The Goldsborough mine had a great start in October 1863. It was very rich. Then in 1867 the notoriously dodgy solicitor Robert Valentine Phelps decided he was going to get his share by what ever immoral and unethical means he could dream up. Then a few other tried to cash in on the chaos as well. This is not story of the proceedings as the legal convolutions need someone with the knowledge to set it all out properly; maybe a thesis for somebody one day. What follows is the newspaper reports by date. Even for the lay person the audacity and arrogance defies belief.
The Great Goldsborough Jumping Case(s).
3-6-1867 Dunolly and Bet Bet Shire Express.
Considerable excitement was created in the town on Saturday by a rumour that some 210 feet of the Goldsborough Company’s claim, Bealiba Reef, had been jumped. The alleged grounds for the jumping are that the company is only registered for a claim of 150 feet instead of 360 feet; and it is said that on this being discovered, summonses were obtained by the jumpers against Directors of the Company, to show cause why they (the jumpers) should not be put in possession of the 210 feet said to be held in excess by the Company. The rumour we believe has some foundation in fact, and that the precise circumstances will, we presume, be revealed at the Warden’s Court a few days hence.
6-6-1867 Dunolly and Bet Bet Shire Express.
The first jumping of the Goldsborough Company’s claim has led to two or three other similar attempts. On Monday the remaining 150 feet was claimed by a second party of jumpers; on Tuesday, we believe, some parts of the claim were double jumped by a third party, and we hear of others who intend having a still further dash at it. The cases will be heard at the Wardens Court, on Monday, and the first will, one way or another, dispose of the claims of the rest of the jumpers. Great surprise is manifested at the alleged neglect of the Company in not securing its ground by proper registration &c. We hear that Mr. Martley has been retained on behalf of the jumpers, so that a great field-day may be expected.
13-6-1867 Dunolly and Bet Bet Shire Express. Atkins is the correct spelling. Horatio Huntly Hoskins of Talbot. Warden Francis Knox Orme.
The Great Jumping Case.
Barlow and others v Hayes and others. – Defendants were complained against as being in illegal possession of two hundred and ten feet of ground on Baker’s Reef, at Goldsborough.
Mr. Martley, instructed by Messrs Dunbar and Crabbe, for the plaintiffs; Messrs Atkins and Trench, instructed by Mr. Hoskins for the defendants.
The court was crowded to excess, and it was exceedingly difficult to hear much of the argument of the learned counsel in consequence of the confusion frequently occasioned.
Mr. Martley commenced by stating that he considered the case a very simple one, viz., as stated in the summons, that the defendants had not taken up the land of which they were in possession of according to the by-laws, and hence were in illegal possession of the same. He then traced the actions of the defendants, from two of them (Messrs Baker and Dodd) first taking up a prospecting claim of 150 feet along the course of the reef, to the time when they, together with Messrs M’Liesh and Crozier, applied for the extended claim of 360 feet under section 122 of the by-laws, on the 26th September, 1864 – and from thence to October 1864, when a fifth of the claim was transferred to Hayes.
(The miner’s rights purporting to belong to the defendants were put in, but were refused to be received as such by Mr. Atkins, but simply as the documents themselves.)
Mr. Martley then quoted the entries from the mining registrars books in connection with the transactions to which he alluded, the whole of which were duly entered. The defendants Baker, Dodd, M’Liesh and Crozier, had miner’s rights in March 1864, which expired in March 1865, subsequent to which, and at the time of the transfer to Hayes, (as plaintiffs believed) they had no miner’s rights.
Mr. Martley then quoted section 122 of the bye-laws, 1864, referring to extended claims in abandoned ground for the erection of steam machinery. The 120th clause interpreted this to mean where claims had been sunk to a depth of 100 feet, or to the water level. In ordinary cases under those bye-laws, miners were only allowed 50 feet each along the course of the reef, but in order to encourage the miners, 90 feet per man was allowed on abandoned reefs where sufficient gold could not be obtained to pay to work an ordinary claim, or where the water could not be mastered. Connected with 122 were clauses 94, 95 and 101, alluvial mining, to which the 122nd clause specifically referred. Clause 95 said – “Failing to comply with these conditions (that was those of that and the former clauses alluded to) the claim shall be forfeited.”
Mr. Orme: Do you hold that also governs clause 94?
Mr. Martley did so. He then referred to clause 113 as to marking claims and the clause 115 as to keeping notices posted on the claim containing the name of shareholders.
Mr. Atkins here asked what section of the act Mr. Martley was relying upon.
Mr. Martley said the 77th section of the Goldfields Act No 32.
Mr. Atkins said it was impossible that the defence should have forfeited land of which they never had possession. There was nothing in reference to forfeiture in the section quoted by Mr. Martley; the later must go under the 134th section of the bye-laws. He (Mr. Atkins) would object to any evidence which went to prove that his clients’ title was defective. Forfeiture implied that the defendants had at one time or other, the right of possession. The complainants must therefore choose one or other of the grounds; either that the claim had been improperly taken up, or that it had been forfeited; not both, for they involved a contradiction in terms. Mr. Atkins then went on to argue that it was for the plaintiffs to show a better title than the defendants; and that would be by a suit of (?). It would be absurd for the former to say to the latter, – “We can’t prove any title to the ground, but we wish to show that yours is a bad one.” Such a mode of action would never be sustained in any court. Possession of the land claimed by complainants must be obtained through a Commissioner of Crown Lands, or by some other legal means.
The Warden said the case appeared to him to be whether the claim had been forfeited or not.
Mr. Atkins still argued that it was for the plaintiffs to first prove title, before they could eject the defendants. He quoted a number of authorities from Wyatt and Webb’s response, to establish his position. Hering called upon the complainants to state whether their case was that defendants never had possession of the claim, or forfeiture.
Mr. Martley said they would go upon the ground that the defendants never had possession. The latter part of the summons might be taken as surplusage.
Mr. Atkins then continued to cite the authorities that he had commenced to quote in support of his argument, a number of cases that had been decided by judge Molesworth and others; viz., Sparta v Coles, Thomas v Kinnear, Martin v Dunbar. In the latter case especially, Dunbar succeeded in establishing his title as against Martin, but one Mason being in possession and refusing to give it up, a mandamus was obtained against him, but the Chief Judge decided that as his (Mason’s) title was not in question, he could not be removed by the action against Martin. Mr. Atkins also quoted the case of Land verses Thomas in support of his view.
Mr. Orme said the complainants claimed to be placed in possession of the land alleged to be in illegal occupation of the defendants, under their, the complainants miner’s rights. It was difficult case, when a person having no title sought to obtain possession of another’s property. The miner’s rights gave them a kind of title.
Mr. Martley claimed the case of Land v Thompson was on all fours with his, and completely disproved Mr. Atkins’ argument.
Mr. Orme enquired whether Mr. Atkins went the length of contending that a miner in legal occupation of Crown Lands for mining purposes, could not be dispossessed.
Mr. Atkins did not say so, but contended that no one could be dispossessed by being called upon to show the weakness of his own title.
Mr. Martley then continued his address, and said that if his friend had not been so quick in interrupting, he would have better understood him (Mr. Martley’s) meaning. Mr. Martley then, in controversion of Mr. Atkins’ argument, said that a Warden only had a right to give possession; a Commissioner of Crown Lands could not do so. That point was made clear by the Goldfields Act. It was therefore to the Warden that the complainants had a right to apply for redress, and to put the defendants on the proof of their title. The ejection of persons from private land was quite a different affair. Possession was undoubtedly nine points of the law in this as in every other case. The first and 3rd sections of the Goldfields Act, under which the present case was brought, entitled the miner to hold Crown lands for mining purposes in such quantities and forms as were prescribed by the bye-laws of the various districts; and compliance with those bye-laws alone gave the miner the right of possession of such lands. There was a marked distinction between the bye-laws in the Maryborough District and those in other districts. In the former there was no such thing as taking forcible possession by marking out ground already claimed, but parties must in all cases seek redress through the Warden. Mr. Martley then quoted the 132nd section of the bye-laws, 1864, how to take possession of a claim. No one had a right to trespass on the ground, but must call upon those already holding the claim to show that they were in legal occupation thereof. The title of all miners was the miner’s right. It was a mistake to entitle the case of Land and Thomas one of encroachment. It was, as stated, by the Chief Judge, really for a non-compliance with the bye-laws. In the present case he should be able to show that the ground applied for as an extended claim was not then unoccupied or abandoned ground, and should not be taken up under the 122nd clause. Mr. Atkins said he should object to any evidence being given as to the defective title of the defendants.
Mr. Martley continued: He would be able to show further that the ground had not been marked out in accordance with the bye-laws.
Mr. Martley here quoted the case of Duffy and Tait, at Redbank, where the defendant, who had gone to a great outlay having registered his claim, failed to take it up at the close of the same, and was held by the Chief Justice to have forfeited it. So the defendants could not take up 90 feet each where they were only entitled to 50 feet. He did not seek to interfere with the 150 feet which constituted the original prospecting claim. The extended claim was never marked. It was a dodge on the part of the defendants to do so. Mr. Martley then referred to a plan of the ground to show where the posts ought to have been placed. The first time any marking out took place was Tuesday the 4th instant. At any rate, the five defendants could only claim 250 feet, and would then hold an excess of 110 feet. A post must be something substantial, not as thin as a piece of wire, and must be kept up during the working of the claim. That was of equal importance as the marking out. Then the names &c., of the holders must be kept posted. To justify the defendants in taking up the extended claim they must have abandoned the prospecting claim; whereas on the contrary, they continued to work it. Then the ground they took up in addition to the prospecting claim was virgin ground, and had not a single shaft upon it, instead of being that kind of ground described by the 122nd bye-law. It was also believed by the plaintiffs that some of the defendants had not miner’s rights when they transferred to Hayes in 1865.
Mr. Orme said surely Mr. Martley would not go the length of saying that because the butt of a miner’s right could not be found at Dunolly, therefore no such document could have been taken out in any other district.
Mr. Martley said his Honor Judge Skinner had ruled that where a miner’s right was not produced, and no butt could be found in Sandhurst, it was sufficient proof that the person did not posses one. A notice of the intention to apply for registration should have been posted on the claim and at the registrar’s office, to give persons the chance of objecting to the granting of the claim; but this had not been done, neither had any plan or survey of the ground been made. This was doubtless all designedly omitted; in fact, a fraud had been committed upon the bye-laws. If he (Mr. Martley) could substantiate these facts by evidence, which he was instructed he could do, he submitted that he would have fully established the complainants’ case.
James M. (Moellor) Robertson, sworn, said he was Mining Registrar and Surveyor for the Dunolly Division. The plan produced was that of the Goldsborough claim, and was made by himself from a survey of his assistant.
In order to prove the survey, James D. Baxter was sworn, who said that he made a survey of a certain line in a claim at the Bealiba Reef, given to him by Mr. Robertson. Did not plot the survey. Made an entry of the survey in his field book.
The Court then adjourned.
Tuesday, June 11, 1867.
James D. Baxter re-examined: Produced a leaf of his field book, and a plan plotted from the same. He had examined the centre lines of the plan produced, which was correct. The shafts, engine house, and workshop were as laid down in the plan. Found one peg on the centre line, about 10 feet south of the 250 feet boundary line. Did not look for any other pegs.
To Mr. Atkyns: Did not notice any other shafts on or near that line. The north and south pegs were pointed out to me on the 8th instant by Mr. Conolan, Mr. Robertson’s clerk. The length between the pegs is 363 feet. Will not swear there are no other shafts between the shaft on the plan and the blue line representing the boundaries. Saw two posts east and west of the line I surveyed; did not know what they represented.
J.M. Robertson re-examined said: Mr. Baxter handed him a leaf of his field book (marked A). Plotted from it the supposed line of the reef, which line was taken from the first claim, marked out. Got that line from a former survey made by himself, and of which he had the entries in his field book. Witness fixed the southern boundary of the claim of 365 feet in the occupation of defendants. The southern boundary was the northern boundary of the Queens Birthday Company’s leased ground. Surveyed that lease himself. The boundaries were shown on the plan produced.
Mr. Atkyns: that any plan should be accepted because it could not be identified with the 210 feet named in the summons.
Mr. Orme said so far he had always allowed such information to be supplied as would lead to the trial of the real facts of the case. He had very large powers conferred on him by the Act.
Mr. Atkyns then requested his worship to note the fact that he objected to the production of a plan as evidence to identify the 210 feet mentioned in the plaint.
Mr. Orme noted the objection.
Mr. Martley said there was a difference between actions of ejectment in the Supreme Court, and cases held in the Mining Courts. In actions for ejectment the land must be specified. The objection was really one as to “place,” which was provided for by the Act. He stated in his opening speech that it was the 210 feet south of the 150 feet prospecting claim.
The evidence them proceeded, and the plan was put in and marked. The extreme northern boundaries of the 360 feet were pointed out to witness by a man working in Finlay’s claim.
Mr. Trench objected to any such evidence of the boundaries.
Witness proceeded: The position of the four corners of the 365 feet were correctly laid down on the plan. The shaft and engine house were also shown. The only shaft in the 210 feet was commenced three months ago. Found a peg at the north-west corner, but none at the north-east corner; at the south east corner two very small pieces of wood. There was a post at the south-west corner. On the centre line found a post lying on the ground.
Mr. Atkyns desired his worship to note the fact, that he objected to all evidence which meant to show the defendants defectiveness of title, and asked that the following point should be reserved for the Chief Judge. ‘That in a case of this kind, where the parties were applying to be put in possession simply because they held miners’ rights, they could not put the defendants on the proof on their title, but must recover on some title of their own’.
Mr. Martley quoted a decision of Judge Mollesworth’s to show that as a rule in such cases as the present, the parties should be put to appeal, and no special case should be reserved.
Mr. Orme said it was at the discretion of the Warden whether or not to state a special case. If he felt there really was no special case to send, he would not do so, but if he had any fair grounds for making his orders he would.
Mr. Atkyns objected that his Worship had no jurisdiction to try the case.
Mr. Orme appreciated that the question to be tried was, whether the defendants had any title to the ground or not.
Mr. Atkyns contended that the 195th section of the Mining Statute, which was an interpretation clause of the subsection of the 101st shewed that the Warden could only hear cases for “the recovery of land,” etc.
Mr. Trench: the 195th section was for the plain purpose of guiding the Warden in reference to his jurisdiction as laid down in the 101st. The plaintiffs had now an entirely new case to that which they commenced. They began, as was plain by their summons, with a case of forfeiture, and now they urged the defendants never had possession. He (Mr. Trench) believed that had the defendants demurred to this radical alteration at the time it was made, it would have been fatal. He objected altogether to new cases being made up, or they might go on with that sort of thing for ever. They (the defendants) now for the first time knew what the case was. It was in substance that the holder of a miner’s right might come before the Warden and say “I think that miner’s claim is only marked out with two feet six instead of three feet pegs – that is six inches too short, and I demand to be put in possession of his claim.” If anyone were to be turned out of his claim for that, where were they to stop? If a claim could be forfeited because a peg was six inches too short, then an inch, and if an inch then a hairs breath! Was such a thing consonant with reason or common sense, when in every other respect the claim was properly worked? Mr. Trench then proceeded to argue that the case of Land and Thompson was plainly one of encroachment. It spoke of defendants “prior title,” which meant prior occupancy.
Mr. Martley said he was present at the trial and said the question was not so. The only thing that was binding in the report in Wyatt and Webb (which was a mere transcription of the Argus report) was the Judge’s written decision.
Mr. Trench then read the decision of the Judge to show the case, whatever entitled, was really one of encroachment. It was not similar to the present one in any respect; one miner’s right was a good as another. Any person therefore in possession of land having a miner’s right, had a claim to hold against other persons who had not a paramount title. The learned Counsel quoted the case of Fahey v Kohinoor, to show that this principal was clearly approved by the higher courts.
Mr. Orme asked if this were the case how A was to get possession of land wrongly held by B.
Mr. Trench would rather not say, as that would be telling plaintiffs, who had brought a wrong case, how to proceed; but his Worship on reflection would see his way very clearly out of the difficulty.
Mr. Orme: It was argued then that a person not in possession had no title?
Mr. Trench again referred to the 195th clause of the Act, as to the powers of Wardens.
Mr. Orme: The 101st section says “shall have power to hear any suit.”
Mr. Trench continued: The owner of a miner’s right was only entitled to take possession of vacant ground. If the miner’s right entitled the holder to take possession of any other person’s ground, why go to the Warden at all? Mr. Trench referred to the 246th section of the Act, as further defining the Warden’s powers.
Mr. Orme then took a note of the objection of Mr. Trench – That all cases where the Warden had jurisdiction to decide as to the possession or title to land where enumerated in the 195th and subsequent sections, and again in the 246th section of the Goldfields Act.
Mr. Martley said he had to deal with two objections. First – the want of jurisdiction of the Warden, which he though had been fully discussed. That jurisdiction, under the sub section of the Mining Statute, evidently applied to all cases in which persons were in illegal occupation of crown lands for mining purposes. He need hardly go farther than that to show that the Warden was expressly invested with full power to hear cases precisely similar to the present.
Mr. Martley then quoted the 77th section of the Goldfields Act, to show that the Warden had always possessed that power. All this proved that the Warden could try the title of defendants, and if he found it defective, put the plaintiffs in possession. A crown lands bailiff could only deal with those lands under his control, and not the lands used for mining purposes.
Mr. Orme ruled that he had jurisdiction to try the case, and would therefore act accordingly.
Mr. Martley continued, – the ingenious argument of Mr. Trench as to the meaning of ‘claim; in clause 132 would, if allowed, have the effect of compelling the Warden to dismiss every other case in order that he might hear it! It reminded him of the discussion of the ancient theologians, as to how many thousand angels could dance upon the point of a needle. A claim meant the portion of land occupied by a miner or miners. They (the complainants) could not – in Maryborough, as in other districts – mark out the land they claimed, or they would have been trespassers, and by that very act have forfeited their right to the ground. The simple case was – that the complainants applied to be put in possession of the land in question because the defendants had not complied with the bye-laws. The word ‘claim’ could not possibly be defined to mean only the land of which any person were in legal possession.
The objections of Mr. Atkyns and Trench were overruled by the Warden.
Mr. Atkyns said that was the proper stage to apply that the further hearing of the clause might be stayed until a special case had been submitted to the Chief Judge; especially as to whether the evidence to be produced by the plaintiffs should be heard or not. If the Judge decided that his (Mr. Atkyns’) and Mr. Trenches objections held good, the evidence would be dispensed with; if otherwise, it must be taken, and the case would have a great deal of time to adopt this course at present, and perhaps prevent injustice.
Mr. Orme would take the evidence subject to the decision of the Chief Judge. He objected to state a case until the whole of the facts were before him, and he could so place the case before the Chief Judge as that on reception of his judgement, he (the Warden) could at once proceed to make his order.
Mr. Trench would put the matter in a stronger light before his worship. The plaintiffs had come into Court to pick holes in the defendants’ title like those stickers up who went around the country to entrap sly grog sellers. This case was brought for the purpose of picking up stray notions as to the grounds to be taken in the one that followed. Plaintiffs might find some defect in defendants title which would enable them to tune their next case, and make that detection by the aid of evidence that ought never to have been received. Therefore he submitted that that was the stage for the case to be stated to the Chief Judge. The two other cases for which summonses had been issued, should then, be so amended as to let the Judges decision guide all three.
Mr. Martley preferred to conduct his case in his own way. He then read the clauses of the Act referring to cases stated; contending that they referred to points reserved, while the evidence was proceeding, and could not be placed before the Judge until the case had closed; so that on receipt of the Judges opinion, the Warden would have nothing to do but make his order. He knew of no instance of arresting a case in the middle of the hearing, to lay the points before the Chief Judge. If so, the Judge might decline to adjudicate upon the case, and it could not be again proceeded with. The notes of the Warden or Judge were sometimes applied for by the Chief Judge in order to guide him in coming to a decision. He would therefore strongly protest against any case being stated until the evidence was concluded.
Mr. Orme was of the opinion the whole of the evidence should be taken, prior to any points being submitted for the decision of the Chief Judge. He did not consider the case ripe enough to be sent to that tribunal, and therefore declined to lay himself open to the blame that must be attached to him if he adopted the course urged by the counsel for the defence.
Mr. Robertson proceeded: Found a post two or three feet long at the centre of the northern boundary lying on the ground. Did not know whose posts they were that marked the boundaries. Had had a private conversation with two of the defendants (Baker and Dodd) on Friday last and asked them to show the pegs of their northern boundary. Dodd said we constituted under a limited liability company, and we refer you to the legal manager. Tried to get information about the pegs but could get none. Had been Mining Surveyor and Registrar about nine months, and then took charge of all the books and papers the late Registrar had in his possession. Produced the registration book. Read there from the following entries: – ‘December 31, 1863 – the registration of a quartz claim, 150 feet; Bealiba Reef, Old Dunolly; registered under bye-law 3, section 4: Henry Baker, Robert Dodd; numbers and dates of miners’ rights; registered bye-laws 1862.’ Second registration: – September 26, 1864 – registration of quartz claim, 360 feet; Bealiba Reef, Old Dunolly; section 122; Henry Baker, W. McLiesh, S Crozier, R. D. Dodd; numbers and dates of miner’s rights. ‘October 17, 1865. – Transfer of 72 feet to W. Hayes.’ Had no doubt that the transfer referred to the claim previously registered. There was but one Bealiba Reef and that was the only registration in the book of 360 feet upon that reef. There was no other registration to the present date. Had searched in the office for a copy of the intention to apply for registration; also searched for a plan of the survey, which he could not find.
To Mr. Trench: Don’t know George Henry Murray, nor where he lives. Don’t know William McGregor of Dunolly; know a William McGregor of Swanston street, Melbourne, a coach builder; I believe him to be one of the plaintiffs. He has no residence in Dunolly; have never seen him in Dunolly. Don’t know who took out his miner’s right, or whether it was taken out with his sanction. Saw him last about Christmas. Heard Mr. Baxter’s evidence given in court. Told him to ascertain the position of the shafts and engine house along the centre line of the reef, to enable me to plot a plan of the survey. I was told where the centre line was when I made my former survey; upon that I made the present survey. Will not swear that the centre line is correct. The bearing of the claim is north five degrees west. A man at work in No 1 north pointed out a peg as the southern centre line of that claim. Took the centre lines from the surveys of the claims I made north and south. Made an inventory of all the papers I received from Mr. McMillan: handed him the list. Received no plans of any kind. Never refused to take any documents from Mr. M’Millan.
To Mr. Martley: Had some conversation with Mr. M’Millan in connection with the mining plan, after my search in the office.
The Court was adjourned.”
13-6-1867 Dunolly and Bet Bet Shire Express.
The interest attached to the trial in re the Bealiba Reef jumping has caused us to omit many other matters on account of giving the arguments and evidence pretty fully. The case not having been closed yesterday, we shall publish the remainder thereof on Monday. Only one other witness has to be examined on behalf of the plaintiffs.
17-6-1867 Dunolly and Bet Bet Shire Express.
The Great Jumping Case.
Warden’s Court, Dunolly, Wednesday June 12, before Warden Orme.
James Caldwell, sworn: Went to live about a mile from the reef about the month of February, 1864; lived there till about September or October of the same year; recollected when Baker and Dodd were working the (fifteen?) feet claim; they had a donkey-engine of two or three horsepower on the ground; saw the claim frequently; work was going on all the time; there were two centre pegs on the ground occupied by Baker and Dodd; their two other pegs, one adjoining the claim north and the other that south; the engine was on the ground all the time; never saw any side pegs; saw nothing done to the south peg; about twelve or fifteen months after witness went to the ground he saw that the south peg had been moved about a hundred feet farther south; when he first saw the ground there was one shaft sunk by Pike and party on the ground south of the 150 ft claim; did not think it was sunk more than 35 feet.
To Mr. Atkyns: By looking down the shaft I thought it was about 35 feet; a shaft was sunk by Smith and party south of Pike’s two or three years ago; did not know a Frenchman that was working on the ground; there was no shaft south of Smith’s at that time; there were two shafts at work and the prospecting shaft; the claim King was north of the prospectors; this was previous to the coming of Baker and party; saw a shaft on the ground said to be King’s; the persons who subsequently worked the ground called Kings were not there all the time witness was (witness corrected himself by stating that he thought they did not remain there all the time); did not know the time they abandoned the ground; heard that it was because the water was so heavy that King left the ground; think that Pike and party, in the south claim were not there when I left; they were not at work then; never knew them to work in more than one shaft; will not say there might have been two or three shafts on the ground; the water level is at nine feet.
To the Warden: the ground is level there.
To Mr. Atkins: The stage in the shaft said to have been worked by King was nine or ten feet in depth; the two centre pegs might have been moved before I left in October, but I think not; work was not stopped to my knowledge up to October; would not swear to being on the ground in September; there might have been a cessation.
To Mr. Martley: Pike’s party baled out the water while sinking; and engine was on the ground during the whole time until he (witness) went away; the engine was still on the ground twelve or fifteen months after he went there; generally saw either Baker or Dodd working the ground.
To the Warden; The engine might have ceased work in September.
George Guy, being sworn, produced a copy of notice served on the defendants by him to produce miner’s rights, plans and papers connected with the case.
