JUDGMENTS.

Western Star, 9 October 1908, Page 2

JUDGMENTS.

, MoFAPDEN v. McOLYMONT, Thog is a claim foil - services renldei - - cd as a horse-trainer and jockey, and for ■ certain disbursements. The actual work is admitted. The defendant, however, says that ti e plaintiff took the horse upon the terms that he would train and ride him for half tile horse’s winnings. There is a. conflict of testimony here (between the two principals, ifciut the evidence of the plaintiff is, to some extent, corroborated by one tVm. Thompsbii who says lie overheard a chance, conversation between the parties which supports the contention of the plaintiff. In spite of CVIr Thompson’s sitiory I do not feel disposed to believe there was such an agreement. It seems to me much more provable that the horse would be trained on shares, instead of costing tweiiiydive shillings a week. Plaintiff’s conduct all through fits l;n with the share theory, and he has failed to satisfy me that any money is due. Anotlbr defence raised was the plaintiff’s non-registration as- a trainer. He has failed to take out a trainer’s license as provided by the Rules of Racing. The effect of this is tillal the horse -was liable to be disqualified by the stewards of the various meetings at which thq horse competed. I have been referred tQ the decision; at itij&Ji

Justice in Peters Telford, 3 Gaz. 387. The facts are somewhat different as in that case the contract was an entire one to ride the horse at all its races at a particular meeting, and both parties consider ad the jockey’s license to he in force. Here the contract was for a weekly wa gQ, and the question of a trainer's license was not discussed apparently. In Peters v. Telford ity is suggested that if the owner had won any money the jockey might recover on a quantum meruit.. Here the contract was not entire, and the defendant has had t(he benefit of plaintftf’s services in training arid riding the horse and in securing certain winnings. I think he would he entitled, to recover on a quantum meruit, if I were satisfied his story of the contract is correct. He has failed on the merits, however, and there must ho judgment for the defendant. Mr H. A. Macdonald appeared for plaintiff, and Mr Jas. Armstead for the defendant. BAIT, AN TYNE v. HU CKLEDRIDGE AND OTHERS.. This is a plaint for the forfeiture of a three-acre claim at Pallia. Hucklebridge, the principal member of the three defendants is also the managing director and moving spirit of a registered company which is holding two adjoining mining properties and also some races. These races Have lately been cleaned out and the defendants claim that they are entijeled to the benefits ■of this work, because their, claim will, they say, bo worked, by these races. I cannot _ v agree with that contention, neither do I give tine benefits of the timber, cutting to the defendants. This cutting was not mining wpi'k, but was done simply to get timber for the com- . pany’s mining operations. There has been no work done on the claiim for somq months, and the few holes sunk on the ground shqw the defendants they, cannot work it without bringing up a big tailrace. The company is to bring up this tail- ■ race to work a ID-acre claim, which ift holds adjoining the defendants’ three acre claim. When this tailrace is made the defendant claims that he will then be able to work ' this three-acre claim. I am not satisfied about this nor about tli) de- > fondants’ other projects. Thei ground 1 is lying idle and the plaintiff offers 1 to work it r ; jght away. The claim 1 will bo cancelled and given to plain tiff-.

Messrs Jas. Armstead and Lyle 'appeared for applicant, and Mr Stout for defendant..

HARRIS ON' v. ROUND HILL .MINING COMPANY.

