WARDEN'S COURT.-Yesterday.

Thames Advertiser, Volume XVI, Issue 5282, 26 September 1885, Page 3

WARDEN'S COURT.-Yesterday.

(Before H. Kenriok, Esq., Warden.) . . .PRIDE OF WAIHI OASES. :; The first case on the cause-list wae that of J. Friar Clark y. T. Meßonougb, in which

the defendant was called upon to sustain his objection to the granting of the Pride of Waihi license on the ground df en encroachment upon his claim, the Albion. —Messrs E. Hesketh and Miller appea r ed for the plaintiff, and Messw Theo. Cooper and Lush for the defendant.—Mr Hesketh informed the Court that amicable arrangements had been concluded between the parties for the settlement of the case, by the addition of a portion of the disputed ground to the Pride of Waihi claim. The addition wa? about to.be marked by Mr.

Bayldon on the official plan, and it was desired that the Court should confirm this arrangement. All other objections to the granting of the Pride of Waihi license being withdrawn, excepting that of Messrs Lockwood and Kelly, each of whom, claimed one - third interest in the mine, on the ground that

they-were entitled to equal shares with Mr Shepherd, by virtue of arrangements made for the floating of the company.-The Warden withheld his decision until the other case should be disposed of, .

The case Olavk v. Loekwpod add Kelly was then called. Mr Cooper sara. his client, Lockwood, being; aware that the ground was of some value, contemplated purchasing the claim, and agreed with Mr Shepherd that the latter was to go to Auckland-to. make the necessary arrangements, for procuring capital, and that he (Lockwool) should stand in with him in the transaction. After Shepherd bought the claim he repudiated the arrangement, stating tint Mr Clark, who had furnished the oapital, declined to admit Lockwood and his mate, Kelly, as partners. Mr Cooper contended that a quo si-par tnershi p had existed between Lockwood and Shepherd, and that the former's name waa entitled to

Jβ associated with the application for license, and to be awarded his interest in theolaim. It was understood that an objection would be raised on the other side that the Court had not jurisdiction to inquire into the case, as it was one of partnership, but he submitted that the Warden had full power to deal with all matters affecting mining partnerships.— Mr Hesketh said lis learned friend had rightly anticipated the objection to be raised. The,terms of the private agreement between' Shepherd and Lqclcw.qo.d had not been made cleV—it probably was that the latter was to have an equal interest with Shepherd'in whatever share of the claim he reserved to himsolf. The ■ broach of agreement between the vendors could not affect the purchasor, and was therefore not a good objection to the granting of the license, as it did not touch the title to the ground.—Mr Cooper did.not allege that Lockwood was ever the actual owner of the ground, but he possessed certain information which he communicated' to. Shepherd, agreeing tp stand in. with the eventual purchasers of the claim, and' to contribute i* his proportion of the purchase money. The , agreement was that Look, wood was to stand on equal terms with those who were afterwards parties to the transaction,andLas the granting of the license as applied for would entail the_ exclusion of a person entitled to a share in it, the' question was clearly one which affected the title to the mine. Mr Clark in purchasing from Shepherd must take all his rights and obligations. .amoDgst which was the agreement with Lock wood, who should therefore receive his share pro rata —not necessarily one-third—on, tho payment of the purchase money, which he had already proffered. Tho arrangement was that Lockwood' was to have had an equal interest with Shepherd, not one-half' the hitter's share. -After further argument the Warden said that although Mr Cooper had inado out a breach of verbal agreement on tho part of Mr Shepherd, there was no cause qf action against Mi; Clark, and therefore no valid objection to tho application for license.—Mr Hesketh maintained that no private arrangement be tween the vendor and another person could bind the purchaser, and itcouW only affect Shepherd's personal interest in' the claim.—Tho Warden concurred in this view, and Mr Cooper then intimated that he would withdraw the objection, relying Court's expiession of opinion -that his client had still his legal remedy against Shepherd.— Ilis Worship entered an order , accordingly, awarding tho cotnplainant £5 7s. costs. Subsequently tho Warden approved of the arnonded plat], whjch allotlejd onefourth of the Piidd of Wai'hi Company and tho rcmaindor to tho owners of tho Albion. ■ An ordef was then entered in terms of the arrangement made, and granted tho Pride of Waihi license, each party paying its own costs.

