WARDEN'S COURT.

Otago Witness, Issue 1898, 19 June 1890, Page 13

WARDEN'S COURT.

Tuesday, June 17. (Before Mr Warden Carew.)

WILLIAM DOCHKRTY T. HENRY TKMPLB HARKIH

This wa* a claim in which the warden was asked by the complainant, William Docherty, prospector, to give, n decision as to t'<e share lo which the defendant, Henry Temple Harris, clerk, of Uunedin. .vns entitled in a mineral prospecting license and copper mine under agreement of partnership, the defendant claiming to be entitled to_ one-half, while the complainant said he was entitled to only nine )60ths; and further asking that defendant be restrained from interfering with certain copper ore Bpeoimen». There was alio a claim <if £50 made by complainant against defendtmt for damages Mr Sim, instructed by Mr Thornton, appeared for complainant; and Mr Solomon, instructed by Mr Anilerson, tor defendant.

The Warden pointed out that it was not the duty of the, court, to decide which of the partners was to hold the chattels of the estate. If ,they could not agree between themselves the best thing they could do was to come to the court for a dissolution of partnership. After' a short disoußsion, it was agreed that the case should be heard simply to determine the uumhnr of shares to which Harris was entitled.

William Docbert.y said he was a mineral prospector. In August 1888 he had'a license for 12 months, whioh had since lapsed. A new one wao obtained for him over the same area by Harris, the Jicenne being in the latter'B name. He held it in trust for witness. Witneiß mot Harris in August or September 1868, beiug introduced by Mr Wood, and they had a conversation about the Pinky Sound license. Witness said he held the lease, and that he had discovered another mine at Wet Jacket Arm. Wood and Harris spoke about purchasing shares in the license, and witneßß offered each of them three 160 th ihareain the Dusky Sound mineral license and two 160 th shares in the Wet Jacket mineral license. The price was £30 each, which was paid to witness. There was no paper writings between them. He went round to Dusky Sound after that with Harris. They went to Wet Jacket Arm, arriving there on the 14th Pecember 1888, and left on the 2nd Jinuary 1889. While there witness worked at the mine with Harris, and witness one, night offered to give him nine I6f>th shares in the Wet Jaoket Arm and eight 160ths in the Husky Sound mine. Harris Baid it was very kind of witneßß, and accepted them. They obtained a lot of specimens and then came back to Dunedin in Augu't 1889. Witness then applied tor the license which he now held in respect to the Wpt Jacket Arm area, and at the same time Harris got a license in his name for the Dusky Sound mine. An agreement was arrived at with Mr Macandrew and others by which th* lsHer were to subscribe £210 to allow of witness explorln« the Wet Jacket Arm mm« and bringing hack specimens. Harris ngafn went, with witness, and they brought bac< about throe tons of specimens, which wero stored in Mr liobinson's shed in Princes street south. Witness showed them to suveral people, but when he went down one d\y he found the greater part of them had been removed On 2l»t April 1890, after the specimens had boon taken awsy, Harris wrote t" him etnting that he had removed the specimens to a place of safety Witness spoKe to him afterwards about a settlement between them, and told him he h*d done wrong ii taking the ore away Harris said he wanted a settlement, and that if witness would 'hen make a settlement he would give the ore buck. Witness replied that he would give Harris nine 160 th shares in the Wefc Jacket Arm and a full half share in the Dusky Sound. Harris said that was all right, and th£y agreed to meet at Messrs Pltchett and Thornton's office a few days afterwards to come to a settlement. They met as arranged, but Harris said it was before the time, and that he would not go up. He went away, and came back shortly with Mr Anderson, the lawyer. Witness naid that Harris had come for his shares, but Mr Anderson jumped up and said it was a lie, and that he claimed a full half shire for his client. Mr Thornton said : " Tbat will do, gentlemen," and left. That was all that rook place. Witnest got £210 from the persona who signed the agreement, and tbat paid the expenses of the second trip. Before he went on the first trip he got £30 from Harris, and later on a sum of £'0, which went in general expanses, The £30 was spent in purchasing outfit and provisions for the first trip, witnoss defraying the coßt of everything, excepting some tobacco, which Harris bought. That was all the money Harris had paid witness, but he had also paid £13. on witness' behalf, for board Previous to the ore being taken away a meeting of subscribers was held, and there was some conversation about the dispute, some of thofle present saying it might be settled by arbitration, but Harris' lawyer, Mr Anderson, objected. To Mr Solomon: The basis of negotiations was that wltneaß had the experience and knowledge of where the mine waß. and Wood and Harris had the money. In June JIBBB witness discovered the mine at Wet Jacket Arm, and when he saw Wood and Harris he had specimens with him. It was not in the first instance suggpsifd that Harris should take up the lease in Wet Jaoket Arm and witness the Dusky Sound lease. There was some talk between Wood and Harris at the first, meeting about Harris taking up a dummy le-tse. Witness said there would be no harm in it. He had no idea of why they wanted a dummy lease. Previous to tbat several gentlemen in Dunedin had supplied him with hundreds of pounds. Wood Bnd Harris were frightened, witness thought, that these old shareholders might want a share in the new discovery. Thedummy license might hive been for the purpose of keeping the old shareholders from the discovery. Witness told them a dummy license would do no harm. Harris went down to the West Coast with witness, witness piying all expenses. The lease was taken up by Harris P8 a trustee for witness, and Harrfs paid the expenses. He also paid the expenses of the Wet Jaoket Arm lease. Before Harris and witness went to the Coast the former gave witness £10. and witness said that any extra money Harris gave him he would get extra shares for. T t wa3 after that that witness gave Harris nine 160 th Bhares in place of the two 16"lh shares lin formerly owned They returned to Dunedin via Wellington, and Harris paid witness' board in Dunedin, amounting to about £13. While in Wellington, Harris gave witness £12, whioh went in expenses. Witneßß intended to pay those two

