DISTRICT COURT.

Inangahua Times, Volume II, Issue II, 25 May 1881, Page 2

DISTRICT COURT.

Monday, Mat 23bd, 1881. (Before his Honor Judge Broad.) Ltnph v. The Inangahua County Council. Tbe following js his Honor Judge Broad's judgment ip the above case :— " Tbe defendants admit having done the work complained of, but tbey assert a right to this road as the lawful successors of the luangahua Lpfeal Reveppes'Board, who they say had a good title, one tbat plaintiff had long recognised ; and tbat as his lease was granted by the Governor after the occupation of tbe line of road by the Local Boardfit must be taken as granted, subject to such existing right, plaintiff is shown to haye worked himself under a maintenance contract with defendants in keeping this road line in repair. There can be no doubt the Local Revenues Board caused a road a chain wide to be surveyed,' and a tracing of it to be sent to the proper authority. The Government District Surveyor subset quently made a survey of it, and sent a plan to the Local _3oard. That Board made a part of the road— about 8 feet wide, and it is for widening this to 10 or 12 feet tbat the present action is brought. It seems to me that tbe question of how authority has been exercised involves a question of 'title. Here the alleged wrong-doers justify under some right to occupy— they"have |shown facts out of which such a claim can arise. Their assertion of title is not entirely witbout foundation, and therefore it is in dispute. Proudfoot v. Banbury, Mac: R. 1060, Johnson v. Te Waka and others, 3 N.Z Jur. N.S. 105. It is certainly extraordinary 1 that the Government should grant' an agricultural lease apparently including a* surveyed road, but it is quite possible tbat the property of the highway may be in the plaintiff as owner of the soil subject to an easement for tbe benefit of the public. Upon the whole, I am satisfied tbat a question of title has been fairly raised, and the Court has therefore no jurisdiction. Costs £15 4s allowed." Judgment for costs to be stayed for 3 months until tbe next sitting of the Court, to allow plaintiff to file an appeal to the Supreme Court. Dawson y. Edwabd Sjiaw. Claim for £57 lis for goods sold and delivered . Mr Jones for the plaintiff. John Dawson, a botelkeeper of this town, proved the amount of the debt, and that no part pf it had been paid. Judgment for tbe amount, with oosts £4 10s. Gbieve and Gothabd V. EdWABD Shaw. Claim for £79 for meat supplied. Mr Jones for p-aintiff. James Grieve, an accountant in Reef* ton, proved having purchased the assigned estate of Gotbard and Batchelor, and that this amount was still owing to tbem in that estate by defendant, after deducting some small payments on account. Judgment by default, with costs. Heslop v. National Bank. This was an action to recover the sum of £100 damages, for alleged wrongful dishonor of a cheque for £14 9s. Mr Guinness for plaintiff. Mr Warner for defendants, raised the following prelirnina y objections ; —Ist. That ns the authority had only been filed with the Clerk of the Court this morning, no summonses could bave been legally