J. W. Walker v. Wih Dodd.—Tho plaint in tliia caeo ect forth that; on tho 4th Auguat, defendant clniined to be in occupation of a claim at Karangahake, named tho Triunjph; that on that date a pluinUvda laid against him and tlip ground was declared forfeited and awarded to T. E. Shaw; that the said pro eeedings wore not bonafide, hut were inetitijted unfairly, Shaw and Dodd being in po'llusion; whprefrp tl](} oopiplajnant asked tho Court to declare the defendant to be still in possession of tho Triumph, and the proceedings might bo set aside,

and the claim forfeited on the ground of non-working.—Mr Lush, who appeared for the plaintiff, said ...that .the case arose out of one heard on the previous. Oourtday, respecting the Alabama and Sultana licenses, in which the irregular pegging of the Triumph claim had been referred to. The records of the garden's'.office showed conclusively that collusion "had taken place between Dodd and others, which would justify, the Court in setting aside the previous forfeiture, and adjudging, that defendant was still in possession,of the Triumph,—The Warden pointed out that the persons to'whom the ground was awarded should be the real; defendants in the action.—Mr Lush therefore applied that the names of T. E. Shaw, arid A; Walker should be joined with thepreeentdefen;' dant, the former having beon awarded'the; claim, and applied for a license for;if, under, the name. of the Warden was doubtful whether hispowers of amendment of plaint .extended so far as to enable him to grant the application, and suggested .that - the .present plaint should be withdrawn, and •fresh proceeding! taken.—Mr Lush; indicated the : amendments he requiredj and' ; the . Court assented to them, arid adjourned l the case till Monday:next. Mr Cooper subsequently intimated: his intention, of! refraining from further proceedings, and: withdrawing the plaint, as Shaw; wlio would be a material witness, is a patient in the hospital, and. not likely to attend. the court for some time.; ■ ■:! .=., ■■'

0. GALLAGHER V. J. FITZQEBALp.—The' defendant in this. case, was summoned fol sustain his objection to the granting of tlie application of a license to the Kiwi Tararu, claiming ownership of the ground; —Mr Miller appeared for plaintiff, and said he had been uuablo to get the summons served until a day or two. ago, owing to the defendant's absence jn Auckland, so that he could not obtain the: attendance of an important witness how at Te Aroh'a; Mr Gallagher was ialao seriously ill,' and under medical treatment, so that it would be necessary to have the case adjourned. —The case was accordingly 'adjourned until Tuesday afternoon next.;',,! ", ■, ; ;'

Albert Walker v. J. W. Walker,—ln this case the defendant was; summoned, to substantiate an objection which he had offered to the.granting of the Sultana license, Karangahake.—Mr Miller appeared for the complainant,-'and'Messrs Cooper and Lush for the defendant—Mr Burgees, , Mining Registrar, was called, and produced, the documents connected ' I wjth,'.tne cation for the Sultana license,' and also>the' defjndant's objection.^-Mr; Qpoper, said the parties were practically applying for iho possession of some gro.und.' .T.He evidence would disclose somewhat peculiar circumstances, The Sultana-clainvwas originally named the'.■Triumph,-,(marked out by Thomas Dndd) arid 'was; forfeiied in July, and awa'fded who had il marked by taking the same 'definition' as was contained in the award of the Court. Upon this pegging Mr Albert .Walker applied for a ,lic3Bse in^tlie■•Jarirae'. of ;.lb3 Sultana, and now claimed that heVwasJifot bound by the description; pEJthe claim in the notice of marking output could. revQrj. to'the position in Vticin; actually placed. - It wpiildjjhowever, || shown that the pegs were not in- existence" when Mr J.; W. r Walker c acquired 'the Alabama, but' that they mußt since\hav9 been drjven for thepurpoßo .pi supporting Mr Albert Walker's application.l>; The documentary evidence was in;conflict with the sworn statement made by the man Grant as to the position vofrthe ..Sultana' claim, and he oontended that the description given in Dodd's noticevof marking should receive the preference,;) This being the case, : Mr J. W. Walkedwould bo entitled to receive a license for the Alabama, and Mr Albert Walker a separate license for the. Sultana, and in an entirqly' different position.— J. W.Walkei-deposed that the Alabama claim was pegged out on his behalf on the 30th July, and Mr Albert Walker now. claimed to bo the ownor of a portion of; it, whioh he called the Sultana. Before pegging out, witnoss, with Messrs Lockwood and Kelly, thoroughly examjned the ground, and could yofloh that the; only legitimate pegs then standing were those of the Sir Walter .Scott and Ivanhoe claimß. There were no pegs in the positions indicated by complainant as those of the Sultana. Witness 'judged that; the nearest point of the .Sultana ground to the Sir. Walter Scott boundary was about four chains-distant. No person acquainted with the locality could make the blunder of describing the: Sultana as being contiguous to the Sir Walter Soott boundary The claim for which Mr Albert Walker sought a license was wholly included in the Alabama.—Alfred Lockwood, who assisted in pegging the, Alabama, that the only existing peg other ihan those of,the recognised claims was an old one which could not possibly mark the Sultana ground, and had been erected, to his own knowledge, at least nine months previously. —D..H. Bayldon, surveyor, deposed that his surveys of the: Alabama and .Sultana claims were made on the same day, to-, wards the end of August. Grant did rioi accompany him to the ground, but Dpdd pointed out the Sultana pegs.—Albert Walker, deposed that he was owner "of i half the Sultana claim, which he had obtained from Shaw, about the middle of August. Had never heard o£ 'Dodd's connection with the claim until the legal proceedings began.—Mr Copper addressed the Court at length, submitting that he had proved that the land claimed by Mr Albert Walker as the Sultana, was altogether distinct from Mr J. , W. Walkers Alabama claim, ft seeded likely tlity noithqr nodd, nor, Shaw had ever pegged out llie ground, though they had a hazy notion as to its situation, but gave the

