WESTPORT WARDEN'S COURT

Westport Times, Volume IV, Issue 738, 17 November 1870, Page 2

WESTPORT WARDEN'S COURT

Wednesbat, Nov. 16. (Before J. Giles, Esq., Warden.) HUCUIES V. OVEKUAGEST AND PARTY. Mr Pitt appeared for the complainant, and Mr J. Bickcrton Fisher for the defendant. The Warden said that the case had been a long time waiting for the opinion of the District Court, whether the complainants were totally barred from any further action or whether they were partially barred, and if the latter, in what respect. The points raised

before the District Court were : Ist. That the defendants represented that tho race applied for was an abandoned race, whereas in truth and in fact, it was never abandoned by the respondent or those under whom he claimed. 2nd. That the defendants, when they applied for and obtained their certificace, suppressed tho fact that the race and fluining in question had been previously seized by the bailiff of the R. M's. Court, and then was in the bailiff's possession. 3rd. That tbe defendants suppressed from the Warden the fact that they had not served notice upon any of the shareholders in the late Pioneer Company, or upon the bailiff in possession, or upon any other person interested in the matter of the application. Complainant was barred upon all these points raised. On August 26th, a fresh plaint was heard which was as follows :

1. That the defendants, on tbe 23rd of May last, applied for and obtained a certificate of registration of a certain water-race at Waimangaroa in which the plaintiff was and still is interested. 2. That sucb certificate was obtained by misrepresentation in that the defendants represented the race as abandoned, when, in truth and fact it was not abandoned. • 3. That the defendants did not comply with the rules and regulations by giving to the persons whose interests were obviously affected the notice required by the regulations. 4. That tho defendants suppressed from the Warden the fact that the said race was at the time being beneficially used, and also that tho same had been seized by the bailiff of the Resident Magistrate's Court, at Westport, and then was in his lawful possession.

The points then raised that lie would notice were, firstly—whether the defendants were called upon to give notice of their intended application to the original holders of the certificate that had lapsed ; secondly —whether they had suppressed the fact that the race was being beneficially used and, thirdly—whether, being aware that the bailiff was in possession, they had rendered themselves liable to have the certificate cancelled, in consequence of having failed to give the bailiff notice of their claim and their intended application. "With respect to the first point, he did not think that the defendants must of a necessity have known who were the holders of the lapsed right. It appeared that they went to Martin, one of the original holders, and gave him notice, and at the Warden's Court they complied with the prescribed forms. Neither did he think that they must have been aware that the race was being beneficially used. On the remaining point, however, with respect to the bailiff's possession, it appeared incredible to him, from the evidence, that they could have been ignorant of the fact that the bailiff had seized the property of the old company, and among other property the race. In that case it was the duty of the defendant to have served a notice upon the bailiff. Having failed to do this, he considered the grounds good upon which the complainant sought that the defendants' certificate be cancelled.

Certificate of registration, granted to Ovcrhageu and party, was cancelled accordingly with costs.