A point of some importance has been raised m these proceedings, the answer to which has am important bearing on the result of the case. The Company are making an application to alter thi> point of intake of a water race from its present position to another place'higher up the stream. The objectors contend that the application cannot be granted because they say the matter is res judicata. In support of this plea the objectors show that this very same application was before Air Wardfen McCarthy a year ago and was refused by him. It seems that my predecessor intimated then that h,e would give the Company the sought per mission to divert the water if it would agree to let 1 heads of water down the creek at all times for the objectors The Company refused to accept this proposal, so Mr McCarthy refused the applications. The Question is whether such a refusal is a final judgment sufficient to bring, in the well known doctrine of res judicata. Now there is nothing clearer tbfcin the fact that [when any,,question has been directly and finally determined either by consent or after, a hearing- upon the merits by a court of competent jurisdiction in a regular andl | proper proceeding such question cannot be re-opened again. The judgment is Conclusive between the parties and if it is a judgment in rem it is conclusive against the whole world. But Ido not think Mr McCarthy's /refusal to give permission to divert this water was a judgment. A judgment can only bo given by a court Now it will be seen that the Mining Act is divided into two divisions —administralivc and judicial. Under Part IV the Warden hasi to hear all applicti tions for privileges and in his discretion 1 he may) grant or refuse, adding certain conditions where he thinks lit, in many cases Simply recommendingthe applications for the Minister’s consent. Under. Part IX of the Act a special Court called the Wardens’ Court is constituted, possessing obelus ivo powers over mining matters and in soin'e matters possessing co ordinate jurisdiction with ihe Supremo Court. Now the matter of this permission to divert water comes before the Warden not before the Court/* in his administrative capacity. This ad ministrative capacity of the Warden seems to metolhte something anohvgous to the powers of a Licensing Commitlee. The following taken from the

judgment of Lord Hershell in fthe ease of Boulter v. Justices of Kent, referring to the powers of Licensing Committees or Justices, might I venture to remark apply equally, well to the powers of a Warden. —“'Persons objecting to the grant of a license are not, I think, parties to the proceedings on the application in any proper sense of the term. The question is not one inter parties at all. The justices have an absolute discretion ito determine, in the interests of the public, whether a license ought to be granted and every member of the public may object to the grant on public grounds, apart from any individual right or interest of his own. The applicant seeks

a privilege. A member of the public who objects merely informs the mind of the court to enable it rightly to exercise its discretion whether to grant that privilege or not. A-decision that a license should not be granted is a decision that it would not be for the public-good to grant it. It is not a decision that the objector has a right to have it refused, It is not, properly speaking, a -determination in -his favour. It is, I think, a fallacy to treat the refusal as necessarily induced by a particular objector. Every member of the local community might object Would they all then become the “other party?” There is in truth, no Us, no controversy inter parties, ami no decision in favor of one of them and against the oilier, unless, indeed, the entire public are regarded as the other party, for if a license was refused on the ground that it was not need i cd t 0 supply the Uegitimate wants of the noighlbourhood, the decision is really in favour of the public a t large,” In giving judgement in the ease of Hewett (v. Invercargill Licensing Committee (XII (()3I), Justice W illiams said something to the same effect- as re-gai-ds tjthe (lowers -of the Licensing Com. mitten. I am therefore of opinion that the objection of resjudicata fails. Having disposed thus of the objection of res judicata 1 Come now to the-merits Dealing first with the plaint for forfeiture which asks for the cancellation of five races. 1 have decided as follows ;r License known as 270 or 31435 cannot to'assailed fa the -

Licenses Nos. 273, 274 and 2T6 are to be cancelled on the grounds of non compliance with the regulations and j^Ct License 2-HS has become liable t 0 forfeiture but the Company will be lined £2O and costs of court in hen ol forfeiture. v The Company's application No. <<o to divert race No-. 24 IS frpm the points A and A to B B B will be grant ■(.( 1 on condition that the a{ plied for is properly guaged and rest of the creeks bo permitted to itm underneath the Company s race. 1 am satisfied that mco 2418 heads from both the ,E and W. branch ol George Creek. . . Harrison's application No ifc-, t O divert water from Long Shears race to Bruce’s upper raofc will be grantecl. The Company’s application. No. H 0 is refused, because tlic Baike Beorgc race has been cancelled. Jones and Harrison’s application INo Too 1 for the channel of Bruce’s upper race is granted. . This disposed of all the applications I do not think that it is a case for costs. I will order that Jones and Har rison be awarded £lO out of the £2O line inflicted .on the Company*--' Mr Jas. Armstead appeared for the Round Hill Mining Company, and Messrs Stout and Macdonald for Harrison and party.