IMPORTANT MINING CASE

Otago Witness, Issue 1851, 30 March 1904, Page 26

IMPORTANT MINING CASE

EWING v. SCANDINAVIAN WATERRACE COMPANY. THE APPEAL. (Bt Our Special Reporter.) NASEBY, March 23. At the District Cotirt to-day, before Judge Ward, the appeal case of John Ewing and the Bank of New Zealand against the Scandinavian Water-race Company came on. This is an appeal from the decision of Warden M'Ennis forfeiting the licensed holding and other mining privileges connected with the Jvildare claim. Messrs J. EL Hosking and J. R. Kirk appeared for the appellants and Messrs W. C. MacGregor and E. C. Cuttett for respondents. Mr MacGregor said this was aiL appeal from a decision by Warden M'Ennis which ■was given Jast November at St. Bathans. Appaiently the bank was not joined in the appeal. The warden's decision was given in favour of the plaintiff company, and by it the warden found that the licensed holdings and other mining privileges connected with the Kildare claim had been forfeited by non-use, and the warden accordingly declared the licensed holdings and other mining privileges forfeited, and cancelled the-m. He further ordered that the plaintiff company should be deemed the first applicant, therefore from this decision defendant (Ewing) appealed on both fact and law. The following trivial mattei* of law formed the ground of appeal: — First, that the warden wrongly held the licensed holding and other mining privileges to have been abandoned ; second, that the warden wrongly held that forfeiture of same had been incurred ; and. third, that the warden wrongly exercised his discretion in decreeing forfeiture instead of fining defendant Ewing. In the first place as regarded the licensed holding, the evidence had clearly established — -(1) That no rent had been paid for three years; (2) that the claim had not been worked — that was, abandoned — for three years; and (3) that the claim itself was out of repair and had become a cause of danger to the surrounding properties through ths accumulation of a large body of water therein. In the second place, as regarded water-races — (1) The evidence was clear and cogent that they had not been used by Ewing for three years ; (2) that they were out of repair: ((3) that they had been, in fact, abandoned by Ewing. The result was both the licensed holding and other privileges had become absolutely forfeited at the date of the original hearing. The plaintiff company had, therefore, become entitled to a decree — First, that the mining privileges, including both licensed holding and water-races, be declared forfeited; second, that the plaintiff company be declared first applicant therefor; and, third, that defendant be ordered to pay the costs of the suit. That was, in. fact, the order made by the warden, and that order was correct and should now be tipheld. The only defence set up by Ewinto was no real valid ground of defence at all. It was of a twofold nature — First, that the licensed holding and waterraces were not really abandoned by him. although admittedly not used for a period of three years, inasmuch as they were

protected from fo/feiture by reason of ecr tain Viork ha\ ing been done on a>i adjoining water channel, which was 1 used as a tail race for the K'ldare claim, among others It \sab submitted that this ground of defence was not available to defendant, bccau=e, in the firsfc place, work had not been done on Ewing's properly at all, and, secondly, the work consisted of the operation of Nature there, the water cutting down a channel to its surveyed depth. This process was, of course, going on, anct would continue over a period of years, estimated from 10 to 30, and it would be monstrous to maintain that the adjoining claim could be protected by such a natural process over such a long and indefinite period. Again, Ewing contended that it was impossible to work the Kildare claim until the channel in question had been cut down to its surveyed depth, and alleged that he ought to be -entitled to hold tho Kildare claim until such time as the channel was so cut down. That, it was submitted, was contrary to the wholo policy of the mining law. The essence 1 of tilt* mmmg 1 law was that claims must be worked by the person to whom they were granted, otherwise that they should beliable to forfeiture. The Scandinavian Company was quite prepared to take up, pay for, and work the Kiklare claim, and as Ewing had admitted he could not work it. they were absolutely e-ntitled to it. Available ground must net be locked up at the caprice of the registered hold-er of the same. A third sugg&stod ground of ejea'po from fcifeituro was made in the appeal to the discretion of the ooui't to substitute a monetary fine in lieu of forfeiture. It; was suggosted that Ewing had: hold the ground for a long time, and had expended a largo -amount of money hi plant, labour, and otherwise on the ground. That, of course, was admitted, but it came out in Ewing's cross-examination, and was aLso true, tlr Ewing had obtained from that ground a sum of about £20,000 for the gold produced. The amount was very largely in excess of the extent of the claim, so that there wa& no real reason for substituting a fine for forfeiture. It was really impossible to conceive of a more typical case of aboncTonment than tho present one. Here was a largo mining claim situated close to a mining township that had been locked tin for three yean"-, and! ab>soluLely nn worked during- that time. Unless the warden's judgment was upheld the result would be that that mining claim would \& ftill further locked up for an indefinite number of years until the. channel hael been cut down to a depth of some 30ft on the. adjoining propertj-. It was absurd! to suppose that under the present state of the mining law such a state, of thing? could be allowed to continue.

