CHARLESTON.

Westport Times, Volume IV, Issue 639, 31 March 1870, Page 2

CHARLESTON.

IMPORTANT MINING CASES. (from our own correspondent.) Monday, March 28. The only cases disposed of ou Friday last were two of considerable interest in the Warden's Court; the complainants in the first case being Eobert Lambert and William Lambert, the defendants being Cornelius O'Connor, Thomas Curtain, Dennis Sullivan, Michael Culhane, and Patrick Daley, shareholders of the Southern Cross Grold Mining Company. The complaint set the defendants had been ordered by the Warden, through an officer of the Court, to suspend the working of the Southern Cross claim, pending certain legal proceedings on appeal, and that they had failed to comply with such order. It was sought that the defendants should be adjudged to be dealt with as the law directs under sections 103 and 104 of the Goldfields' Act, 1866, the defendants to be further enjoined to desist from further working in the said claim, under the penalty in case of disobedience.

Mr Donne appeared for the defendants, the defendants pleading that they had acted under the advice of Mr "William Pitt in working the claim, and that no disrespect to the Court was intended. The Warden construed this as an admission of the facts as alleged in the complaint, and intimated his intention of inflicting the penalty set forth in section 103 unless the defendants promised to desist from further work. Mr Donne addressed the Court upon the law of the case, and urged that the case was one in which the Court had no jurisdiction, and that none of the defendants had been served with an order from the Court, and that the Court had no power to give such order, the case having by appeal been taken out of its hands. He requested permission to read an opinion given by Mr Pitt as to the Warden's powers under the statute. This the Bench declined to do, and, over-ruling the objection, asked the defendants if they were disposed to promise to cease from further work. An adjournment

was asked, and granted by the Court, in order that defendants might have an opportunity of deliberating on the matter. On returning to the Court, the defendants stated they regretted they could not comply with the Court's request, Mr Pitt having advised them to resist by all legal and proper means the order in question. Each of the defendants was fined £2O, or in default three months' imprisonment. The second case was one in which Robert Lambert, acting bailiff, was the complainant, and John Curtain defendant, also a shareholder of the Southern Cross Company. The complaint set forth that defendant did on the 24th March, 1870, resist complainant in performing his duties as acting bailiff on the Southern Cross claim, the complainant seeking that defendant should be dealt with as tbe law directs under sections 103 and 104 of the G-oldfields' Act. The complainant stated that the defendant was driving a horse and truck; that the complainant took hold of the* reins of the borse; the defendant said "Mr Lambart, I am acting under advice, I intend no disrespect to you or the Court," and drew the horse on. Cross-exammined: No violence was used. Was sergeant of police at Charleston, also acting bailiff. His authority was an order. (The order, which was produced and read, was addressed to the acting bailiff of the Warden's Court at Charleston, and reads as follows:—" You are hereby ordered to restrain any body from working upon or in the claim known as the Southern Cross. You will not permit any one to meddle with or in any way to interfere with the said claim or its appurtenances until the ease has been finally decided on appeal.") Had shown the defendants the present document. Had served no order upon the defendant or any of the defendants in the other case. The order produced was the only order he knew of in the present case. The order was handed to William Lambert, the person placed in possession of the claim under the direction of the Court, and was the order under which he himself and William Lambert had acted. _■ William Lambert was called as a witness and gave similar evidence. On cross-examination he stated no distinct order had been served on the defendant in either the present or the former case. The order produced by Robert Lambert was the order under which he bad been acting. Mr Donne urged that the case should be dismissed, as neither in this nor the previous case had there been any proof of service of any order upon the defendant; that the order was one originally given to William Lambert, whereas the complaint was laid by Robert Lambert; that the resistance was merely of a pro forma character, and that the Bench had no jurisdiction, as the statute gave the Warden no power to issue such an order, the matter having been taken entirely out of the hands of the Court by appeal. The Bench entertained a different view, and fined the defendant £2O, with the alternative of three months' imprisonment. Notice of appeal was given in this and the former cases. Mr Donne stated that he was prepared to deposit the money forthwith if the Court liberated the prisoners.

The following is the written opinion of Mr Pitt upon which the defendants acted : I have submitted the questions proposed herein, to a careful consideration, and proceed at once to state the result of that consideration. The facts are simple, but, to make clear the reasoning by which I arrive atiny opinion, it will be well briefly to state them. Certain wages-men, in the Southern Cross Company, obtain judgments against the Company. They issue distress warrants—in all, about 13. Upon these execution is levied. The Bank of New Zealand claims, under a bill of sale, the claim and plant of the company, and takes possession. An interpleader summons is taken out, and upon the adjudication of that summons, the Warden, being of opinion that sec. 7 of "The Goldfields Act, 1866," created a lien for wages, gave judgment accordingly. Afterwards he made an order that the bailiff should remain in possession for both parties, pending an appeal. Notwithstanding this, the company, with the consent of the execution creditors, and, under advice, having continued to work, the Bank of New Zealand obtained ex parte an order to restrain the working of the claim. This wa3 served upon the bailiff alone. I pass over the irregularities, as I regard them, of the mode of obtaining the order and the service of the order; not only because they are so obvious, but, because the general questions involved are, after all, the true questions, as I take it, upon which my opinion is required. These seem to resolve themselves into two, viz:— 1. Had the Warden power to "tack," so to speak, upon the judgment on the interpleader, the order made or was not that order altogether ultra vires ? 2. Can the Warden make an order restraining the working of a claim after he has given judgment in the case, and pending an appeal to the District Court ? In answer to the first question, I am of opinion that the Warden's order, under the circumstances, was ultra vires. The only question upon the interpleader which it was competent for the Warden to decide was—Does the property belong to the Southern Cross

