SUPREME COURT.

Otago Witness, Issue 2355, 13 April 1899, Page 30

SUPREME COURT.

DIVORCE AND MATRIMONIAL CAUSES. Tuesday, Maech 11. (Before His Honor Mr Justice Pennefather.) six v. siM. Motion for decree absolute for dissolution of This was a husband's petition by Walter Fairlie Sim (of Crookston),- farmer, against his wife, Dorothy Sim. The case was tried before his Honor Mr Justice Pennefather on August 6 last when a decree nisi was granted. Mr W. A. Sim now moved that the rule be made absolute. His Honor: There is no other course poseible, is there? Mr Sim : None, your Honor. His Honor: What rule does it come under? The affidavits are sufficient, I suppose. Mr Sim : I have not the rule by me at the moment, but this is the practice that has been followed since the passing of the act of 1881. His Honor : The affidavit is sufficient ; therefore, in accordance with the act, I am bound to order the decree to be made absolute. IN BANCO. (Before his Honor Mr Justice Pennefather.) HOWELL V. BOSS. Motion for writ of certiorari. Mr Sim for the appellant, James Howell (of Patearoa), farmer, and Mr Woodhouse for the respondent, Robart Ross (of Alexandra), miner. Judgment herein, reserved on ' the 29th March, was delivered by his Honor: — "When this matter came before the Supremo Court on a previous occasion it was by a motion for a writ of prohibition either restraining Ross, (the applicant) and Dalgleish (the -warden) from proceeding further with the aplication, or restraining the warden from issuing the license until a day had been fired for the final hearing and such hearing should have taken place. The writ was -asked for on two grounds : .(1) It was argued that the application was improper, inasmuch as it includad runra land and more river frontage than could ba included in one claim, and certain land which, being freehold, cpuld not be. included in any mining claim. As to this, I held that I coul-1 not assume that the wardon would grant an improper application ; he might reject it altogether, or grant it as to a part only ; and if the objector '•considered that he acted wrongly m granting ii-^s to part (a question which would to some extent depend upon the mterpretutien of Reg.l 7), his remedy was by appeal, not prohibition At any rate the impropriety or otherwise of the application could notba decided until the survey was made. In giving this decision I considered that I was bound by the judgment of Mr Justice Conolly in Falvey v. Tregoweth (16 N.Z.L.R., 341). (2) It was also urged, that tho proceedings wore irregular, especially in tho warden granting the'^i^plication before the surrey was made "subject to the survey." The -warden had acted in accordance with what he believed to bo the true construction of the Mining Act, 1891, section 129 — in other words, he had granted the application on terms, the terms being the making of a survey. Here, again, I held that- bb the matter was properly within the jurisdiction of the warden the party objecting to his ruling had the right of appeal, but had no . remedy by prohibition. Now, however, the case has assumed a different aspect. The survey has been made in accordance with the warden's, order and Regs. 10-12. It is one of the conditions of such survey that an opportunity shall be given to persons desiring to object to the issue of the license to enter their objections. For the reasons I- have already givou, it is not necesBftry for mo to decide whether an order could be. made final as to other objections, but subject to objections which might arise out of the sur--vey; all I have to say is that if it was made subject to the survey it must be taken as besubject also to the notice ordered by tho survey and the possible objections arising therefrom. An objection did. arise out of the ouivey — namely, it was said that the surveyor did not survey all the land applied for. The objections were lodged and, tin application was made tc tho warden to hear them. Nevertheless, on September 27, 1898, the warden refused to do so, and signed the license. The objectrr row seeka to have the license and all proceedings thereon and relating thereto removed into this court and the license quashed. If the warden had giveD a decis:on a3 to the validity of thase objections^ his decision would have been subject to appeal "(sde the Act, section 265, and Reg. 241). But to refuse to hear objections is to omit a necessary preliminary to jurisdiction, and thereiore a reason why the order may be removed by certiorari into this court and quashed (see Colonial Bank of Australasia y. AVillan, L.R." 5, P.C. 417,443). The same case shows that Ihe objection may be brought before the Supreme Court by affidavit. I am of opinion, therefore, that the writ must issue. Costs, £5 55."