notices of marking out, and did not trouble to insert any pegs until after the Alabama was taken up by Mr J. W. Walkqr, who was entitled to his license.— Mr Miller also addressed the Court from the opposite view, contending .that the formal notice in the office was not an essential element of title, but that the actual driving of the pegs socured the right to the ground. It would establish a dangerous precedent to hold that the description given in the elusive, for f most erroneous puftjp.ulars were giyen in good faith "by ipiner,g not familiar with the district.—The Wardou hel4 that the notice could not be taken as conclusive evidence of tho.posit'on of tho claim; and when tho written description did not correspond with the ground as inarkod off, the onus of proving tho situation of the pegs rested with the claimant. It seemed that when the question of the forfeiture of the Triumph was boforo the Court, the- claim had actually been taken up by Mr J. W. Walkor, who supposed it to be vaoant ground. .The evidenco of Grant, who marked out the Dollar, (now Sultan]) claim ( conflicted' with his written description of boundaries, the correctness of which hei nevertheless maintained, and it was jmpossiblo to yecoaoile tliocoflt'radic'tiflns.". Itpoomod. tlmtipodd had tho gyound for a long tiiuo, abiindonod his original pegging (under the name of the Luok's-Al^and

re pegged the claim as.the Triumph. This again was forfeited-for non-working.and awarded to Shaw, though if the facts had then been fully disclosed, he (the Warden) would;have held that the originarpeggirig of the Luok's-All ; had npt actually been abandoned. : Upon'the>dbcumentary evidence there :were* strong i doubts whether the claim was pegged"at. all .by Grant. The case.was a., ; very'/h'a'rd one, in-whibh' One;Of the' parties mdst'.necesearily.suSe.r injury through, nofaiilt of hisjowni TKe Court must' under,! the oiroumstances take the ; -positi.VQ ' of j ,as, to the situation of "tne;.Sultana'ciafm (as agaioel the negative; :.evidence of the ; witnesses on the other side; Therefore he hold-that the pegging 6£' ; the 'Alabama w;as.illegal,.as "the was taken : up" while gthe iTriumph 1 (of. Sultana).' was 'still in existence. must be : disallowed,|and the S.ultana license granted,' iThe.cdsts'aiAmntedtOifili 15s.~In.entering the award of•; costs, the Warden observed that he. reglnjitted' Haviiig' :, tb ; 'di)' sbyasho'believed!the,;defendanthad been \ misled; by .other.persons lejyipg their rights ; jon the books of the department. ! : "' I H v this case' judgment hal3 : bee'ii:t;|3erved ; ™m f the \ previous Court day-pending appeal to the: Supreme-Court ; in'!'the , ; case.',Cofnes v. •MqComb}e.^Mr^,Lueh J : : ap.plied:,r.,f9r o; th_e. adjourhment'of the.! case' until' the appeal should be decidedj tblw.hich the defendant made :no opposition.-rAdjourned acoordingly nntil ■ No ve'taber (13. '■■ Tnie.concluded'the business.