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Colonial Cases

Lewis v. Jones, 1874

[mining law - appeal]


Lewis v. Jones

Source: Northern Territory Times and Gazette, 6 February 1874, p 2



An appeal from Warden's Court. Mr. Lewis represented the appellants; Mr. Smith appeared for the respondents.
Mr. Lewis wished first to know if the Bench was in possession of all the papers which had been exhibited in the Court below, and if not, if Mr. Connor, the Chief Warden, would be called on to produce the papers.

Mr. Smith objected to Mr. Connor being sent for. The Judge who had heard a case could not be called as a witness in an appeal. He knew, however, that Mr. Connor-who was unwell-was perfectly willing to hand over his record book to the Chairman of that Court. He would, however, ask the Bench to deal with the case as appeal cases were dealt with in other Courts, and ascertain if the appeal was properly before them-that is, if the notice and affidavits were in accordance with the Act. He thought it his duty, especially as there was no other practitioner in the Court, to advise the Bench as to the practice of other Courts, and he did so in the kindest spirit, although this Bench had on all occasions taken the opposite view of his advice.

The Bench objected to Mr. Smith's insinuations.

Mr. Smith wished to assure the Bench that he had no intention to mislead.

Dr. Ellison-We'll take care of that.

Mr. Smith-You'll take what?

Dr. Ellison-We'll take care you don't mislead us.

Mr. Smith-Then, if you are so determined that I shall not mislead you, I shall take care on behalf of my clients to point you out the practice of other Courts. There is actually no case of appeal before the Court. I shall shortly point you out several objections, but I shall not argue these points. I believe it will be better not, when the Special Magistrate says, in a manner evidently offensive, that he will take care that I do not mislead the Bench, and another Magistrate talks about committal.

Mr. Reynolds-Who?

Mr. Smith-Mr. Reynolds, I think, when Mr. Adcock's application for licence was called on yesterday.

Mr. Reynolds-I did not talk about committal; but I will say this, that if Mr. Smith continues to throw out insinuations and insult the Bench as he has been doing, I shall certainly make one to exercise the powers conferred on the Bench.

Mr. Smith-Just so; but all I want on behalf of my clients is that the Clerk of the Court will take down my objections to the appeal. Mr. Smith then objected-1st. That there was no proper jurat to the notice of service. 2nd. That the notice had not been served within the time specified in the Act. 3rd. That there was no recognizance, because, the recognizance should have been taken by the Warden, who heard the case; that the bail was not such as is required in a civil action like the present; and that no notice had been given of the bail to the respondents.

The Bench having overruled those objections,

Mr. Lewis made a statement showing that he could not secure Mr. Smith's services, and what difficulties he experienced in serving the respondents.

This statement having been re-written on appellant's oath by the Clerk, Mr. Lewis read a written statement, the leading point of which was that the Bench would not dispossess persons who had expended thousands of pounds on ground, because of the omission of the performance of some technicalities, such as an inch in the breadth or height of a peg.

Mr. Smith having spoken in reply for about two hours, the Court was adjourned till next day at 10 o'clock.


Source: Northern Territory Times and Gazette, 13 February, 1874, p 2

ON Tuesday last, at the Local Court, Palmerston, the Bench-composed of the Hon. T. Reynolds, Dr. Ellison, and Mr. J. Lindsay, gave judgment in the appeal case, Lewis and another v. Jones and another, disputed claims, Pine Creek. The decision of the Court was that the Warden's order be quashed, and that each party pay their own costs. Mr. Smith for the respondent gave notice of prohibition, on the ground that the Court had no power. The verdict of the Court was received with dead silence.


[This was an appeal from Jones v. Lewis, 1873.]

Published by Centre for Comparative Law, History and Governance at Macquarie Law School