Mr Hoiking said the wardc-n had drawn a number of inferences which wero not founded on fact. There v.ais no c-vidence to support them. They contended tha.t thei work clone protccfrd the claim, and that tho ward-en had gone altogether wrong in saying no work had been dene. His Horor suggested that counsel might agree, on the facts. Mr MacGr^^cr siid it was admitted by the other .mci"' that tho claim, water lace, and dam v. er-e liable to forfeiture unless the work done upon the channel amounted to work upon the claim or in connection therewith with re-amenable diligc-ncr- under the Mining Act. Then there was tho question as to whether a fine should be substituted for forfeiture. He suggested that if it was admitted" thp-se claims were liable to forfeiture, it would be a saving of time, and appellant might advanos grounds and 1 substantiate them by evidence upon which forfeiture was avoided.

Mr Hosking admitted no work had been done on the claim, and that; tho water race, tail race, and dam were not used, but ho contended tho other side had to ■-how this, and that no work was done in connection with the claim. He did not admit that no work had been done in connection with the claim. The warden had said it was going on unassisted by labour, which was contrary to fact. It was for the othe-r tide to show what work was done in connection with the channel, ami he would bring rebutting evidence. His friend must also make an affirmative claim that no work was done therewith, or wae not sufficient to protect the claim. H-e quoted eectiou 16, subsection 2, of " The Mining Act, 1691," contending it -was for the- other side to show the condition that existed before forfeiture could" be declared.

Mr* MacGregor said they were entitled to ask for a decree the admission made that the channel had be&u cutting away as Ewing snid it had. That cutting away was not sufficient in law.

His Honor said he must call upon Mr Ho c kinar to proceed. Mr Hosking- said he would withdraw the admission that no work had been done on the claim. , His Honor : Well we will go into the whole filing de novo.

Mr Hosking : I will elect to .so on afe once. H-e then «aid he would submit tho following propositions : First, that the claim was worked to the utmost possible" extent at the time operations upon if; tvased, caused by the existing want of fall for tailings : second, that when work ceased on the claim fch-e vvoik of constructing the channel or main tailrare- was work ing in connection with the claim ; third, that work on the channel was carried on with reasonable- diligence; foiuth, that if it was held not to have been carried on with reasonable diligence the- just penalty was a fine and not forfeiture ; fifth, that as to the water races they were adjunct', to tho claim, and work which protected the claim protected them, and they should be dealt with on th& samo footing as tho claim. Then as to the non-payment of rent, which was also relied upon as a ground of forfeiture, it was .submitted that) section 150 of "The Mining Act, 1893,' covered that. These were his (Mr Hosking's) points. The fiisc proposition which would bo supported by e-\ idence was that the claim had been worked to the utmost payable extent to the time operations ceased. Evidence would He given upon the state of inatteis n£ the time Ewing ceased! operations conducted in connection "vrith the claim to show that they weie euch as to entitle him to the consideration of tho court. On the. question of forfeiture or fine, counsel proceeded to deal -with the original working of the ground, and said! Ewin? came upon the «cnip in 1873, and! bought two-thirds of the holding. This he. extended at a cost of £2000, and purchased! further ground at a cost of £540. expencLr°£3loo before lie commenced work at all. In 1882 the po-ition -ia= that five people were holding Kiklar-e Hill, and among thorn ivas the plaintiff company and Euins. a-id that number >\a» reduced <o four afterwards. It was scci; uLKUitiott. could not