i*-sued nor any plaint entered before tl.at time; and 2nd, that the name instead of J. G. Heslop had been set down as J. J. Hesioff. Mr Guinness replied. Mr Warner maintained that the 9un*« mons had been wrongly issued, and his Honor held that the objection appeared good inasmuch as the rule said that the authority should have been fi.'ed prior to the issue of summons. Another objection was also raised by the defeudant, namely, that defendant resides at a greater distance than 50 miles frou the Court, and that the time given in this instance is not sufficient, as instead of 10 days notice 21 days should bave been given. The head office of the bank is in Wellington. Mr Guinness, counsel for plaintiff, submitted that as the contract had been en tered into jn Reeftpn, service of summons at tbat place would be sufficient. His Honor overruled the ol jection. With reference to the previous objection, his Honor reserved bis ruling, and the case was put down at tbe bottom of the list At the resuming of the Court at 6.30 p.m., Mr Warner made application for an adjournment of the case Heslop v. The National Bank, oh grounds that the defendants had not had sufficient time to file the defence, and read tbe affidavit of Mr W. R. Robinson, and also from Mr Warner, showing tbat the time for get*ting up the defence has been too short, as material witnesses were required from a distance. Mr Guinness opposed the adjournment, and stated reasons whioh he thought wouldjbe held sufficient for the Court to refuse the adjournment. The Court considered that reasonable j grounds had been shown for an adj -urn*. men*, namely, too short notice—substantial defence, for the filing of which time had not been sufficient. Leave given to file defence. Adjourned till next sitting of Court, the costs of Court to be borne by tbe defendants, also £5 5s professional costs, and costs paid for summonsing tbe jurors, amounting in all to £7 8s 6d, to be paid in before the rising of the Court. M'Lean and othebs t. Keep it-Dabk | Company, An action for breach of contract, and loss of profits. Damages, £1000. Mr Guinness and Mr Jones appeared for plaintiff, and Messrs Perkins, Lynch, and Warner, for defendants. I Mr Perk ins raised a similar ol jection | as to the filing of a warrant to sue prior I to the issue of summonsjand entering the plaint ; and moreover that the names of all the parties to the suit of plaintiff-, and also their place of abode should be entered in a book by the clerk, and that there was no sufficient warrant for the issue of a spite Mr Guinness for plaintiff submitted that the objection was bad, inasmuch as this suit was brought under the jurisdiction of the Mines Act, and that therefore the forms of the District Court need not be strictly adhered to, and secondly, that the name of one partner is sufficient description of the parties to the suit, as one man of a firm or party, with tbe concurrence of the others, has a perfect right to do everything in connection with the action, which in other cases might be required to be done by the whole party. Mr Perkins still maintained thatthe de-> fendants.in the event of tbe ease going for them, would not have any action against the other plaintiffs for costs, as they might not be found, and the name of the one. whose name is mentioned might be a man oi straw, no substantial guarantee exists for recovering. Witb respect to the qualification of jurors, Mr Perkins pointed out that tbe clerk should only call for jurors who are possessed of miner's right and business license and men of good repute, and that any others would be disqualified from acting. Mr Guinness submitted that the very fact of certain jurors having been summon ed by the clerk, the strong presumption would be that tbe jurors have been properly called, and that neither the Court nor the counsel has any right to question into the matter, as the clerk is the only person who has to exercise his judgment in summonsing a jury, and tbat it is to be taken as granted that he has exercised it properly. Moreover, be (Mr Guinness) held that the possession of a miner's right or of a business license woujfl be sufficient qualification. His Honor ruled that the clerk having summon ed the jury it must be held that be did so properly. After argument the several issues were narrowed down, and the case would stand as one simply for a claim of damages for loss of profits on work as the defendants wrongfully alleged refused to allow the plaintiffs to complete. The question would then be for tjie Jury quantum meruit. On tbe jury being called, only eleven appeared, and tbe clerk stated that twelve summonses had been made out, but in one case summons could not be served, and as Mr Perkins insisted on twelve being present, his Honor ordered tbe clerk to issue summons calling upon some person in the Court, who was the holder of a miner's right or business license, to com« plete the panel. Mr Lee, having been summoned, stated pn .coining forward that he was a shareholder, and would wish to be exempt. Thereupon the judge ordered two more summonses tn be issued to pro, vide for contingencies, aad also suf*« j :