Mr. Atkyns: Believed that Mr. Crabbe was retained by Mr. Dunbar; know that he was also retained by Mr. Watson; was not aware that other persons were in possession of those documents; didn’t know McGregor or Murray.
To Mr. Martley: heard Mr. Watson instruct Mr. Crabbe.
John Smith, sworn, stated that he was a shareholder in the Queens Birthday Claim. (This witness caused some amusement on being asked whether he had a “bad cold” mistaking it for a “black coat” and indignantly repudiating the propriety of such a question) Took the ground up in 1865; did not know the reef before that time; was never within miles seven or eight miles of Dunolly previously; Baker and Dodd was north of and joining the one witness took up. Baker’s people then had two shafts in work; believed that another party had left the ground had sunk three (witness then described the shafts); the other three were south of the buildings then used as an engine house; saw six pegs at the south end; Bakers party showed them as having been put in by the surveyor. (The witness here stated the that the pegs, if measured from the surface, would be found to be much higher than they now appeared, as they were partially covered with sand.)
Thomas Carvosoe sworn, said: Knew the reef described as Bealiba Reef. Had known it since September 1866. Was some time working the ground for the Goldsborough Company. (mentioned the names of defendants and several shareholders) The claim was reputedly to be 360 feet in length. In October looked for pegs and could not see them. Baker said the surveyor had made that alright. Did not tell Baker he could not find the pegs. Only found one peg. Looked where he supposed the other pegs should be.
To Mr. Trench: Was once mining manager of the Goldsborough Company. Was never told by Mr. Yates to look to the pegs. After I was subpoenaed Mr. Dunbar sent to tell me that he wanted evidence as to the pegs. Was about seven months in the Company’s service. The Company was not satisfied with my conduct in some way. Did feel annoyed at being discharged, and may settle it with the company some day. Got a character from them as to honesty, but not as to ability.
Henry Sparkes sworn, said: Had known Baker and Dodd’s claim about two or three years. Recollected that when they took up the claim first. There was a small engine on the ground. Was digging about the neighborhood. Was at the claim several times. Had eighteen months ago, and on and off since, been working for the Goldsborough Mining Company. Baker and Dodd, the defendants, were first working the north end of the same claim. Remembered about the time when M’Liesh and Crozier came into the claim. They were working it off and on as they could not get on with the donkey engine. The engine was always on the ground. Had seen pegs in the ground off and on. Did not go to the ground to look at them. Saw pegs on the ground Tuesday; one was a new one. Saw Mr. Dodd put in a peg on Tuesday 4th instant. Mr. M’Millan and several shareholders were also there.
To Mr. Atkyns: Intend to sue the Company for contract money they would not pay me.
James Cameron sworn, said: Worked in Baker and Dodd’s claim from 20th November, 1866 to the 28th May, 1867. Never saw any pegs in the ground. Asked M’Liesh to show me the centre peg at the north end. He pointed out the place it ought to have been, and he said it must have been knocked down. Had been over the ground frequently and never could see any pegs, except one centre peg on the south end.
To Mr. Trench: Was a mate of the last witness. Do not intend suing the Company for money on the contract, because I think I have no claim.
J.W.S. Butt sworn: Was receiver and paymaster at Dunolly. Was so in 1865. Had the butts for miner’s rights for that year.
Mr. Atkyns objected altogether to the production of the butts.
Mr. Orme held that the defendants were not compelled to show their miner’s rights, which were in the nature of title deeds.
Mr. Martly argued that they were public documents, and therefore must be produced.
Mr. Orme said his view had been supported by Judge Macoboy, who had ruled that a defendant was not obliged to show his miner’s right.
Mr. Martly said in the Sandhurst Court of Mines where a document was in the nature of a duplicate of an original, it was right to subpoena the proper officer to produce that duplicate.
Mr. Orme said he did not attach much importance to the evidence, the miner’s right may have been taken out at Tarnagulla or elsewhere. The production of such evidence seemed to be a side wind to get in what could not otherwise be obtained. Did Mr. Martley contend that the butts could be accepted as primary evidence?
Mr. Martly did so, and still contended the miner’s right was a public document. It was altogether different from a private deed. There was no such thing as a good title and a bad title: there was a title or no title.
Mr. Atkyn contended that no person was bound to show his title deeds. If therefore it was right to withhold a miner’s right was a condition precedent to plaintiffs coming into Court, but not so with the defendants.
Mr. Martly quoted Taylor on evidence in reference to documents that need not be produced, “unless it be of a public nature”. He also directed attention to the difference in the words of the Goldfields Act and the Mining Statute – showing that a person could not hold possession of land unless he had a miner’s right.
The Warden here took a note of Mr. Martly’s objection, that the notice to produce the miner’s right had been served on the defendants; and, as they had not produced those rights, he was entitled to prove whether they had taken them out at Dunolly, by the production of the butts. He (Mr. Orme) ruled that the defendants were not bound to produce their miner’s rights, which were in the nature of title deeds. Mr. Butt therefore could not be called upon to produce the butts of such documents.
David. B. Watson sworn: Produced his miner’s right.
To Mr. Trench: Am in partnership with the complainants in this suit. Agreed to join them on the day the summons was taken out. Mr. Dunbar was present.
Mr. Martly objected to these questions to persons who were co-complainants, unless it could be shewn that one of the party was hostile.
Mr. Orme said it had been broadly stated that in a previous case before him, if not two, the parties were myths.
Examination continued: Mr. Barlow and witness are partners in a claim adjoining that in a dispute . Mr. Barlow came to me at Ernstsen’s Hotel – Mr. Dunbar was there. Expected Mr. Barlow. It was then the arrangements were made. Don’t know James Henry Murray; never saw him. Mr. Dunbar did not tell me who he was. Did not agree with Mr. Ernstsen. Don’t know William M’Gregor the complainant in the case. Don’t know how it was M’Gregor was joined in the suit. Heard that he was a friend of Mr. Conolan and Robertson (the Mining Surveyor and his assistant) Remembered the name being connected with a case in a claim in shingle gully, in which witness was interested.
To Mr. Martly: Had contributed towards the expenses of the suit; as also had Barlow and Ernstsen.
Ernest Ernstsen produced his Miner’s right.
To Mr. Atkyns: Know Watson and Barlow, but not M’Gregor or Murray; nor where they live. Engaged in the suit last Monday or Tuesday week. No one proposed to me to take up the ground. Told Mr. Barlow and Watson that as they had taken it up they may as well take me in. They said they would. They did not say anything about any other persons being in it. Heard that M’Gregor and Murray were to be partners before I joined. Did not hear that Mr. Dunbar was to represent Murray’s share.
Mr. Martly again objected, and said that the attorney was responsible for the bona fides of the parties in the record.
Mr. Atkyns said he had been informed that Mr. Murray was really Mr. Dunbar, and Mr. M’Gregor Mr. Robertson.
To Mr. Atkyns: Never knew that Mr. Dunbar or Mr. Robertson were connected with the party.
To the Warden: Mr. Dunbar informed me that Murray and M’Gregor were parties to the suit.
To Mr. Atkyns: That was a day or two before the arrangements were made.
W. Barlow produced his miner’s right.
James W. Dunbar, attorney for the complainants, sworn, said: He received instructions from Messrs Watson, Barlow, and Ernstsen, in the present suit. Knew James Henry Murray, who was a first cousin of his. Murray generally resided in Melbourne. The last time witness heard form him was some years ago, when he said he was going to New Zealand. Did not know whether he was there or not. Produce and old miner’s right of Murray’s of 1862. Murray did not posses other mining claims in the Dunolly district to witness’s knowledge. Had acted as Murray’s agent ever since he (Murray) had been out of the colony. Took out the miner’s right in his name now produced, and had taken out other miner’s rights for him. Witness represented Murray for the purposes of the present suit. Had no pecuniary interest in the matter, except in costs, of which he had received about £80, including Mr. Martly’s fees and refreshers. Did not receive any retainer from M’Gregor previous to the issue of the summons, but was instructed to insert his name as a plaintiff in the suit. Had since received a letter dated the 8th June, and an envelope post marked Melbourne the 10th June, (The letter was signed Duncan M’Gregor, and stated that the miner’s right was wrongly taken out in the name of William M’Gregor. It authorised Mr. Dunbar to represent the writer in the suit)
To Mr. Trench: The nature of my agency with Murray was that he asked me if I saw any good spec I was to take it up on his behalf, and if it turned out anything I was to have a commission. Can’t tell the precise date of the transactions; it was within ten years. Made £50 out of one of the transactions about five years ago. Can’t tell how many years it is since I received the last letter from Murray, who was then in New Zealand. Believe he is in New Zealand now. The transaction in which I got the £50 commission or bonus took place at Inglewood. Believe I took the interest up in my own name. Murray sold the share in Melbourne and sent me £50. Had the miner’s right addressed “James Murray, Dunolly.” Because I was resident there. Don’t recollect any other dispute in which I have appeared on his behalf. Have never opened an account with him. Don’t know who took out M’Gregor’s right. The first I knew of his residence was what he heard in Court from Mr. Robertson. Was told M’Gregor was to be one of the parties to the suit, and his miner’s right was handed to me. As the defendants have sworn they do not know M’Gregor, I do not think I was introduced by them to make him a co-plaintiff in the suit. (Mr. Dunbar here handed in another letter from Duncan M’Gregor, dated 10th instant, authorising him to appear in the Warden’s Court in the suit) Received the letter postmarked the 10th previously to that dated the 8th. Think I received it yesterday. Don’t know who wrote the letters. The envelope that contained the letter of the 10th bore the Melbourne postmark. Destroyed it. Don’t know “who the friend in Dunolly” referred to in one of M’Gregor’s letters is. Sent a telegram to M’Gregor on the 11th instant, telling him not to answer any telegrams from Dunolly except mine. Was retained for the Goldsborough Company in the case against the Queens Birthday Company. Returned the fee before brining the present action. (Witness here read the letter he sent explaining why he returned the fee.) Watson came to me and asked me if I would take a case against Baker’s claim, on Bealiba Reef. Declined to do so because the defendants were my clients. Watson said, ‘I have been a client of yours and so has Barlow.’ Still said I did not like to do it. Had been asked previously by Mr. Yates, the manager of the Goldsborough Mining Company, under what terms I would become solicitor to the Goldsborough Company, and what annual salary I would require. Think I said £50 a year, I to receive costs and they to pay them. Yates said they would not pay me 50 a year. They consulted me in the case of a dispute with the Queens Birthday and I held a retainer in that case, which I considered bound me. Subsequently agreed to take up this case. Had I wished to be a plaintiff I should have used my own and not Murray’s miner’s right.
To Mr. Martley: It was owing to some enquiries made in reference to the miner’s rights on the first day of the trial that I sent to M’Gregor.
To Mr. Orme: Don’t know how it was I acted for M’Gregor, unless one of the plaintiffs instructed me to do so. Believe either Watson, Barlow or Ernstsen told me to include M’Gregor in the suit, and that no one else was present.
Mr. Martley stated that Mr. Robertson was absent on official business; all he wanted to prove by him was that Mr. M’Gregor’s writing and that he was the “friend in Dunolly” mentioned in Mr. M’Gregor’s letter.
Mr. Atkyns objected that a witness should be examined on a subject on which he had from the first been challenged, – it might lead to perjury being committed.
Mr. Martley said Mr. Robertson should be allowed to refute the charge that had broadly been made against him, – that he was the M’Gregor, a plaintiff in the suit.
Mr. Atkyns still objected, and said that Robertson had had an opportunity of explaining who M’Gregor was when he was in the box. Mr. Trench said that the additional evidence would only show that Mr. Robertson, as a public officer, had been mixing himself up with and instigating litigation in mining suits.
Mr. Orme said he thought that Mr. Robertson had a right to clear himself, but – as it was the neglect of the plaintiffs that had caused the delay – they must pay the costs of the day, which had been fixed at £7 1s 6d. The Court then adjourned.
Thursday June 13
Mr. Martley explained that Mr. Guy had made a mistake in his evidence in saying that he served Mr. Hayes with a notice to produce papers. He (Mr. Guy) had served a servant of Mr. Hayes’.
The explanation was accepted.
John M. Robertson, Mining Surveyor of the Dunolly Division, sworn: knew the signatures attached to the two letters produced. They (the signatures) were in the handwriting of Mr. Duncan M’Gregor, coachbuilder, Swanston Street. “Witness supposed the “friend at Dunolly” referred to in the letter, was himself, as he had asked M’Gregor to employ Mr. Dunbar.
To Mr. Atkyns: Did not advise M’Gregor to take up the claim; only advised him to employ Mr. Dunbar. Don’t know how M’Gregor first knew of the suit so as to take an interest in it; it was not from witness. Advised M’Gregor to employ Mr. Dunbar the day after the summonses were taken out. It was because M’Gregor was continually corresponding with witness that he (witness) advised him by either writing a letter, or telegram to employ Mr. Dunbar. Meant Monday the 3rd by the day after the summons was served. It was not by letter but by telegram. The telegram was: “Believe a miner’s right has been taken out for you, – Mr. Martley objected to this evidence.
A long argument here ensued upon the point, Mr. Atkyns quoting the Law of Evidence to show that he did not intend to contradict the witness, the latter had a right to give evidence as to the contents of a written document, and Mr. Martley contending that cross-examination of a witness could be for no other purpose than discrediting his testimony.
The Warden said he would order the production of the telegram, which would put and end to the dispute.
The evidence then proceeded. Did not take out M’Gregor’s miner’s right. Did not know who did so. Did not tell Mr. Dunbar that M’Gregor was to be one of the parties to the suit. Mr. Dunbar spoke to me about M’Gregor on Saturday last, I mean Saturday week, and about him (M’Gregor) being one of the plaintiffs. He asked me where M’Gregor lived, as a miner’s right had been taken out for him.
To Mr. Martley: I was not acting for M’Gregor.
To Mr. Atkyns: Mr. Dunbar said a meeting of the plaintiffs had been held, and a miner’s right was wanting, and he (Dunbar) suggested that one should be taken out for M’Gregor. Witness then corrected himself by saying that it was suggested by someone present that a miner’s right should have been taken out for M’Gregor. Gave Dunbar the address of Duncan M’Gregor, coachbuilder, Swanston street, Melbourne. Don’t know who was at the meeting of the plaintiffs. Decline to answer what official business I was absent on yesterday.
The Warden said it had been broadly stated that he (witness) represented M’Gregor’s interest, and that it was for him to decide whether he would reveal or conceal all he knew.
Witness then said he was anxious to explain everything. I was, yesterday afternoon, re-examining some lease posts which had been put in by me and which I was told by Charles Polson, the applicant, had been removed. Walker’s Reef Bet Bet, is five miles from Dunolly. Left Dunolly about two and returned a little after three.
To the Warden: Went ten miles and transacted my business in an hour; only had to replace one post, and my assistant (Mr. Conolan) was there.
To Mr. Atkyns: Mr. Conolan was at one time Mr. Dunbar’s clerk: hurried up to the court when he (witness) returned and found that it had been adjourned; didn’t know whether he sent a telegram to Melbourne Monday or not.
Mr. Martley said that it had been clearly proved that Duncan M’Gregor was a party to the suit, – and he did not see the use of the questions that were being put to the witness.
Mr. trench said the miner’s right was in the name of William M’Gregor, and that was the name on the plaint; Duncan M’Gregor was not the person at first connected with the suit.
Examination continued: sent a telegram either yesterday or the day before to M’Gregor in reference to this suit.
Mr. Atkyns then asked for the contents of this telegram.
Mr. Martley objected to such evidence being given. The question must be put for the purpose of discrediting a witness. It was a broad principal in law that a witness should not be examined on a matter that had been reduced to writing, unless the writing was produced.
The Warden said if the evidence was only for the purpose of information, not for that of contradiction, it might be given; but to end the matter he would also order the production of the second telegram.
(The witness then said he had not the slightest objection to give the contents of the telegram, which were – “Do not use my name as coupled with yours in this case,” and explained that when he saw the letter of M’Gregor’s alluding to a friend, he naturally thought that he should be coupled with M’Gregor in this matter.) Never said to Mr. Yates that as Mining Registrar I could not take up claims, but had always the best opportunity of taking up the next ground to the prospecting claim, and if he (Yates) would take them up I would go halves with him, if he took it up in his name. (Witness replied to the question by stating that it was a “gross falsehood” if such were stated.)
Edward Smith, sworn, deposed: Am post and telegraph master at Dunolly. Had been subpoenaed to produce a certain telegram, but had been instructed by the head of his department that he could not produce the same except by a Judge’s order, in accordance with clauses 10, 17 Vic., No 22.
After the Act had been consulted, the Warden said he did not see anything to prevent his ordering the production of the document.
The witness here said that no telegram of any kind had been sent to M’Gregor on the 3rd instant, nor until the 10th.
After some argument as to the power of the Warden to produce the telegram.
Mr. Orme said as no telegram had been sent on the 3rd, the order to produce was at all events useless.
Mr. Smith left the box.
Mr. Robertson recalled, said: I wish to correct my former statement by saying that I meant Monday the 19th and not Monday the 3rd instant as the date when I sent the first two telegrams to M’Gregor. The two days being on a Monday occasioned the mistake. Some months ago Mr. Yates proposed to me to act as a partner with him in his mining interests, and because I refused he has been endeavouring to undermine me ever since. Yates said “I will make it worth your while by giving you a commission.”
To Mr. Atkyns: A letter received from the Mining Board stated that Mr. Yates had charged me with receiving fees in excess. I subsequently received a letter from the Mining Department drawing my attention to the charge made to the Mining Board. Never returned any fees it was alleged I had charged in excess. Never was a shareholder in a claim in Shingle Gully. Never told any person that I was the agent for M’Gregor in that case. Did not know such a person as Pincott.
Mr. Martley objected altogether to the witness’ official character being investigated in the court, which could not constitute itself into a board of inquiry.
To the Warden: The body of the letter is the handwriting of M’Gregor’s clerk.
This closed the case on behalf of the plaintiffs.
Mr. Atkyns asked his Worship whether any case had been made out or not for the plaintiffs.
The Warden would like to hear Mr. Atkyn’s reply.
Mr. Atkyns said the case had been wrongly brought, as the Goldsborough Company ought to have been joined in the suit. They were in fact the real defendants, as they were in actual possession of the ground in dispute. Suppose the Warden made an order against the defendants, and in endeavouring to place the plaintiffs in possession, resistance were made by the parties working the ground, what then? The case of Dunbar v Martin was one in point. Dunbar had recovered as against Martin, but a third party, Mason, was in possession, against whom a mandamus was refused by the Chief Judge, because he (Mason) was not joined in the suit.
Mr. Martley said no evidence had been produced to show that the Goldsborough was a registered company.
Mr. Orme was of the same opinion.
Mr. Atkyns again objected to the reception of such evidence as had been produced against his clients. Three of their witnesses were in the position of discharged employees, having a grudge against the Company, and who sought to show that the company’s title was defective. If the reception of such evidence were the law, it would be outrageous law indeed. Mr. Atkins then referred to the 42nd clause of the Land Act, and contended that no holder of a license for twenty acres could, by virtue of that document, oust the holder of another plot. So as regarded the miner’s right.
The Warden said the one case applied to a fixed spot; the other extended over the whole of the goldfields.
Mr. Martley said the very clause of the Land Act said “ subject to conditions,’ which of course could not be transgressed.
The Warden said another distinction was, that in the case of the occupation licence, the marking of the land and defining its boundaries was a condition precedent to the granting of the license.
Mr. Atkyns still contended that it was impossible for a person holding a miner’s right to eject another person from land alone on the strength of that document. The Warden’s jurisdiction extended to where land was claimed as being held in excess. Mr. Atkyns then alluded to a want of sufficient proof of agency in the case of Murray. The last that was heard of him was that he was in New Zealand, out of the jurisdiction of the Court.
Mr. Martley said the only thing that could be required was security for costs on the part of Murray.
Mr. Atkyns said the Murray could not be cognisant of these proceedings, and might repudiate them as not being in his opinion a “good spec.” Then as to M’Gregor being made one of the plaintiffs: the proceedings were commenced on the 1st instant, and the first authority obtained from him was a letter dated Melbourne, the 8th, in reply to a telegram sent from Dunolly on the 10th.
Mr. Martley said it was obviously a mistake in the date of the letter.
Mr. Atkyns said there was a mistake somewhere, in as much as it had not been shown that M’Gregor was a party to the suit when it was commenced. Besides, there was another mistake in the name. The plaintiff was William M’Gregor, Mr. Robertson’s friend was Duncan M’Gregor. – William’s address was Dunolly, Duncan’s was Melbourne. The first idea was doubtless that William M’Gregor of Dunolly was a sufficient name for the purposes of the suit, and when it was discovered that this would not do, some one of the name M’Gregor had to be substituted – Mr. Robertson’s friend, Duncan M’Gregor, being pounced upon. One of the so-called plaintiffs was no plaintiff at all.
The Warden: What do you ask supposing your argument holds good?
Mr. Atkyns: That the suit may be dismissed. He held that if two names out of the five proved to be dummies, the rights of the others must be necessarily extinguished. The plaintiffs did not each claim so much ground, but 210 feet as a whole, and it could not be divided into parts. Another objection was that the Act said that miner’s rights should contain the Christian and surname of the holder and his place of residence. In the present case, Murray was in New Zealand while he was described as of Dunolly, While M’Gregor was called “William” instead of “Duncan” and his place of residence was described as Dunolly instead of Melbourne.
Mr. Atkyns further contended that as the rights of the plaintiffs to the ground claimed had (if at all) accrued in 1864, they must show miner’s rights for that very date. The miner’s rights produced had all been taken out within a twelve month. Again what 210 feet did the plaintiffs go for? They ought to have proceeded under the 134th section of the bye-laws “Marking more ground,” and they should have then themselves pegged out the excess, and claimed to be put in possession by the Warden. Then the proper registration by the defendants had been proved by the plaintiffs themselves, and that was in itself sufficient evidence that everything that ought to have been done, as a condition precedent to the registration, had been done. The Registrar should have seen to that, and no objection having been made to the registration within the seven days prescribed by the bye-laws, it was altogether too late to make them now. They could not go behind the registration.
The Warden: prima facie evidence of the registration has been given.
Mr. Atkyns: More conclusive evidence.
Mr. Warden: On the presumption in law that everything is done well, that is not disputed.
Mr. Atkyns asked what proof there was that no plan of the ground existed? The present Mining Registrar had been called to prove that he could not find it in his office. Why had not the previous Mining Registrar, Mr. M’Millan, who had actually been subpoenaed by the plaintiffs, and who could have told them all about the matter, been so called.
The Warden held that the proof that the plan could not be found in the Registrar’s office, was no proof of its non-existence.
Mr. Martley said evidence should be produced that the plan was in existence. He had good reasons for not calling Mr. M’Millan, who he was informed was on intimate terms with the defendants.
Mr. Atkyns continued: Robertson went to the claim and said in effect to Baker and Dodd, “show me your want of title, so that I may go and serve my friends” in a case in which it was believed that he (Robertson) was, despite his official position, interested.
Mr. Martley objected to this line of argument, and the Warden did not see that it had anything to do with the case.
Mr. Atkyns then proceeded to comment on the evidence as the non-abandonment of the original prospecting claim because the machinery was left on the ground. He quoted Longbottom and White to show that even pumping on a claim for other than mining purposes did not prevent abandonment within the meaning of the bye-laws; how much less could machinery that was stationary fail to prevent the same. Again to 150 feet prospecting claim was not a claim at all, as the bye-laws under which it was taken up were declared illegal in consequence of their variance in reference to the different divisions. The case of Jenkins v Cummins fully proved that; hence, if machinery on the ground were held to be no abandonment, the ground originally worked by Baker and Dodd did not require to be abandoned. It was proved by evidence for the plaintiffs that it was otherwise an abandoned reef. Mr. Atkyns then referred to the evidence tendered on behalf of the plaintiffs. Caldwell knew very little about it; and it was Carvosoe’s duty, who was always looking about to see where the pegs were down, to have them kept up. Baker’s reply to a question, – “That the surveyor had seen to all of that,” showed that the claim had been properly marked out. Mr. Atkyns also commented on the want of connection between the plan and the ground, it only having been surveyed by Robertson from hearsay evidence, and not from the datum point fixed by the person who originally surveyed the extended claim.
Mr. Trench said there was only one point on which he wished to address the Court – viz., as to the plaintiffs’ having failed to prove their right to sue jointly. Suppose A, B and C sued in trover for a horse, there must be a partnership agreement between them before they could do so. If it could be shown that one of them had not so agreed, the whole case fell to the ground. The mining bye-laws have express power to persons to join together for the purpose of taking up land on which to mine, but there was nothing giving them the power jointly to sue. In fact, if the Act did not empower them so to do, no bye-law could. They therefore must sue separately and individually. Again there could be no partnership unless written or verbal. The plaintiffs in the present case had made no such agreement. Three of them only had agreed together to become co-plaintiffs; therefore the agreement was not as between the five; – they had not jointly agreed to sue. If the Warden separated the interest, and decided to put three in possession of the land claimed; of what parts thereof were they to be put in possession? Were they to have thirds of fifths? The claim was for 210 feet jointly, a fifth would be 42 feet, – but the plaintiffs by a dodge had endeavoured to raise this from 42 to 70 feet, more ground than each man could hold. Neither three 70 feet plots, were the cause of action: therefore, how could the plaintiffs be separated in an action they had brought jointly? In no other court in the colony could such a course be pursued, and he has yet to learn that it could be done in that one. There was a great difference between the present case and that of Critchley and Graham. Here it was impossible that the plaintiffs could get all they asked, and the Court could grant them nothing less.
