A MINING APPEAL CASE.

Otago Witness, Issue 2164, 15 August 1895, Page 16

A MINING APPEAL CASE.

At the District Court, Queenstown, before his Honor Judge Ward, the case of the Bald Hill Sluicing Company v. John Magnus was heard. This was an appeal from the dcci ion of Mr Warden Wood, by whom the water right of appellants was adjudged to have lost its priority by wav of forfeiture under sub-sLcrion 14 of section 105 of " The Mining Act 1891 " for not having completed the race \yith reasonable diligence. Mr Wood in giving judgment stud that under sub-section 14 he had no power to inflict a fine iv lieu of forfeiture, but that, if he had such power, he would only have fined the race owners. From this decision the appellants appealed. The appeal, whirh was heard in the District Court, Quennstown, on August 2 last year, was by way of case stated on points of law only. Respondent t«ok the objection that the decision being on a matter arising • under Part I of the act, the appeal should have been by way of rehearing as provided by section 286 of the Mining Act. The diatr ct judge upheld tt.is obj«< ton and threw out the appeal. Respondent then took out a writ of mandamus, which came before Mr Justice Williams in the Supreme Court,' Dunedin, last Mar. h, when his Honor reused the writ, as a mandamus does not lie against a district judge. His Honor, however, expressed an opinion that the appeal was properly brought on points of law only. The 1 arties con-senting-to the appeal as originally brouxbt was again before the Distiict Court ou the Ist in»t. The principal questio • was— Was the warden right m sayifg that he had no power to substitute a fine in lieu of forfeiture, and if not the district judge was axked to remit the case b,ck for the •warden to substitute a fine.

Mr W Turton (Quetv stown), with him Mr R. Gilkison (Clyde), fov appellants, and Mr M. Macdoiiald (Alexandra) for respondent. After argument that occupied a considerable time, his Honor gave judgment. He held that he had uorhoice iv 'he matter, and it w-s with considerable regret that he could not send the case back for rehearing. There was no d»u*>t that if the warden made a mistake he (his Honor) could not remedy it. The warden clearly had the power to substitute a fine, but his Honor could not remit the case back for the warden to substitute a fine. The case should have been bi ought by way of rehearing, and hiu Honor would then, have beon able to say if rhere was " sufficiei-cy of cause" to substitute a fine in. lieu of forfeiture, having all tha facts before him ; but as the rase was now brought, all ha could say was the warden had the power to substitute a" fine. The appeal must be dismissed, as hi" Honor had no power to remit the ca?e baik as afked. Appeal dismissed, with costs (professional fee), £6 6b.