Friday August 12.

Otago Witness, Issue 2320, 18 August 1898, Page 12

Friday August 12.

COU3TON V. M'KENZIE AND ANOTEBK.

Motion for writ of iwohibition. Mr Hosking appeared on behalf of the plaiutilf, William Couston, ironmonger, of Duneclm, and Mr Solomon raid Mr Sim on behalf of the defendants, Donald M'Kenzie, jun., farmer, of "Waikaka, and Robert Samuel Hawkins, a wardei of the Warden's Court for the district of the Otago goldflelds. This case was resumed, and Mr Hosking concluded his argument in support of the motion.

Mr Solomon said there were three questions raised in the present case, two of which were of the utmost importance, for they went to the veiy root of the jurisdiction of the wardens over the lands of the colony, the other point being ono th.it referred to this particular case only. Th a three questions his Honor had to decide were these. (1) Are the lands which are held under perpetual leases which have been gi anted after the goldfield has been declared subject to be dealt witli under the provisions of the mining acts m force in tins colony? (2) Assuming that they are not, and that the warden proceeds to deal with them, will prohibition lie, or is the only remedy the remedy by way of appeal provided by the mining acts of the colony? (3) Assuming that prohibition will lie under such circumstances, his the present applicant deprived himself ot his right to it in this case? The first two propositions involved a very serious question of public policy, the result of which would .have a farreaching effect. Taking the second point first, he submitted, in the state of the law in .New Zealand, that, even assuming that all that Mr Hosking had said was correct, prohibition would not lie. With regard to the merits of the case, his learned friend's argument was ba/3cd on a misapprehension. The essence of his argument was that the court wdiflcl not take atvay a man's rights without granting him compensation for doing so. The answer to that was that in this case the plaintiff never had any rights, and, therefore, thero were no rights to take away. The Land Act of 1887 gave the key to the whole position, and showed that the plaintiff never had any rights at all, and the Legislature never intended he should have. Section 16 of that act provided that every perpetxial lease-

holder might acquire a freehold, and section 17 deait with perpetual leases in mining districts, showing that the holders could apply to purchase the freehold, and then the Minister foe Lands, after getting a report fiom the warden, might grant the application ; but counsel conteiided that section 16 applied to land outsidemining districts.

Mr Sim followed on the same side,

Mr Hoskuig, in reply, argued that section 16 of "The Land Act, 1887," v/aa general in its application, and applied to perpetual leases within mining districts, as well as out'udo, and that section 17 was merely a machinery clause. Ho submitted that the court, putting before itself the consequence that would follow to private rights, s-nd tho possibility that tho whole of the .surface, except such as w.u cultivable land, might bd taken by a. warden and granted for special claims without a penny of compensation, would never hold. That was the position of tho law. His Honor reserved his judgment. The court rose at 4.30 p.m.