The Court them Adjourned.
Friday, June 14.
Mr. Atkyns would ask the Court, prior to Mr. Martley opening his address, to allow him to cite the opening case of Chisholm v the Band of Hope Company, reported in the Argus of the previous day, and decided by the Chief Judge on Wednesday. It conclusively proved that the Warden could not divide the land as would have to be done in the present case. The learned Judge said: “I do not think the plaintiffs could recover as co-plaintiffs pro rata according to the Critchley and Graham, 2 Wyatt and Webb, for there the plaintiffs joined and entered each his individual rights.” That was to say, his land being vested in two trustees and the company as the third (the latter not being competent to sue) destroyed the rights of the other two.
Mr. Martley began by stating that he believed he had made a prima facie case in behalf of the plaintiffs, and it was one which the defendants had called no evidence to disprove. He quoted the case of Davis v Hardy, Barnwell and Cresswell, to show that where such evidence was given, and where the facts could only be conclusively proved by the defendants, it was for the court to give a verdict for the plaintiffs. The conclusion was that the defendants had no evidence to give but such as would strengthen the case for the plaintiffs. The conclusion was that the defendants had raised a number of points of law, but had carefully blinkered others. Mr. Martley then referred to the attacks made by the other side on the attorney for the plaintiffs, and said that only having been retained in a special case, Mr. Dunbar did a great deal more than was required of him by returning his special retainer. He might have acted in the present case without being expected to do any such thing. Mr. Martley then commented upon various parts of the evidence produced to prove his case. It had been proved that the reef did not come under the head of abandoned reefs as stated in section 122 of the bye-laws, and that the conditions of section 94, 95 and 101 had not been fulfilled; section 120 defined what was to be considered an unoccupied or abandoned quartz reef, or that a number of shafts had been sunk to the water level and been abandoned. Upon this point the evidence was conclusive in favor of his clients. When a party of miners were in possession of the full amount of ground allowed under the bye-laws, they could not, without abandoning that ground, avail themselves of the provisions of the bye-laws, as in the 122nd section, and add to their claim the extent of ground allowed on an unoccupied reef, not even though it could be proved that the ground so taken up was abandoned and unoccupied in the meaning of the 120th clause of the bye-laws. That was really an abstract question of law. The ground must be so abandoned that any other miners could take it up and work it as their own, without being prevented by the party who had previously occupied it. Even though the bye-laws allowing a prospecting claim of 150 feet was illegal yet each miner would be entitled to 50 feet, and as regarded that claim any one seeking a part of it could only have claimed the 50 feet held in excess. The 50 feet per man, could be held against all the world. As to the meaning of the terms “abandoned and unoccupied” Judge Molesworth had held that there was an essential difference between constructive abandonment as to which the Warden would have to adjudicate, and actual abandonment where the parties left the ground entirely.
The Warden said where in cases a claim had been registered it was deemed to be abandoned 24 hours after the expiry of the term for which it had been registered.
Mr. Martley continued: The defendants might have held the 150 feet under one set of miner’s rights and the rest of the ground under another so long as it was properly represented. Failing that they must have abandoned the ground previous to taking up the extended claim under the 122nd clause, of which there was no proof. Mr. Martley then contended that the mere proof of registration did not shew that all the conditions precedent had been complied with, and quoted the case of Lindsay v Tullaroop Road Board, to shew that even when, as in the Local Government Act, the rate book was made sufficient evidence of the striking of a rate, yet it could be gone behind. Where prima facie evidence was given as in the present case that certain acts had not been done, they must be proved step by step. The ground intended to be taken up under the 122nd section was that which had proved to be unprofitable as an ordinary claim, and for the purpose of giving encouragement to miners. The conditions precedent to registration were such as would allow miners objecting that the ground applied for was not of the kind that should be so taken up. Then under the 101st sub section of the Act, the defendants were bound to show that they were miners by the production of their miner’s rights. The laws that governed the rights of private property were totally different to those that applied to the tenure upon which a miner held Crown lands. The Crown could come in at any time, so that the miner was almost a tenant at will. The question had never before been raised, and therefore not been fully argued. The legislation for the goldfields was of a special character, and under it certain powers had been conferred upon Mining Boards, who had defined the terms of forfeiture, abandonment, etc. Martly then referred to the case of Duffy v Tait. In that case Duffy thought he had a right to cease working because, from pumping being stopped in another claim, his shaft was swamped; but the Judge said he had nothing to do with hard ship, and was bound by the meaning of the bye-laws. Mr. Martley also again contended that the title of the defendants might be challenged by the plaintiff in the terms of the 101st sub section of the mining statute.
Mr. Orme: The question is on whom the onus probably rests.
Mr. Martley said the evidence had shifted it onto the defendants. The words of the section were “claiming to occupy under this Act,” and only the holders of miner’s rights could so claim to occupy.
Mr. Orme: You state that any person having possession of a claim, any other person may challenge him to show his miner’s right in order to prove his title!
Mr. Atkyns: At that rate any number of paupers could constantly challenge claim holders.
Mr. Martley then quoted the present statute, and the 77th section of the goldfields’ Act to show that no person could hold ground for mining purposes except under a miners right, and quoted authorities in support of the principle he was endeavouring to establish.
Mr. Orme considered that to hold that a miner might be called upon at all times to produce his title to his ground, would encourage vexatious litigation.
Mr. Martley apprehended that the fact that his Worship could give costs against the losers would prevent that, and further proceeded to argue that the defendants must produce their miner’s rights. The 246th section, as applied by Mr. Atkyns, had nothing what so ever to do with the question.
It must be shown that the defendants were not mere trespassers. It was the province of the Warden to decide as between miners in the same sense applied to them in the Act. If a man in possession of land were known not to possess a miner’s right, he presumed that then the services of the Crown lands bailiff would only be required. This was not a case of excess as argued by the other side, but one in which the ground had been illegally registered under the 122nd bye-law. Proof must be given that the defendants had complied with the conditions of registration. Notice had been given to the other side to produce the plan and other documents, and having failed to do so, it was a fair presumption that they had never existed. A collateral proof that the ground had never been surveyed was found in the fact that instead of 360 feet it had apparently been measured carelessly at 365 feet. There was no proof that either the survey or the marking out by six posts had been complied with. Part of Smith’s evidence was damaging to the defendants, as it showed that some of the posts had been partially covered by sand. The plan of the ground made by Robertson and Baxter was as good as the plaintiffs could get in the absence of correct data. Referring to the objections that had been made to two of the plaintiffs being joined in the suit, Mr. Martley said it could not matter to the defendants who gained possession of the ground if they lost it. It was only a question of costs, and Murray having been heard of within seven years, the law presumed he was alive. It was for the defendants to show by affidavit that the plaintiffs had no right to sue. The Court could not go out of its way to compel the appearance of all the plaintiffs M’Gregor was fully identified with the case, and on refusing to pay the cost of a bailiff might be put into his place to compel him to do so. Subsequent ratification had been held just as good as previous authority. Mr. Trench had argued that it required a joint agreement between the plaintiffs to enable them to sue. Their names appearing on the plaint was a sufficient agreement for such a purpose. Supposing one were to die, did Mr. Trench mean to argue that the rest could not receive their portions of the ground? Mr. Martley then quoted the sections of the Act which he contended gave the plaintiffs power to sue jointly. Under the bye-laws each man could hold 50 feet, therefore three could claim 150 feet. He had never heard such a point raised as that it required an agreement between miners to enable them to sue. He then referred to the Act as to a “misnomer” in the summons, etc.
The Warden inquired in the event of his making an order on either side how he should describe M’Gregor.
Mr. Martley said it would run – “Duncan, called in summons William M’Gregor” besides, his worship has unlimited power of amendment.
The Warden said no amendment had been asked for.
Mr. Martley said that no misnomer would make either the summons or the miner’s right a reality unless it were a case of fraud, and quoted the case of St John’s College v Murcott, in support of his argument. Such an error would be an irregularity, and not make the document a nullity. Referring to the want of abandonment Mr. Martley said it must be such an act as would leave the ground open to the world. Caldwell was frequently on the ground and the defendants were then always working. The ground was forfeited in the case of Longbottom and White because the machinery was not being used for mining purposes. His clients were not obliged to provide evidence of facts that were last known to the defendants.
The Warden said that in the case of Longbottom and White, proof that the claim had not been worked for four days was sufficient to forfeit it. It was clearly established by that case, that machinery being on the ground would not keep the claim.
Mr. Martley said the words of the bye-law were “unoccupied and abandoned.” Suppose the ground had been wanted by any other party, would not the engine being thereon, have prevented them from taking it up? The bye-law stated that a claim would be forfeited if not worked for six consecutive days. The land in question, might have been left for five days and worked on the sixth; then it would not have been abandoned. Another point urged by the other side was that under the 246th section of the Act, the Warden had no power to adjudicate the case.
The Warden was satisfied he had jurisdiction.
Mr. Martley said as to the joining of the Goldsborough Company as defendants in the suit, there was no real proof of the registration of the Company. He only had to do with the defendants, and the Warden had not to consider Goldsborough Company in coming to a decision. He quoted a case of Hunter and Attrevil.
Mr. Atkyns in reply warmly repudiated such acts as that of the plaintiffs in endeavoring to get possession of a claim which righteously belonged to those who for so great a length of time remained in undisturbed possession of it. He could only characterise it as worse than highway robbery. Suppose the defendants had a right to be put on the proof of their title, as to the present instance, they might prove it to be perfectly good today, and be called upon to do the same thing tomorrow, and so they might be worried from day to day and put to the expense and trouble of forever defending themselves in unjust actions. Would such a thing be justice, or would it be law? If law, it was both unjust and tyrannical. They would have paupers coming forward and saying “we want your property. We know we have no title to it, but we will make you prove yours; or failing that, all you have shall be ours.” In denouncing such proceedings, he spoke not as lawyer, but as a man. Some of the evidence for the plaintiffs had so utterly broken down that it actually proved the defendants case. Parties were called to prove what they did not see when they were not on the ground. Mr. Atkyns was proceeding to argue that the defendants had no right to be called upon to show their miner’s rights when, the Warden said that was his ruling.
Mr. Atkyns then went on to show that according to the Statute only miners could sue within the jurisdiction of the Court, and in reference to that jurisdiction the Statute said they were to be “suits cognisable in law or inequity.” As to defendants not being present, it had not been shown that any attempt had been made to serve them with subpoenas. Mr. Atkyns concluded by again referring to Murray and M’Gregor as myths in the suit, and who must necessarily be separated therefrom when the whole case would fall to the ground. He therefore asked that the case might be dismissed.
The Warden reserved his decision until Thursday next.
The case of Barlow and others v Hayes and others was then called on to obtain possession of 150 feet of ground in the same claim at Bealiba Reef.
Mr. Martley applied to have Mr. Ellis’s name struck out of the suit, to which Messrs Atkyns and Trench strongly objected, but eventually agreed, on the terms that Ellis should give security for costs.
It was then agreed that the decision in the first case should govern both, “subject to the right of appeal by either party in like manner, as if the present case had been heard by the Warden, and to the power of the Warden to reserve a special case for the Chief Judge of Mines on the application of either party; and it is hereby further consented that the evidence taken before the Warden in the previous suit shall be deemed to be evidence taken in this cause.”
The case of Puddicombe v Baker and others was stuck out, the summons not having been served.
The Court then adjourned.
24-6-1867 Dunolly and Bet Bet Shire Express.
Phelps and family v Baker and others. – The plaintiff appeared in the Propria persona, the defendants being represented by Mr. Trench, instructed Mr. Hoskins.
When Mr. Phelps produced the miner’s rights, which were taken out on the 7th June, and were in the names of Robert Valentine Phelps, Eliza Harriett Phelps, Eliza Phelps, Robert Law Smithsend Phelps, Alice Maud Phelps and Louisa Blanche Phelps. Before proceeding with the case, he (Mr. Phelps) wished to add the name of William Hayes to the plaint summons.
Mr. Trench said that although the Warden had the power to amend the summons in any shape, it was for him to exercise sound discretion in its use. No one should be joined who for ought the Warden knew might have interests antagonistic to the defendants already summoned.
Mr. Phelps said there were no posts erected on the claim containing the names of the owners as prescribed by the bye-laws, or he would not have made the mistake. It was the defendants own wrong by which the mistake had been caused. He had only after all been able to obtain the information from the Registrars book. He also wished to add the name of the “Goldsborough Quartz Mining Company, Registered,” to the plaint, and to introduce after the words 360 feet “in length by a width of 400 feet,”
Mr. Orme said that if the summons were amended as requested, there would still be a most serious difficulty.
Mr. Trench contended that the summons could not be amended unless Mr. Phelps could show some reason for the same, at present it only appeared that it had been caused by his own neglect in not properly searching the registration book, from which he must necessarily have obtained the information contained in the summons. He (Mr. Trench) knew nothing about the Goldsborough Company and no notice had been served upon that Company.
Mr. Phelps went on to argue that under the 104th section of the Act the Warden had full power to amend as he thought proper; in fact he (Mr. Phelps) was not in the least degree bound by his summons.
The Warden said if not objected to by the other side he might join the name of Mr. Hayes in the usual way – by allowing costs; but there was nothing whatever to connect the Goldsborough Company with the matter, whose interests might be seriously imperilled. It was not for Mr. Phelps at once to say he wanted this and that party joined in the suit, and call upon him (the Warden) to join them.
Mr. Phelps said he was quite ready to give time to the defendants, so that they might not be taken by surprise.
Mr. Trench said it was evident that the attempt to join new parties was only a transparent artifice for getting the case adjourned.
Mr. Phelps said that was not the case, although he not intend to go on that day.
The Warden refused to join the Goldsborough Company to the suit.
Mr. Trench would also object to Mr. Hayes’s name being added. There was no reasonable ground for making the application, and such a loose way of business was only trifling with the jurisdiction of the Court.
Mr. Phelps was again about to quote the section of the Act referring to the Warden’s power of amendment, when Mr. Orme said he knew that by heart. It was optional with, and not mandatory upon him.
Mr. Phelps consented to proceed under the summons as it stood, but asked for an adjournment in order to produce material witnesses in the case, viz., the defendants. He had eight or ten men out looking for them everywhere, and had been unable to find them. He asked for an adjournment for a month; the other side might then come to terms.
Frederick S. Kendall sworn, said: he had tried to serve defendants with subpoenas, (a copy of which he produced) by going to their places of residence that morning, (Thursday June 20).
Mr. Trench said the subpoenas were dated the day on which they were returnable.
Witness continued: He had searched for the defendants previously to getting the subpoenas, but was unable to find them.
R. V. Phelps (one of the plaintiffs) sworn, said: He went to Baker’s Reef on Monday the 17th instant, with the subpoenas, but could not find the defendants. Had had five or six persons out looking for them.
To Mr. Trench: Did not call at the defendants houses. I act on behalf of myself and my family, who are plaintiffs. I don’t appear as their attorney. Mr. Samuel has been engaged in their behalf. I appear as such in the absence of Mr. Samuel. The ages of my family, who are plaintiffs, are from three to four up to seven or eight years. I am acting as their guardian, and appointed Mr. Samuel as their attorney.
Mr. Trench said by the 194th section of the Act there could be no guardianship in such a matter. Minors must appoint their own attorneys; the words of the Act were “in the same manner as if of full age.”
To Mr. Trench: I took out the subpoenas for myself and the other complainants. Acted as their guardian in that respect also; will not guarantee to pay the other complainants cost if they lose the action.
Mr. Trench said the that the defendants had to look to Mr. Phelps only as security for costs. Mr. Phelps could plead coverture and there was no fund shown by which the infants’ costs could be obtained. He also proceeded to argue that although a minor could, under the goldfields statute sue and be sued, it was absurd to suppose that an infant of tender years could do so in its own right. The statement that he should act in all respects as an adult, manifestly showed that it was intended for minors who had arrived at the years of discretion, and to protect them in the possession of their claims, who worked for their own living and were a help to their parents. A child of three years of age could not possibly act “in the same manner as if he were of full age.”
To Mr. Trench: Did not offer to tear up the summons if the defendants would give me 200 guineas. The witness continued: “I am not ashamed of what I did.”
Mr. Trench: “I can assure you Mr. Phelps I did not say you were ashamed.” (Laughter)
Witness continued to say that having had an idea that it was illegal to hear the case of Barlow and others v Baker and others, on a public holiday, he mentioned it to the defendants, who offered him 200 guineas if he succeeded in breaking down the case on that account. He also swore that the defendants were material witnesses for his case.
Mr. Phelps then left the box and went on to argue the case as attorney, urging that the defendants ought to be surely comeatable.
The Warden said the difficulty he felt was that Mr. Phelps’ family was unrepresented by an attorney.
Mr. Phelps said he appeared on behalf of Mr. Samuel for them.
Mr. Trench objected to Mr. Phelps appearing both as guardian and attorney for the rest of the complainants.
The Warden: How can you do that Mr. Phelps?
In reply to Mr. Orme, Mr. Phelps then said he was attorney for the other complainants and that Mr. M’Dermott and Mr. Martley had both been retained on their behalf.
Mr. Trench again asked whether it was possible for a man to act both as attorney and guardian, to instruct and pay himself, and so on. Such a thing was never heard of before in any Court. He also said that it was equally impossible that a baby of three years old could contract, and, if it could not contract it could not retain. The whole words of the Act showed that a child of tender years could not in any way be referred to.
The Warden said if a child of two years of age, who could say – “I want a summons,” were to ask for it, he (The Warden) did not see how he could refuse it.
Mr. Phelps Then said he would pledge his honor, as an attorney of the Court, that he would pay all the costs of the cause. He would again apply for a month’s adjournment; it might be worth the defendants while to lose £50 rather than appear in court.
The case was then adjourned until Monday July 15, on the payment of £15s 6d, costs of the day; The Warden stating that if things then remained as they were at present, he would grant no further adjournment.
24-6-1867 Dunolly and Bet Bet Shire Express.
The Great Jumping Case. Editorial
“Jumping” has surely reached its supremest heights of folly, as well as its lowest depths of degradation, when an Attorney of the Supreme Court can, with his wife and family of four small children, bring such cases into the court of justice. One is led with profound astonishment to ask is this law? Let us for a moment glance at the real aspect of the case. The attorney may appear for himself and his family (it would appear both as guardian and attorney, although the Act empowers minors to sue in their own rights as though they were adults) and their costs will be merely nominal, while the defendants not being lawyers, are obliged at great expense to employ counsel on their behalf. Not being prepared to go on with his case, the attorney’s attorney may for a few pounds get the hearing adjourned from time to time in order, if possible, to worry his opponents (we might with propriety say his victims) into a compromise. Again we indignantly ask is this law? The Act would certainly imply that all minors may sue and be sued without regard to age. As Mr. Trench observed of Friday:- “is it possible that a baby three years of age ‘can sue and be sued in the same manner as if of full age.’” The idea is preposterous, and shows that whatever may be the wording of the Act, its intention must have been such minors as have arrived at years of discretion. The Warden himself illustrated the gross absurdity of any other interpretation when he said that a child of two years of age, who could barely lisp the words “ I want a summons,” could legally obtain one. It may be difficult so to frame the clause as not to do some sort of injustice; but if the intention be to protect the interests of infants who may have been willed or otherwise acquired shares in mining properties (although we fail to see why, as in ordinary cases, these might not be vested in parents or guardians until the child came of age) children of tender years might surely be disabled from becoming jumpers. Such a permit opens the door to fraud of the worst description, and in the hands of unscrupulous persons may lead to most disastrous consequences. No other case of the kind that we know of has been heard in a law court, and the Legislature should take good care that as it is the first, so it may be the last. Then there are other circumstances connected with this particular case which demanded attention. The case after being formally opened, was adjourned for three weeks – and for what object? In order that the defendants might be ferreted out and produced at witnesses on behalf of the complainants! To prove what? If anything beneficial to the plaintiffs, nothing less than their (the defendants) want of a title! Was anything more monstrous ever met with in the annals of jurisprudence? Would it not be subversive of all justice, and a disgrace to our British law. We cannot, will not believe that any Magistrate of Judge would permit the production of such evidence. If so we shall have jumpers addressing the owners of property in some such manner as this – “ I know I have no right to your property, but then show me your title deeds, and if their be any defect in them, woe to you, you must walk out and I shall walk in.” In the name of that liberty for which our ancestors fought, and bled, and died, we ask shall such a state of things be permitted? Rather shall not the anti-jumping population rise up as one man from one end of the colony to the other, and obtain redress as best they can? The time is past for using the language of forbearance when such iniquities are even dreamed of. By all that is sacred, by our homes (which is the Briton’s castle) by the laws that we reserve. By our Sovereign whom we love, we protest against this damnable doctrine that the defendant is to be put upon proof of his title. It is worse than heathenish, it is devilish. Tell us not that mining property is different to any other – that the beggar of yesterday, may be the Dives of today – that the miner is but a tenant at will, and may at any time be ousted from his property. Out upon such sentiments. Indomitable industry and the sweat of the brow, confer as sacred rights in the eyes of god as those of heirship; and except on his laws on what do our liberties as Britons rest? The fruits of the labourer’s toil are as much his own as and sometimes more honestly acquired than, the possessions of the rich. Those who _- _- _ goods may nash their teeth in impotent rage, but as certain there is retributive justice, their cunning attempts to compass their unrighteous ends shall ignominiously fail. Might has not yet become right in Australia felix, and it is not to much to say that it never shall while a feeling heart beats within a manly breast. While we have a pen to wield we will with might and main denounce the act that would deprive honest labor of its just reward. Sharp practices on the one side and suspicious on the other, would take the place of justice, and our rule of action would be the old border motto of. “Let each one take who has the power, and let him keep who can.” Fortunately the mining community is far from having reached this stage, but the annals of our Warden’s Courts and the Court of Mines, furnish far too many examples of individuals accommodating their actions to this heathen standard. In the stage in which mining has now reached, when a considerable outlay for machinery is now required to render operations successful, a secure title to the ground is one of the principal incentives to work it, and if the main conditions upon which the title is granted be fulfilled, the neglect of some unimportant provision should not be sufficient to give even a small chance to a jumper to deprive the holders of their claims. In nearly all cases the jumpers have only played their game when the ground has been proved valuable by the labors of those in possession, and having relied upon winning it, not upon deficient working, but upon some technical defect in the title caused by carelessness or ignorance of the law. The hardship to the possessors in such cases, if the verdict goes against them, is so evident that the Wardens require a jumper to make out a very clear case before putting him in possession, but in the present state of the law they might be compelled to give a decision adverse to the equities though not the legalities, of the case, and such a chance is quite enough to encourage unscrupulous persons to run the risk of legal proceedings, where the ground is rich and success promises a good harvest. The liability of being called upon to defend an action at law upon such grounds as those advanced in the Goldsborough Company’s case, must tend materially to retard prospecting, but if the law determined that in no case should a bona fide worker lose his claim unless abandonment could be clearly proved, we should hear of fewer disreputable jumping cases, as the chance of obtaining a verdict would be too small to form a temptation, however great the prize.
24-6-1867 Dunolly and Bet Bet Shire Express.
We understand that the appeal money has been duly lodged by the jumpers in the action Barlow and others v Baker and others, for 210 feet of the Goldsborough Company’s claim, having been abandoned. The case will come on at the court of mines on the 15th August.
24-6-1867 Dunolly and Bet Bet Shire Express.
Wardens Court Dunolly. Wednesday June 12 before Mr. Warden Orme. The Warden said that the name of Mr. Ellis having been struck out of the second plaint, the complainants and defendants were precisely the same in both cases. He had intended to give the legal reasons on which he based his decision, but as he felt satisfied that the decision would be appealed against, he would simply give his decision as follows. Complainant No 24, – I find that on the first day of June, 1867 the complainants, Barlow and others, were not entitled by virtue of their miner’s rights to be put in possession of or occupy a certain portion of Crown lands situate at Baker’s reef, at Goldsborough, near Dunolly being in extent 210 feet along the supposed line of the said reef, by a width of 400 feet, and held by the defendants Hayes and others; and I order said complainants to pay to said defendants £24 4s 6d costs. In the other case, complaint No 26, for 150 feet of the reef, a similar decision was recorded with £7 5s 6d costs.
24-6-1867 Dunolly and Bet Bet Shire Express.
Warden’s Court Dunolly, Orme. Case of Adams v Baker and others for 5 feet of ground called on, but dismissed because summons was informal and improperly served.
One of the Goldsborough jumping cases at Dunolly has been decided by the warden in favour of the defendants-Hayes and others, the original holders. The complainants, Barlow and others, were held to be not entitled by virtue of their miners’ rights to be put in possession of the claim. An appeal is to be made. Another case, having reference to the same ground, was adjourned till the 15th of July. In the latter case an attorney named Robert Valentine Phelps, with his wife, and four young children, were the plaintiffs.
22-7-1867 Dunolly and Bet Bet Shire Express.
