SUPREME COURT.

Otago Daily Times, Issue 11046, 25 February 1898, Page 7

SUPREME COURT.

IN BANCO. Wednesday, February 23.

(Before his Honor Mr Justice-Williams.) I.V THE MATTER OF "THE STAMP ACT, I?S2 " AND THE ACT 3 AMBNDING THE SAMK, AND IN THE MATTER OF THE MAGNETIC DItEDGING COMPANY (LIMITED). Cmc on app«al under the provisions of section aa of the Stamp Act. • Ihe Hon. J. MacGregor appeared for the comPJ ny ,m support of the appeal, and: Mr' Eraser for tne Commissioner of stamps. rhe question for determination in this case was whether the Magnetic Dredging Corapauy is a mining company within the meaning of the exemptions in the Stamp Act which exempt mining companies formed exclusively for mining Purposes from the payment of the usual license ree, and this was dependent upon the construction of the memorandum of articles of association, in July last the Deputy-commis*ioner of Stamps at Uunedin applied to the company for £1 13s, proportionate payment of the annual license fee. Ihe company claimed that they were exempt. iae commissioner, however, decided that the company were liable on the ground that in the memorandum of articles of association the business was not limited exclusively to the purposes mentioned in the exemptions. On this the company being dissatisfied with the decision, requested the commissioner to state a case, and this was accordingly dove. Mr Fraser said it might shorten proceedings if ne BtatcJ that his contention was that the case was governed by the judgment of the Court of Appsal in the case of the .Progress Mining Com-

Mr MacGregor replied that that decision did not govern the present case. Before the articles of association were drafted they had bpfore them ?h» n • ra. cl:, ne"'spapar report of the decision of tue Umrt of Appeal, and saw what it was necessary to alter in the articles so as to corns in uuder the exemptions >he learned counsel then in detail submitted the arguments in support of the case for the company. . His Honor, without calling on Mr Fra*er gave jnfenwnt as fallows !-" I think the principle of the 1 regress Mining Company applies to the pre■>,J Jt*%\, ln ordKl;. for a company to claim the f.rm2l le .ex^ m? tl°n ** »<"' appear that it is Wed exclusively for mining purposes as defined show? tw -i ■ V ie m^ moraDd«»i associationshows that it is formed not only for mining pui* poses, as defined, but also for other purpose* the company is not entitled to be exsmp^d from taxation even although the purp JS e o ~»„?£ appears.by the memorandum of association to be ihtfTT^A?" 3:^ llhe lavv lequires uot °^V that it should be tbe paramount object, but that it should be the exclusive object of the company I,'^ n vfT?? C,T lb ap£ears that the company hive -a right to take or otherwise acquire or hold shares in any othsr company having"v object similar to the object ot this company S alone; seems to me to prevent the company coming within the exemption The company was formed I? Pi?* for eollJ- ,MjnlU« for ~B°te is exempt. i>ut? the company had also power, not oolv to mine for gold, but tfl-.rmy sha.es in other oW panics winch wine fur gold and to ckai in the^e shares. . .Such buying Jiud such dealing w not in my opinion a mining purpose withiS tne meaning of the net. Mo also, we find that this company has p.owar to sell and to dispose of any part of its property as it may think fit. and aeqtuiM shares and securities in olher companies (£>T? tu^H °^H ct t0 th<t ol tnis company. Pel-haps that by itself does, not prevent the company coming within the exemptions. Without any express authority. I-suppose the company would have power, with the sanction of the shareholder, to sell or dispose of any part of their property for such consideration as might app-ar reasonable. That, h«w=ver, does not stand alone tor by the ninth section the company has power to establish, promote, or otherwise assist any mming company or companies for the purpose of acquiring allot any of the properties or liabilities of this company. That section certainly U going altogether beyond the definition of '.iuining purposes as contained in the act. It enableV the company to start c 'mpany-promotiug on its own account, and the facts that the companies to be promoted are mining companies and that the proMotion « tor tue purnoae of enabling complies to be formed for >cn.u\ring the propen.y or liabilities of the present company do not seem tome to alter the ca-e ; nor certainly does ihe general provision Bection-tlut the conipauy is to be one for gold mining purposes ouly-brinjj it within the exemption. The memorandum of association .must; be read as a whol- ami if the memo, of association contains provisions which show that some of the objects of the c nnpany go beyond the uefinition-of miniug purpo-ea" as denned by the act which give* the exemption, the general provision of clause 14 will not help the c omoany I think therefore tl.ac the appeal should be disnnssed. Appeal dismissed, with costs (£5 &) and

