WARDEN'S COURT.

Thames Star, Volume VII, Issue 2036, 14 July 1875, Page 2

WARDEN'S COURT.

THIS DAY. : (Before W". Fraser Esq., E.M.) ' The Court opened this morning at 10 o'clock. BUSHMCENSES; ' r ;' „ A number of plaints laid by the Inspector of Miners' Eights, Mr Mcllhorie, .were withdrawn without;,exception. . = ? - ■ j TAIEUA CASES. The Warden said the question was, with regard to these cases, which should j they take first. • Some; discussion took place between counsel. ,Mr Macdonald said his was I the first case on the list, and he should i oppose ifc standing over unless it would save the Court any time, ... ' The firit case taken was— KELLY V. NEVES. • The plaint was that defendant did on or ; about the 14th day,: of June trespass^, upon the ?claim of the jcoprplainant, called the Welcome Claim, situated at Pakirarahi, Tairua, and did thereon mine for gold at the said time, and unless an injunction be granted the complainants fear that defendant will continue to trespass to „complainant's great disadvantage ; wherefore the complainant claims that the defendant be adjudged to have trespassed, and that he (complainant) have such relief in the premises as the Court ;may.see fit., ', ; „■■<.; r r% A'' y'~\ „A Mr* Eees Appeared' for Kelly ; Mr Tyler with Mr Hesketh and Mr Bras4ey for Neves and Graham. Mr Eees said he might state tha| the defence to be set up by defendants' Was that they had a title to the ground before the: proclamation under the Act of 1873. ■ He: would not go minutely into any of the cases, as if he established a prima facie case it * would, bo sufficient to show their title to the land. "'''" His Worship said the present was not an ordinary case, because the complainant desired to* upset a license granted by the* Warden under.the seal of that Court. ".' MrjEees said it was only a matter, of time, and he would be prepared to meet that difficulty. The Warden said all he desired was to; relieve Counsel of any unnecessary trouble by stating what his (the Warden's)^ opinions were; on the matter. He could not go behind his own action. He would, however, take any evidence which might be offered. ;<f -p; V . "., :;

Mr Eees was of opinion that the Court had power to revoke its action, as. in the case of Crown GrantQfc when sufficient evidence.was, given^- . :. : ,. : '..[,:

The Warden said this Act was framed expressly to secure to the people clear and firm titles

Mr Eees said he thought the Act would be found to have miserably failed, as he did _ not believe there was any provision against the vacation of a title.

The Warden said Jie only Iwanted to let Mr Kees know his views on the matter. He looked upon it that whether anything had teen done right or wrong—once the license was granted it cpuld not begone behind by him', nor would he be a party to upsetting ifc. It "was a different matter if they wished his assistance in taking the case to another Court. *

Mr Eees then, proceeded to open his case, ,which he said would be that on the 3rd of June the ground in question was pegged out by Thomas Baird, for John Stewart Kelly, in " terms of the 17th section of the .Act. He should prove' that to this claim there werccightangles ; that at every angle a post had been put by Baird. That a license for the claim had been applied for within the^ time prescribed by the Act, namely, within 10 days, the which was now in Court. He should prove that the land was unoccupied—that was, that no other person had it in legal occupation for mining purposes. He should then prove that a license had been applied for, and that a day had been fixed for the granting of such license, in case no objections were made to it. He should prove that Messrs Neves and Graham applied for a license for this ground some time before" this. He should prove that they were' not within the Act—that they did not peg out the claim, and that they couldnottherefore come within the. Act, under section 17 nor section 79. That they were not the owners of any claim comprised in , class No. 2. He should then prove that certain objections were lodged by Wickham against the granting of the license to Cf eyes and Graham;and show the grounds 1 on which theso objections were made. He proposed to prove that the ground applied for by Neves was in occupation as a claim'— that it was' not in occupation by or for him (Neves) on the 10th; that it was never his claim, and tho claim for which a license was issued to Macdonald was never applied for by them. That neither Neves nor Graham had pegged out according to law. He then proposed to show that the objection by Wickham and Miller could not (by. law) bo withdrawn, bufc was 1 an objection which the Court mnst uphold in relation to the rights of the' public. When the objection was one on public ground there could be no agreement to forego - between- two "private parties. Some of the present objections were objections on public grounds, which could not be arranged "between the objectors and applicants. • ■ John. McKenzie deposed—l am Mining Registrar and chief clerk of the Warden's Office. Produce the application of John Neves, and the .objections made thereto, with a tracing of the plan. Produce the license granted" on or about the 16th June, to John Neves, George Samuel Graham, and J. E. Macdonald. Prdduco an application,for a license made by John Kelly on the 11th of June. The application of Kelly was duly received in the "office. There is a plan. The tracing is not yet made.; I believe that a day has been fixed for hearing the license—-the 27th of July:

Thomas Baird deposed on oath—l am a miner, residing on the Thames. I remember being employed by Mr Kelly to mark out a claim in Tairua, it was in May last,- and I 'was employed! v in' Grahamstown.