Application for Mining Lease. In pursuance of the Act of Parliament 29 Victoria no 291, Section 41, it is hereby notified that after the expiration of one month from the date hereof, it is intended to grant the lease undermentioned. Maryborough District – Dunolly Division. Leases No 667, to the Goldsborough Quartz Mining Company, Registered; 5a. 2r. 22p, Baker’s Reef. John MacGregor, Minister of Mines. Melbourne, July 19, 1867.
27-6-1867 Dunolly and Bet Bet Shire Express.
The Talbot Leader contains the following sensational paragraph which however is slightly coloured to give it additional point: -” The relative positions of offspring and parent in the proverb ‘It is a wise child that knows its own father,’ were reversed by a witness in the Warden’s Court, Dunolly, during the hearing of the Goldsborough ‘jumping’ case. One of the parties to the suit had produced a consolidated miner’s right in favor of himself, his wife and children, all of whom appeared in Court. ‘You are sure Mr. -, that these are all your children,’ the witness was asked. ‘Oh dear, I’m sure I would not swear to that,’ was the quick but thoughtless reply. It is needless to say that considerable merriment greeted this answer and the individual making it seemed as quickly to comprehend that he had been anything but complimentary to, and the reverse of confiding in her who had vowed ‘to love honor, and obey him. The wife and children of the suitor did not appear in court, but with this exception the statement is substantially correct.
27-6-1867 Dunolly and Bet Bet Shire Express.
Burnt Creek, June 26, 1867.
LINES ON A RECENT LOCAL EVENT.
That “man to man is oft unjust,”
Enough to make his friends mistrust
His best meant actions, is quite clear
From what we’ve seen enacted here.
When honest labor, without aid,
When well-earned merit gets repaid;
Should wealthy greed be made to claim
The object of the poor man’s aim?
Or lynx-eyed jumpers, when they find
Labor, with enterprise combined,
Reaping the harvest of its toil,
Step in, the honest fruits to spoil?
This should not be, or else it would
Prevent incalculable good,
And give to niggard wealth the power
To clique with envy, craft (and lower),
To take in falsehood with the band,
And cripple quite the honest hand.
That man (when chances offer bright)
Who gets so dazzled at the sight,
Would like to grasp the glittering prize,
But fears to share the enterprise;
Envies him who risks his all,
Who by his cast will stand or fall;
Deserves forthwith to scouted be,
And banished from society.
The lad who steels, perhaps to feed
A helpless family in need,
Is nobler far than he.
11-7-1867 Dunolly and Bet Bet Shire Express.
Surveyor Robertson at Dunolly drew the attention of the Maryborough Mining Board, itself having been long criticised by the Express. It would appear the relationships between the Mining Board, the miners, the Dunolly and Bet Bet Shire Express, all revolving around laws that would make jumping a story in itself.
Mr. O’Farrell called the attention of the Board to a recent jumping case heard in the Warden’s Court, Dunolly, in which the Mining Registrar for the Dunolly Division, Mr. Robertson, was a witness, and stated that he (Mr. O’Farrell) was present in court when Mr. Robertson was giving his evidence and that it appeared to him (Mr. O’Farrell) not only from the remarks of the counsel employed in the case and the Warden, but from the evidence of the witness himself that the Mining Registrar was not only concerned in the jumping, but had taken a most active part in promoting it, and that his conduct on this and other occasions had been not only such as to make the miners distrustful of him, but also of the Board. He (Mr. O’Farrell) thought it was most monstrous that a gentleman having the custody of important documents and registrations should act as the Registrar for the Dunolly Division had done, and it was quite evident that Mr. Robertson was totally unfit for the position he held, and the Board ought to take steps for his immediate removal. Mr. O’Farrell spoke in strong terms in condemnation of a leader, commenting upon Mining Boards, which had appeared in the Dunolly and Bet Bet Shire express of the 10th ultimo, and said that he trusted the Board would in this case shew that it would, if possible have men of integrity, upon whom reliance could be placed, to administer the bye-laws of the Board.
On the motion of Mr. O’Farrell, seconded by Mr. Barr, it was unanimously resolved that the attention of the Hon. Minister of Mines should be called to the evidence given by Mr. Robertson, in the case heard in the Wardens Court June 10, 1867, Barlow and others v Hayes and others. That he be requested to apply to the Warden at Dunolly for copies of his notes taken at such hearing, and that he cause an enquiry to be instituted into the conduct generally of the Mining Registrar for the Dunolly Division.
18-7-1867 Dunolly and Bet Bet Shire Express. (Editorial)
The members of the Maryborough Mining Board, in discussing the motion relative to the conduct of the Mining Surveyor and Registrar for the Dunolly Division, chose to include in their sweeping censure the Dunolly Express. As in duty bound we are deeply sensible of the severe remarks of that very august body, and humbly trust that we shall soon be reinstated in its good opinion. If its heart be obdurate we know not what will become of us, and confess that we feel grateful that it did not go to the length of adopting a vote of censure, which would have been quite overwhelming. As it is we have been graciously respited, our doom is not yet sealed, and we trust that the board will accept this proof of our penitence. By some persons it has been asserted that the members who resented our “abusive, manifestly false, and injurious” remarks, did not themselves come into court with exactly clean hands, as demonstrated by certain tiddlywinking anent municipal, telegraphic, and postal questions; but such insinuations are, no doubt, baseless as the statements which provoked the virtuous indignation of the Board. Others have even had the audacity to assert that certain gentleman are exceedingly thin skinned as regards the strictures of the that portion of the Press that they are unable to manipulate. But here again the statement is doubtlessly libellous. We asserted – erroneously of course – that the Mining Board was “a refuge for the destitute,” (is that the personal attack of which the members of the Board so bitterly complain?) We withdraw the offensive remark, and yet it has been stated that some of the members, absolutely ignorant of mining and mining legislation, are known to belong to the board for the sole purpose of adding to their incomes. We said that there are members who could scarcely read or write. We repent of the expression, being informed on good authority, that with much pains and a very diligent practice of late, they are all of them really able to pen their own autographs quite respectably. Need we go farther in our retraction, or is our humiliation sufficiently complete? Perhaps at its next meeting the Board will upon this point kindly relieve our anxious breasts, and quiet our perturbed feelings. Its smile is life, its frown death. But to speak impersonally. There are those whose very favor is dangerous, and in respect to whom one must be always on guard. When they have a purpose to serve, they are exceedingly friendly to some sections of the Press, but should their designs be frustrated, their vengeance is remorseless, and they become its implacable enemies. All that the honest journalist can do under such circumstances is to maintain a straightforward course, and to smile at the impotent that would, but cannot overwhelm him, We have certainly said, and cannot help repeating, that the members of the Mining Board should, seeing the magnitude of the interests confided to their keeping, be men of superior intelligence and high attainments. Persons that cannot construct rules with ordinary correctness, can scarcely be expected to possess marked legislative ability – hence we have bye-laws that are not only vague and self contradictory, but are also ultra vires of the Goldfields Statute. If the present Mining Board system be continued, against which we vehemently protest, each candidate should undergo an examination before some properly constituted tribunal, as to the fitness for the position for which he aspires. If a civil service examination be requisite, how much more so that of the candidates for boards upon which the weal or woe of a large majority of the community materially depends? To complain of “personalities” in such matters as these shows the puerility of the Mining Board mind. Such an examination as we have indicated would elevate the “status” of the Boards to a level that would secure for them respect, instead of the contempt of all intelligent persons. A better plan, however, would be to simplify mining legislation by the codification of the bye-laws and the election of a central board of thoroughly qualified persons. We shall never have proper mining bye-laws until this is the case. But failing the qualifications of the various boards should be raised to a standard that would at least prevent the present anomalous state of things in regard to the bye-laws. For instance no bye-law should clash with the obvious principals of common law – that in case should a person be dispossessed upon proof only of defects in his title. The bye-law which professes to enact the affirmative may be really “not worth the paper it is written on,” but in the meantime may do an incalculable amount of harm by plunging the mining community into such needless litigation. What sense is there in the bye-laws first prescribing a certain mode of marking off a claim on Crown lands, and at the same time implying, although not expressly stating – that it shall not be so marked? The title alone can be acquired by the marking – that is to say, a compliance with the bye-laws; and yet the miner is apparently prohibited from acquiring that title in the only manner prescribed. A superior court would, in view of the anomaly, cast the bye-law to the winds; but that is an expensive means of curing the evil. We cannot clearly gather from the newspaper reports what were the precise terms used by members of the Mining Board condemnatory of this journal, but they were apparently pretty strong. One gentleman is said to have declared that they reflected “on the characters of the members of the Board,” and were “most abusive and manifestly false, and injurious to the status of the paper in which they were published.” The statement is not very lucid and far from logical, but is quite explicit as that generally used in conjunction with the bye-laws themselves. The language of the gentleman who seconded the motion was, according to the reporter, still more delightfully vague – he forsooth (the speaker not the reporter) “ had never read any in any public print such an article as that alluded to, which reflected on the private characters of the members, and also tended to take away the rights of property under the bye-laws and undermined their character.” This gentleman must surely now be the low comedian of the Board when he talks about our having “undermined” the character of the bye-laws. Perhaps the grave and potent seniors present failed to see the joke, but to outsiders it appears particularly rich. We, however, must declaim any intention whatever of undermining the character of the bye-laws for the very best of reasons, viz., that we have always considered their character to be radically bad as to defy all attempts at further detraction. The speaker will perhaps, at the next meeting of the Board, in justice to us deign to notice this disclaimer. Having adopted the report of the most influential journal in the district, we have taken due precaution against any possible misconception of the language used by our detractors.
29-7-1867 Dunolly and Bet Bet Shire Express.
Before Mr. Warden Orme. (Friday 26th July)
Watson and others v Baker and others.- Mr. Dunbar for Plaintiffs; Mr. Hoskins for defendants.
The plaintiffs objected to the issue of a lease to the defendants, and it was by consent agreed that the Warden should state to the Minister of Mines that the ground applied for under the lease was that in dispute between the plaintiffs and defendants and which had been decided by his worship in favor of the latter, but which decision had been appealed against to the Court of Mines.
The Warden said in reporting to the Minister of Mines he should advise that the lease be not granted until the case was finally settled.
Phelps and others v Baker and others – Mr. Hoskins for defendants.
This case was resumed; and Mr. Phelps said he had no reply to make to the arguments of Mr. Hoskins.
The Warden said first, he did not consider registration of the extended claim gave defendants an indefeasible title; he therefor overruled that objection. As regard the case of the Hallanbeagle Company v Knight, it materially differed from the present case, in as much as the Secretary of the Company was in all respects bound. The Mining Surveyor was not the servant of the applicants for registration, and therefore not bound by their acts in any way. In the one case the Secretary had to do what he was ordered to do; in the other he acted on his own responsibility. In reference to the plaintiffs setting up a paramount title of their own before being entitled to prove any defects in that of defendants, there was something in the points; but in default of any distinct ruling on the point by a higher Court, he was of the still same opinion as in the case of Watson and others v the defendants, that the plaintiffs could produce evidence to shew that the defendants had not complied with all the conditions necessary to establish their title, if such could be done by direct evidence but not by calling on defendants to shew the weakness of their own title. He had overlooked the objection as regarded the miners right; but would reserve his decision on that point. Undoubtably, had Mr. Phelps marked out the ground his position would have been a much stronger one.
Mr. Hoskins asked the Warden to reserve all the points for submission to the Chief Judge; and also another one – viz., that according to the 246th section of the Mining Statute the plaintiffs should have held miner’s rights when the “cause of action first arose, or accrued,” which was in September 1864.
The Warden considered if the defendants never had a title the ground remained Crown lands, and was liable to be forfeited at any time.
Mr. Hoskins said the action was not for a forfeiture but because the ground had never been properly taken up. The cause of action therefore first arose when the land was taken up.
The Warden said the plaintiffs might not at that time have been aware even of the existence of the claim.
In reply to Mr. Hoskins, who still urged upon his Worship to state a case for the Chief Judge,-
The Warden said he had a great objection to send an incomplete case to the Supreme Court. He was there to do substantial justice, and that alone could be arrived at by the whole case being heard. If he considered it necessary, he would, when the evidence had closed, state a case.
J. M. Robertson, Mining Surveyor of Dunolly Division deposed substantially to part of the same facts as given in the case of Watson and others v Bakers and others. Did not know the boundaries of the claim in question. (The witness here handed in a letter which he had said he had received from M’Millan stating that he (M’Millan) had no documents in possession relating to the Mining Department that he knew of, except for some circulars) All plans and documents ought to be in the Mining Registrars office. There were no documents there relating to the case before the Court. (The witness then read certain entries in the registration book.
To Mr. Hoskins: Don’t know that those entries relate to the claim in question: only read the entries as they appear in the book.
Mr. Hoskins objected to evidence that the witness could not connect with the claim occupied by the defendants, and unless his clients were identified as the Baker and Dodd there referred to.
Mr. Orme said it was questionable whether the evidence was receivable, not being connected with the claim by the witness.
Mr. Phelps said he would be able to connect it.
The witness then continued to read the entries in the registration book; and again stated to the Warden that he did not know whether either of the claims there referred to, or any part of them, were those sought to be obtained by the complainant.
Witness continued: He several times went to a claim occupied by the Goldsborough Company, at Bealiba Reef. Defendants did not point out their boundaries, although he asked them to do so; but the north boundary was pointed out by a person (recognised in Court as Henry Sparkes.) This was about a week before the summonses were issued against Baker and others. A notice of intention to apply for a lease was posted outside witnesses office in the name of the Goldsborough Company. Measured the centre line of the supposed Goldsborough claim from the southern to the northern peg, which was 364 feet 10 inches.
To Mr. Hoskins: Was requested by Mr. Phelps to write the letter produced to Mr. M’Millan. Knew nothing about this action. Wrote because Phelps insisted on my producing documents in connection with this case that I had not in possession. M’Millan never offered me any papers which I refused to take. Have not in the office a single notice of application for an extended claim made prior to my coming into the office. Since I came into office I have preserved every document that I received since although there may be a stray document missing unknown to me. Was employed by Watson and others to show the exact position of things before they issued their summonses. Was surveying for a lease north of the Goldsborough Company and wanted to fix the northern boundary of the Goldsborough Claim. Never stated that the Goldsborough claim was jumpable. Was never closeted with Dunbar and Conolan over the jumping case. Conolan did look over the registry book, but I did not know then for what purpose. Was asked for plans and notices. Never told Yates, opposite Frayne’s’ on a Sunday evening after the summons that in searching I had found a flaw in the Goldsborough Company’s title. Am not interested either in this case or Watson and others. Am not M’Gregor in the action of Watson and others. Never was a plaintiff in the name of M’Gregor. Did not give up share to Dunbar under a threat from him. Sent a telegram to McGregor during the hearing of Watson’s case, asking him not to connect my name with the transaction. Knew previous to the issuing of the summonses in Watson’s case that there was some good speculation in respect to the Goldsborough Company’s ground, and mentioned M’Gregors name as a party to the suit, as I wanted to do him a good turn. (The witness here corrected himself by saying he did not mention the Goldsborough Company’s claim – but ground in that locality.)
The jumpers told me they were short of a Miner’s Right and a man when I mentioned M’Gregor as a party to the suit. Thought it was for spare ground on Crown lands.
To the Warden: Was told that Watson and party could not take possession of the ground without coming before the Warden. Presumed the ground of the Goldsborough Company was referred to.
To Mr. Hoskins: Did say that the claim was the ground of which the northern boundary was refused to be shown by Baker and party. Did not know the ground was occupied by the Goldsborough Company. Did not know what “a jump” meant at the time. Might have said in the case of Watson and others, that Dunbar said a miner’s right was short for the action, and that I suggested M’Gregor. Am not to go shares with M’Gregor in the plunder. Had not wanted it to be reported to M’Gregor that Mr. Robertson had put him up to a good thing. As I afterwards found what I had said and one was not in good taste, and did not wish it to go any further. My enemies (Mr. Yates is one) have made capital out of the affair. (Mr. Hoskins here handed in a registration of the Goldsborough Company, which the witness said he believed referred to the same company that he alluded to as in possession of the ground in question.) The Goldsborough Company are working the ground included in the 364 feet 10 inches. Have written to Mr. Yates as Manager of the Goldsborough Mining Company, Registered,” before the action of Watson and others was initiated.
To Mr. Phelps: Don’t know all the shareholders in the Goldsborough Company.
James Cameron sworn, said: he knew Baker’s claim, Bealiba Reef, Old Dunolly. Worked there for six months in 1866. Noticed one peg on the south centre line. Never noticed any other pegs. The country was open and clear. (The witness then repeated his evidence about the pegs.) (Mr. Hoskins then handed in an agreement of contract entered into with the Goldsborough Mining Company, which the witness was said was signed by him – and sealed with the seal of the company.) Was working on that claim for which Mr. Yates was the Legal Manager.
Roderick John M’Millan sworn, said he knew Messrs Baker and Dodd, of the Bealiba Reef. Made the last survey of their claim at Bealiba Reef, about two or three days before an extended claim of 360 feet was registered with him as Mining Surveyor. Could very likely fix the date by referring to his notebook. Had not a map plan, or survey that he could find. Offered the Mining Registrar to take everything away from the office belonging to the department; he did not take them all away. Had made searches for them. The reason was, that he was subpoenaed by both sides in the case of Watson and others v Baker and others, to produce all documents. Could not individualise the papers he gave to Mr. Robertson. He did not take them. There were three or four bags of documents connected with the Registrars office left him, which, after keeping three months, he put into the yard, as he wanted the office for other purposes. Previous to clearing the office spoke and wrote to Mr. Robertson several times to take the documents away. He (Mr. Robertson) came to witness’s place for the books, which he took, together with the application pending, but those that had been dealt with, he did not take. The remains of the documents are in the yard, but most of them had been destroyed. Did not think that it was necessary to preserve the notices. Mr. Robertson did not take away all the documents witness offered him.
To Mr. Hoskins: Posted a notice that was lodged with me before the registration. Have searched through every paper. I could not find it. That document was an application for registration; saw a similar one on the claim.
Saw six posts, four I put in myself, and two were put in previously by the applicants. I made a plan of the claim, and gave a copy of the plan to Baker. I then registered the claim and gave them a certificate of registration. Observed at that time a number of old shafts on the claim, two I think on the 150 original prospecting claim, and others north and south of it. At the time I made the survey there was not a soul working on the reef. Some of the shafts were worked to the water level, which was very near the surface.
To Mr. Phelps; Connected this claim with the south east corner post of Lammas fence in the corner of the road. Cannot now give the distance from the corner post to the northern centre peg of the extended claim. Think I can find it.
Thomas Carvose sworn, after substantially repeating a portion of his evidence given in the case of Watson, added that he saw a peg at the north end about the height prescribed by the bye-laws. Saw also three other pegs about three feet high. Told Baker he had not seen the pegs, Baker said they were all right, the surveyor saw to that.
To Mr. Hoskins: Was hired by the Goldsborough Quartz Mining Company, Registered. Have written reports for the company. Addressed the reports to the directors of the Goldsborough Quartz Mining Company, Registered. The ground I spoke of as to two of the pegs being there, was worked by that company. All my evidence relates to parts of 1866-67. They discharged me because they said I was incompetent as mining manager. My duties were confined to the underground. Never saw the other pegs there. It was not part of my duties to protect my masters’ property. John Wood did not round with me and show the pegs when I took the managership.
Henry Sparkes sworn, said he knew the Goldsborough Company’s claim. Had known the ground for three or four years ago, when he saw Baker and Dodd working there. Did not know when they took up the 360 feet claim. Dodd and the whole party pointed out the north and south boundary lines of the claim. Pointed out the north centre peg to Mr. Robertson, and showed him the spots where the others ought to have been, and which was measured by M’Liesh when witness was driving toward Finlay’s claim. There ought to have been other pegs, but witness did not see them. Could see all over the ground. Did not see any notices of the claim.
The Warden said that he did not consider that showing the pegs were down at any particular time, would forfeit the claim.
To Mr. Hoskins: First saw the 360 feet claim, under three years ago. Don’t know how long they had been in possession of the 360 feet claim. They pointed out the boundaries about 18 months ago. Am certain that Crozier and M’Liesh showed me the boundary lines. If I said the whole four of them showed me the boundaries, they did do so. Recollect they did so when Robertson surveyed Smith’s lease, that is three of them, but I can’t say which three. Do not know whether it was when Robertson surveyed the ground or not.
Thomas Bush sworn, said he knew Baker’s claim of 360 feet. Had known the claim over three years. Was engaged at work on the claim when it was surveyed by M’Millan. Commenced work on the Monday, as the extended claim was surveyed on the Saturday. Baker said they were getting 360 feet at 75 feet per man. The names of Baker, Dodd, M’Leish, and Crozier were posted on the claim.
To Mr. Hoskins: I have had a contract broken by the Goldsborough Company. Have lately been working for Mr. Phelps, was doing some carpentry work connected with the machine when M’Millan surveyed the claim. Was sent to Baker to get instructions as to the work. Would swear it was either Monday or Tuesday when I went to work. Did not know anything of the place for the preceding fortnight or a month. (The witness here said he was mistaken in saying the names of the whole of the shareholders were posted on the claim.) Thomas Wardell was securing some bad ground down the claim. Don’t know what he was doing below from my own knowledge. The shareholders were getting props ready for working the claim.
Alexander Bebrens sworn, said: He remembered Mr. M’Millian surveying at Bealiba Reef in 1864. Did not know in what month, but it was in the latter end of the year. Was prospecting near the reef, which laid between the places he lived and worked. Went across it almost every daily for a fortnight previous to the survey. Saw the last witness there. Saw Wardell on the claim. Also saw all the shareholders there. The engine was working part of the time. Did not pass close to the engine. Saw the men moving about and employed at something. Noticed a peg where he used to cross.
To Mr. Hoskins: Was not living at Majorca in September 1864. Had been at Goldsborough since January 1864. Phelps never mentioned M’Millan’s name. Have said that I knew nothing about the claim. They might have been mending the engine. Don’t recollect that the engine was working preceding the survey. The engine might have been to pieces. Always heard it called Baker’s engine.
Robert Crowley sworn, said: There was a stream of water running into his ground. Could not say when it first commenced. It was either at the end of 1863 or beginning of 1864. Complained about the nuisance, and told Baker that it was ruining the ground, which Baker said he did not care for.
Witness said the ground would be there when he (Baker) had got a reef. Did not see the survey made. Had heard the engine at work. Sunk several holes at the later end of 1864 between his house and Ison’s Paddock, from 40 yards to half a mile from Baker’s engine. Worked as a digger from July to November 1864. Had many times been over Baker’s claim. At those times either the engine or men were at work. Never saw any alteration in the claim. There never was any pegs that he could see on the claim.
To Mr. Hoskins: The engine was at work till the boiler burst. It never stopped for three days together unless at that time. Will swear the engine was never idle for fourteen consecutive days in 1864; nor was it for ten. Will not swear that it was not idle for seven days in September 1864, but believe it was not so. Had the engine stopped for two or three days it would have stopped the water running. Have threatened the company with actions regarding the water. Have spoken to three lawyers and complained to the Warden. Have seen Bush carpentering there. Can’t say whether the engine was working then. If Bush was there for a fortnight, could not say that the engine was not idle during that time.
(Mr. Hoskins several times drew his worships attention to the manner in which this witness was giving his evidence, and at length said he had evidently been brought there to act in a vulgar and blackguardly manner to everybody in court. The Warden (throwing down his pen) asked Mr. Hoskins twice whether he would retract the offensive expression? Mr. Hoskins: “Certainly, if your Worship wish it.”)
John Hill sworn, said: He carted stuff from Baker and Dodd’s claim in September or October 1854, to Kirks crushing machine at Burnt Creek. (The witness corrected himself by saying it was 1864.) His year with Mr. Kirk was up 13th September, 1864. Some few weeks after that he carted the stuff from Baker and party. Baker was driving the engine at the time. Saw Dodd, Crozier, and M’Liesh, at different times on the claim in working clothes. Never saw them working in the claim. Someone of the four was present during the crushing.
To Mr. Hoskins: Could not say a month when the quartz was carted: it might have been September, October, or November.
John Gough sworn, said: Had resided at Dunolly for about eight years at the surface Hill, half a mile from the Goldsborough claim. Knew the ground occupied by the Goldsborough Company before they took it up. Baker in working discovered a reef in October, 1863, and told witness to mark a claim next to his (Baker’s), which he did. Crozier had a share in witness’s claim but left him as partner about a fortnight afterwards to join Baker and Dodd in the Bealiba Reef. Knew nothing about the prospecting claim, not that it had ever been altered. Had many conversations with Crozier, but nothing particular about the claim. Knew the claim up to last Christmas, by being on it nearly every week. Had no occasion to particularly remember it in 1864. Had seen Baker and Dodd there in 1864. They were at work occasionally. Was not at the claim everyday. Saw them at work nearly every time he visited it. Farmer and Wardell were at work in the claim. Was present when Wardell was employed by Crozier to work at the reef as Crozier was sick. Could not say how long Wardell worked for Crozier. He (Wardell) afterwards worked at the reef for wages, but witness did not know who employed him. M’Liesh went to work in the claim the day after Baker went for a prospecting claim. Only saw two pegs in Baker’s claim when he (witness) took up the ground. Never saw that the pegs were altered. Had worked within half a mile of the claim, and passed over it mostly every month.