IN THlf MATTER OF "THE MINING ACT, 189! " AND

i?,i )2cial c;<se asla/l for by the warden. lhe Hon. J MacUregor appeared for W. F PaterSotl. iiti.d Mi.-Sim for M'Gill aid party In this case YVilliam M'GiU (of Waikaka) is the holder of. a^special claim granted on the 2nd "ofMatch, 183/, intersected by the Little Waikaka Hm'T' v . °'1 the 7'H of Sapt'ember last William Hugh 1 atersott .marked out an a.ljacant claim wnrtSF letV foJ a '\ cet\ se, \ Q aspect thweof, lobe .worked by hydraulic sluicing. M'Gill's clai<u is a dredgmg- oU un . p at!;rsou alio marked oi]t - ?K«f AT?f,-^" lme"cmS at a point of -the river M'PHISa ?"* ? V l'■■*»«. *PP"»"d 'for the race, ti > L obje!!t'J? t0 the ayplicafciou on the -round that the grantin- ot it would pfev^uthi.* dredtfing ft,"1"} 08 W° e<1' X^ w«»i"»»*oioat wtfe? 10 tlw stream, especially m summer, to^allotf of bbth claims beiog worked. Mr W.»r. eu Htt\Vk{S .was prepared to gr.,nt a :iic e ,, Sß S ubj«# Si coo/litioa that" Paterson should at all times leave sufficient water- 1q- the Little Waikaka River for tho-effiaiont workinc of M'Gill's cUim PatersoW tioa except .that one Goverjimant sluice heiid of r i;>' t'S^" W bf^ n°w«d by "im to flow, downi he nver, . ih* wardea -thereupon held that he had powar-tg refWPaterapta's applicatioii for a water race, aud at Paterson's request the c*ae was fitatecl for the opinion of the Supreme C.mrfc The quMtipnsfordeteruiination.were : (I) Whether the gardens Court had power and jurisdictiou'tb lefuse th« application of Paterson for a license • and (2) whether M'Gill's objection was valid-that is, well-grounded ia point of law. After argument, his Honor reserved judgment.

fcIINBSrCAIMHU, CUTTEX V. JAMES HOWFXL will^ mt^ ia r tHUn-V the ca!?e' sai-ithat Howell was granted a license for a special cUira, but did and aft!,V P WU "? 2" ,U *yS Or *»*'«» ten" and after that period had expired the wardfcu g.ive permission to pay the rent and to take Wp nmvM J jean??cl counsel contended that the piovwwiw of section 75 were not iutroduced for the bonefiß ot the Crown, that so far a* that gjo: tion was conceraed it resolved itself into a oueaS V f e^ ee?, «>« Crovvu/and its Hcense^Snd ttiat if the Uown chose to waive the forfeiture incurred by f.ilure to take up the land w hih rthF rf Cl:lbf l f tlrae' thea no "tner person had a right to interfere in the matter. The license dealt, with- Crown lands, and the public,"except so far as the act gave them rights, had no Mit to interfere in the matter. That was in effect the decision of the Privy"Council in Osb.Vurne v fenW 31 eal -&V>-. He also "llitt ™»/«i t T s oouolusive that it would be Jammed that the provisions of section 75 were conp ied with, evw though, as a matter of fact, tliL'y haa not oeeu Mr Mouat submitted that it was open ta any person to start a suit in the Warden's .Court shinlf »P-: tt, H°w<»".to.«J»ow«ii»e why.thelicense should,not be declared null And void by the warden simp y on the ground that he did not take up the liceiiss and p^y. the rent within 30 days, after/notice had been sent to him. by the

His Honor intimated that he would reserve judement until the case of lloss v. Duttsn had Deen hsard., >