Company or to the Bank of New Zealand, under its bill of sale ? If decided in the affirmative in favor of the execution creditors they would have an absolute right to demand that the bailiff should remain in charge for tbein. If for the Bank of New Zealand, then the bailiff would bo ordered to retire* and the Bank could seize uuder their bill of sale. Anything beyond this would be beyond the power conferred by the 93rd section. The language of that section is plain—- " the judgo of such court shall adjudicate and make such order " (i.e. order, either that the bailiff should remain or retire,) " between the parties in respect thereof * * * * as to him shall seem fit, and such order may be enforced," &c. To allow the position contended for would necessitate the construction that the word " adjudicate " means one thing, and the words " make such order " meau something else; just as if the words " make such further order" bad been used. Of course it needs no argument to prove the principle that an Act must be construed according to its express words; or that words cannot be introduced to confer a jurisdiction which otherwise would not exist. But apart from the construction referred to, the order made is bad in principle. It is utterly and irreconcileably inconsistent with what preceded it. The judgment was that the Bank's claim was bad as against the wages-men. The logical deduction therefore was that the bailiff should remain, in order that the execution creditors should obtain the fruits of their verdict by sale in due course of law. With the same breath to adjudge that right, and then to take it away, even for a limited time, is inconsistent on its face. How could the Warden predicate that the parties would appeal? They could not be compelled to do so, and, for 14 days at least, the plaintiffs would be kept out of their legal rights, viz., the fruits of their judgment. Whether damage of a serious or a limited character would ensue, is immaterial to this consideration. Upon these grounds then I have no hesitation in advising that the making of the order in question upon the interpleader judgment was beyond the power of the Court; and, so far as that order is concerned, it may be safely disregarded; and that the claim may be worked by the company with the consent of the judgment creditors up to and until a sale is effected under their judgments, or until the judgment is reversed by the Court of Appeal. The second question involves an inquiry into the power of the Warden to restrain the working of a claim pending an appeal to a superior court. I venture to think that he has no such power. In no part of the Act can I find any such power conferred. The only section touching the restraining of work in a claim is the 71st, and, looking at the place of that section in the midst of clauses relating to the " investigation and adjudication" of matters by Wardens or Wardens and assessors, and regarding the context, I am of opinion that that section applies only during the time the particular case is pending in the Warden's Court, and until it is investigated and adjudicated in that Court. The right to appeal is conferred by a subsequent part of the Act, and is a statutory right to the person aggrieved, upon his complying with certain requirements of the law. What that right is is clearly defined by sec. 81 of the Goldfields Act. That and nothing more he is entitled to. To allow a Warden to step in after he has given judgment when, quo ad the case on appeal, hois functus officio, would be to allow him to give the appellants rights greater than the law has given them, and to take away, by a most arbitrary assumption of authority, a legal judgment solemnly recovered, and the fruits of that judgment which are its legal incidents. It may be said that much mischief might ensue in this case, and in others, if such a power were held not to exist —that between the judgment and the appeal the claim might be worked, out and the respondents then abscond, leaving the appellants, if successful, a barren victory. But this is a two-edged argument. If such a power existed, might it not as readily be put to oppressive and unjust uses ? A wealthy man or a powerful corporation—the Bank of New Zealand, for instance—might by obtaining such an injunction harrass and scatter a large number of men, or to avert the loss, perhaps, of a valuable property, and perchance the labor of years, drive them to any compromise, no matter how unjust or how disastrous to their proper interests. It cannot, therefore, bo argued that the words of sec. 71 can or ought to be strained beyond their palpable and natural meaning. If such a power is to be exercised, it must be conferred by express words, with such limitations as shall secure a judicial and a just—not an arbitrary—exercise of it. Applied as I contend it should be, that section has a rational and a useful operation. When a matter is for the first time sub judice, and the Warden has not decided—when it cannot be told who is right prima facie or who is wrong—then I can understand the Warden stepping in and saying " Hold your hand until I hear the matter, and see who has the greater right, and until then I will restrain the workings." This, too, it will be remembered, is only for a few days at furthest. In the present case, to adopt the contention of the appellants would be to interfere with a judgment actually obtained, and therefore, at least prima facie, right, while its effect would be to throw out of work a largo number of men for three months, and to lock

up for that time a valuable property, which the policy of the law would see benefit not only the parties but the general public also. For all these reasons I see no cause whatever for altering my verbal opinion, and, however difficult it is to predicate what may be the decision of a Court which unfortunately has few if auy analogous authorities to guide it, I should advise the execution creditors to resist by all legal and proper means the orders referred to. William Pitt. Chambers, Molesworth street, Westport, March 24, 1870.