continue- owing to insufficient fall for the tailings, and it was in view of future operations that the St. Bathans channel ■was projected. Originally Ewiug had .worked by elevating, the rest of the ground being left until tho new St. Bathans channel enabled 1 it to b& worked. A total of £16,000 had been expended in the construction of the channel, to which Ewing had contributed two-ninths. Men had been frequently engaged by Ewing on the channel so as to keep it in operation, and the channel was going on, assisting Ewing' s operations upon the claim. The position was that Ewing was one of the proprietors, and this work vrzs going on to enable his claim and other claims to be worked. He was contributing towards the capital, and what was submitted was that the work was being done by the proprietors of_ the claim. They now hod one of Ewing's partners coming and complaining that the work of constructing the channel had not been f-orward-ed with reasonable dMgence. It was for the purpose of getting- this ground that tho "other side wished the court to declare them first applicants, not for the purpose of vindicating the law. He thought it would be shown that work had been done in connection with the claim, and had 'been carried on with reasonable diligence. John Ewing said, in evidence he. bought four claims in 1673, costing from £60,i0 £300 an acra. Ho spent £100 on buying and £2000 in water, plant, and construction of race. After the expenditure ot £3000 ho started operations m 1873, ana worked continuously to" 1900. In 1882 openface sluicing was in vogue generally, and at St Bathams there were then five holdings — M. and E., Blue Duck, Eagla and Gray, Scandinavian, and his owj. Tho Blue Duck was afterwards merged in the M. and E. In that year it was foreseen they would not bo able to work further. Tho ground dipped at an angle of 45Jeg, and a deepen level would have to be attained. The Scandinavian Company had then oeased working. A channel for deeper level wa3 forest en to be necessary, and the claimholders agreed to apply for a tail race. Afterwards a company was formed, with at capital of £2700 in 27 share* of £100 each, and were held as follows: — M. and E-, 6; Blue Duck, 6; Scandinavian, 6; Ewing, 6; Eagle and Gray, 3. Mr Browne reported, and his plan waa adopted. It showed an additional depth of 60ft, and the mode of cutting the chaaine-1 was by action by water and tailings. Something like 75 heads of water wore secured from th> Dunstan Creek, and three- races had been in use since then for flushing the channel with. He was legal manager from 18£6 to 1£96. Manual labour was employed on a variety of matters. In 1886 the capital was increased, and a subsidy of £2000 was obtained from the Government. Tho company expended £5000, and gold was devoted to the work amounting to £6000 or £7000. Work was going on when h© discontinued , operation's on the claim. H© had no reason to believe would bo discontinued, but would be going on continuously sinco ho stopped operations. He began to elevato in 1578, which was more expensive than open face sluicing. It' would not pay to work bad ground by elevating. He went down, to I7oft by two lifts, one of 97ft. He could not get any deeper, though he tried repeatedly at considerable expense, and so left the p 7 ant standing. Tho hydraulic plant left on the claim alone co=t between £3000 and £4000. At the time he stopped work the Kildare Hill property, after writing down from time to time, stood at £6000, apart from what he had contributed to the channel-bought water -from the Soandinavia/n Company, which could make- more by selling to him than by using it themselves. He did not apply for protection when he could work, as he considered work on chaaiael protected the claim. The Scandinavian Company did no bona fide, work on their claim for 21 years except for a sbifcrt period in 1*135. They did not apply for protection, as they did not consider it necessary. Eagle and Gray's wa-3 worked intermittently, owing to tho water supply being bad, and their cla.-m had not been worked for the last three years. They we-ro waiting for the channel to bo constructed.

To Mr MacGregor : He did not believe if tli© accounts were properly stated he owed the Scandinavian Company anything. The statement in +he warden's notes that lie -said he owed £1200 was not correct. He had paid wages. The reason he dad not apply for protection was not because he knew he could not get it.' The channel ■was not getting as much attention as it should be, but tliat was no fault of * hw. He had personally done nothing to the work since 1896. He made a clear profit of £20,000 out of the claim cluriug the last eight years of working. He had reached the depth at which it could be jt&arked profitably. He could have widened out if he had liked to lose his season's work. The real mason ' for stopping work was not that he had no money left to buy water with. Part of the channel had been constructed to grade for about a mile. Above that men are employed to keep the water confined to have the channel cut down. They had been cutting it that way from the first. During tho last nine years scrub baa been put in to confine the water channel. The aid from his water race would have been infinitesimal in cutting down. The falling material had smothered some of the plant.