To Mr. Hoskins: Never specially noticed Baker’s claim. It might have been idle for a week. Sometimes never passed it for a fortnight. Am positive that Baker’s prospecting claim was taken up in October or November 1863. Believe I was working at Turkey Flat in August, September, and October, 1864. Had not then to cross the claim, Turkey Flat being in a different direction to Baker’s claim. Turkey Flat might be a mile from the reef. Will not swear that my place at Turkey Flat is not a mile from the reef. The claim and engine might have been idle for a fortnight in the month of August, September, or October, 1864.
To Mr. Phelps: Could occasionally hear the engine working at Turkey Flat where I lived. Know that the boiler of the small engine did burst in 1864. They got another boiler from Dunolly which I saw brought to the ground. It depended on the wind whether I could hear the engine working.
To Mr. Hoskins: There were no stampers in 1864. Heard the puffing of the engine. There was another machine belonging to Pikes nearer my place than Baker’s (This will be on Belgian reef)
To Mr. Phelps: Knew the difference between the noise of the two machines.
David Kirk sworn, said: Had a crushing machine at Burnt Creek. Had known the claim of Baker and Co. at Goldsborough for several years. Crushed quartz from that claim at his mill. The first crushing was 33 tons on the 21st September, 1864. There were five others in the following 12 months. Went himself with the first and third times to Baker’s claim on or about the 17th of September. Heard Baker tell a man to do something with the engine. Either Dodd or Crozier helped load the quartz. M’Liesh, Crozier, and Dodd took turns in watching the crushing. One of the party paid witness and to weigh the gold. John Hill, Job and George Neil, and witness carted the stuff.
To Mr. Hoskins: It was not on the 14th September 1864 that I commenced to cart the stuff. Believe that four carts were employed and that eight loads a day were carted. Do not positively remember how many carts were sent. If there were only two carts, the carting would take eight days. Will not swear I did not begin crushing the stuff on the 14th, but believe not. Did not say I went for the first load. The carter showed me the quartz. Did not say that I, Hill and the two Nield’s carted the stuff. Did not say there were four carts the first day. The four carts went either to Bakers claim or somewhere else. Saw no one on the claim but Baker, Dodd or Crozier. The engine was at work. It might have been the 18th or 19th September. It was about three days before I carted the quartz that the bargain was made. Remember this because I was glad to get some quartz to be crushed. Was crushing when the bargain was made for Dick Evans 21 tons, and Chow Chan 25 tons. Don’t know when I began to crush for them. Finished Chow Chans on the 15th September, and Evans on the 16th September. Just before then I started the drays for Baker and Party’s quartz.
John Farmer sworn: I remember Baker and Dodd first taking up the Goldsborough as a prospecting claim. Frequently saw it being worked. A little engine was afterwards put on the claim. Did not know how long the claim was worked. A man named Wardell was working at the claim in July 1865. Never saw him there since. Worked in the place of Wardell till April 1866. All the shareholders told witness the claim was an extended one of 360 feet. Saw a peg between the claim and Lummis’s peg. Never saw any others. Had there been other pegs imagined he would have seen them.
To Mr. Hoskins: Will not swear there were not other pegs three feet hight, Did not search for the pegs. All the shareholders of their own accord told me the claim was 360 feet. Do not recollect any of the circumstances connected with the conversation. Was not discharged from the claim. Left because I had finished a contract.
A. G. Brewer sworn, produced his day book, showing that on the 14th September 1864 he had sold a boiler to Baker and Co. Crozier carted it away. Baker said he wanted it to work a reef.
To Mr. Hoskins: Could not swear the boiler was fetched away before the 25th September, but believe it was taken on the 14th.
Richard White sworn, said Mr. Crozier came to him to remove a boiler from Brewer’s to Baker’s Reef. Could not do so. Young Pike and Crozier moved it.
Samman Lummis Sworn, said he had seen Baker and others working a claim about 300 feet away from his paddock at Goldsborough. Water was running from the claim in 1863 through his ground. When he found it was injuring his property, he spoke repeatedly to Baker and party about it, also to Messrs Phelps, Crabbe and Dunbar. Had cows feeding on the flat in 1863-64. Repeatedly passed over the claim. Had seen Baker and party working there, sometimes every day, and at others not for a week. Could hear at his place the beating of an engine that was on the claim. The engine stopped in 1864, sometimes for a week or ten days together. Had seen Baker sometimes repairing the engine. Did not visit the claim every time the engine was stopped. The engine was never off the ground. Crozier and Dodd came to him to borrow some money to pay for a boiler, on the 13th of 14th September 1864. Always saw one peg at the north end of the claim.
To Mr. Hoskins: Mr. Phelps asked me outside the court if I could remember whether the boiler was bought in September 1864. Mr. Baker told me he and M’Liesh made the engine. Baker sold it to a Mr. Randall.
Mr. Phelps asked his Worship to produce the application for a lease by Hayes and others, which he (His Worship) had received in his capacity as Warden. Mr. Hoskins objected.
Mr. Orme said he, as a civil servant, was liable to a heavy penalty if he disclosed any matters connected with his office. He had no personal objection, but did not wish to any risk complying with Mr. Phelps request. In receiving the application for the lease he was acting ministerially; whilst he was then, in hearing the case, acting judicially.
Mr. Phelps then handed in the newspaper containing the application for the lease. Mr. Hoskins objected.
Mr. Orme asked what the papers produced proved; but on the request of Mr. Phelps, accepted it as a piece of printed paper, bearing date 10th June, 1867, purporting to be a supplement to the Dunolly Express.
Giles Pettifer proved that a supplement (produced) bearing date 10th June, was published in conjunction with the Dunolly Express of the same date.
J.H. Yates sworn said: Messrs Baker, Dodd, M’Liesh, Crozier and Hayes instructed him to insert an advertisement in the Dunolly Express applying for a lease of ground at Bealiba Reef.
Mr. Hoskins objected to the advertisement being received, unless the original writing was produced.
Mr. Phelps contended that this was not necessary.
Mr. Orme held that the production of the newspaper was not the best evidence of the application.
To Mr. Phelps: Was instructed to insert application for a lease in the Dunolly Express: to have notices posted as required and to carry out other necessary preliminaries for the application.
F. S. Kendall deposed that he had served a subpoena to produce on Mr. Appleford, who declined to come under 1£ expenses. Witness therefore brought back the subpoena and the 10s. tendered.
Mr. Hoskins held that that was no service; and the Warden ruled the objection good.
R. V. Phelps sworn: Tendered a notice to produce, which he had served at the residences of the defendants. The same day he posted one to Mr. Hoskins.
To Mr. Hoskins: Would not swear that it was posted in time for the post of the 23rd inst. Knew that the defendants were not at home when the notices were served.
Mr. Hoskins then objected there was no service in point of time, and quoted Lush’s Practice.
The Warden ruled the objection good.
The witness then handed in a printed placard descriptive of the defendants, and a copy of a letter addressed to the defendants threatening to have the placard posted if they did not appear.
To Mr. Hoskins: The eldest of my children is ten; the youngest three. I took the miner’s rights out without consulting them. Am an attorney of the Supreme Court.
(Mr. Hoskins here handed in a paper containing indecent words, which the witness admitted was in his handwriting, and which had been posted in Broadway. The Warden, in marking it, said he regretted to have to mark such a disgusting document)
Mr. Hoskins Then addressed himself to the question of title; and asked his Worship if he had any doubt upon the point to reserve it for the Chief Judge. His Worship would possibly save an immense amount of litigation by reserving a case for the Chief Judge. The Warden said he should not state a case for the Chief Judge unless both sides agreed thereto.
Mr. Phelps objected, and said the case was a very simple one. He, his wife and children were suing for the ground as Crown lands. He went on to show that minors could sue for the possession of land to which they were entitled. His only way to enforce the right was by coming to the Warden. He had proved that the land had been taken up illegally; hence no one was in real possession of it.
The Warden: Do you contend that the defendants are not in real possession after Mr. M’Millan has proved that the registration was completed, and all conditions precedent thereto were complied with. Mr. Hoskins was about to the Court on the facts, which he said would necessitate his making some very unpleasant allusions when, – The Warden said he did not think any further remarks necessary. He held that the complainants had failed to prove that they were entitled to be placed in possession of the ground. The evidence they had produced had materially strengthened the defendants title. He therefore ruled that on the 7th of June, 1867, the complainants were not entitled to be put in possession of the 360 feet of ground held by the defendants at Bealiba Reef; and that they (the complainants) should pay to the defendants £6 15s. 6d. costs.
A case which has attracted a good deal of local attention, that of Phelps and family v The Goldsborough Gold-mining Company, in which the plaintiffs wished to jump a portion of the company’s ground, was decided at Dunolly on Friday last. Mr. Warden Orme dismissed the case, with costs against the plaintiffs, without even calling upon any witnesses for the defence. In giving his decision he remarked that the evidence the plaintiff had adduced had materially strengthened the defendants’ title. Mr. Phelps has stated his intention to appeal.
1-8-1867 Dunolly and Bet Bet Shire Express.
Phelps has given notice of appeal against Warden’s decision.
8-8-1867 Dunolly and Bet Bet Shire Express.
Advert. Court of Mines cases, Watson and others v Hayes and others, appeal, Phelps and others. Hayes and others, appeal.
The appeals in the Goldsborough jumping case were brought on in the Court of Mines today. The first, Watson and others against the company, was stopped on an objection taken by the judge, and which had been raised by the respondents before the warden, that five persons could not sue jointly to recover land of which they had never been in possession. At the request of the appellants’ counsel, his honour consented to state a case for the opinion of the chief judge. Messrs. Atkyns and Trench appeared for four of the respondents, and Mr. Hoskins for the fifth. Mr. Martley was for the appellants. The second case, that of Phelps and family against the company, was dismissed.
20-8-1867 Dunolly and Bet Bet Shire Express.
Mr. Trench, one of the counsel engaged for the company in the Goldsborough jumping case, previous to leaving Dunolly, placed a cheque for £2 2s in the hands of Mr. Orme, for the Dunolly District Hospital.
20-8-1867 Dunolly and Bet Bet Shire Express.
Dunolly Court of Mines
Friday, August 16, 1867.
Before his Honor Judge Macaboy.
Goldsborough Jumping Case.
Barlow and others v Baker and others. Appeal against Warden’s decision. Mr. Martley for the appellants, Mr. . . . s Atkins, Trench and Hoskins for the respondents.
A certified copy of the Warden’s decision was put in, which after being read by the Clerk, proved to be the wrong one, and the appellants, not having another in Court, the respondents allowed theirs to be put in. This was read and the Warden’s signature admitted.
Mr. Martley was proceeding to address the Court on the case, which he said was brought under the 1st sub section of the 101st section of the Goldfields Statute, when, Mr. Atkins objected that the decision in its present form was not such as was contemplated by Act. The words of the Statute were – “A certificate of the decision and of the order thereon.” The provisions of the Statute therefore could not be enforced in the present case, as the decision was not an order (such as would put a party in possession of ground) but was a simple dismissal of the case. The case being begun de novo before his Honor, just as if no proceedings had been instituted, he (Mr. Atkyns) objected that the summons (which was the only document that disclosed the grounds of the case) was bad. The point was varied as by way of demurrer at common law.
Mr. Martley, after protesting against being interrupted in the commencement of his address, said the case was in the very narrowest of compass. He relied mainly on the 5th ground of appeal, viz., that the respondents were at the issuing of the summons, in illegal possession of the ground in dispute, because four of the defendants had taken up and registered as an extended claim, which they had not abandoned or left unoccupied so as to entitle them to the extended claim.
His Honor said, as he understood it, five men had amalgamated their supposed claims to the ground held by the respondents, by joining together to sue the five persons in possession. It had struck him at once on looking over the ground of appeal the previous evening, that there was no provision for any such amalgamation in order to establish possession.
Mr. Trench said such a course would only be an amalgamation of miner’s rights.
Mr. Martley quoted several sections of the bye-laws, and said that the whole tenor of them went to show that if one man could occupy so many feet, two could occupy double the quantity and so on. A certain number of feet per man allowed. His Honor was bound by the phraseology of the Statute and the bye-laws, which only said that in reference to ordinary quartz claims one man was entitled to 50 feet.
Mr. Martley directed his Honor’s attention to the 106th bye-law, which allowed a prospecting claim to be 200 feet.
His Honor said the present action was brought under the bye-laws affecting ordinary claims in which one miner was entitled to 50 feet only.
Mr. Martley then directed his Honor’s attention to the 72nd clause of the bye-laws, relating to the marking out of claims, which distinctly referred to “a miner or party of miners.”
His Honor said that referred to persons taking actual possession of the ground, not a claim such as that put forward by the appellants to obtain possession of ground held by the respondents.
Mr. Martley apprehended that the 5th section of the Mining Statute enabled persons jointly to sue. If it were competent for any miner or number of miners to mark out a claim, it must be competent for them to be able to prosecute a joint suite for what they were allowed to take up. The 84th clause of the bye-laws did not permit any persons to take forcible possession of a claim held by any other persons, but required that they should apply to the Warden to place them in possession. The bye-law might be bad or good. In other districts the only way of taking possession of the ground was by marking it off.
His Honor said the 84th bye-law was ultra vires of the Statute. If five men were allowed to join, as in the present suit, so might fifty or a hundred men and by subscribing £50 per man ruin any person in possession of a claim. The joinder in the suit was had as a matter of policy. Supposing one of the five appellants broke down, how was the ground to be divided among the other four? What part of the claim would he (his Honor) place them in possession of. It was plain that separate suits must be brought for each 50 feet.
Mr. Martley said that under the Maryborough bye-laws no portion of ground was allowed to be marked off, so that a man seeking possession of 50 feet of a large claim held by several miners, could be allotted any 50 feet of the whole claim. It was usual in Sandhurst to except shafts or ground actually in work. His Honor could be assisted in this matter by the Surveyor. The ground the appellants sought to obtain possession of was the 210 feet in excess of the respondents original prospecting claim, and was therefore clearly defined. However as his Honor had expressed so strong an opinion perhaps he would reserve the point for discussion by the Chief Judge, and go on with the case subject to that decision.
His Honor said if the case were left to him he felt so strongly on the point, that he should at once affirm the Warden’s decision, and dismiss the appeal. He should be doing an injustice to the parties concerned by allowing the case to go on under the present circumstances. He did not think he ought to send the case to the Chief Judge, as it would be giving him his (Judge Macoboy’s) work to do. Certainly, the point was a most important one, and if decided by the Chief Judge might be a guide for all future proceedings.
Mr. Martley was proceeding further to refer to the 84th clause of the bye-laws when – His Honor said the case was nonsense. The bye-laws could not direct the Court as to its duty.
Mr. Martley apprehended that the 5th section of the Goldfields’ Statutes exactly met the present case.
His Honor said the Statutes operated through the bye-laws, which provided that alluvial claims might be taken up jointly; but not claims on quartz reefs.
Mr. Martley said the clause in the bye-laws which stated that all the shareholders need not be present at the marking out of a claim implied as much.
His Honor said that referred to a claim which was taken actual possession of; but not to a case in which persons came to the Court for a declaration to occupy.
Mr. Martley then referred to the case of Cotter v the Warrior Company. The 5th section of the Goldfields statute said lands for mining purposes were to be taken possession of in the manner prescribed by the bye-laws; and the bye-laws stated the that the only manner in which appellants could obtain relief was by going before the warden, and in fact, bringing their action in its present shape. At Sandhurst the ground might be marked off, and the person in possession would then have to bring an action for encroachment, and be put on proof of their title. Mr. Martley then went on further to argue that the appellants could only bring their case in the present way.
His Honor was still of the opinion that although persons could join together in the working of their ground, they could not do so for the purpose of common litigation to obtain possession of a claim from any other persons in prior possession.
Mr. Martley said in common law they could not do so, but the laws affecting gold mining were of an altogether exceptional character. As Mr. Stephen had argued in the Court of Equity, the miners were to be looked upon as intruders on the Crown land, and not even as tenants at will.
His Honor said one 50 feet of the ground held by respondents might be much richer than the other; in fact, contain nearly all the gold in the claim. It would be a very unjust bye-law that would give a person, seeking possession of ground held by others, such a part of the claim or the mining shaft.
Mr. Martley thought the 84th bye-law might have been passed to be held in terrotern(?) over the heads of those inclined to take up ground illegally.
His Honor asked the counsel for the respondents whether they had any objection for a case to be stated to the Chief Judge.
Mr. Atkyns apprehended that if his Honor had no doubt in the matter there was no necessity for or doing, and would therefore ask that the case be dismissed as against his clients.
Mr. Hoskins could not consent when his Honor was so clear upon the point.
Mr. Martley urged that as the point was so very important a one, and there was no appeal from his Honor’s decision, a case should be stated. His clients were agreeable to come to any terms as to the costs.
Mr. Atkyns said the original summons should be attached to the case stated, or his Honor would know nothing about what the case was instituted for.
Mr. Martley said it did not matter what the plaint was, the decision of the Warden was all the Court had to deal with. The evidence might travel quite outside the plaint. He quoted the case of Barber and Phillips in support of his case, also the Borough Council of Sandhurst V Sherborne. There could be demurrer to a plaint.
Mr. Trench urged that the chief judge could not understand the grounds of complaint unless the summons were sent to him. How could a single ground of the appeal be contested without the grounds of the complainant were known?
His Honor said the general grounds of appeal, such as the decision being had in law contrary to evidence &c, were so much rubbish. He only looked to the specific ground of the appeal. The law as regarded plaints was very loose, as the cause of action might be entirely set aside by the evidence.
A discussion between the legal gentlemen ensued as to whether that part of the summons respecting forfeiture had been struck out. Mr. Martley contending that it had; and Mr. Atkyns stating that it had not.
The Warden produced the original summons. In which the words referred to were not struck out, although that part of the plaint was abandoned.
His Honor then consented to state a case as to whether the appellants, never having had possession of the ground, could sue jointly to obtain possession of the same, having no title except their miner’s rights.
Mr. Martley, on behalf of the appellants, agreed to allow the costs of the day, as well as the costs of the appeal, to the respondents, in case his Honor’s opinion were upheld by the Chief Judge. Also that it would appear on the case stated that the appellants would bear the expenses incurred in the Chief Court.
Mr. Hoskins directed his Honor’s attention to the great expense to which the respondents had already been subjected, and their desire to have the case settled as soon as possible.
His Honor said he was aware of it, and so as to meet the requirements of the case would hold a special Court as soon as possible after the decision of the Chief Judge had been given – either to enter judgement proceed with the hearing of the case.
Phelps and others v Baker and others. – Appeal against Wardens decision. Mr. Phelps on his own behalf and Mr. Martley for the other respondents.
The Clerk read the warden’s decision.
Mr. Hoskins, as amicus curae appeared to object to the service of the notice of appeal. There was no personal service on the respondents, neither had the warden been served with a copy of the notice.
Mr. Martley read the affidavit of service (which was sworn by Mr. Phelps) to show that every exertion had been used to discover the respondents, but these efforts had failed.
His Honor: has the warden been served?
Mr. Martley said the notice had been left with the Warden’s Clerk, and R.V. Phelps sworn, deposed that he had deposited a copy of the notice of appeal with the warden’s Clerk, Mr. Miskelly, who at first declined to take it, stating that the service on him was not necessary under the Act.
To his Honor: Did not desire it to be left with the Warden. Only deposited it with Mr. Miskelly.
John Miskelly sworn, said that Mr. Phelps served him with a notice which (witness) asked for for the convenience of his Honor, the Judge. Understood that it was given to him as Clerk of the Court of Mines, and not Warden’s Clerk. Did not, that he recollected, communicate its contents to the Warden. Told Mr. Phelps that he (witness) did not think that the Statute required that the notice should be left with him as Clerk of the Court of Mines.
Mr. Orme, at the request of his Honor, stated that he had no knowledge of the notice of appeal having been left with Mr. Miskelly.
Mr. Martley then proceeded strenuously to argue that it was sufficient to leave the notices where they might be expected to reach the hands of the respondents, and that was the spirit of the Act in reference to the services of summonses. Cul bono what was the Warden to do if he did not know where the respondents were to be found? He also quoted the 92nd section of the Criminal Law and Practices Act upon the service of summonses. A case decided by his Honor (Judge Macaboy) at the last Maryborough County Court, on the 205th section of the Municipal Act, went to show that personal service was not necessary, but was sufficient if made at the residence of the person summoned.
His Honor said if only one of the respondents had been served, and it could be proved that the others were keeping out of the way, the service would be sufficient. But in the terms of the Act, the notice of the appeal must either be personally served or upon the Warden.
Mr. Martley then argued that the service upon the Warden’s Court was quite sufficient.
His Honor held that as Mr. Miskelly had not been served as Warden’s Clerk the service was insufficient, and that the Court was not seized of the appeal. The case was therefore struck out.
The Court then adjourned.
CHIEF COURT OF MINES.
NEW COURT-HOUSE.-TUESDAY, AUG. 20.
(Before the Chief Judge his Honour Mr. Justice Molesworth.)
BARLOW AND OTHERS (APPELLANTS) V. HAYES AND OTHERS (RESPONDENTS).
A question of law reserved for the opinion of the Chief Judge of the Court of Mines by the district judge of the Court of Mines at Maryborough, on the hearing of an appeal from a decision of a warden, dismissing an application by George Barlow and party to be put in possession of a claim held by Hayes and party, on Baker’s Reef, at Goldsborough, near Dunolly.
Mr. Martley and Mr. Holroyd for the appellants. Mr. Michie, Q.C., Mr. Atkins, Mr. Bunny Mr. Fellows, and Mr. Stephen for the respondents.
The summons before the warden was to answer the complaint of Barlow and four others, “by which complaint they seek, under and by virtue of their several miners’ rights to be declared entitled to and put in possession of a certain portion of Crown lands situated at Goldsborough, and being in extent 210 feet along the supposed course of the reef called and known as Baker’s Reef, by a width of 400 feet, and held, or claimed to be held by you the said William Hayes,” &c., “or the grounds that you are in illegal occupation of the same, not having taken it up in conformity with the bye-laws in force in the Maryborough mining district, at the time of such taking up, and, therefore, the said piece or parcel of land is to be deemed forfeited, and the complainants put in possession thereof.”
The warden’s decision was as follows :-” I find that on the 1st day of June, 1867, the complainants, George Barlow, James Henry Murray, Ernst Erinstein, David Ballantine Watson, and William M’Gregor, were not entitled, by virtue of their miners’ rights, to be put in possession of, or occupy, a certain portion of Crown lands situated at Bealiba Reef, otherwise called Baker’s Reef, at Goldsborough, near Dunolly, being in extent 210 feet along the supposed course of the said reef, by a width of 400 feet, and held by the defendants, William Hayes, Henry Baker, William M’Leish, Robert Dodd, and Samuel Crozier, and I order that the said complainants do pay to the said defendants the sum of £24 4s. 6d., for costs. K. KNOX ORME, Warden. Warden’s Court, Dunolly, 20th June, 1867.”
From this decision Barlow and party, the complainants before the warden, appealed to the Court of Mines. At the hearing the question of law now stated for the opinion of the court arose thus, as stated in the case:
“At the time of the issuing of the said summons by the appellants, and for nearly two years previously, the five respondents were in the actual possession and occupation of a certain portion of Crown lands situated at Bealiba Reef, otherwise called Baker’s Reef, at Goldsborough, near Dunolly, measuring 360ft along the course of such reef by 400ft in width, claiming to be entitled to occupy the same for mining purposes as a registered extended quartz claim (to be worked by machinery), under and by virtue of the provisions of the Gold-fields Act, 21st Victoria, No 32, the 122nd clause of a certain bye-law made in and for such district, gazetted on the 13th of September, 1864, in force at the time of their taking possession of such extended claim, and certain miners’ rights. The five appellants, conceiving that the respondents had never taken legal possession of a certain parcel of such Crown land, measuring 210ft along the course of the reef by 400ft in width, and that they (the respondents) were at the time of such issuing of such summons in illegal possession thereof, for certain reasons alleged before the said warden, and repeated in their said notice of appeal, applied to the said warden under the provisions of the Mining Statute, 1865, and certain clauses of another bye-law made in and for the said district, gazetted on the 26th of October, 1866 (in force at the time of the issuing of such summons), to be declared entitled, by virtue of certain miners’ rights which they alleged were taken out by or on behalf of them respectively, and of which they further alleged that they were then respectively the bona fide holders, to the possession of such last mentioned parcel of Crown land to be occupied by them for mining purposes, and for an order to be put in possession thereof. The appellants were not, nor was any or either of them, at the time of the issuing of such warden’s summons, or at any time, in occupation or possession of the portion of land so claimed by them or any part thereof, nor had they, either as a party of miners or in any other way, marked the same or any portion thereof, as a claim or for any other purpose, having been deterred, as they alleged, from so doing, by the 84th clause of the said bye-law of 1866. Being thus out of possession, and the ground not having been marked by them, either as a consolidated partnership claim or otherwise, the five appellants applied to the warden to be declared entitled to take possession as five ordinary quartz-miners, with a view of occupying such ground as an ordinary quartz claim. These facts appearing from the statement of counsel, and having been admitted, I expressed my opinion that, even though the appellants could substantiate their allegations, that the respondents were illegally in possession, they (the appellants) had not taken the proper course to enforce their several rights; that, being out of possession, they could not collectively seek from the warden a declaration of their joint rights to take possession of the whole portion of land claimed or any part of it, but should each seek separately for a declaration of his separate right (if any) to be put into possession of the portion of reef allowed by the bye-law to an ordinary quartz-miner. That, had the four appellants, previous to their application to the warden, taken possession of the portion of land in question, and marked it as a partnership quartz claim, the aspect of the case would be essentially different: in short, that, being out of possession, and other miners adversely in possession, they (the appellants) could not amalgamate five rights of action into one; that it would be impracticable for the warden to adjudge or declare that any portion of the ground applied for belonged to the five jointly, or (if any one of them failed) to indicate the portion thereof that should be given to the other four. Your Honours attention is requested to the 73rd clause of the bye-law of 1866, and the 5th section of the Mining Statute, 1865), as indicating what portion of reef any ordinary quartz miner, and what portion of reef a party of quartz-miners, may take up. The learned counsel for the appellants having, disagreed with the view expressed by the Court, requested me to suspend judgment, and reserve the question so raised for your Honour’s decision. The interests involved in the appeal being of great magnitude, 11 consented so to do on the terms of the appellants paying all costs incidental to such proceeding (to be taxed by the proper officer) in the event of your Honour thinking that my opinion was right. To these terms the appellants assented. The Court thereupon adjourned the further hearing of the appeal, in order that your Honour’s opinion might be taken. The question for your Honour’s decision is:- “Was the ‘opinion’ so expressed by me right or wrong?”