IN THE JtATTEn. OP "THE MINING ACT, 1891 " AND OF THE APPLICATION Br DOtfALD M'KENZIE, JUN., VOR A LICENSE FOR A SPECIAL CLAIM. Special claim-under.-The Mining Act, 189'" Ui» question in isssue wsa whether the wardeu to grant a special claim for mining ovar land held under pui-pitiulUaißUtider the Land Act of JBBS, and also wiiethsr provision is maae for compensation. rTTT eHl U'm Ma? G«S°f.aPPeared for the objector m-'-J- uril. bul.'). a«wl Mr Sim for the applicant (D. iU JCeuzie, 3uu.). ■ h^^S-68^5^ 1111' on the mU °f Septemoer 18^7, Donald Hl'ffeazie marked out part of section 25 of block XIV, Ohatton dintiic^ containin X 40 acres, in the manner provided by the act, ami applied for a license for a. special claim over this land. The section was then occupied under the Land Transfer Act. Prior to the 1711! ot bepternber last the land was proclaimed a 'mnitiß district under the provisions of "Thff Mimug Act, 1891 "-that was after the grantinj o£ tne lease, but prior to the application. Turnbull objected to the application, and the question was wnetner the warden had'jurisdiction to grant a special claim of 40 acres for mining f.-om land held ?<? o -r PerPetlia' lease under the Land Act of JbSo without c-mpensation. • His Honor: Without compensation ? . Mr Sim :We do not admit that. Wa 3ay there is compensation.

Mr MacGregor : There is no provision for com. pensation.

.Mr Sim :We do not admit that. We say there is provision for compensation. The Public Works Act is incorporated by section 12. Mr MacGreaoi- said that wan merely procedure • it did not define the rights of compensation, nor bay in what cases it should b* payable. They wttftrfTß^ t0 bt> Sßti34 ed■*»>.« they were entitled to Compensation. So far they had not ueen able to.satisfy themselves, and he knew of no substantial provision that entitled .Turnbull to compemation for the confiscation of his land me learned counsel cited and commented upon inUf^'iu"! ac. ts. be*-iu X °Q tho case, and submittsd that Without soma very clear authority the court would not allow the land to be taken ™{• ? uH onjP ens»ti°a, especially as the act under which it had been held that Turnbull was liable to this detriment had been p»Bsed subsequently to the passing of the act under which the objector 10 the present case held the land. •air .Sim argued in support of the decision of the S'Aw 8?11^ the s ')Coi!tl claim. He submitted that the objector lud not had the light of changing the tenure of his land, since a discretionary power was given to the Land Board J hen, even if Turnbull had had that right, he had not sxercised it, and, the deferred payment tenure having been abolished in 1892, the right was lost, i-'urther, when the land was brought, within a SJ,? I.?^ disti-tep,. section 22i)' of "Tho Miaing Act. 18!) I, prohibited the sale of the land, so that if the objector had tbe right before proclamation to cnange bi» tenure of tho-land, he had no-such right now. The learned counsel submitted, however, that the objector had a right to cbmpensation,_the Public Works Act having beeu incorporated, givm- every person who was injured or injuriously affected by the exercise of powers Un<r« r the act the right of compensation. His Honor: Who is to pay the compensation here ? "

Mr Sim said it was to be paid out of gold fields revenue. Thole was really no difficulty about the matter, because, a special claim had to be granted with the consent of the Minister, und Mir Alinister could ra«ke it a condition that, the applicants should nay whatever compensation was to be paid; Ooinpsusatioii, he submitted, would be obtained under the provisions indicated in section