sums back to Harris. Witness never had any intention of Harris taking up the Wet Jacket Arm lease. When in Wellington, witness never told Harris that their interests after that would be identical. He did not say to Harris, Wood, and Anderson that after paying tin expenses of the trip out of the £210, witness and Harris would divide the balance. The money was put in the National Bank, and went in wages, outfit, witness' necessary expenses, &c. Witness did not know that Harris only got a guinea out of the whole sum. Witness might have received £82 from Harris. Witness never told Mr Anderson that Dooherty in t 1 c deed meant Docherty and Harris, and never told him that Harris and he bad equal ihares.

James E. Thornton, of the firm of Fitchett and Thornton, also gave evidence Mr Solomon said that Dooherfcy was claiming something he was not conscientiously, legally, or morally entitled to. His Worship had to deal in the first place with the credibility of the witnesses, and next with the probability of the evidence ; and in considering these two points he could not shut his eyes to the fact of Mr Docherty's past career in this matter and his actions in the present case. For many years past he had been living on this sort of business, and had been supplied with money by people who believed that his i epreaentations would turn out to be up to the mark he stated. He bad received large sums of money from many people, and Harris was just one of those very sanguine people who had suffered. Mr Solomon commented at length on the facts of the case, contending tbat Harris was clearly entitled to a half share in the mines, and then called