Mark Donovan, Clerk to the District Engineer, produced the plan of the Welcome claim.

Thomas Baird was recalled—After seeing Mr Kelly in G-rahamstown, Mr Kelly and I went to Tairua on the 24th of May. Early in June I pegged out some grouud for Mr Kelly• It was oil

the 3rd of June. The plan produced is the plan of the ground which I pegged out on the 3rd June.- I put in eight pegs—afc the four corners of the claim and four corners of' Bergin's claim. That marked on the plan was what Bergin showed me to bo his claim. There were claims all round the claim that' I pegged out. There was one peg at each corner of the northern angle off Bergin's claim, besidp Bergin's, but there were none beside Bergin's at the,. southern' angles. There was a peg marked T and a peg marked W standing at the outer corners, and several other pegs the marks of which. I did,,not_. v nptice.,,., ..,!.. saw ..the. size of the T pegs, which appeared to .be small,-but I did not measure them. I was present in this Court when Neves was,,being .examined-in.-relatiouv-to.his application for a license. I heard .Neves asked if he pegged but the Tairua claim on the 10th April. Neves said he did not peg it out on the 10th nor had instructed any one to peg it out for him. I heard His Worship remark that if the pegging out did not take place on the 10th lie had no case before him. Neves did not then. v say that,.* he had pegged out'l ori' thVNlOthv Neves was shown the pegs in Court. He only admitted putting in two of them. He said a man named Toves or Tubs .p.ufc instheothersr I; don't think ike wasjasked wlietnerhe put in any pegs at the'angles of Bergin's claim. It was either the 15th or 16th of last month. I think, before Neves'., examination , was, finished,, the Court" adjourneE. ' What il heard afterwards was the settlement bVtwien-NeVes, Messrs Maedonald and Miller, and Wickham. , I was not present when* the decision was given. .1 ,have r a : Miner's Eight; !and had one infthe' month^ of^-May and June.

Cross-examined by Mr Tyler: It was not a windfall to me to mark put the claim;? I met^Mr Kelly aflSairua^^lf he got tho ground, he was to give me a share of it,.and if I got the ground I was to have given him a share. I have, before this, been engaged in 'endeavoring to get prospecting claims. Albert Walker was t& get half a share, or a twentieth part of the ground, if obtained by myself or Kelly.'. Shares have -been sold to pay expenses of the suit. I think Mr Kelly sold shares to the amount of £100, to pay, for the present proceedings. / Mr Eees here raised an objection as to these'questions, but, Mr Tyler-having stated his reason, the objection was withdrawn.

Cross - examination continued •—■ Mr Walker has contributed nothing. A man of the name of Hunt has a share with us. Walker got his interest from Kelly. I knew Mr Crippen. He has no interest with us.. i I marked out-because I knew that there were lawyers mixed up in the matter.: ;I thought,-they *- : would;. make some mistake, being lawyers, and then I would step in. .^(Laughter.); j I Was:not aware that quartz had been sent down. The ground I marked; pup-included the shaft. No one pointed but the Prospectors' pegs. I found,them and placed pegs alongside.' I saw'work going on between the 24th of May, and June .3rd. I went on 24th of May and pegged out on June 3rd at Kelly's request. I think I heard Neves state he had pegged cut. Kelly was not with me in June 3rd. The reason I pegged out was because I considered the. Prospectors A had not marked it out according to the Act. Mr Tyler here stated he would raise some points which he thought would be fatal to the case, even at this present stage. Mr Eees offered no objection, and Mr Tyler^tated— , - :

1. That Neves applied for leave to mark out on April 13th ; that Kelly and Baird did not go up until May 24, and marked out on June 3 ; • that they found the pegs marked T; and the shaft and work being done before they marked out; that Kelly at the time of marking out had not obtained the Warden's authority : therefore IN eves was in possession before Kelly, and that a man being in possession, no matter whether legally or illegally', his possession against any person entering without the authority of the Warden held good. (Mr Tyler here quoted many authorities in support of his statement, and endeavourad to iHow that Kelly and party were merely trespassers.) 2. Mr Tyler -further argued that no one could hold land not having a miner's right, and that Kelly had not a miner's right on June 3rd; and tho case in common with the others* brought against Neves. was tainted with champerty or maintenance ; and (3) that Baird ought to be a plaintiff with Kelly in the prosecution of this suit.