The two bye-laws referred to, Nos. 73 and 84 (112 and 132) were as follows:
“112. Extent of ordinary claim. – Every miner shall be entitled to fifty (50) feet along the course of the reef if it be defined, and not, along the supposed course thereof, by a width of 400 feet, 200 feet on each side from, the centre of the reef if it be defined, or if not defined, the supposed centre thereof (except in the Avoca division of this district, where the width allowed shall be 600 feet, 300 feet on each side from the centre of such reef if it be defined, or the supposed centre thereof); provided that when the full width of ground hereby authorised to be held cannot be taken up by reason of a part thereof being occupied as an alluvial claim, the deficiency shall be supplied the instant such deficiency of ground becomes vacated under the operation of this bye-law, as effectually as if such deficient ground had been unoccupied at the time the owners of the quartz claim put down their pegs on the supposed line of reef, and that without any formal act of reducing such deficient ground into possession, and not withstanding anything hereinafter implied to the contrary; and the owner or owners thereof shall be entitled to every reef, vein, and leader, and all gold contained in the alluvial deposits within such limits.
“132. How to take possession of any claim. -Any miner or miners considering himself or themselves justified in taking possession or any claim, water-right, or any other easement or share therein respectively, may do so provided that no other person or persons is or are then in the possession or occupation thereof respectively; but in the event of any other miner or miners so in possession disputing the right of possession, the first named party shall apply to the warden to inquire into the subject matter in dispute; but in no case shall any person take forcible possession of any claim without forfeiting all right on a title to such claim he may have acquired.
For the appellants it was contended that there was nothing in the gold-fields legislation or bye-laws to expressly forbid a plurality of persons from suing jointly in on plaint for a plurality of claims; while there was in such legislation a direct implication No sections 5 and 101, and in the bye-law of 1866, clause 84, an express recognition of such a mode of procedure. For the respondents it was contended that the legislation gave each miner a separate “claim,” and that the right to such claim was not capable before it was ever reduced into a possession, of being sued for by several persons jointly and indefinitely, claiming no definable or positive area or particular piece of land.
Among the authorities referred to were Longbottom v. White. 3 Wy W., and A’B. 35; Hunter v. Aratraveld, 3 Wy., W., and A’B. 59; Duffy v- Tait and another. Sup Cot Vict., May 27; Jenkinson v. Kinsella Sup. Cot. Vict.
HIS HONOUR said that his chief difficulty arose from the fact that counsel for the respondents did not seem to appreciate the difficulty felt by the learned district judge and that he (his Honour) did not himself at present see how the difficulty described by the learned district judge as arising out of the joint suing of several in this case did not equally exist, if it existed at all, in the case of one person suing alone. He reserved his decision.
The Court adjourned sine die.
23-8-1867 Dunolly and Bet Bet Shire Express.
The Goldsborough Jumping Case.
The point reserved by His Honor Judge Macoboy for the opinion of the Chief Judge was argued before the latter on Tuesday last. The only report in the Melbourne papers is the following meagre paragraph from the Age which errs as regards the court from which the case was sent. We have made the necessary correction:- Mr. Martley and Mr. Holyroyd appeared for the appellants; Mr. Mitchie, Q. C., Mr. Fellows, Mr. J. W. Stephen, Mr. Atkins, and Mr. Bunny for the respondents. The special case was stated by the Judge of the Court of Mines, he at once ruled that a number of persons could not jointly make application for a piece of ground actually in possession of other persons, but each of the appellants must sue separately under his miner’s right. He stated a special case, however, upon the point, for the opinion of the Chief Judge. After hearing the arguments of counsel, his honor reserved judgement.
27-8-1867 Dunolly and Bet Bet Shire Express.
An enquiry was held yesterday by F. K. Orme Esq., into the conduct of Mr. J. M. Robertson. Mining Surveyor of the Dunolly Division. Messrs Yates and Wooley conducted the case for the Mining Board, and the former gentleman on behalf of the Goldsborough Company. Mr. Crabbe watched the case on behalf of Mr. Robertson. The proceedings being of a private nature, we are unable to publish the evidence. The Civil Service regulations in reference to enquiries of this kind, is self contradictory, the marginal note stating that the enquiries MAY be private, and the regulation being to the effect that they shall be private unless the Governor in Council order otherwise.
James Robertson advertised, in a block format, that he had an office as Surveyor and Registrar in the Criterion Buildings, Broadway . A newspaper item in the 22-11-1867 issue informs that the new Surveyor and Mining Registrar was William Gregson Couchman. James Robertson was sent to the Buckland Division of the Beechworth District. A line of research could question his involvement in the Great Jumping Case, if any. Concerning the circumstances of his “new appointment” in the middle of nowhere, did he “jump” or was he “pushed”?
In the 17-12-1867 edition it is reported: Ernstsen v Robertson. – Board and lodgings £19 15s. Mr. Dunbar for plaintiff, no appearance of defendant. Debt proved, verdict for amount, with 1£ 3s costs.
In the 30-6-1868 edition Robertson was again noted: The Following appeared in Friday’s Government Gazette in reference to Robertson:
It is hereby notified, that on and after the 1st day of July 1868, Mr. Robert Holden Stone will act temporarily as Mining Surveyor for those portions of the Mining Districts of Beechworth and Gippsland within which Mr. James Moeller Robertson at present acts in the above capacity. Mr. Robertson will cease to act as Mining Surveyor after the 30th inst.
30-8-1867 Dunolly and Bet Bet Shire Express.
A telegram was received about noon yesterday stating that the decision of the Chief Judge of the Court of Mines was adverse to the Goldsborough Company, on the point reserved for his decision by Judge Macoboy at the request of the appellants. The jumpers were of course in high glee at the news, and the case will now have to be commenced de novo in the Court of Mines, as His Honor Judge Macoboy was so strongly impressed with the point that he did not think proper to let the case be heard until the point had been decided by Judge Molesworth.
11-10-1867 Dunolly and Bet Bet Shire Express.
We are requested to state that Mr. Baker, of Bealiba Reef, has presented the Hospital Collector with 10s conduct money for a summons served upon the donor to give evidence in the case of Watson and others v Baker and others, in re the celebrated Goldsborough jumping case.
29-10-1867 Dunolly and Bet Bet Shire Express.
Another suit has been commenced against the Goldsborough Company, to be heard at the Court of Mines in its original jurisdiction. The complainants include a chemist in Dunolly, a squatter at St. Arnaud, a farmer at Bet Bet, a carter at Malmsbury, and a miner at Alexandra. Their attorney is Mr. Robert Valentine Phelps, who recently lost a case against the same defendants.
6-12-1867 Dunolly and Bet Bet Shire Express.
Dunolly Court Of Mines
(Before his Honor Judge Macoboy.) Saturday, December 7, 1867.
Mr. Helm instructed by Mr. Dunbar for the appellants, Messrs. Atkyns and Trench for the respondents Baker, Dodd, and Crozier; Mr. Hoskins for Mr. Hayes.
Mr. Helm asked his Honor what had been done in the case at the previous hearing.
His Honor said the Warden’s decision and notice of appeal were handed into Court.
Mr. Helm then read the Warden’s decision and the ground of the appeal, and drew his Honor’s attention to the fourth and fifth grounds of the appeal, in reference to non-production of miner’s rights, and the defendants being in illegal possession – because four of the defendants had taken up a full portion of the ground as an extended claim, and not abandoned the same when the present extended claim was taken up. He did not propose to oust defendants because of any irregularity in their taking up of the claim, but because the ground should not have been the subject of an extended claim. It would be for the defendants to rebut the evidence to be adduced on that point, on behalf of the appellants. Mr. Helm then proceeded to narrate the facts of the case as previously reported, and said that from 1863 to September 1864, the claim was in full, uninterrupted, and prosperous work. Yields of gold were obtained therefrom sufficient to make it a small fortune, and there was nothing whatever to cause its abandonment as unprofitable. Mr. Helm was proceeding to refer to the bye-laws of 1863, when –
His Honor asked whether those by laws of 1863 were void?
Mr. Helm then said both the first and second extended claims were taken up under the same bye-laws of 1864.
Mr. Atkyns said this was not the case.
Mr. Helm quoted the 122nd section of the bye-laws 1864, in reference to extended claims, contending that it extensively referred to claims in which steam machinery was to be erected, and not them in which it was already in work. It was for the purpose of encouraging the erection of machinery, and not a bonus to those who had erected it.
His Honor enquired whether it was contended that persons who had erected machinery, could not take up an extended claim?
Mr. Helm apprehended that such was the case. The 95th section bore him out when it said, they must show to the Mining Registrar that they will work the claim efficiently with steam machinery. Abandoned or unoccupied in clause 122 did not mean presumptive abandonment, but actually deserted.
His Honor said the 122nd section defined the meaning.
Mr. Helm was proceeding to argue that the whole of the ground must be so abandoned when –
His Honor said clause 122 referred to “those portions of quartz reef.”
Mr. Helm said the bye-laws were self-contradictory, and were like trying to get a quart into a pint pot. It was folly to contend that a miner holding claim No.1 could be the holder of No 2 when abandoned, and join the latter to claim No 1 and call it “an abandoned and unoccupied quartz reef.”
Mr. Helm then proceeded to relate the facts of the case in connection with the raising of quartz from the 150 feet prospecting claim in September, 1864, and other matters. While the survey was being made the parties were actually at work on the ground propping their claim, and repairing their engine. The surveyor must have been easily satisfied that there was no work being done; in fact, he saw nothing but the £5 he got for his survey. It might be said that the respondents constructively abandoned their claim, but he should liked to have seen it jumped on the 21st September, 1864. Mr. Helm then proceeded to quote certain authorities, and concluded by stating that, as the whole of the ground was held illegally because the entire 360 feet was not abandoned, the appellants could have claimed all of it, but had left the respondents their original claim of 150 feet.
Mr. Atkyns then rose to make some preliminary objections, and argued first that the original summons was bad as it did not disclose the cause of action.
His Honor said the summons certainly appeared to be inconsistent in itself.
Mr. Atkyns said the appellants declined to amend the summons when before the Warden.
His Honor said the case of Kirk and Barry showed that great latitude was allowed in connection with plaints.
Mr. Atkyns said the respondents certainly ought to know what they were called upon to meet. One part of the summons referred to a forfeiture, and another alleged that the claim had been illegally taken up. A claim could not be forfeited that was never properly taken up.
His Honor said it certainly seemed reasonable that a defendant should be made aware of the cause of complaint, but it seemed that the Supreme Court held otherwise, as a case might be entirely different to that disclosed on the plaint.
After some further argument, –
Mr. Atkyns said his Honor, the Chief Judge, seemed to have misapprehended the case stated by his Honor Judge Macaboy, and treated it as one of forfeiture.
His Honor said he certainly could scarcely recognise it again when it was returned to him, but so far as the point he had submitted was concerned, he was bound by the decision.
Mr. Atkyns then continued his argument in reference to the summons.
His Honor said a case was to have been heard before the Supreme Court the previous day, in which he (his Honor) had non-suited a plaintiff because he summonsed a person for goods when the claim turned out to be for money leant. The decision of the Supreme Court would show how far the doctrine of variation between the plaint and real cause of the action would go.
Mr. Atkyns then proceeded to argue as previously, that the summons did not state what particular portion of land was claimed by the appellants.
His Honor said that very point had struck him at the previous hearing.
Mr. Atkyns referred his Honor’s attention to the case of Class v Wrigley, in which a plan of the ground had been prepared showing the exact portion of ground claimed. The learned counsel argued for some time on this point, and asked supposing his Honor reserved the Warden’s decision, of what portion of ground the latter would put the appellants in possession?
His Honor said he should be inclined to hold that the appellants should have marked off the portion of ground they claimed, although Judge Molesworth appeared to hold that by that course they would have forfeited all right to the same. The learned Chief Judge had said in reference to the point raised by Mr. Atkyns, “Sufficient for the day is the evil thereof:” and he (His Honor) could only repeat it. The difficulty must be dealt with where it actually arose.
Mr. Atkyns apprehended that the difficulty had arisen.
In the course of further argument, his Honor said he had only to do with the Warden’s decision and the evidence, not with the summons.
Mr. Atkyns held that without a summons there was no foundation whatever for the proceedings; and again directed his Honor’s attention to the inconsistency of the plaint.
His Honor admitted that it was excessively vague and indefinite.
Mr. Atkyns then proceeded to show that the appellants had not a shadow of title of their own, and were only seeking to obtain possession of defendants ground on account of the supposed defectiveness of their (defendants) tile.
His Honor said the appellants must recover on the strength of their own title. If a person was in possession of land and a second one bought an action for ejectment, if it turned out that neither had any title, but that it was vested in a third person the one in possession could claim as against all but the rightful owner.
Mr. Atkyns contended that it was a well known principle in common law, that a party bringing an action of ejectment must rely on the strength of his own title, and not the weakness of his adversary’s, and unless the Mining Statute expressly ruled otherwise that principle would also apply to mining laws. Hence the present suit, as violating that principal, was not recognisable by law. There was nothing in the Mining Statute to say that a person with a miner’s right could by virtue of that document only take possession of the land in the occupation of any other person. By the 101st section the plaintiffs only required to produce their miner’s rights, not to give them the right of possession, but to place them in a position to sue.
Mr. Helm said Mr. Atkyns had not quoted the whole of the 101st section of the old Act.
His Honor said the 101st sub-section of the present Act did not contain all the provisions of the 77th section of the old Act.
Mr. Helm said it referred to land “of which any other persons be, or claimed to be, in possession.”
Mr. Atkyns contended that the respondents might have fulfilled the requirements of the Act and bye-laws in every particular, and the only way to test that was by another party actually taking possession of the land. How any person only with a miner’s right could dispute the right of possession with any other person in occupation, he could not understand.
His Honor said the word “possession” as used in the Act, could not be used in the legal sense, but must mean occupation. To dispute that occupation both parties must take possession.
Mr. Atkyns then made further reference to misapprehension of his Honor the Chief Judge as to the real nature of the case. His Honor seemed to have considered it a case of forfeiture, but how could anyone forfeit a claim of which they had never been legally possessed. The present was either a case of excess or illegality, and the bye-law relied on by the Chief Judge did not apply to either of those cases. Mr. Atkyns then proceeded to argue upon the meaning of the word “recover,” in the 165th section.
His Honor did not consider that necessary; it evidently referred to someone who had previous possession. His Honor Judge Molesworth seemed to have ruled that Critchley and Graham affected every case of the present kind. But he (Judge Macaboy) held, that although persons claiming a certain a certain portion of land from any other persons entered upon the land, they need not take forcible possession, but might quietly assert their rights and go before the Warden if they were disputed.
Mr. Atkyns then quoted the 71st section of the Act, to show that the plaintiffs must recover on their own title. The Court had to find that the plaintiffs were entitled to possession on their own proofs, not that the defendants were not entitled to the possession they held.
His Honor said that the matter of entry by the appellants pressed very strongly upon him, and he would like to hear the arguments thereupon. Entry appeared to be necessary in order to give the Court jurisdiction. He (his Honor) was only bound by the decision of the Chief Judge on the point submitted, and not by any opinion given upon other questions not then at issue.
Mr. Atkyns cited cases as before the Warden’s Court, on the various points he had argued, and further contended that the appeal was bad in itself. It should have been signed by the appellants, instead of the their attorney only.
Mr. Helm said the objection came too late.
After some considerable argument, Mr. Atkyns went on to argue that no definite piece of land was claimed from the respondents. For aught that was known to the Court, they might have several pieces of land on the reef, at great distances apart.
Mr. Trench followed, contending that the case had begun with the Warden’s summons, and must end with it or there was no plaint before the Court. He referred to several actions of the Act to show that the Warden was compelled to keep a record, in order that the case between the parties “may plainly appear.” Without any machinery extended claim at all, under clause 121 of the bye-laws of 1864, the respondents were entitled to 75 feet per man. Mr. Trench then quoted the authorities bearing on the case, and argued most strongly that the appellants must obtain possession on the strength of their own title, and that only, and not on the weakness of their respondents title.
His Honor assented, and said that where one party was in possession of land and another entered thereupon, it was then for the Court to declare who was the trespasser; if it turned out that neither party had a right to the land, the first party had the Right of possession against all but the real owner – the second had no right whatever. In the case of Jones v Chapman, where one had possession and the other was a trespasser, the Court had to declare who was in legal possession, but both parties had to enter in order to give Court jurisdiction.
Mr. Trench was proceeding to address himself to the fourth ground of the appeal, produced their miners’ rights, when –
His Honor said he held the respondents were not required to do so.
Mr. Hoskins, in addressing the Court, produced a certified copy of the case Thompson v Land, obtained from the Prothonetary’s office (principal clerk of a court), which proved it to be one of encroachment. The question argued before the Chief Judge in that case was only, whether a blazed stump was sufficient for a corner peg. Mr. Hoskins then argued, as before the Warden, that the miner’s right in itself was no title, but simply gave the miner a locus standi as plaintiff in a court. The title was derived through the bye-laws. Were there no bye-laws, the miner’s right would be only a worthless piece of paper. There were really two titles only – the one the bye-laws, the other the leasing regualtions, and in the latter no miner’s right (several damaged words) had a perfect title and would only be dispossessed by the Queen. If, as it was alleged, the land had been in the first place taken up illegally it never was a claim at all but was Crown land, open to be taken possession of by anyone; and the way to take such possession was prescribed in the bye-laws. There was no way of legally taking up a claim. If it ever was a claim, in the meaning of the Act, it could not have been taken up illegally at first, so that whichever way the case was viewed the appellants were in a dilemma, and could not make out their case. It was not a claim the only legal way of making it one was by marking it out; if it was a claim it must have been properly taken up.
The Court then adjourned to Monday.
The case continued
The appeal case of Barlow and others v Baker and others (in re the Goldsborough Company) was yesterday dismissed by his Honor Judge Macoboy with costs, on the grounds that the appellants must show some title of their own, which could only be acquired by their marking out the ground, and not by showing the weakness of the respondents title. His Honor declined to state a special case for the opinion of the Chief Judge. Monday’s proceedings in this case, and also that of Collin’s and others v the Goldsborough Company, will appear in our next issue. Guns being fired all afternoon at the reef, and there was general rejoicing at the results of the first trial.
12-12-1867 Dunolly and Bet Bet Shire Express.
Dunolly Court Of Mines.
(Before his Honor Judge Macoboy.) Monday, December 9, 1867. The Goldsborough Case.
Mr. Hoskins further directed the attention of the Court to some authorities which he had since observed – viz, Broome’s maxims, wherein it was stated that “the law could not be changed without an Act of Parliament,” and that “Statutes were not intended to make alterations in customs,” etc. In Dwarris on Statutes, it was stated that “Statutes against customs must be construed strictly,” that the “rule in effect cannot be given to intentions not expressed.” Mr. Hoskins then went on to state that there was nothing in the Statute to change the well-known principal in the common law of England as to titles, and instanced the case of Whaley v Land.
Mr. Helm said that as a rule the laws of England did not apply to mining. The Court had nothing at all to do with the summons before the Warden, but only with his decision and the appeal therefrom; Kirk and Barr clearly proved that. Critchley v Graham exactly bore out his (Mr. Helm’s) case. He then quoted the 212th section of the Act in reference to appeals. It was too late to object that the summons did not specify the metes and bounds of the land claimed from the respondents. As he was instructed, the same objection was raised before the Warden and his clients did point out that the metes and bounds – viz, the 210 feet immediately south of the 150 feet prospecting claim.
His Honor said he had no evidence in such a thing. The plaint only spoke of a piece of land.
Mr. Trench contended that the plaint must point out the particular piece of land claimed or there was really nothing before the Court.
Mr. Helm said the appellants were not in any way bound by the grounds stated in the their summons.
His Honor enquired what land the appellants were going for?
Mr. Helm: The same as we applied for before the Warden.
Mr. Atkyns: What specific piece of land?
Mr. Helm said 210 feet from the southern boundary of the 150 feet extending south. That being the land that the Warden refused to put them in possession of.
His Honor said as the Supreme Court had decided that a person might sue for goods and recover the money lent, there seemed to no bounds to the alteration of a plaint.
Mr. Helm then said that if the opinion, which his Honor seemed to entertain – that a person might take possession of land without coming before a Warden – were correct, it upset all the preconceived notions of the miners, and would lead to breeches of the peace and the violent taking possession of claims. The sooner the matter was definitely settled the better.
His Honor: Who is to settle it?
Mr. Helm: The Chief Judge, whose deliberate judgement I take to be law.
His Honor said there was nothing in the Statute to contravene the grand old principal of British law, and unless something of an express kind could be shown therein he did not see how the common law was to be set aside.
His Honor asked that his Honor would state a special case for the Chief Judge upon the point.
His Honor did not see that in a matter where he had not the slightest doubt he was required to state a special case.
Mr. Helm then went on to argue that the word “recovery,” in the 180th section, was evidently used different sense to the common acceptation of the term, and, therefore, did not, in every case, refer to previous possession. This was proved by the 20th schedule, where, in speaking of recovery it said, “here state whether forfeiture,” etc.
His Honor admitted the word was loosely used.
After some further remarks from Mr. Helm, –
His Honor referred to the Stanerries Act, where title was conferred only by occupancy.
Mr. Helm said that was an express Act of Parliament, and not custom. So the 4th and 5th sections of the Statute said that persons were entitled “to take possession of a parcel of land in such manner as shall be directed by the Bye-laws.” Mining Boards were for the purpose of qualifying and explaining the mode under which such possession should be obtained, and whether with or without the permission of the Warden. The 84th section of the present bye-laws therefore directed in that manner a claim should be taken up. That clause took the place of the old one, which allowed miners to take possession of another person’s claim when they considered themselves entitled thereto: it was, in fact, to put an end to the free fights that existed under the old system that the present bye-laws was introduced.
His Honor said that applied only to a claim as legally marked, not t a piece of land illegally taken up as it was alleged was the case with the respondents in the present instance, and if which correct, showed that the land was no claim at all, and could therefore be marked out as open Crown lands. That was the very ground on which on which the appellants rested their case.
Mr. Helm said the statute invariably referred to a parcel of ground, and not a claim. He used the word claim not as regarded the land held by the respondents, but applied for by the taker. Mr. Helm then again referred to the 77th section of the old Goldfields’ Act, in which a complainant had to be heard before a Warden. Taking forcible possession would subject persons to punishment for trespass or encroachment. The respondents held under the old Act, as they registered under it.
His Honor asked whether that clause did not refer simply to excess? Had Mr. Helm and authority to cite, showing that a case of illegal possession had been decided under the clause? Otherwise he (His Honor) must hold that a plaintiff could only recover on the strength of his own title, or he must admit a doctrine that would over turn all the fundamentals of law.
Mr. Helm apprehended that the Warden could adjudicate between rival claimants under miner’s rights, and had never heard it questioned until Saturday. According to that there could be no such thing as excess. An excess of ground was no claim. If the was not taken up in accordance with the bye-laws it was no claim at all. The respondents were claiming to hold possession of land they were not entitled to occupy. If any one miner, entitled to occupy 50 feet marked off 150 feet, how was he to be dispossessed?
His Honor: That would be a question of excess, which was provided for by the bye-laws. The Act itself said nothing about a claim. Had the appellants marked out the ground, a fair question of title would have been thrown on the respondents, whereas, now, it remained solely with the appellants.
Mr. Helm then proceeded to argue that the Land Act had no application to mining, and that if possession were not given to the miner seeking the same by the Warden, no one could do so. By the doctrines laid down by his Honor a man might say “I am in wrongful possession, turn me out if you can.” One miner might take a hundred men’s ground or the whole of Dunolly.
Mr. Trench said the Crown Lands Commissioner could step in, as such quantities of land could not be held by one miner for mining purposes.
His Honor said the Warden would have jurisdiction in such a case in some shape, by the excess being marked off in accordance with the bye-laws. What he found fault with was, that the appellants asked the Court to do for them what they ought to do for themselves.