Henry Temple Harriß, who stated that his age was 24. He made Docherty's acquaintance in June 18S8 through Mr Wood. Doc'ieriy spoke about the mineral deposits on the Weßt Coast, and the subsequent evening brought up plans and maps of the seven lodes at Dusky Sound. He told them he thought he had discovered a new mine at Wet Jacket Arm, as he had eeeu some greon stains and thought that as the stains were close to the seven lodes it improved the value of the loUes. He said he set no value on a report by Mr Park, of Wellington, who had reported adversely to the lodes. Witness proposed that he should go to the Sounds with Docherty. There was no mention then of shares After that Ooeherty said he was hard up, and asked witness to advaooe a little money to pay some small debts, one, bsing for board and lodging at the Gridiron Hotel. Witness wanted to help him a little, and gave him a cheque for £10. Before that witness had supplied him with boots ; that was after the first conversation. Up to the I4th of September I^BB they had many conversations. Docherty told Wood and witness once that if he could raise enough capital to further prospect his discoveries he was sure he could float a company. He also proposed that Wood and witness should enoh give £30 for which Wood was to receive three 160 th shares in the Wet Jacket Arm mine and three in the seven lodea, and that witness for his £30 was to receive five or six shares in the Wet Jacket, and tbat what he should get in the seven lodes would be settled on when they returned to Dunedin. Dochert^'s statement on this head in his evideuce was inaccurate. About the 20th September all arrangements were made to go to Dusky Sound, witness supplying flaunela, boots, tobacco, and other things They left on the 2Rth September and arrived in Dusky Somri on 6th O"tob"r. After being there a week Dooherty took witness to see the seven lodes Before tbis Docherty p.-onosod to witness, in Wo d'g prudence, tli.it he nhould take up a dummy lease at the bea>l of Wet J.icket Arm. Tho reason of this was that therp was a body of subscribers interested in the seven lories with Dooherty, and between them there was a deed in which was a clause to the effect that the subscribers were to be interested in any discovery that might be made within one, two, or three miles Dooherty thought that if the green stains were within the limit, some of the old subscribers, who looked on him as having treated them badly, would want to oome in with the now disoovery. There was an arrangement t.hat on their n-turn to Dunedin witness should take up the new lease of the green stains, and D^cherty the old one When t hey were going to look at the green stains they had to cut a truck up the hill One day. while working at the track, Docherty went up the hiil, and lett w|cnesß behind. He came down later ou, and said he could not find the greau stains, but later on they were found. They then worked at a bed of copper, and must have taken away two or three cwt Some time after that witness discovered the main lode, and informed Docherty ot the fact They went up next day to see it, and at night Docherty altered all his plans. He said thnt if the thing was going to turn out well, and if witness would assist him to pull the matter through, he would give him a very large interest In the mine. He a'so said he intended, on returning to Dunedin, to take up the new lease himself, and that witness should take up the seven lodes lease— the condemned one. They worked on till August 1889, and then oame back to Dunedin with about seven or eight owt of ore. When in Wellington, Docherty asked witness for a little money to satisfy a few debts he had incurred on a former trip Witneßß wired to Dunedin for £15, and gave Docherty £12 of that After that Docherty told him they would go halves in eaoh lease. Out of the £12, Docherty paid very little on witness' behalf. Witness said he would help Docherly through thick and thin, as he had hope in the venture. They arrived in Dunrdin on the 11th of August 1889 Docherty renewed his lease of the new mine, and witness' application for a renewal ot the old lease was adjourned for a month. Witness took Docberty to hiß lodgings, and told him he would pay his expejues All expenees in ta'<ing up the license in Dusky Sound were paid by witness, and he also paid for the dummy le^ie. Mr Docherly paid for the W«t Jacket Arm He borrowed the money, and afterwards borrowed the bbidp nmoui t from witneßß to p>iv back the otlmr loan.- (Mr Docherty: Thnt's false )— He tuld witness lhat tb >t v,,\s »hat he vanted the money for. He said they shouH see Dr Fitchett to draw up a agreement. Dr Fitchett was out of town, bo they met IYT r Thor'iton, but Docherty would not tell Mr Thornton anvthinj!. Witness told Mr Thornton everything-, and left a plan of the Krvuud with him. About a week ii'terwarfls U>r Fitohett returned, aud Docberty and witness got fiom him the draft of the agreement , it was intended for the subscribes. The draft wns taken to Mr Anderson, who snid he did not like to see only Oooherty's Dame on it, and asked that witness' name should also be put on. Oooherty replied "Oh, no; we understand one another very well in the matter." Witness did not want hiß name put to it, as he had no wish for his friends about town to take shnres because he was c >nnected wtf h it. Docherty took the agreement round, ajid ultimately the 21 subscribers were obtained at £10 each. Docherty complained to many people that witness did not help in getting the money bul> scribed. The arrangement was that witness and Docherty should go to the mine with two miners to bring back ia three month* the three tons o' ore mentioned in the deed. It was reckoned that there would be about £50 or £60 remaining, and it was Bgreed that this should be divided between them after the trip The total amount expended w»s not more than £110. The whole of the £210 was in Pocherty'e name in the Savings Bank, but he afterwards put it in ,t.he National. The rem-iinr'er of the £210 h«d gone to Docherty. While in tho Sounds Doclierry told witness that, he had a balance of £90 and that the wages had not b°en paid. Witness knew th<'n there was something wrong, but lie did not make any " fuss " tibout it, as that was not the place to have a row, but he determined that he would sen all "square "when he got to Dunediu. In Westport, while on their way backto Dunedin, there were some, disgraceful Bcenes between the miners and Docherty ; the former wanted money from him. Before reaching Weßtport Docherty had the impudence to ask witness to telegraph to Dunedin for money, but witness refined Docherty exchanged a cheque or £10, and it was out of that that witness got the only guinea he ever received out of the £210. Witness arrived in Dunedin on the lot of April and Doch^rr.v on the 2nd Witness wanted to pay the miners and the profe'eorß who had analysed the ore, but Dncherty was not favourable to it, and told him to put some of them off. A dispute then arose between Docherty and witneis aR to the shares they were to have Witness wanted Docherty to settle with him and also with Wood, but Docherty put the matter off. When witness first spoke to Docherty and the men he also mentioned about what money he (witness) was to get, and Docherty told him he would get none of the money. Witness replied that he would push the matter to the bitter end and show him up. *vt Ill's time Dooherty refuse.! to recognise witneos as a partner to any extent. A day or two afterwards witness received a letter from Mr Thornton, through Mr Anderson, saying that Dooherty said he owed him (witness) not a nhilling, and tfiat he could take what action he liked. Wi'.ncs thereupon seized the ore and took possession of it. After that witness met Docherty, who 3aid witness had done wront; in Beizing the 'ore, and suwested tli I. tlie matter should be settled quietly. Tliny met »t Mr Thornton's office, but it was not 'then agreed an to what uhare each should have, Mr Thornton" showing them out ot the office as soon as be heard they had not "ettled the dispute, At a later date witness aaked Docherty