Mr Eees argued that no rules made under a statute could overrule the statute itself, and quoted " Critchley and Graham " and other cases in support of his argument, and ■ showed the difference between the Victorian and New Zealand Goldfields -Acts. He alluded to the case of Bennett V. Spencer and submitted that Neves and company had no legal possession. 2. In regard, tothe necessity of having, a miner's right Mr Eees argued that a man might hold land without a miner's right, but must bear the consequences of his actions in being fined Further (3) , That there was no maintenance or champerty in this case, and quoted the wellknown Tichborne case, in which the public subscribed large 1 sum s'for the support of the case, which case had never been objected to on the ground of champerty or maintenance, which would hare been done had it been possible.

At the conclusion of Mr Rees' speech the Court adjourned untill 2.30.

The Court resumed -at 2.40 p.m. Mr Hesketh spoke in answer to Mr Rees, and argued that in this case the action was one for trespass and must necessarily, be dismissed, becausg the defendants wore in possession and therefore could not' be trespassers, and quoted the case of Barker Goldmining Company in' support of:' his remarks, .as well 'as Snell- and.\the JTokatea Company, which he brought to bear on the issue as regarded the fact that Kelly had no miner's right when,he .pegged out.,, .Mr Hesketh argued that'Kelly,'in marking out a claim, was engaged in mining operations, that he was acting illegally, and therefore no-ilegaLpios^ession could-be .acquired by an^llegal%cf/-~ With - respecfc; to the^plea of the case being tainted with champerty, Mr Hesketh also quoted authorities in support of the objections advanced by Mr Tyler.. .:„ ; ...-.''«' ;

Mr Kees asked to be allowed to call witnesses [ before the "Warden, delivered judgment, in reference to the pegging out by the defendants.

After some discussion, Mr Eees called John Neves, who stated—My name is John Neves. The pegs were first put in the ground on the Tairua claim on April Bth. I put in the first peg myself. The pegs were cut on April Bth Cross-cxaininetl by Mrlleskcth—l left

on the ground, after I had pegged out, George Tupp and the two veitches. I remember a claim being granted to Mr Macdonald and myself on June 16th. I had been in possession up to that time. I have continued in possession, and worked the ground up to the present time.

Ec-examined by Mr Rees—l put in the north-east peg. I saw the noth-wcst' peg in the ground on the eighth of April. George Tupp—My name is George Tupp. lam a miner. I helped to peg out the Tairua claim. It was first pegged out on April Bfch. Is To pegs were put in before,that date. I.saw. all four,| pegs put in the ground. I believe all the i pegs put in were over three inches. (Mr Tyler here objected to this evidence as irrelevant). ..•.,,..—-..„ „v . :f l The Warden then said that the defendants were in possession, that all Wardens of the Court had held <hat opinion and he would hold the same. With,regard jto the second point, viz^rthe necessity of having a miner's right, lie was inclined to. hold with Mr lices 5 as 'regarded the question of champerty and maintenance. He would rather not give, a decision as , jjie was not clear On thVitib^cfc^jjut that it was of no moment as it had been decided against the plaintiff upon the principal - point;r' Upon ' Ijeing'ipressed, however, by Mr Eees and Mr Tyler,the. Warden said he had .no great confidence in liis" decision, 1 but as: it was pressed for lie would give it in favor of the plaintiffs, thus deciding in favor of, "the plaintiffs in two instances,Aand,in one instance in favor of the defendant. The plaintiffs therefore were non-suited. The .costs went with the case.,.

CEOWN PIttNCESS.;. , - The manager, Mr Daniels,' is pushing the work ahead. JSTo.' T reef, showing three feet of quartz, has heen driven on till the winze has been intersected. No. 2 reef, with lft. stone, and the specimen leader about 8 ineVesV *oth these latter have supplied about 65 tons of quartz towards the next- crushing, and 160 lbs picked stone have been secured.