SUPREME COURT.—IST BANCO.

Otago Daily Times, Issue 4870, 26 September 1877, Page 5

SUPREME COURT.— IST BANCO.

Tuesday, 25th 'September.

(Before His Honour Mr Justice .Williams.)

JAMES SCOTT V. T. HALL AND 0. TRAINOR.

In this case the plaintiff was summoned to show-cause why a decision of District Judge Hai-veyy delivered at Queenstown on August the 16tb, should not be reversed or varied. Mr Haggitt for the appellant, Mr Macassey for the respondent.

The particulars of demand showed that the action was brought .in the District Oourt, Queenstown, under the provisions of section 84 of the Goldfields Act, 1866, and the plaintiff said that on August lst, 1876, he bought from the defendant, Thomas Hall, one-sixth share in at gold mining claim or .quartz/ reef. at Macetown, which wm comprised and "described in a certain certificate of registration granted to Thomas Hall and Frederick Hoffman on June 12lh, 1876,' the registered number ' being 6115, in consideration of the sum of LlO sterling paid to the defendant Thomas Hall by plaintiff; and thereupon; possession was given to the plaintiff, who was recognised as a shaieholder in the claim. That on January 16, 1877, the defendant Owen Trainor, through fraud and niisrepreseritationjV.aiid 4 -with the knowledge an J consent of Hall and unknown to the plaintiff, applied to the Warden at Arrow for a cancellation of the certificate, and by them conspiring together and misrepresenting facts to the Warden, obtained the cancel lation of the' certificate. That the plaintiff thereby became deprived of: his interest in the claim. He therefore prayed that the Court, or Judge, would declare—(L ) That' the cancella. tioir of the seid certificate number 611 D was obtained through1 fraud and misrepresentation, and. contrary to law. (2.) That the cancellation of the said • certificate be declared void. (3.) That tho- eaid certificate number 6115 be declared to-^be in full force 'and effect. (4.) That the-Court declare the plaintiff to be entitled to one-sixth share in the said land comprised and described in said certificate No, 6115. , (5.) • That the defendants,; or either of them, pay the plaintiff the sum of one hundred pounds sterling, being the amount of money paid by the plaintiff to the defendants, or either of them, for. an interestin said certificate and other expenses incurred in working the said claim, and in providing machinery to work the same, and otherwise. (6 ) That the Court give the plaintiff such other relief as may appear just and equitable. (7.) That the defendants be ordered to pay the plaintiff the costs incurred in this suit.

Hall's defence was (1) That the plaintiff never had a registered interest in the registered ceitificate dated June 12th, 1876, No. 6115, as by the said certificate would appear.. (2) That the ground -comprised in the said certificate having been abandoned for a long time by the parties interested therein, said certificate was, in a suit properly instituted aud carried on without any fraud or-connivance on the part of the defendant, duly declared cancelled by the Warden sitting at Arrowtown, the said - Warden then being a competent court so to do. (3) That the said certificate having been cancelled by a competent court, and the judgment of such court not having been appealed from, it was not now competent for this Court, as a court of original jurisdiction, to reverse such decision. (4) That the defendant denied all the material allegations in the plaintiff's complaint. "■■ The defence filed by Trainor set forth that he, being the holder of a miner's right, in the month .of January last laid a complaip.t in the Wardens' Court at Queenstown, praying that the certificate referred to should be cancelled ; and the said complaint having come on for hearing on the 16th January last, the certificate was duly cancelled. : g Mr Macassey took a preliminary objeotion to the appeal being proceeded with.; Having read sections 81 and 85 of the Gold Fields Act, he submitted that the appeal should be prosecuted at the nearest sitting of the Supreme Court held after such decision. Though the point to which he was now drawing the attention of the Court might not seem a very important one, iyet it involved a question of policy, for the functions of the Supreme Court in hearing an appeal under this Act had never been determined. The point had been raised before their Honours Mr Justice Chapman aiid Mr Justice Richmond, in the case of Tiernanv. WJicelei', !in July, 1865. The question then raised was whether the functions of* the tribunal were limited to disposing .of any question of law which might arise, or should it listen to the evidence de novo. For the purjiose of showing why the. appellate tribunal should hold its sitting near the place where the cause of action n-rose, he cite 4 the following cases -.—Potalluck Consolidated Minirg Company, 34, L. J., Chancery, 81; Regina v. M'Lauglden, W. W. and A. 8., 171, Law ; the case of 2: A. Jones, Macassey's Reports, 780. His Honour said that the Supreme Court, when sitting at Lawrence, did so for the pur? pose of disposing of Circuit business, aud not for. hearing mining appeals. Mr Macassey replied that the Supreme Court was there for the time being, amd he presumed that the Judge would take with him all the powers of a Judge ofthe Supreme Court. This point was discussed at great length before Mr Justice Johnston in regard to the Special Comnission held by Mr Justice Chapman at Invercargill. He coucluded by submitting that section 81 was descriptive of the tribunal before •tvhich the .appeal was to be proeecuted, snd therefore as, the Supreme Court sat at Lawrence twice in the year, or oftener, the appeal should have.heen taken there.

Mr Haggitt; in reply, said that His Honour would see that they had complied with the provisions of section SI. The only possible objection which could be taken was that the

summons should have been made returnable a% Lawrence, instead of at this meeting N&j&e ti°*I rli- tbafc objection was met by the fact that this was the only meeting of the Supreme L.oiirt held for hearing appeals since the decision was given. Therefore this was a r roper siotmg at which to hear the appeal. Mr Macassey having replied, . His Honour said thafc when the Courfc sat'at Lawrence or Invercargill it did so for the purpose of gaol delivery, and for the disposal of iusi prius cases. It was true, that wherever a Judge went withiii the limits cf his district, he carried v/ifch him the power of the Court. But the Court sat at those places for certain limited purposes, yet it would be open to the Judge to hold a sitting in Banco in those places, or at Queenstown if neceosaiy. He considered that a "sitting of the Court" ss mentioned in clause 81, meant a sitting of the Court for the purpose of hearing appeals from the Wardens' Court. That sitting had been fixed for Dunedin, and he'was of opinion that the appeal was rightly brought forward here. If he thought that any duty would be imposed on him to hear appeals of the kind on ; circuit, it would be a different matter, but he did not think that there was.

Mr Haggitt then proceeded to state the case. His Honour had the papers before him. He wished to point out a discrepancy which exisfed between the copy of a minute of the decision as certified to by the Judge, and the minute of the decision certified to by the Warden. In accordance with the minute as supplied by the Warden, judgment was given against the defendants for the sum of L 391. Judge Harvey, however, said that was not the decision which he intended to give, and he gives it against Hall only, and dismisses it against Trainor, with costs.

He then drew His Honour's attention to the evidence which had been given before the Court below. From this it would be seen that the proceedings taken in the Court below for the cancellation of the certificate were regular, and that all parties,were before the Court except some who did not think... it worth while to attend at all.

Mr Macassey was then" heard on. the other side. It was plain that Hall's proceedings had been of an erratic and eccentric character. He concluded by maintaining that the decision of the Court below against Hall was right, and that the appaal against him should be dismissed. Trainoiy he:inaintained, had no locus standi, g- ■;/ :- y --.". - : -- ;

Mr Haggitt having replied,; His Honour reserved judgment.