12 of the Mining Act, but even if there was no provision for compensation that was no reason for not giving effect to the act. Mr Ma.Gregor in reply submitted that the amending act of 1888 snould be read a= if passed at the time of the passing of the act of 18S5 lumbull then had an accrued right to exchange nis lease for a deferred payment. The objector's rights were preserved not merely by the saving clause of " The Lands Act, 1892," but expressly jby section 151 of the same act. As to cdm- | pensation, if there was a doubt as to it, the I court would not confiscate a man's land, would j not give an interpretation which would have that •; effect unless the words of^the statute were abso. lately clear. ' ' ...,,, < His Honor reserved judgment. The court rose at 5.30 p.m. Thursday, February 24. (Before bis Honor Mr Justice Williams.) - ROSS V. CUTTEN AND ANOTHER. Morion for a writ of prohibition. Mr Woodhouae appeared for the plaintiff, Robert R?S3, of Alexandra South, dredge manager, and V vrhlm a PPeared for Mward Cargill Culten, lof Naseby, solicitor. The warden was not repraj senied. Sir Woodhouse said this was a motion for a j writ of prohibition, and the case arose out of j and was connected with the case Cutten v 1 Howell, which was before his Honor on the previous day. Both cases were based on th» same facts, and those facts were relied upon Ihere- was an application by Mr Howell for a special claim, which was granted to him »roviaionally on the lilh of March, 1897, approved by the Junister, and notice given to. the applicant un'ier section 75 oi the act The applicant ilowell, did not take iip the license or pay the rent within-30 day*, as he ought to have done under the section, and thereupon it was'claimed that by reason of this his provisional license became null and void, and the special claim open to application as if no such license had issued lhen there was an^appidation to the warden' to allow the license to issue, and subsequently a suit was brought by Mr Outten, who previously hqld acted as Howell's solicitor. t<i have the claim declared forfeited and to have himself declared the applicant under sccf.itn i4'i of the Mining Act. Ir, was to restrain the warden from proceeding in that suit that this motion was now matte. There was practically no dispute as to the facts. The only thins denied was whether Ross, the plaintiff in this action, applied for a sp«cial claim, and that was only denied pro forma. y> hat the plaintiff claimed was that by virtue of section 75 of the act the licence granted was absolutely null and void. The learned counsel argued at length in support of the contention ! th-jt the warden had no jurisdiction to grant the j license, and that the plaintiff was entitled to ask I fpra writ of prohibition even though the other side called him a stvatiser to the proceedings. Mr Sim submitted that in a caEe liks the present, where, the applicant was a atrauger, the matter was entirely within the discretion of the j court, and that according to the authorities the : court would not interfere unless) it was clear the I i°f c'.ior court tad exceeded its jurisdiction. The Mining Companies Act, he. submitted, gave the warden power to hear the suit and to make any' one of three posnible orders. If the thrown chose to waive forfeiture no one else had a right to conuplaiu, and in such a case the court would not issue a writ of prohibition at the instance of a stronger, as prior to cancellation the matter was entirely between the Crown and its licensee. Mr Woodhouse replied that the proper time to i interfere, was before the warden did the thine which, it was claimed was beyond hi? jurisdiction. It was a question of a public, right that was being dealt with here, a right to deal with Orown .lands—to grant special privileges over tuem. i here was a right conferred on-th* public generally, and the individual now comine; to the court showed that he would be injured' by the jurisdiction of the warden being exercised in the manner he was asked to exercise it If the construction put upon the section originally was correct, then his Honor, in the exeici-e of his discretion, would entertain the application at the Buir. of Mr Howel!.

His Honor teaerv«l judgment. SEW HOY BIG BEACH GOLD IIINIXG COMPAiVy (API>BI,t,ANTS) V. POSTLETUWAITE AND ANOTHER (THE NEW ZHALAND ENGrfiEKRING AND ELECTItICAI, COMPANY ; RESPONOENTS). ■Case on appeal from the decision of. the stipendiary magistrate at Dutiedin. w l^ ima rppft'lred for tlie appellants and Mr v\ oiidoouse for the respondents . The facts iv this case wer« that the Kugineersng M»d Weclncil Coonnny (the respondents) sued th« hew Hoy Big Beach Gold Minin X CoinT) aU f yitU%ap'ie-! rltS} iv the Magistrate's Court, JUutiedin, f..r £ia ss, for alterations and additions to a contract for supplying ftlcvuting machinery to the appellants dredge, and obtaia*d judtrment tor i.--l 5--. The alterations and additions were in some instances o-dered by Mr M'Georze. who acted as enKinesr for the appellants, and in other mstauces by Mr Paynes, his pirtner. The machinery asi altered had be^n driliveied to the ajuwUauty aiid creeled on their dredge, bufc they Claimed that the alterations were made without their authority or knewledge. The ma-Utrate held that Mr M George had, as the appellants' engineer, autluuity to oraer alterations, but that Mr fayne had no such authority, and ho further found that as the appellants had retained the nwc.i«nery they were liable to pay for it. He K*ve jurigmeut, accordingly, and against this judgment the defendants in toe court below now appealed.

After legal argument, in which a good deal of case law was cited and commentad upon, Hi* Honor reserveA'indgment. The court was:then adjouroecl.