Re-examined : Besides fascines, clay had to be pasted. The races bad also to be kept in repair. The water used for cutting was clear, unmixed with tailings. The work could not be done by simply discharging tailings water into Ihe channel. Widening would not have here assisted operations, and the result showed that was so. He worked v/holo gold-bearing seams by elevating. There was a dispute between him and the company as to the statement of the account between them

Thomas Christopher ponnelJy, mine manager, knew Ewing's Kildare Hill claim. It was more expensive to work a claim in stages. A tail raos would be constructed first. He considered th^ra would be a difficulty in working ground like Kildare Hill claim. Water was reqxidred for the cutting down process. John Eaple, miner, said ha was working manager of the St. Bathans Channel. He and Gray were owners of a claim at Kildare Hill, and had held it between 20 and 30 years. He had always worked it by open face work, not by elevating. They had two years ago last January worked to the preeonz lovel, pml rovl<l not continue any further. They therefore stopped. If the new channel was coirnJeted they could have began again. He did not apply for protection when he ceased work be-caus-e 'ha thought the work heJng done in the ehannol piot°ctcd this claim. Aibor the decision or the warden the c'aim, being in danger, we commenced cpcrotii'is a^am. Tlvere ws's no profit in the work being done now. About

six years ago 50 heade of water were applied for, and a race constructed to carry that quantity. They had widened the race that brought the flushing water into the upper portion of the channel to bring in more watei-. They did that just after last winter. This had been done during the last three years, and for eight years previous to that period. The depth gained between the main traffic bridge and the M. and E. 'box was 25ft. This gave the M. and E. people a obanee to go to a deeper level. For 70 chainß from Dunstan Creek the channel was down to 4-^ft of the survey level. The other portion had not been surveyed. The depth attained was very good work. Seventy-five heads of flushing water was provided by three races, but this could not alwaye be got. An unusual drought had occurred and interfered with the supply. They had had an average supply of about 30 heads during the last four years. He had, with his partner, contributed close on £600 to the channel fund. They did not make a piece of swamp property pay. To Mr Cutton : With a larger supply of water it would have pa-id from the 50-chain peg upwards. Nothing had been done to form the channel beyond what the water itself would do. That was during the last eight years. If a bit of side fell in it would be removed. The channel would have to go down 30ft to get to the survey level at the M. and E. box. He could not say how long it would take to out down this 30£t at the M. and E. box. Clear water would never do it without labour expended upon it. No labour had been expended upon it up there. The channel would cut down deeper with Kildare Hill tailings going in, and the stoppage of Ewing's claim would tend to make the work- longer. About £1800 had be&n spent on the channel during the last seven years. Ewing had paid up all calls to the Channel Company except the last voluntary call of £48.

To Mr Hosking: In gaining 25ft above the 50-chain peg wo<rk had been done removing clay and boulders as they became exposed by the action of the water.

L. O. Beal, civil and mining engineer, eaid he had ee>en Ewing's elevating operations. It was the highest lift he had known. It was 151 ft. Another 10ft or so would have been the limit he could elevate. It was posisible to work some of the remainder by open face, but it would not pay. It- was poor ground, and was similar to thai left by other claims. The channel was the only feasible way of working in future. Ewing could not work any more with profit until the channel was completed. The method adopted for cutting the channel was tfce proper one. It could not be done by manual labour profitably. It would cost an enormous sum. About -125,000yds of stuff remained to be removed to complete tho channel and bring it to the suvey level. About a million yards of material had been removed. It would 'take about three years to complete the channel with the procer-s he saw going on. It would be necessary to keep the tailraces in position until the channel was completed up to them. To Mr MacGregor : "Witness did not consider the Scandinavian Company could work Ewing's claim by elevating. Richard H. Browne, civil engineer, eaid ho estimated that about a million cubic yards had been cut away from the channel, and the rate of construction had been the same for about thee last 10 years.

To Mr Cutten: Taking it broadly, the further the channel went down the slower would be the procei-s. It would take about iour years to finish the channel in the upper part.

Robert Thomson Stewart, mine, manager, stated that he had visited Ewing's olaim in 1896. Work was being carried on under difficult conditions. It was not possible for Ewing to work to a greater depth profitably.

To Mr MacGregor: If one had more pressure and more water put to the best use & better result must have been obtained. He should cay a very small proportion was still available for face sluicing.

This closed the case for the appellant. His Honor said the whole question turned upon whether or not the construction of the sludge channel be considered as work clone in connection with the claim.