to give him half the share or to make a liberal offer, but he refused.

To Mr Sim : Witness had paid Mr Dooherty oonsiderably over £80. There were sums of £30, £10, £12, £13, £8 (leases), £3 (tobacco), and several smaller sums. The first trip lasted 10 months, and the second three months All that time witness was living at Dooherty's hut. Witness' name was not on thedeHd.andhe allowed Docherty to pay away all disbursements, but for all that he said he was entitled at that time to a full half share. He did not give Dooherty notice that he was going to take away the specimens.

Herbert James Wood, salesman, stated that in Docherty'6 conversation with Harris and himself he said he had a mine over on the West Coast whioh he had tried to float, but the report on it had condemned it. He said he had seen some green stains which indicated copper, and that if Harris and witness eaoh gave him £30 they should have three shares In the old lease and three in the new, that the shares were 160 the, that they should have nothing to pay on them, and that they should have scrip for the £30 which would be worth about £1000. Witness thought it was a very good thing, ahd had hoped it would be true. Mr Doelwty's statement pn that point witneßß had never heard before; in fact, it was untrue. Docherty suggested that Harris fhnuld take up a dummy block at the head of the sound, and Harris said that if there was anything shady in the transaction he would have nothing to do with it, but Dochert/y said it was all right and Harris then went on with the lease. It was not true that Harris was to take up the new lease. Besides the £30 witness paid Dooherty, he took two of the £10 shares which were opened to subscribers. Witness heard Docherty say that there would be between £50 and £60 out of the £210 whioh would be divided between them

To Mr 31m : Witness had still faith in the Dusky Sound mine, but it was based on Harris' recommendation. Witness presented a dooument to JJotheity for his signature, by whioh he (Wood, was to get three 160 th shares, but Docherty put it into his pocket and refused to sign it. He would not give it back, saying, " You will not get it ; neither will you get your shares."

