiuuva the 0 nsoqu<.n-.'es o£ i -vaat thus doafl I but 110 novt,:

made to E cUe ony oKj-ci.iqn. _On the cot" Iratpy/ he showed hi? assent by gellir>g hip interest, pucb a»,' it teen siyen by Eio l .e« If the Gold<t) Gnto Company had»e n formed tti take over, .or bad. jntpre"t. taken on,-*the lease from tba natives, Waters tnight now equitably claim; pathap3, to have puid-up scri|> .In conjpttny.' -But lib siicii thing hai beea done. • . :J-. . 'Qis* Bussen. in replying, said'that he could of "the Con. t below ahnuld be reversed ; hut be did dently ask that the case alicinld be Bern ) ftok toi a re hearing, in the hope that specido tvi.irnre points, miuht be obtained, and a correct decision a rivvd at. The Chief Justice -gaid 'that he did not think it i t<>,.-go < through the points raised during the able arguments of counsel fer the appellant, becauae he stueti his opinions as to those point*, when they were raised. It seemed; to ,hiiq-tbni.,. the appellant, as the complainant bofore tfie JWarden, sued for one -tiling whiU he meint to recover nnother. If the complainant suori, an he appeared to-hay« done, for damages for b> each of the contract of DeVember 11th, he failrd upon .the aviience, and the judgment of the Warden was correct. Jf the complait ant intended to have ..sued -upon , the document of February 6th; as amounting to a contract of indemnity to Eicke, ti h. ve! f ameii his suit accordingly- A iti ougb, as a general rule, this Court would not 1« ok nariowly to the forms of procedure,, or ih-i p*ee as manner of bringiiis: forward a complaints in the Warden's.C6urt, jet when (ae appear»d to be the cue hore), a jiuic vß> ao shaped as to mislead the "Warden from taking • another - view that, he h«d taken, the party ohght to be held to tLe.eonsequences' olrhaving so shaped his suit. .Be wis far 'from -iayiDg that if the s-uit bad- b«en brought upin the document , of February. sth, the complainant.would have succeeded; all he need eay was . that he thought the garden's judgment, was right upon the cope, as tho 1 complainant brought it beiore hia>»t».7heie were points as ot law stated, in the judgment of the Warden, in most'of whioh l,ie (the. Chief duslict) agreed entirely.' with the 'Warden ; though there wereone ortwbrsfthoeepoints upon which,ifthe judgment of this Court -depended on the solution fuftb.er consideration might have been of this CcDrt ' woTild ' have been reserved. But'tho question now was, not whether the points'6i law stated in the. judgment of the Warden were correctly argued or not, but;'whether the judgment itself was correct ; and ho could certainly .rot discover any surih error in thjit judgment , aij. _. juntify the ' Court in interfering ■ . with ii. Judgment would be for the respondent, with costs. The Court was adjourned.