Mr MaeGregor submitted that as a matter of law it could not. As a matter of law, the work allowed to be done was not work done in connection with the claim with reasonable diligence within the meaning of the statute. As to the claim itself, he would refer to the case of Chin Fan against Davis, where Mr Justice Williams laid down the policy of the mining law. The principle there governed the case. Ewing said he could not work the claim until the channel was down .o the surveyed depth, and that the lowering of it was work done in connection with his claim with reasonable dilige-nce. The evidence to be called for the company would show that the channel had net bee-n lowered at the head during the last four years ; that there was no material difference in the levels during that period in the locality; al-.o that the rate of lowering must decreas& as the level became lower, and that tho channel would never cut down to the lev;>l at the present rato of progress. Further, that the fact of Ewing's "claim not working mide the iat& of lowering the channel Ip.-s ; and, further, that a distance 'of between eight and nine chains at the head of the channel was not being worn clown at all, ev«n by the operation of Nature, since Ewing ceased to work his claim some three ot four years ago. That formed an integral part of the channel, and was being loft alone. So long as the Kildare claim remained idle, that portion of the channel would remain at the present level, which evidence for the appellants would prove. If Ewing had widened out he could have worked a larger quantity of ground, and it was contended h-e had pickod the eyes out of Ihe clnim. Counsel was instructed that Ewing was no longer a member of th« Channel Ccmnany. Mr Hosking said that was not so. Ewing had transferred his fhares after he- was sued, but the transfer was nor registered. Mr MacGregor continued a*" length, and said the claim for sympathy for Ewing on account of the large sum of money expended by him in plant and <=o forth e:in>e /with very bad grace, in the f'ice oE his admission that he Lad made £20.000 clear profit out of the- c'aim during the last eight years. The case was adjourned to next morning. March 24.

On the District Court resuming to-day to hear tho appeal case Ewing and the Bank of New Zealand v. the Scandinavhn Wat or Race Company, District Judi?e Ward Jaid it seemed to him there was a- case for fc-rfeiture, but he AWi not agree, that clause 16 of the act prohibited a fine as a penalty. Mr Hoskitg *aid thai, if it was thought, reasonable diligence had not been shown

they would be put in the position of having to ask his Honor to use hn discretion in imposing a fine. Tho evidence as it stood might be very well accepted by , the other side. j His Honor to Mr MacGrogor: You should * bring evidence now to show why forfeiture should be imposed rather than a fine enforced.

Mr MacGregor said ho would call evidence • to show that Ewing could have worked the , claim, which it w ; as not impracticable to • work, and that the channel was not carried ; on with reasonable diligence owing tc, i Ewing's supineness. Ho would also call | evidence that there had been such want of j diligence that Ewing was not entitled to j a fine. He called j

William Pile, secretary of th 3 St. Bathans j Qhannel Company and legal manager of the j United M. and E. Company, who said that j Ewing had recently transftrred his shares j in the Channel Company, and had been ] registered in tho book 3 . Calls were made i during the last four years, and all paid by Ewing except £58. Whan the actioal commenced Ewing owed £111 for calls. He made no payment to the company between i July, 1896. and 1903. All the shareholders 1 had paid the vohmtary call except Ewing. ■ If Ewing had paid his calls promptly the { company would have - done more work on j the channel. The work of cutting down ; the channel would have been expedited by j thv> expenditure of more money. It would , tako 20 years, perhaps more, for ihe upper \ part of the channel to bo brought down i to the lev&l of the lower part of tho upper ■ portion, where, no work at all had been done. They would have been assisted if Ewing's claim had been at work. If the water from the water-race on Ewing's pro- , perty had been allowed to rum imo the tail- • race and into the chann&l the channel would i havo been benefited to a small extent. i

To Mr Hosking : He supposed that the r.ext company would have Uie right f,o the uso of the water in Ewing's race if Ewing was not using it himself. He could not say that fche company were so using it. Flushing water came in below the uncut portion of the channel, and the final act, after having taken in flushing water higher and higher up, as ha-1 been done, would bo to bring it in at the top of the channel. With regard to the payment of calls, he bad made no calculations as to the time it would take to out down the channel, but he considered that his opinion that it would tako 20 years was a sound one.