gested that for the future more than twelve should be sommoned to prevent delay in completing the panel. Messrs Ching and Aiken having beeu brought up, the clerk was ordered to draw the names of twelve in the ordinary manner. Out of that number, after the right to challenge had been exercised, the following four names were retained, namely, James Stevenson, William King, Stewart, and James Kidd, of whom Mr Steveuson was chosen foreman. Mr Jones, opened the case for the plaintiff., and read the plea of defendants traversing the allegations made. The certificate of incorporation, and the contract were admitted. All witnesses were ordered out of Court with tbe exception of two direc*tors, and two contractors. The following evidence was called :— Thomas Atkinson : I hold a'certificate from the Surveyor-General of the colony. I was requested by Pollock, one of the plaintiffs, to make a survey of the blocks < of stone, which they allege were included in their contract ; 1 also made a* survey of tunnels and passes ; I produce the' plans of the survey, and a duplicate tracing. Tbis is a true plan of tbe under* ground workings of the [Keep-iNPark Company's mine. In block No 1, I estimate'that 1058 tons of stone remains ; No 2, 3196 tons/end in No 3, 1994 tons. All tbis stone] is more than one foot in thickness. My measurements show six feet of an average thickness of the stone; Witb regard to No 1 block I got actual measurements as to quantity of stone. The other estimates are made np from measurement} of parts ofj the block, and inference made as to tbe remainder. Cross-examined by Mr Perkins : Tbe way 1 have described is the only mode I had for ascertaining [tbe quantity ■ I found in one pace 6ft 6in of a solid body of stonejfor seme distance down tbejshaft : n the'No 2 level. In some places I got 6ft lOin. This block was a little mul» locky, but I have made allowance for that in my calculations. Most of the estimates 'are approximated. I was told by tbe mining manager that the ground where I made the survey belonged to the Keep-it-Dark ; I also know it from my own experience, baringjflrst surveyed it a number of years ago. James Pollock : I^enfered into a**contract with tbe Keep-it-Dark Company for breaking down quartz, and did work in the mine un'ilJ r we , _weres'stopped by M'Masters. At that time we had over seven feet of stonp. On the No 2 level, the drive is 4ft 6in in the clear - T estimate the stone remaining in No 1 block at 1000 tons ; U would have taken ns three or four months to take out ; eight men took'out?l9_£tonß the last'seven days we worked. Tn block No 2, tbe thick*ness of stone atftbe intermediatejlevel is seven feet ; I haye seen in one particular place 20 'feet of stone ; I estimate the quantity in this blork at 3000 tons. In No 3 block the thickness of quartz shows 7 feet ; we drove out a portion of it— the remainder of stone would amonnt to 2000 tons. We had ten men in all at the time of taking out the 194 tons in seven days. The wages for this work would cost about £40, and about £3 13s for timber. Tbe laths for thirteen sets would cost £1 13s ; candles would cost about £1 ; a keg of powder was used, and four coils of fuse. The wear and tear of tools would not be more than 10s. These figures represent the cost of taking out tbis stone and would be a fair average for tbe expense of taking out the balance. The No 3 block contains stone of a harder nature than in No 1 and No 2, and would cost about 9s a ton to take out. Mr Masters, manager, pointed out tbe repairs we would have to do, and when I asked bim to point out work for us he said there was none. He said this on two occasions in the presence of my party. He was aware tbat tbere were these blocks of stone in tbe mine, and some stone con* taining gold was shown to bim when he said he knew of the stone and that it contained gold ; I have been ready and willing to go to work to break out the stone, but have never received any letter to go on after we were knocked off. .We made all the repairs we were required to do. All our mining plant remains in readiness for continuing work. Upon the Court resuming Mr Bowman was recalled, and produced the report of the mine manager for the 26th March, which was read. Mr Perkins said that the plaintiff's case having closed, he would move tor a nonsuit, on the following grounds :— lst— That the plaintiff had not received a positive denial or refusal from the company to continue tbe contract, and that only a partial failure of contract in this instance bad taken place. 2nd — That tbe authority, or warrant to sue had not been signed by all the alleged parties to the suit. 3rd— That only two of tbe present plaintiffs are interested, and that the rights of the absent four of the party, who knew nothing of the suit and are beyond the jurisdiction of the Court, are transferred to others who in tbe present action had no locus standi. His Honor over-ruled the points raised, and said that tbe issues would have to go to the jury. Mr Perkins raised as a further non-suit point that the plaintiffs had not proved that the workings having reference to ground in the aereement was within the four corners of the Keep-it-Dark lease, Ilis Honor held the point to be fatal to (lie action, and directed tbe jury to find for "lie defendants.

At this stage the counsel for the plaiati V elected to be non -suite 1. His Honor thereupon non -suited tb** plaintiff, with costs of Court, costs of witnesses and plnni of the ground, and professions! costs, £25, makin-T a total of £33 9-?-The jury was then discharged.