Mr. Helm again quoted the bye-law on the point, and asked him, in a case like the present, the miner claiming possession because he had reason to believe the ground was illegally held. If it turned out to be a claim, he must risk the consequences, if he wished to deprive the occupier.
Mr. Helm said the obiter dictum of the Chief Judge, as expressed in the special case sent to him, was different to the opinion of his Honor. Mr. Hoskins said the Chief Judge evidently proceeded on the supposition that the case was one of forfeiture of a claim, not as alleged by the appellants, that of Crown lands illegally taken up, and therefore Crown lands still. Mr. Helm pressed his Honor to state a case on the point, and quoted from the decision of Judge Molesworth in the last case stated.
His Honor said he was not bound by the obiter dictum of Judge Molesworth but only by his answers to his (Judge Macoboy’s) question. He could not assent to the doctrine that a man could go with a miner’s right and, on that alone, demand possession of another man’s claim, speculatively, not knowing whether he held it legally or not. On the other hand, after properly investigating the matter, the right of possession might be tested by entering, and that he held to be the only true test. His Honor further enquired whether Mr. Helm could cite authorities to show that the contrary had been held.
Mr. Helm at first said he could, but afterwards admitted there had been entry, although not for the purpose of possession, but for identification. He also urged that excess of a part made an illegality of the whole. He then proceeded to notice the various cases that had been cited by the opposite side, and endeavoured to show that they had no application to the present case, or if they had, that they told against it.
As to the bye-laws of 1863 being illegal, it was the exception in favor of Avoca that was illegal, not the whole bye-law. What ever was in reality in the case of Thompson and Land, his Honor Judge Molesworth, had evidently, as in the case stated in the present suit, misunderstood it, ( probably from only a cursory glance at the facts as presented at the lower Court) and treated it as a case precisely similar to the present, a dispute without entry, and an illegal possession. (Mr. Helm here quoted the Chief Judge’s decision in the case).
His Honor said let that be as it may he could not ascent to the doctrine.
Mr. Atkyns said there was entry in the case of Thompson and Land, and proceeded to relate the case as it stood.
Mr. Helm had only referred to the case as treated by Judge Molesworth.
His Honor said that was probably due to an oversight.
Some further argument ensued on the part of Mr. Helm, who then cited the case of Vivian v Dennis, at Maldon, to shew that complainants should be heard before the Warden prior to taking possession.
His Honor said Mr. Helm was arguing as if the respondents had rights, whereas his very case was that they had none. If Critchley v Graham was to rule every case there was an end to the argument. But he (His Honor) considered that the case did not apply to where persons had a right outside the Court, which they had failed to exercise. Was Mr. Helm bringing the case into Court as one of equity or of law?
Mr. Helm said of law, and again quoted the 77th section of the Goldfields’ Act.
His Honor said that applied to excess, but not to illegal possession. Was there now anything to prevent the appellants marking out a claim?
Mr. Helm said there was a lease of the ground had been applied for since the present proceedings were instituted, and he again urged his Honor to send a special case to the Chief Judge.
His Honor declined to do so, giving as his reason that the appellants had applied to the court to do what they might have done for themselves. He could not regard a principal which was utterly subversive of English law. The appeal was therefore dismissed, with £102 17s 6d costs.
In the Dunolly Court of Mines on Monday, the appeal case of Barlow and others v Baker and others (re the Goldsborough Company), which has excited so much local interest, was dismissed by his Honour Judge Macoboy, with costs, on the ground that the appellants must show some title of their own, which could only be acquired by their marking out the ground, and not by showing the weakness of the respondents’ title. His Honour declined to state a special case.
12-12-1867 Dunolly and Bet Bet Shire Express.
Collins and others v Hayes and others, and the Goldsborough Company. – This was a suit brought into the Court of Mines in its original jurisdiction, to obtain possession of 364 feet 6 inches of ground at Bealiba Reef. Mr. Phelps for the plaintiffs, Messrs Atkyns and Trench for Messrs Baker, Dodd and the Goldsborough Company, and Messrs M’Leish, Crozier, and Yates.
Mr. Phelps asked for an adjournment, and handed in affidavits to prove that some of his material witnesses were absent.
A long argument ensued, Mr. Phelps offering, if Messrs M’Leish and Dodd were produced, to go on with the case.
Mr. Atkyns said the defendants named could only be called to show the weakness of their own title, and he protested against any such evidence being given.
His Honor said he would know how to deal with the matter when such evidence was called, and asked Mr. Phelps to proceed with the law of the case, after which, if necessary, it could be adjourned for the production of the witnesses. If the law points were the same the case could soon be disposed of.
Mr. Phelps said Mr. Helm, his counsel, was not present, but would be in attendance in the morning.
Mr. Atkyns, Mr. Trench, and Mr. Hoskins all said that Mr. Helm had told them he was not engaged in the case.
His Honor said Mr. Helm had shaken hands with him, and said he was returning to Sandhurst.
Mr. Atkyns said the fact was Mr. Helm had not got his fee.
Mr. Phelps again urged an adjournment, which his Honor refused. He (Mr. Phelps) then went in to address his Honor on the facts of the case.
Mr. Atkyns said there was the same objection as in the former case.
Mr. Hoskins said the ground had been applied for under lease, prior to the present proceedings being initiated. The case was ultimately adjourned till the next morning, for the production of evidence.
Tuesday, December 10, 1867.
The Hearing of the case Collins and others v Hayes and others, was resumed.
Mr. Phelps said he was not prepared to go on, as Mr. Brewer, a material witness, (in addition to those mentioned in previous affidavits) was not fit to be in attendance. He put Dr Green in the Box, who deposed that Mr. Brewer had quinsey, and had been confined to his house for four days.
Mr. Hoskins said he would admit the evidence of Mr. Brewer as given before the Warden’s Court.
Mr. Phelps then said that he could not prove his case unless the other witnesses were in attendance.
His Honor said he could see pretty well what the case was, but some grounds had been shown for an adjournment, however weak they might be.
Messrs Atkyns and Hoskins called his Honor’s attention to the hardships of the case hanging over the defendants.
His Honor admitted that and stated that he would know how to deal with the case next time, if the plaintiffs were not ready to proceed. It would require a very strong case indeed to induce him to grant another adjournment. He could pretty well understand the cause of the present application.
While fixing the costs, Mr. Phelps, who objected to nearly every item, was several times requested to sit down by his Honor.
The adjournment was granted on payment of £33 19s within a week, by the plaintiffs.
The Court then adjourned sine die.
The Maryborough Advertiser, writing of the decision of the Dunolly Court of Mines in the Goldsborough case, reported in our issue of yesterday, says:-“Great satisfaction is felt in Dunolly town and district at the result of the case. The attempt to oust the present possessors of the claim has produced much injury to the district in stopping its development, and has also been the means of transferring much local capital from reproductive uses to the payment of heavy legal expenses. On the evening of the day of the decision, a large expenditure of gunpowder took place at Goldsborough to celebrate the event.”
31-12-1867 Dunolly and Bet Bet Shire Express.
Applications for mining leases.
In pursuance of the Act of Parliament 29 Vic. No 291, section 41, it is hereby notified that after the expiration of one month from the date hereof, it is intended to grant the leases undermentioned.
Only the Goldsborough Company summary is given here.
Lease No 697: The Goldsborough Quartz Mining Company, registered; 15 years; 2a 1r 11p; Bealiba Reef. Subject to the rights (if any) of the Goldsborough Quartz Mining Company, registered, and of all other persons whomsoever.
7-2-1868 Dunolly and Bet Bet Shire Express.
The following Mining leases have, since the 14th January, been forwarded to the Warden’s office at Dunolly: No 679 (697), dated 31st January, 1868; The Goldsborough Quartz Mining Company, Registered, 3a, 1r. 11p. £3 6s 6d.
14-2-1868 Dunolly and Bet Bet Shire Express.
Another of the causes celebre, in re the Goldsborough mining Company, comes on for hearing today in the Court of Mines, in its original jurisdiction. The case was postponed from the last siting at the request of the complainants. Ostensibly it is a different case to any of those heard before the Warden, but virtually it is believed to be identical with one of them. The company now holds its ground under lease from the Crown
18-2-1868 Dunolly and Bet Bet Shire Express.
Dunolly Court of Mines
Friday, February 14, 1868.
Before his Honor Judge Macoboy.
Goldsborough Jumping Case
Collins and others v Baker and others, and the Goldsborough Mining Company, registered. – Mr. Helm for the plaintiffs, Messrs Atkins, Trench, and Hoskins for the defendants.
Mr. Helm addressed the Court for the plaintiffs, and went over much similar ground as in previous actions against the same parties.
Mr. Atkyns called his Honor’s attention to the fact that there was avowed in the plaintiffs plaint.
His Honor asked Mr. Helm, whether the case was addressed to the equitable or the legal side of the Court?
Mr. Helm said both, as the two were mixed up in the mining statute. It was in the nature of a legal proceeding, conducted on equitable principals.
Mr. Atkyns said if Mr. Helm was going under the first sub-section of the 101st clause, it was clearly a legal action.
Mr. Helm admitted that there was the section under which the action was taken.
Mr. Hoskins said it was undoubtedly a common law proceeding.
Mr. Helm addressed himself to the bye-laws of December, 1863, a part of which he said was invalid.
His Honor apprehended that that part of the bye-laws which referred to the Avoca division was bad, but the remained was valid.
Mr. Helm was proceeding to show that more ground had been taken up than the defendants were entitled to when – Mr. Atkyns said the bill was that they had not abandoned the original prospecting claim of 150 feet, and the plaintiffs could not go for excess.
Mr. Helm said Mr. Atkyns could not have read the third clause of the bill.
Mr. Atkyns still contended that the equity of the bill was the non-abandonment of the original claim.
Mr. Helm then addressed himself to the facts of the case, and said he was prepared to contend, that the 150 feet of the claim never having been abandoned, the whole of it was illegally taken up. The northern portion of the claim was never abandoned or unoccupied. The ground which the parties alleged was abandoned on the 19th September, 1864, yielded on the 21st 75 ozs of gold from 33 tons, from quartz raised on the 17th. The whole ground a person took up must be unoccupied and abandoned, and upon that must his claim to the ground stand or fall. Mr. Helm then proceeded to contend, that the laws of England in relation to property, could not apply to this colony. Here the statutory law upon mining was altogether sui generis. Nearly all the land in England was held in fee, to obtain possession of which entry or an act of ejectment was required. But the bye-laws of the district forbad entry in a case like the present, and ordered that the parties should go before the Warden for the power to eject. He (Mr. Helm) therefore contended that the miner’s right was sufficient title with which to come into Court. He now came to a matter in which he was taken by surprise. At the time the suit was instituted there was an application for a lease, and he was prepared to contend that, according to the case of Anderson v Croyle, in which a decision was given by the Chief Judge; an application for a lease did not prevent an action against the parties who, having previously claimed the ground under miner’s rights, were endeavoring to merge that interest in one under a lease. Their miners’ right interest was not protected under the application for a lease, and an action would lie for abandonment or forfeiture incurred prior to the application. The ground was only protected where the application was for a lease of virgin ground.
His Honor said the Act made no exception, but stated that the ground was protected pending the application.
After some further argument on this point, Mr. Helm read the decision of Judge Molesworth in the case of Anderson v Coyle. His Honor held “that the position of the complainant as to his right to recover was not affected by his application for a lease, and the opposition thereto pending, and accordingly that the complainant having applied for a mining lease of Crown lands and in which such application is pending, can apply by virtue of his miner’s right to a Warden to be put in possession of a portion of the area of land applied for by him on lease, but to which portion of lease adverse claim has been advanced by a former occupant, on the ground that such portion was forfeited or abandoned by such former occupant at the date when the applicant for the lease was applied to be put in possession of the portion in question under his miner’s right.” Under that decision Mr. Helm contended that an application for a lease was not an absolute protection of ground which had been previously claimed under a miner’s right.
Mr. Atkyns contended that that was a very different case to the present. The complainant before the Warden had previously held the ground under his miner’s right, and was applying as against himself. Collins and party in the present case never had possession of the ground, and were therefore in an entirely different position.
Mr. Helm said what however was a more difficult matter to contend with, was that, as he had been informed that morning for the first time, the lease had actually been granted. Mr. Helm went on to comment on the strangeness of such a proceeding on the part of the Mining department.
His Honor asked how long the application for the lease had been made prior to the commencement of the present action?
Mr. Hoskins: Four months; the application was on the 17th June, 1867 and the action commenced on the 28th October.
Mr. Helm would admit on the part of the plaintiffs, that the application for the lease had been made, but not that it had been issued. He presumed the defendants were prepared to prove that.
Mr. Atkyns said the lease was in Court.
Mr. Helm then proceeded further to comment on the facts of the case as to the original claim never having been abandoned, and the evidence which he prepared to call in substantiation.
His Honor said he felt the same difficulty in this case as in a former one of a similar kind, viz, what was the plaintiffs title to bring the case into Court? He held that that could only be acquired by an entry upon the land. The Court could not stultify itself and hear evidence as to the defectiveness of the defendants title. He could not see what bye-law prevented entry in the present case. Only two cases could be brought into the Court on its legal side – ejectment and entry. The case of Critchley and Graham seemed to be greatly misunderstood and was altogether different to this. It was in cases where the ground was forfeitable but not forfeited that application had to be made to a Warden. One of the parts of plaintiffs bill was for excess, and the bye-laws expressly ordered that that should be obtained by marking. There seemed to be some implication of power in the Court to do what the defendants asked in the words “entitled to possession,” but then they were qualified by a previous part which confined the hearing of cases “cognizable by a court of law,” and the only cases of that kind were ejectment and entry.
Mr. Helm drew his Honor’s attention to the 84th bye-law, forbidding any person to take forcible possession.
His Honor said that was “of a claim,” whereas Mr. Helm’s very complaint was that the ground never was “a claim,” not having been taken up in accordance of the bye-laws.
Mr. Helm apprehended that meant a claim as to the taker.
His Honor asked what “a claim” was?
Mr. Helm: the claim to take possession under a miner’s right.
Mr. Atkyns said the words “he may have acquired therein” clearly implied a title by possession. The 101st sub-section said “anyone entitled to such possession,” whereas the plaintiffs simply came in to show that the defendants were disentitled.
His Honor went on to refer to the action taken under the 77th section of the old Goldfields’ Act, which was not provided for in the present Statute.
After some further legal discussion, his Honor said he held that the only way to obtain title in a case like the present was by entry.
Mr. Helm asked his Honor not to come to any final decision till he had heard both sides and referred to the opinion expressed by Judge Molesworth.
His Honor said that was only an obiter dictum, and his (Judge Macoboy’s) decision held good until it had been reversed. What position would anyone be in in the Supreme Court with only a miner’s right for a title?
Mr. Helm said his Honor had statutory jurisdiction, and held that anyone might say, “Here’s my miner’s right, put me in possession of the land I want under the first sub-section of the 101st clause of the Statute.”
His Honor said the words of the Act were “cognizable by a Court of Law.” It was admitted that there must be entry for excess, and if all the ground was illegally occupied, where was the distinction?
Mr. Helm admitted he could not reconcile the bye-law which allowed the marking off of an excess of ground, with the 84th, which said, “In no case” could forcible possession be taken.
Mr. Atkyns directed his Honor’s attention to the fact that he relied upon the lease. Mr. Hoskins, for the Goldsborough Company, said he relied entirely on the lease.
Mr. Atkyns quoted the 37th clause of the Statute, and contended that the application for the lease alone protected the ground.
His Honor: “Anyone not in occupation at the time of the application would if he afterward took possession, be a trespasser,”
Mr. Atkyns said that was in exact accordance with the terms of the Act. The plaintiffs asked his Honor to override an Act of parliament, and put them in possession of land which was otherwise demised.
Mr. Atkyns then referred to the action of the City of Melbourne Company against the Band of Hope Company, in which, although the former were previously in occupation of the land under their miner’s rights, they were actually dispossessed by the Hand and Band Company getting a leases which, under the 39th clause, the Chief Judge said barred all proceedings, and gave a decision against the City of Melbourne Company. The plaintiffs in the present action could therefore never go behind the lease.
His Honor again went on to argue that the leases might be void under certain circumstances, and that especially in the case of Anderson v Coyle, the application was not an absolute protection of the ground. In the present case the plaintiffs had a right at the time of the application to be put in possession of the ground.
His Honor apprehended that that right referred to vested interests, and persons in actual occupation.
Mr. Hoskins contended that the application for, and granting of the lease, when once granted, actually dated back to the time of application being retrospective in its operation. In the case of Fahey v Kohinoor, the rights of the latter were retrospectively annulled, therefore the rights of the Goldsborough Company had been retrospectively affirmed by the lease being granted.
His Honor said as he read the 37th clause, it was plain as light, and gave the appicant for a lease protection against all but persons actually in occupation.
At his Honor’s request, Mr. Hoskins explained the exception that had been made in the covenants of the lease in favor of the Goldsborough Company, the rights of the applicants having been merged in that company.
After some further argument, his Honor nonsuited the plaintiffs with £68 9s 6d costs to defendants.
In the course of making up the costs, Mr. Phelps said, instead of his having to pay any, Mr. Hoskins should give him £50 for getting him such a good case.
18-2-1868 Dunolly and Bet Bet Shire Express.
Baker and others v R. V. Phelps. – Fraud summons. Mr. Hoskins, who appeared for the plaintiffs, said the case arose out of the non-payment of costs in the case before the Warden’s Court, in which the defendants sued the plaintiffs for their mining claim. He would, on behalf of the plaintiffs, offered to take an order for payment of the amount within a month. The money should have been paid six months ago.
Mr. Phelps indignantly refused to accept any offer of settlement, and characterised the proceedings as a disgraceful one on the part of one attorney towards another. Mr. Hoskins should have written him upon the matter before issuing a fraud summons.
Mr. Hoskins said he had instructed gentle means to be first used, and afterwards compulsion.
Mr. Phelps would admit that he had plenty of money, and could at any moment get a thousand pounds if he wanted as much. He then went into the box, and on oath stated that he was in a good position, and could pay the money, but had not been asked for it.
His Honor made an order that the money (£6 15s) should be paid to plaintiffs within a week.
The Court them adjourned sine die.
The seventh and last of the Goldsborough jumping cases was heard on Tuesday, before Judge Macoboy, at Dunolly. The case brought by the jumpers against the company was dismissed with £68 9s 6d costs.
28-2-1868 Dunolly and Bet Bet Shire Express.
With reference to the rumor that has gone abroad to the effect that the Goldsborough Quartz Mining Company has endeavored to effect a compromise with the plaintiffs in the suit against the Company, now under appeal, we have been requested by the manager of the company (Mr. J.H. Yates) to give the statement the most emphatic contradiction, the rumor being destitute of foundation, without a particle of truth in it, and could only have originated in the mind of one whose wish was probably “father to the thought.”
14-4-1868 Dunolly and Bet Bet Shire Express.
On Wednesday last, his Honor Judge Macoboy was engaged in chambers at Talbot, in hearing an application made by Mr. Hoskins, on summons, supported by affidavits on behalf of Hayes and others, defendants in the jumping suit of Collins and others v Baker and others. The application was for an order under the hand of the learned judge to rescind a previous order made by him on the 23rd ult., allowing the plaintiffs, Collins and others, time to transmit the copy, notice of appeal, and case in this appeal, to the Master in Equity. The grounds of the application were that the order of the 23rd March was bad, it having been made ex parte, and not on oath. The application was supported at some length by Mr. Hoskins, who quoted several authorities bearing on the subject. On Thursday the application was resumed before his Honor, at Carisbrook when Mr. Hoskins read further affidavits sworn by the defendants, and further supported the application. His Honor made an order as sought by the defendants, rescinding his previous order of the 23rd ultimo, and so has ended the infamous Goldsborough Jumping Case. (No it didn’t!)
19-5-1868 Dunolly and Bet Bet Shire Express.
An application was made on Friday, the 15th inst., to is Honor Judge Macoboy, in Chambers, in the case of Collins and others v the Goldsborough Company, to extend the time for sending down the case, and appeal against rescinding order made by his Honor in chambers at Carisbrook on the 9th ult. After hearing the solicitors on both sides, his Honor stated that for his own convenience solely he would extend the time to the 21st inst.
31-7-1868 Dunolly and Bet Bet Shire Express.
In the Court of Mines for the Mining District of Maryborough, holden at Dunolly, in the colony of Victoria. Plaint 4 1867. February sittings 1868. Plaintifs: James Collins, William Sandas Beveridge, William Rostron, Fredrick Sellwood Kendall, Samuel Lee, William Verdon Clayton, Frederick Neeld v Defendants: William Hayes, Henry Evans Baker, Robert David Dodd, William M’Liesh, Samuel Crozier, The Goldsborough Quartz Mining Company, Registered; John H. Yates, legal manager of said company.
31-7-1868 Dunolly and Bet Bet Shire Express.
An application was made on Tuesday last, the 28th inst., to his Honor Deputy Judge Wyatt at the Court of Mines, Talbot, by R.V. Phelps, as Attorney for Collins and others, that might be allowed to withdraw the sum of £25, which had been deposited in Court to abide the result of an appeal, of which notice had been given in the case of Collins and others v the Goldsborough Company, and which appeal had never been prosecuted. His Honor, after hearing Mr. Phelps for Plaintiffs and Mr. Hoskins for the Goldsborough Company, refused to make an order for the withdrawal of the amount, stating that in his opinion it was a matter which ought properly to be left to the decision of the learned Judge who tried the case.
14-8-1868 Dunolly and Bet Bet Shire Express.
An interesting satire.
Many persons in town were, during the early part of the week, on the tip-toe of expectation, a rumour having got abroad that his Excellency the Governor was to pay Dunolly a visit at the invitation of a certain limb of the law, and his excellency would on Wednesday be present at the Court of Mines in order to listen to the eloquence of the aforesaid limb. Host Simpson, of the Bendigo Hotel, was particularly on the quo vie, naturally expecting that the Governor would, when he arrived, take up his quarters at the hotel which had been patronised by his excellency’s successor, Sir H. Barkly, and a little knot of persons gathered round the hotel door on the arrival of the evening coach, but, to their intense disappointment, there were only two passengers, and one of these was Mr. Couchman, the Chief Mining Surveyor, and the other one appeared to be a Chinaman, the question then arose whether his excellency might not have wished to travel incognito, and had therefore assumed the Mongolian costume for that purpose; this appeared the more likely, as the passenger in question was in possession of very strong looking red-painted box with a huge padlock on it, which if the surmise as to its being the Governor in disguise were correct, might reasonably be expected to contain His Excellency’s cocked hat, sword and knee inexpressibles. One bystander, with more temerity than the rest, ventured to address a remark to the gentleman with the pig-tail, but was met with the reply “Hi. Yah! No savee,” and it was thereupon decided that as the Governor could not by any possibility have acquired such a profound knowledge of the Chinese language, the traveller could not be him. The disappointment was the more keenly felt, as it was rumoured, although we don’t vouch for the truth of it, that a very brass band had been engaged, and a procession to have been formed, headed by the Governor and the limb, to proceed to Goldsborough, in order to place a lot of acrobatic vaulters in possession of some ground, from which they had for a long time been kept out of by the perversity and stupidity of the Goldsborough Company.
18-8-1868 Dunolly and Bet Bet Shire Express.
The Dunolly correspondent of a contemporary, in referring to the Goldsborough law case, enquires “when will this case be settled?” to which we reply, we suppose when the Goldsborough Company will buy off the jumpers – if ever. (Echo answers if ever!) When no more dupes can be found. When civil servants, attending to their own business, will not degrade themselves by becoming process-servers, &c., &c.
9-11-1868 Dunolly and Bet Bet Shire Express.
Dunolly Court of Mines.
Tuesday November 10, 1868.
Collins and others v Hayes and others. – To obtain possession of 364 feet 11 inches of quartz reef.
13-11-1868 Dunolly and Bet Bet Shire Express.
(Note that Martley has changed sides)
Dunolly Court of Mines
Wednesday, November 11, 1868.
Before his Honor Judge Macaboy.
Beveridge and others v Goldsborough Quartz Mining Company, registered, and Baker and others.
Mr. Phelps for the plaintiffs; Mr. Martley, instructed by Mr. Crabbe for the Goldsborough Company; and Mr. Samuel for the other defendants.
Mr. Phelps addressed the Court for the plaintiffs, and went over the facts already published in connection with the case at previous hearings.
Mr. Martley said that if there had been written pleadings he would have at once have put in a lease dated March 10, 1868. The case had already been heard several times in various shapes, and it had cost the company some £3,000 to defend their rights. The company had in fact been thoroughly harassed, and he wished the present action to be an action of peace, and once for all to settle the defendants in their rights.
His Honor was of the same opinion, as when a similar case was before him that the plaintiffs had not done the necessary act to bring the case into Court. They should have entered upon the ground to have established title.
His Honor said he would hear the case upon its merits
Mr. Martley asked who were the parties to the plaints? They should be produced – they might be fictitious.
Mr. Phelps hand a number of miner’s rights to Mr. Martley, who refused to look at them.
Mr. Phelps contended that the production of the miner’s rights was sufficient.
Mr. Martley said it had been ruled otherwise in the Supreme Court, and cited the remarks made by the Chief Judge in reference to the case Hayes v Barlow.
