SUPREME COURT.

Otago Daily Times, Issue 9139, 11 June 1891, Page 3

SUPREME COURT.

IN BANCO. Wednesday, June 10.

(Before his Honor Mr Justice Williams.)

IN BE THE 0 HEAT EASTERN QOLDMININCI COMPANY (LIMITED), Petition to wind up company. Mr F. R. Chapman appeared in support of tho petition and stated that this was a formal motion. The act had been complied with, the petition was in order and was supported by the appropriate order, and there was no opposition. Demand had been made for £802 7s 8d in terms of the aot, that sum being proved to bo duo to the petitioner, the Bank of New South Wales, but had not been met by tho company.

A winding up order w.ia made.

HAWLINS V. nEVEIX AND ANOTHER, Motion for writ of mandamus.

Mr J. Macgregor, with him Mr Finlayson (of Lawrence), appeared on behalf of tho plaiutiff, Charles Champion Rawlins ; and Mr Haggitt appeared on behalf of the defendant, Edwin Ellis.

The statement of claim set forth that on the 19 th January last a complaint was laid in tho Warden's Court at Laurence at the Buit of Earneßt Ambrose Heinekey, of Island Block, mine manager, against Edwin Ellis, of Blue Spur, miner, that the defendant being the holder of n license, dated tho 28th September 1889, to construct a water race from the junction of the Beaumont and Molyneux rivtr. j, had not constructed or begun to construct such water race, bat had abandoned it, and tho complainant claimed that the defendant be adjudged to forfeit the water race and that the lieenso bo cancelled, that tho defendant bo ordered to pay tho costs of the Bait, and that the complainant ba decreed the first applicant for the right claimed to be forfeited. On the 20th Jauuary a summons was issued out of the Warden's Court ou the said complaint to Edwin EUia. The complaint and summons were heard before William Horton Revell, at Lawrenco, on the 30th January, and on hearing, the following deciaion was given :—" Case dismissed, with costs of court 11s, solicitor's fee £2 2s.—W. H. Revell, Warden." On the 18th February a comphint was laid at the suit of Charles Champion Rawlins against Edwin Ellis that the defendant had aot since tho granting of the license mentioned constructed the water race referred to, or obtained a certificate of protection as required by law, and tha water race was at present unprotected, wherefore the complainant claimed that the defendant be adjudged to forfeit the water race and that the license be cancelled, and that the complainant ba put in possession of the water race, or in tho alternative, that the complainant be decreed the first applicant for the right claimed to be forfeited. The complaint came on for hearing at Lawrence on the 27th February, when the counsel for Ellis asked the warden to dismiss tho complaint without hearing, on the ground that the proceedings were frivolous and vcxatiouß, and a repetition of the complaint of Heinekoy against Ellis, and th*tboth Heitiekey and Rawlins were actiug for the Islaud Block Gold Mining Company (Limited). The counsel for Rawlias contended that the complaint should cot be dismissed, and that any holder of a miner's right could lay a complaint in a warden's court; that Rawlins was the holder of a dicer's right, and that he was not Kc'ing for tho IsUnrl Block Gold Mining Company nor in cob junction with Heintkey; and the counsel asked to be allowed to put Rawlins in the witness box to prove what he bad stated, but the warden refused to allow this to be done. The counsel for Kawlins also contended that the allegations contained in, and the wording cf, the complaint of^ Rawlius against Ellis were different from those in the complaint of Heinekey, and that circumstances had occurred which materially altered fae legal positions of the parties. The warden refused, however, to hoar the complaint, and the following was his decision: —" Refused any hearing, as being frivolous and vexatious. Costs of court, 13s; solicitor's fee, £1 Is.—W. H. Revell, Warden." After the warden had didraissed the complaint he granted an application by EUis to alter the head of the water raco referred to in the complaints, although Rawlins had lodged objections against the granting of the spplicßtioo. The plaintiff prayed tbat a writ of raandamas or order might bo issued, directed to the defendant William Horton Revell, commanding aud requiring him to proceed with tho hearing of the complaint of the 18tn February at the iastance of Rawlina against Ellis, or that the court might grant such other relief as seemed fit; and that the defendants, or one of them, bo ordered to psy the costs of tbo suit.

The statement of defence of Edwin Ellis set out that instead of hiß (the defendant's) couneel asking the warden to dismiss tha complaint of Kawlios again.'-t Ellis without hearing, his counsel applied to the warden to exercise the jurisdiction inherent in his court, as in every othsr court of justice, to strike out the complaint as being frivolous and vexations', and an riljuse of the procedure of the court; and stated that, had there been auy procedure under " Tho Mining Act 1886" appropriate for the purpose, he would have taken out p. summons to have the complaint struck out. Tha defendant's counsel also pointed out as tho fact that tha facts had all been gone into on the hearing of the case Heinekey v Kilis, that on the hearing of that case Heinckry had admitted in cross-examius-tion that ha liad laid the complaint under instructions iretn Rawlins, and that Rswlins was the goners! manager and Heinekoy clerk of the Island Block Gold Mining Company, and the counsel also contended that the sole object of bringing the suit in the name of Rawlins w»9 to get an appeal from the decision of the warden, which could not ba hsd in the case of Heinekey v. Eilis, because the time for appealing had elspsed. The decision of the warden in the complaint of Heinekey being an adjudication on a qnestiou of forfeiture was a judgment in rem, and Ranlina was precluded by such judgment from raising the earns question in the compiaint of Rawlins v. EMis. The application to alter the bead of the water race was lodged 16 days before tho complaint afc tfce suit of Kawlins, ani the objection of Rawiins, which should have been lodged within 14 days of tho date of application, was not lodged uotil 19 daya after the date of the application.

After argument, iSJis Honor intimated that he would take time :o consider his decision.

The court rose at 1.35 p.m.