Re-exairined by Mr MacGregor : If gone about with energy and sufficient money it would not take nearly 20 years to cut down tho channel, bub it would tako 20 years under existing circumstances. The capital of tho company was expended. Nedl Nicolson, manager of the Scandinavian Company, said Ewing, while working his claim, had been getting water from the company. In 1900 he. told Ewing the company could niot go on supplying water unless he paid his account, which was then about £1500. Ewing got no more water. There was no reason for- stopping work on his claim beyond want of water. The claim was about 18 acres in extent, and Ewing had worked about two of them. The lead of gold Ewing had b&en working extended al.l through his ground. Witness had seen the samo lead in tho M. and E. workings. Tl-er& was nothing to prevent Ewing workins? tho le-ad in other parts of the claim. He could havo ground sluiced part of Ewing's ground. With the watc-r at Ewing's disposal, Ewing could have continued working his claim if he had kept on getting wo-ter from the company. It was a \ery good lead of gold in Ewinlyj's claim. Ewing hac! left the plant, down the hole, and had neglected it altogether. The plant and pipe lines would now be worth about £600 to £700, and the claim would be worth £500. The upper part of the channel had not lowered at all since Ewing stopped working. It was this part Ewing wanted to u.se for -working his olaim. In 37 chains at the top channel 61-,000 yards had been removed, and there was still 400,0/00 yards to come out. Under present conditions it would never be done. In a letter which was produced at the last he&ri^.<j of the case, and which had since disappeared, Ewing had said that it wa.s a dearth of capital that prevented him continuing work.

To Mr Hosking : Witness had about a third interest in the Scandinavian Company and would participate in the Kildare claim if the Scandinavian Company got it. A ctif-puta between the company and Ewing for water intercepted had been settled. Ewmg still owed the company £1420 for water. During the seven years witness had been with* the company he had been ground sluicing The company had paid one dividend of £1200. The ground being worked was paying them. There was three times as muoh ground that could be worked by ground sluicing on Ewing's claim as in the Scandinavian mine.

Patirck O'Rogan, working manager of the M. and E. Company, said Evving^ could work his ground by sluicing wiih a tail race piofitably. There were parts ho could elevate. He could ground eluice with six heads of water, and it should pay. Nothing had been done to cut down the upper channel for four years. During the last four years the channel there had gone down 2ft. It would never go down to the surveyed level under existing circumsiances. Ewirg's tailings going into the channel would assist in the opciation of cutting down.

To Mr Kirk: The ground could be worked with more water.

William Kcnney, miner, concurred with the previous witnesses that the Kildare claim could be worked by the present races if the raec.3 were put in repair. If two heads of water came from the creek alons? the race to the dam ttey could get six l^arls from, the dam to work Kildare HjII w'th for eight hours. He did not think th"i upper portion of the channel, at t!ir> rate cutting had been going on during the last four yo.irs. would ever be cut down to the surveyed depth.

John Mooney, miner, considered the Kilciiire claim could be worked with the Scandinavian Company's water, irrespective of the present; condition of tho channel. To his Honor : Witness had prospected il-o claim very slightly. He did not know the cost of water.

Continuing, Witness eaid at tho rate the cutting down of the upper part of the channel hud been goiug on for the last four years it w r o\ild never be cut down, undor'fehe present circumstance". Hnsfh Brown, who was working manager for Ewing wh'on ho ceased operations, «aid it would sometimes pay to work the claim, tiding the Scandinavian water. Ewing could work the same lead without going aq do?p as he was before ground sluicing could bo done profitably, but nrt fey paying fo • water. Hp did not think the- chrnnel W"ul/-1 ovor b." 1 cut d.'iwn to the rur-vv '•cviM without a more ©nergetio process of work-

ing. It would take a good deal of money and labour to do it. Ewing never told witness to take the plant out of the elevatinj? paddock. To Mr Hosking: A quantity of water ' would have to bo brought in to get tho plant out. About six or eight heads would bo sufficient to do it. He got water from th?> Scandinpvian Company to get tne water out of the hole, but 1 could not S ay if it v/as for the purpose of getting the plant cut. j

Re-examined by Mr MacGJregor : Tuft t plant could have been taken out much , easier at the time operations ceased in j 1900.