After some further argument, in the course of which Mr. Phelps wished his Honor to state a case for Judge Molesworth, and Mr. Martley urged that the evidence should be taken so as to let the case as a whole, and not piecemeal, go before the Chief Judge, his Honor decided that the evidence should be taken.
John Henry Yates, sworn, was legal manager of the Goldsborough Quartz Mining Company, Registered. Did not receive a copy of the notice produced. Pincott’s place was the office of the Company. Saw a notice to produce in the hands of Mr. Guy; did not know whether it was a copy of the notice produced. Left notice of application with Mr. Orme for a mining lease about the 10th of June 1867.
Mr. Martley did not see how evidence could be given on the lease when it was not produced. Mr. Phelps must prove his plaint.
His Honor did not see that the evidence as to the lease was material to the issue. Mr. Phelps must keep to the issue before the Court, and take up the plaint and prove it paragraph by paragraph.
Mr. Martley said the lease should be dealt with by scire facias (1. (Law) a judicial writ founded upon some record, such as a judgment, letters patent, etc., requiring the person against whom it is brought to show cause why the record should not be enforced or annulled 2. (Law) a proceeding begun by the issue of such a writ)
Mr. Phelps “That is what you say.”
Witness to Mr. Martley: Know Lees one of the alleged plaintiffs. Saw his just previous to the last sitting of this Court. Was speaking to Lees in reference to the recent case of Collins and other against the Goldsborough Company. Lees said he was induced to go into that case by Mr. Phelps who said he had no idea of getting the ground, but had no doubt he could knock something out of the Company, and would give him (Lees) something handsome if he would allow his name to be put as a plaintiff in the case. We then spoke about the present case. Lees said he was very much astonished that another case was being brought against the Goldsborough Company, and that he had been told of it by Mr. White, his employer. He said he could not be a plaintiff as he had not seen Mr. Phelps for three months.
Mr. Phelps said Lees had been given £4 to make these admissions.
Mr. Yates: “That statement is false.”
To Mr. Phelps: That was all the conversation. Am not aware that Lees ever had a sixpence or any goods from Mr. Hayes. Lees was subpoenaed as a witness by my instructions. Never had any conversation with him prior to his being subpoenaed. Subpoenaed him from information received.
Alexander Behrens, sworn, said he remembered a survey of an extended claim at the Bealiba Reef about September 1864. Was living about half a mile from the claim. Passed the claim for about three weeks. Knew Bush, who was dressing timber, Baker and Dodd had a donkey engine there a week previous to the survey.
Thomas Bush substantially repeated the evidence he gave in previous cases, except that he started in the present examination that Wardell was at work securing the ground, which was in a very unsafe state; and that Baker had told him they had applied for the extended claim because the ground was so wet.
David Kirk, sworn, repeated his former evidence as to the quartz being crushed in September 1864 for defendants Dodd, Baker, M’Liesh, and Crozier. Was at the ground a week before the 21st September, when some of the defendants were at work there.
G. Brewer repeated his former evidence in reference to the sale of a boiler to Baker and company in September, 1864.
Henry Sparkes, sworn, repeated portions of his former evidence, but was not nearly so clear as to dates and pegs as on previous occasions, and was in consequence severely cross-examined by Mr. Phelps. It was eight months since he (Sparkes) had examined the ground. He at the time saw a particular peg on the north-east boundary.
Mr. Martley protested against the manner in which the witness was being examined, the same questions being asked two or three times over.
His Honor said it appeared as though an attempt were being made to delay the case. The witness seemed to know no more about the matter than an eclipse of the moon.
Mr. Phelps was again proceeding to examine the witness upon questions that he had answered several times previously, when Mr. Martley said he must protest against this sort of examination. He never heard anything like it in a court of justice.
His Honor again said it looked like an attempt to delay the case.
Mr. Phelps indignantly repudiated the insinuation.
The witness was then further examined as to the pegs.
Robert Crowley repeated his former evidence, which was to the effect that the claim could never have been left unworked in 1864 without him being aware of it, as the water pumped out it ran through his ground.
To Mr. Martley: Never had any conversation with Phelps about present proceedings. Never told Finlay that Mr. Phelps said he would never leave the Goldsborough Company alone while they had a shilling.
R. White gave evidence as to being spoken to about the carting of a boiler, and seeing it at the Goldsborough claim.
To Mr. Martley: The complainant, Lees, is in my employ, and is worth nothing, Remember a conversation between Mr. Guy and Lees about the case, but don’t know what was said. Gave Lees a subpoena and he said he would not come to Court.
F. K. Orme, sworn, put in an application for lease.
Mr. Phelps was proceeding to enquire what the defendants had done in reference to the application, when his Honor Objected that this had no relevancy to the issue.
Mr. Phelps argued the point, but was overruled by his Honor.
Mr. Martley produced a lease held by the Goldsborough Company, dated 6th March 1868, which was put in and marked.
Mr. Phelps asked for the lease, which Mr. Martley declined to hand to him unless it was admitted the ground in dispute was included therein.
Mr. Phelps wished to cross-examine in reference to the lease, and it being handed to him said the application was for 3a 1r 11p.
The witness being asked by Mr. Martley to turn to the application, said it was for four acres more or less.
His Honor asked Mr. Phelps whether it was admitted that the ground in question was included in the lease?
Mr. Martley said it did.
Mr. Phelps: I’ll admit that.
The examination was then allowed to proceed, and the witness stated that he had never, that he was aware of, received any other application for lease 697 than that produced.
Mr. Phelps said he would now come to the point, that was the Governor had no power under the Mining Statute to grant lease 697.
His Honor enquired whether that was the nature of Mr. Phelps case? If so he should apply for a scire facias.
Mr. Phelps contended that his honor had power to deal with the question, and was proceeding to examine the witness further as to leases that had been issued to the Goldsborough Company, when his Honor again enquired whether Mr. Phelps admitted that the ground in dispute was included in leases 697.
Mr. Phelps said he did not.
Mr. Martley in that case contended that Mr. Phelps had no right to examine the witness in regard to the lease, and said he might as well at once state that Mr. Phelps had got a foggy idea that the lease applied for under the application of June 1867 had been surrendered, and that, as enacted by the Mining Statute, the Governor could not issue a lease to include any fresh ground; therefore, that the lease the company at present held was illegal. The fact was a mistake had been made by the officer of the Mining Department, Mr. Robertson, the then Mining Surveyor, in surveying the ground, and this having been discovered Mr. Couchman, the Chief Mining Surveyor, made another survey and the first lease was cancelled, which set down the area at 3a 1r 11p., and a fresh lease was issued making the area 3a 1r 19p. The first lease had not been surrendered, but was destroyed in consequence of a clerical error.
After some further argument upon the subject, in the course of which his Honor stated that he had no power to upset a lease.
R. J. M’Millan, sworn, repeated his previous evidence as to the survey of an extended claim in September, 1864.
D. B Baxter, sworn, said: he surveyed a line pointed out by Mr. Conolan. The measurement was about 364 feet 6 or 7 inches.
To Mr. Martley: Do not know whether the pegs pointed out to me were the centre pegs.
Thomas Wardell, sworn, said: He had known the claim in dispute for four years. Worked there in August and September, 1864. Was present when the claim was surveyed by Mr. M’Millan. Had then been working for five weeks. Assisted in marking out the extended claim. The claim was not abandoned in September, 1864.
To Mr. Martley: I am one of the plaintiffs in the suit. I have not supplied Mr. Phelps with any money. Mr. Phelps is to receive a half share in the claim – if we succeed. There are nine jumpers. He’s to receive one half of the share I am interested in, and has arranged with the other jumpers for himself. I know Mr. M’Leish. Asked him to lend me money. He said he had none. Had no conversation with Mr. Yates about the case against the Goldsborough. Recollect I did have a conversation with him at Mr. Hayes’s and perhaps at Pincott’s. Was in new South Wales when the suit was instituted. Had no knowledge of the case until I came to Deniliquin. There was a letter there for me which I never saw. Phelps might have spoken to me to join the suit. I was to have half the share by giving my name as a plaintiff. Have received money from Phelps for work done for him. Mr. Kendall, Mr. Phelps’s clerk, got the miner’s right for me. Gave him no money.
R. V. Phelps, sworn: paid for the miner’s rights produced in the names of the plaintiffs. Was authorised by them to take out the miner’s rights.
To Mr. Martley: It is perfectly true that I have a share with Wardell. Expect to get a share with everyone of the plaintiffs. May have said something to the effect that I would never leave the company alone while they had a shilling. Mean to have a share in the company to which I consider myself entitled, and if I lose the present case I will commence to-morrow in my own name; there’ll be no beating about the bush then.
John Miskelly, sworn, produced the papers and forms in regard to the registration of the Goldsborough Company, under the Limited Liability Act.
This closed the case for the plaintiffs.
`Mr. Martley said he had never addressed a court under such painful circumstances. It had been proved that one of the plaintiffs, Lees, had been solicited by the attorney in the case to lend him his name as a plaintiff in a former suit, and that he had been made a plaintiff in the present one without his knowledge. The witness Wardell had further deposed that Mr. Phelps had arranged to give him half a share for lending his name as a plaintiff, and Mr. Phelps himself had an oath openly and unblushingly avowed that he was to have half of all the plaintiffs shares provided they gained the suit. In the whole of his experience of twenty years he had never met with such a flagrant case of maintenance, which rendered not only the attorney, but his associates, liable to fine and imprisonment for misdemeanour. Mr. Martley was proceeding to address the Court on the facts disclosed by the evidence, when his Honor said Mr. Martley need not proceed any further. A more flagrant case of maintenance had never come under his notice, and he felt that he should be unworthy of his position if he did not scout such a case out of court. Against his own judgement, which was that the plaintiffs had no standing in court unless they marked out the ground in dispute, he had patiently listened to the evidence, never dreaming what would be disclosed. He was very much pained, especially as that might be the last time he would preside in that Court, to have occasion to pass such remarks upon and old officer of the Court, but it would be a blot upon the administration of justice were he to tolerate such a case. The case was dismissed with £52 18s costs.
Mr. Phelps said his Honor had not said as much when another attorney brought a similar case into Court, in which he was personally interested, and in which Mr. Martley appeared for the plaintiffs.
Mr. Martley said he was not aware of being concerned in any such case, and if Mr. Phelps referred to the case of Barlow and others v Hayes and others, he was authorised to say that the statement was utterly false.
Mr. Dunbar said if Mr. Phelps’s remark referred to him, he might state that Mr. Martley was paid for appearing in the case. The only way in which he (Mr. Dunbar) was interested was with Murray, but he had nothing to do with originating the case, such as had Mr. Phelps.
The Court then adjourned.
13-11-1868 Dunolly and Bet Bet Shire Express.
We hear, but the statement is almost beyond belief, that Mr. Phelps has actually already instituted another suit against the Goldsborough Company for fifty feet of Ground, and that the case is to come off before the Wardens Court, thus literally fulfilling his threat of entering, the day following the dismissal of the last case, another suit against the company in his own name.
A case of some interest was heard in the Court of Mines at Dunolly, before Judge Macoboy, on Wednesday. An action was brought by Collins and seven others against the Goldsborough Company, to obtain possession of the company’s mine, on the ground that it had not been taken up in accordance with the bye-laws. The attorney for the applicants was Mr. Robert Phelps, who not only conducted the case, but appeared as a witness, and stated in the box that he was to receive half of the claim if he succeeded in the action. It also appeared that he was the chief instigator of the suit, and that the eight applicants were splitters and fencers, for whom their attorney had purchased miners’ rights. Mr. Martley had been requested to appear for the applicants by Phelps, but as his fee was not paid up to the morning of the trial, he declined to appear. Phelps represented that the money would be forthcoming at noon, and wished Mr. Martley to proceed with the case, but the learned counsel gave till ten o’clock to get the cash. There was no sign of it then, and Mr. Martley accepted a brief from the other side. He submitted half a dozen non-suit points, but the first, that Phelps was guilty of champerty and maintenance, was sufficient. The judge said it was a most flagrant case, and gave a verdict for defendants, with the highest costs. The mine, which was the subject of dispute, is said to be worth £20,000 a year.
24-11-1868 Dunolly and Bet Bet Shire Express.
The Argus, a day or two since, contained a paragraph on the Goldsborough Jumping case in which it was stated that the plaintiffs were splitters and fencers. This is an error; Messrs Rostron, Beveridge, and others of them being described in the plaint as gentlemen. A strange association truly. In all other respects the paragraph correctly describes the circumstances connected with the disgraceful proceedings.
12-2-1869 Dunolly and Bet Bet Shire Express.
Dunolly Court of Mines
Tuesday, February 9, 1869.
[Before his Honor Judge Clarke.]
There were two cases, of Hayes and others v Beveridge, and Hayes and others v Collins, fraud summonses, and his Honor ruled that although there was nothing in the rules in reference to the matter, there must be affidavit upon which the summonses should be issued.
The Court then adjourned.
26-2-1869 Dunolly and Bet Bet Shire Express.
The case of Collins and others v Goldsborough Company was heard at the Chief Court of Mines, Melbourne, on Wednesday, 24th February, 1869, before his Honor Judge Molesworth. The case was an appeal from a decision of a judge of the district Court of Mines at Dunolly, dismissing a suit on the grounds of champerty and maintenance on the part of the plaintiff’s attorney. Mr. Billing and Mr. J. H. Molesworth for the appellants (plaintiffs in the Court below) Mr. Martley and Mr. Holyroyd for the respondents (defendants in the court below) After hearing the arguments on both sides, his Honor reserved judgement.
2-3-1869 Dunolly and Bet Bet Shire Express.
Chief Court of Mines
Wednesday February 24 1869
Before Mr. Justice Molesworth, the Chief Judge.
Collins v Hayes and others.
This was an appeal from a decision of Judge Macoboy’s, at Dunolly. Mr. Billing and Mr. Molesworth for the plaintiffs, the appellants; Mr. Martley and Mr. Holyroyd for the defendants, the respondents. Collins and eight others (plaintiffs) had instituted a suit against Hayes and the Goldsborough Mining Company, who held a lease of some mining ground in the Maryborough District, praying for a declaration that the defendants had no title to the ground, and that the plaintiffs should be put in possession. Judge Macoboy dismissed the suit, holding that Mr. Phelps, the plaintiffs attorney, had been guilty of champerty and maintenance. From that decision plaintiffs appealed. The special case that was stated by the learned judge was of extreme length, and contained a great deal of irrelevant matter. The main features were that none of the several plaintiffs on behalf of whom miner’s rights were handed in by Mr. Phelps, except Thomas Wardell, appeared personally in Court; though Mr. Phelps was challenged by the defendants to produce them. On the cross-examination of one of the witnesses produced on behalf of the plaintiffs, it was brought out that Samuel Lee, one of the ostensible plaintiffs had denied to him any knowledge of his (Lee) being a party to the litigation, but he (Lee) did not come into court personally to discalim. Thomas Wardell, the particular plaintiff alluded to, was examined by the plaintiffs solicitor, as one of the persons who, it was alleged, should substantiate the main allegation, viz, that the ground in dispute was not abandoned, or unoccupied ground within the meaning of the bye-law, in September 1864, when the extended claim was taken up. On his cross-examination, he made the following statements and disclosures, which I believed:- ‘ I am one of the plaintiffs. I am a miner, now residing in Dunolly. Mr. Phelps is my attorney. I have not supplied him with any funds. Phelps is to receive half a share; if there were twenty he would receive half of each share; there are nine jumpers; I am one of the nine. Phelps is to receive half of my share. Phelps has arranged with the others for himself. I know Mr. M’Liesh, one of the defendants. I admit I did ask him for money. I asked him first for work. He said he had none. It would have been a gift and not a loan, if I had received it. I had been acquainted with him. I was in this case when it was launched. I was in new South Wales. I heard of it in Deniliquin. I was told a letter lay there for me. Phelps was to have half my share and bear the cost. I have worked eight weeks for Phelps, as a day laborer. I authorised Phelp’s clerk to get my miner’s right. I gave him no money.’ Mr. R. V. Phelps gave the following evidence:- ‘I paid for all these miner’s rights, which I now produce; they belong to the nine plaintiffs respectively. I was instructed by these several parties to use these miner’s rights and took them up in their names. Cross examined. – It is true that I am getting a share with the others. I expect to get a share from every man; that is a portion of the fee. I may have said. “ I would not let the defendants alone. I will spend every farthing I am worth to a share in that claim. I’ll jump that claim.” From the foregoing evidence it appeared that the suit of the solicitor, Mr. Phelps, that he had made an illegal bargain with the plaintiffs, or with several of them, to carry on the suit at his own expense, or in consideration of his getting part of the fee, one half of each man’s share if successful. I regard the transaction as essentially a bargain by a solicitor with the plaintiffs or ostensible plaintiffs, to divide the land or other matter sued for between them if they prevailed at law, where upon, or in consideration whereof, the solicitor was to carry on the suit at his own expense, “and as the suit was tainted with champerty and maintenance, the judge dismissed it with costs.” The authorities cited on the question whether the evidence showed champerty and maintenance, were Story’s Equity Jurisprudence, section 1,048, 4 Black Com., 135; Harrigan v Long, 2m and K., 590; Stanley v Jones, 7 Bing, 369; Findon v Parker, 11M. and W., 673. His Honor reserved his decision. – Argus
5-3-1869 Dunolly and Bet Bet Shire Express.
Chief Court of Mines. Tuesday March 2 1869
Before Mr. Justice Molesworth.
Collins v Hayes.
This was an appeal from a decision of Judge Macoboy’s, at Dunolly.
His Honor gave judgement this morning, stating that the opinion of the learned judge who dismissed the plaint was this:- “I regard the transaction by the solicitor essentially as a bargain by a solicitor with plaintiffs, or ostensible plaintiffs, to divide the land or other matter sued for between them if they prevailed at law, whereupon, or in consideration whereof, the solicitor was to carry on the suit at his own expense, ‘and as the suit was tainted with champerty and maintenance the judge dismissed it with costs.’” It has been argued in this case on behalf of the plaintiffs that in order to constitute champerty there must be a binding contract as between the parties, and the contract must be such that, apart from its illegality, it would be valid and binding. I do not think the authorities sustain that view. In 1 Hawkins’s Pleas of 171 and 172, in commenting on the word the Crown, 464, and Fitzherbert’s N.B., covenant in the act, it is said: “The word covenant extends to an agreement or promise verbal or otherwise; and generally speaking as to matters of public policy, or illegality as contrary to statute. The imputation of illegality is not limited to an illegal object where the combinators rely upon an honorary engagement between themselves, which would not have been binding if for a legal purpose. In such cases parole evidence is admitted to show the true state of facts and illegalities.” The authorities for this are in 2 Taylor, 967, and Spry v Porter, 7 Ell. and Bl. 38. In that case the written argument sued upon was so far as it was set forth, legal, and the Court decided upon demurrer that it was so; but there was a plea setting out the true state of the parole bargain between the parties, which disclosed facts which made it objectionable on the score of champerty. In an ordinary case, as between the parties to a written contract, the Court will not go outside the written document; but in this case the Court took it without dispute that the true contract as between the parties could be set out, and if disclosed champerty the plaintiff would be defeated.
It has also been held in a great many cases that the objection is not confined to cases which would be absolutely criminal. A case running counter to the policy of the law, although the parties would not be criminally responsible, comes within the principal that the Court will not sanction an illegal contract – Reyonalds v Spry. De.Gex, Mch. and G. 677. The learned judge after quoting the evidence of Wardell and Phelps, said the former showed that he was not a man likely to embark in speculation, and that the relations between him and Phelps were those of master and servant, not attorney and client. Most of the cases on champerty are those in which a contract tainted with champerty is sought to be enforced, and it was held that, as illegal, they could not be enforced. There are also cases in which the rights of the parties to the proceedings were shown to be the result of a bargain savouring of champerty, and in which it was held that the courts would be, in effect, executing a bargain tainted with champerty if they allowed it. Moore v Creed, 1 Dr & Warren, 521; Harrington v Long, 2 M & K., 590; Cholmondaly v Clint, 4 Bing., 43. But there is no case in which a plaintiff who has a right makes a bargain with the solicitor whom he employs savouring of champerty has been defeated in his rights in consequence of that bargain, otherwise a man would be outlawed because, in such a case, he employed such a solicitor on certain terms. There is one case in which it was held that a bargain of champerty was not the ground for defeating the rights of a plaintiff otherwise good. Hilton v Woods, 36. L. J. 691. That the judgement commenced with a distinction to which I shall advert presently as distinguished that case from the present, that the authorities clearly show that where a plaintiff has originally a good title, he is not to be defeated on the ground of the mode of remunerating the attorney whom he employs. It was thus held that a bargain for the conduct of a suit founded upon champerty and maintenance was no reason why the plaintiff’s rights were not founded upon champerty and maintenance. The inference to be drawn from the evidence hereby any man of common sense is that these plaintiffs were not parties having a good claim, and looking for an attorney coveting the ground of the defendants and looking for clients to commence the suit, who were in such a position that Miner’s rights had to be bought for them to distinguish them from the rest of the population. This is not a claim originally independent of champerty, but in its inception and concoction based on champerty and maintenance. Order the decree appealed from to be affirmed with costs. Refer to the master to tax the costs, and the deposit to be applied in part discharge of the costs, and the overplus, if any, to be refunded.
21-5-1869 Dunolly and Bet Bet Shire Express.
Dunolly Court Of Mines
Monday, May 17, 1869.
Before his Honor Judge Clarke.
Hayes and others v Beveridge and others.
Fraud summons, £52 8s. Mr. Crabbe for plaintiffs. No appearance of defendants. The service of summons was duly proved.
His Honor asked Mr. Crabbe whether he could show any authorities for one man being selected to proceed against.
Mr. Crabbe stated that the case arose out of one of a series brought against the Goldsborough Company by persons of straw, associated with one or two others of means. The defendant was, or had a short time since made affidavit that he was worth £2000. He Mr. (Mr. Crabbe) wished to have Mr. Beveridge in the box to show what had been done with that money. It was usual for persons summoned for fraud to treat the Court with perfect contempt, as in the present case, and to trust to the leniency of the Judge for getting off as best they could. It was time an example were made, so as to teach such persons that they could not insult his Honor’s Court with impunity. As to the defendant being personally responsible, the same rule applied as in the County Court and other courts of the colony.
His Honor went carefully through the papers to see that all had been properly and legally done in connection with the case, and being satisfied upon this point, ordered that the defendant should be imprisoned for two months in the Maryborough gaol if the money were not paid with costs within six weeks.
13-8-1869 Dunolly and Bet Bet Shire Express.
Some of the persons concerned with the Goldsborough jumping cases are coming to grief. Yesterday one of them who a short while ago was, we understand, in receipt of £600 per annum, but who was sometime dismissed from his situation, was marched off to gaol, not being able to find sufficient money to pay his share of the costs in the cause; and we are given to understand that another of the principal actors in the affair has had two months allowed him in which to discharge a debt, and that in default of doing so he is to have six months incarceration. This should act as a warning to jumpers (without good cause) and those who abet them.
22-2-1870 Dunolly and Bet Bet Shire Express.
Dunolly County Court
Before his Honor Judge Forbes.
Yates v Neild – action of ejectment. Mr. Crabbe assisted by Mr. Harcourt for the plaintiff; no appearance of defendant.
Mr. Crabbe said the action was brought under the 96th rule of the new County Court Statute. He read the indenture of sale by the bailiff of the Court of Mines.
Mr. Phelps, who said he did not appear for the defendants, directed his Honor’s attention to the affidavit. There was no proof of service. His Honor said Mr. Phelps must either appear or not appear. Mr. Phelps said he did not appear then. John Miskelly, Clerk of Courts at Dunolly, produced the plaint of Collins and others v Hayes and others. He also produced the registry. The case was postponed but eventually was dismissed with costs £68 9s 6d. A warrant was issued, the return was Nulla Bona. A second warrant was issued, the return to which was that certain land had been seized and sold for the sum of £15 9s, the nett sum paid into the court being £9 15s.
John Papinear, Bailiff of the Court of Mines at Dunolly, produced the warrant of distress. Under that warrant he seized certain land, advertised in the usual manner. [Both Government Gazette and local paper produced] Conveyed the land to John Henry Yates. [Conveyance produced]
R.V. Phelps, sworn, said he was a solicitor for plaintiffs in the case of Collins and others v Hayes and others. Neild was one of the Plaintiffs.
George Guy, sworn, said he searched the Supreme Court Registry. Found an enrolment of the grant of certain land to Frederick Neild. Frederick Neild was the defendant in the present action, and the land was that seized. Judgement for plaintiff, with £7 15s costs.
7-6-1870 Dunolly and Bet Bet Shire Express.
Amongst the new insolvents are the names of two persons pretty well known here, Mr. R.V. Phelps, of Graytown, Mr. J.A. Wilson. The reasons assigned by the first-named must be very satisfactory to his creditors, especially those who have suffered by his “mining and other law suits.” Verily, cheek, and something worse, may be made to go a long way.
Phelps would returned to Dunolly and district where his immorality and deceptions continued for a lifetime, except when gaoled. He is buried in the Dunolly cemetery under an impressive monument, the weight of which ought to ensure he stays there.
Below is a cartoon related to the Goldsborough Jumping case. This was purchased in an antiquarian bookshop in Prahran, Melbourne (Douglas Stewart Fine Books) by Marie Kau of Talbot, who recognised the connection with the Great Goldsborough Jumping Case.