Algernon Q. Harris, law clerk, said that during the la*t few months he had spoken to Dooherty about his brother's license in the Dusky Sound and Wet Jacket Arm licenses. Dooherty told him that he and witness' brother were partners in everything. At another time he told witness that whatever money was left out of the subscribers' money was to be divided between them.

Frederick William Reynolds Anderson, solicitor, said that he first met Dooherty in September last year in the New Zealand Insurance Company's building, where the specimens from the West Conßt were then stored. Witness remembered a draft agreement being brought to his offioe. He read it over. The draft was between William Dooherty and several other persons A day or two later witness said to Docherty, " This property belongs to the two of you ; your name, Dooherty, means Docherty and Harris ; I understand you are partners." Dooherty said, " Yes, that's all right, we understand one another." Previous to that, on the 2nd October, Dooherty came to witness' office and consulted him ai solloltor to ask him how he stood regarding his position to the shareholders in the old seven lodes mine

His Worship ruled that no evideuce could be given on that point, as witness was now acting for the other Bide.

Witness, continuing, gave evidence as to a conversation he had with Mr Thornton about the matter. Witness, on behalf of Harris, claimed a full halfshare of everything. To Mr Sim : After Mr Thornton had heard Harr's' statement he said he had come to the conclusion that Harris was not pntitlfld to a half-ehnre, and furthermore he stated that Mr Docherty said Harris w»b not entitled to a single shilling, and if he wanted it he would have to take steps to obtain it. Tnis concluded the evidence. His Worship : Ho«v many subscribers have come in to claim an inrerpst in the mine T

Mr Sim : None of them, your Worship,

His Worship, after considering the evidence, said: The matter resolves itself into one of the credibility of the witnesses. The weight of evidence seems to be in favour of Ha'ris. Although I cnuld understand his taking the first trip, being carried away by curiosity or enthusiasm, I think it is not, likely he would go a seo'ind time unless he had a good interest in the mine. The small iutere«t Doche-ty s <vb he had would have been no inducement for him to have gone at all, I do not. think there is any doubt but thnt his cane ia correct,, and that he has an equal interest with Docherty in the mine.

It was finally ordered— "That it be decreed that Harris ia entitled to one-half share In eaoh of the mines, the porMon of the plaint referring to ore and damages to be dismissed. Plaintiff to pay to Harris two guineaß costs."

As Docherty left the room he remarked in a loud voice, " Well, I'm robbed."

WOOD y. DOCHKRTY AND HARRIS

In this case complainant, Herbert James Wood, salesman, asked that he be adjudged to be entitled to three 160 th shares in the copper mines on the West Coast, and further, that defendant"*, William Do -herty and Henry Temple Harris, be ordered to transfer same to him.

Mi bolomon appeared for Mr Wood, and Mr Sim for Docherty.

Mr^im stated that, after t.he evidence in the previous oase he wns compellert to admit that Wood was entitled to three 160 th shares

Order accordingly, and on Mr Solomon's application costs were allowed to complainant.

M'GRATH V SCOTT AND NORTH

This was an application by oomplaiuant, William M'Gratb, asking that, defendants, Henry North and James Robinson Scott, be or<lnred to produce a certain agreexient relating to an application for a licensed holding on the Shotover river, and further :tsking the court to declare what shar^, if any, defendants were entitled to in the said licensed holdiuß.

Mr Solomon appeared for plaintiff, and Mr W. O. Ma 'greijor for defendants —Mr Solomon admitted t.hab the court had no power of jurisdiction in the case, which was accordingly struck out.