This closed the case for the respondents. Mr MacGregor eaid he understood his Honor to have ruled that whether work on the channel was work in connection with the claim or not he considered it had not been done with sufficient diligence to pro-

tect the claim. , His Honor : Yes. It is a question be- ■ twoen forfeiture and a fine. t Mr MacGregor then addressed the court " at some length, contending that there was ■ no power to fine, and proceeded to quote ] authorities on the point. The warden had ] visited the ground, and it was therefore • with a knowledge of the olaim and water laces not possessed by his Honor he had come to his decision. As to the conditions of abandonment, it was impossible to conceive of a more deliberate case of abandon- : merit or a more typical case for forfeiture. ' If Ewing could not work the claim until the channel was completed he should forfeit it according to mining law. Dearth of capital had been the probable oause of his abandoning the claim — a much more prob- ■ able cause thin the condition of the chan- : nel. The evidence was overwhelming that | the property could be worked profitably, i and it was for Ewing to show why forfeiture . should not accrue. Nothing had been ad- j vanced that amounted to a sufficient reason ! for inflicting a fine in lieu of forfeiture, and . if a fine was inflicted the claim would be locked up for an indefinite period. Mr Hosking contended no such consequence would result from the infliction of a fine, because it would only exonerate Ewing for the past and woxild have the effect of making him protect himself as regards the future. The fine would cause him to set about with diligence to protect himself for the future. The point that the channel would take years to complete 1 had no bearing \.pon such a penalty. It would be Ewinafs duty if a fine was imposed to at once take active steps which would protect him under the Mining Act. The policy of the Mining Act would be in nowise affected by the infliction of a penalty. The law might be summed up in the maxim that forfeiture was odious to the court, and this was a case where forfeiture was odious. Speaking of work done on the channel heki'g work done in connection with the claim, counsel said supposing the water-race running to a claim had to be repaired in order that the claim might be worked, could it be contended that that work was not work done in connection with that claim. He contended that the work dorao j in connection with the channel during the last eight years was to be credited as a j whole to each of the claims served by the t channel for the purposes of the Mining Act. j If Ewing intended to abandon the claim \ was it likely he would have left £1000 j worth of pipes there to perish. That was sufficient answer to any intention to abandon.

Mr MacGregor: There was a mortgage, and Ewing had no right to remove them. Mr Hosking (continuing) said the fact of Ewing going to the expense of defending the case was inconsistent with the idea that he had no intention of working the claim further. Ewing had not applied for protection, which he could have got, because, like the others, he was content that "the channel work protected them all. It was regarded as common law in the locality that j the channel work protected them. •

Mr MacGregor : No one six years in arrear with rent could possibly apply for protection. Mr Hosking : That would necessarily have been paid.

His Honor, in giving his decision, said it was with some regret he felt obliged to direct that the appeal be dismissed. Ho regretted it because it was quite clear Ewing had expended large sums of money on the claim, although at the same time he had obtained something from it. He had at ■ least not been a speculator. He (hia Honor) accepted Ewing's own evidence with respect to the principal points — that was to say, that forfeiture had been incurred. He said he had worked all the ground he could, and intended to leave the ground until the new channel was constructed, and left the ground under the misconception* of the legal position in believing the construction of this channel was construction in connection with the claim, and would be sufficient to protect the claim without applying for protection to the warden. If a man, being one of a company, relied upon the cons' luction of a water-race or tailraoe or any other work in connection with a claim, the least he could do was to see that the construction was proceeded with due diligence, and the onl\ way he could do that was by paying up the amount due on his shares. The evidence went to c how liwing had -paid his shares up to July. 18G6, and from that time paid nothing until sued in 1903. He did not appear to have paid any attention to tho construction of the channel. The only way he could be engaged upon such construction in. order to fulfil the icouireinents of the act would be not merely by being a member of the company, but; by paying Ins calls when they became clue, and the longer he neglected to pay these it went in favour of the presumption of abandonment. The only question that remained to be decided was whether, a fine should be inflicted, and he regretted to say ho agreed with the warden. Tho appeal would bo dismissed wiMi co--ts. He might f-ay that every possible point had bejn urged by Mr Ho&kiisg to the advantage of hie client.

Mr Hosking : It is with pleasure I hear that said.

Mr MacGregor asked his Honor to fi--; eovts, to which his Honor replied thai they would be the usual fee of 10 guineas raid witnesses' expenses. The court then rose.

On the 13th inst., at Burnett's School Westport, some chimney bricks foil through the roof, and one pupil had her slate broken in her hand, and a second girl's arm was slightly injured.

The Mo-jglfl School Committc carried a rt.olution protc-tiug a o a..n-.fc xhc proposal mads at the fici'col In-p^icis' Coi.feience m tho dhcctioii o? rvr '11.r.g s-chcol coviinattors' "coi'-u'i i '- ."' v/litu appointing and n-moung ic-achcvs.