The Kumara Times. Published Every Evening. FRIDAY, APRIL 14, 1882.

Kumara Times, Issue 1728, 14 April 1882, Page 2

The Kumara Times. Published Every Evening. FRIDAY, APRIL 14, 1882.

The special milling case submitted in December last for the opinion of the Supreme Court by Warden Stratford was heard yesterday in the Supreme Court, Hokitika, before bis Honor Judge Prendergast, and, as onr readers were last night informed by telegraph, was thrown out, his Honor stating he had

no jurisdiction, the Warden's statement having shown on the face of it that he had, before stating it, made an order and decided the ease. The case sub mitted was printed in full in the Kumara Tises of the 93rd December last. It may be interesting, first of all, to consider under what circumstances is a Warden 'ior other primary Judge) justified in stating a rt special case” instead of allowing the parties to proceed with an appeal in the ordinary way 1 The reply is that such a coi\rs6 should only be adopted when there is an unusually difficult and important point in difference, upon which the Warden has himself strong doubts, and towards the solution of which he thinks it fair that both parties should contribute. It is a well-established rule that no costs are ever given in these cases, therefore it is not surprising that Mr Justice Molesworth remarked that “ primary Judges should, acting upon this view, put parties whom they think wrong to appeal instead of giving them special cases, unless their opinion is so uncertain -that they think this result as to costs fair.” In some cases which came to him, not as a primary Judge, but upon appeal from Wardens, the late Judge Gray granted special cases for the opinion of the Supreme Court, and those as well as numerous Victorian cases indicate that as a rule, such a course will not be adopted except upon request of the parties, or at least one of them. Section 129 of “The Mines Act” states that the special case is to be set down by the Registrar of the Supreme Court “ for argument.” Now if the parties do not appear to argue the point or points in difference it seems unlikely that the Supreme Court will give any opinion at all; And if they do appear, they have the satisfaction of knowing beforehand that each will have to pay his own costs. Thus it becomes clear that a Warden is not justified in stating a “ special case” for the opinion of the higher Court upon every question of law—for it would not be fair to make the parties pay for his elementary instillation in law ; huthe is justified where there is a point of considerable difficulty in difference between the parties which it is just should be settled at their joint expense. Everybody who knows anything at all about the case of Henderson and party v. Rowley and party knows that this case was submitted for the opinion of the Supreme Court for the reason that a former judgment of Warden Stratford’s bad been varied in the District Court by District Judge Broad declaring that a forfeiture had been incurred but ordering that there be substituted for the forfeiture a money penalty. In the Supreme Court yesterday, his Honor after hearing argument by Messrs Guinness, Warner, and Purkiss, said that the Magistrate had given his decision, and yet asked the Supreme Court for an opinion. The case was not therefore within the clause of the Act, and the Court could not deal with the matter as it stood. The result of this bungle is that two parties of miners have been kept comparatively idle for several months past.