IMPORTANT DECISION.

Mount Ida Chronicle, Volume II, Issue 100, 13 January 1871, Page 3

IMPORTANT DECISION.

Ross and Another (Appellants) v. "Roberts and Others (Respondents).— Appeal from a decision of Mr. Warden Robinson. In this case, which wa heard before his Honor Judge Gray and assessors in the month of October last, and in which he then reserved judgment, his Honor gave judgment at considerable length on Wednesday last. We hope to be able to publish a full report in our next issue. At present we have only room to say that his Honor began by observing upon the informality alike of the complaint and the prayer. He said that they mixed up a quasi criminal case proceeding for a penalty with a civil case damages. That, at the time of the appeal, however, the parties had agreed to waive any question of informality, and wished him and the assessors to settle whatever might prove to be the true matter of controversy between them. He said that in the finding of the assessors, which he recapitulated, the true matter of controversy was not a civil question of damages but a matter of a summary conviction, involving a penalty. The offence charged being that the de-1 fendants, being licensed to divert from a certain creek one head of water, had exceeded their license by diverting several heads,.and the point was —Was this an offence punishable by a penalty, and was it punishable in Court P The Warden's decision—that the defendants be ordered to cease taking more water than the one sluice head, authorised by their license—amounted to no' more than one of those declarations of right in which the miriers have generally been contented to act without raising any technical questions, or making it necessary to issue process for, enforcing the judgment. They thus save contentions and expense. In this case, however, an appeal had been taken, and he was eaJJ( d on to say whether it was an offence subjecting defendants to a penalty that could be enforced in the Warden's Court. His Honor then entered into the question very much at large, coming to the conclusion that if it was an offence punishable in the Warden's Court it could be so only under the 101 st section of the Act as a breach of Sec. lof Reg. xii. Whether it was a breach of this Regulation he entered into at considerable Jength. Ho said it was his opinion that it was not a breach of that Regulation. That Regulation only prescribed a mode for obtaining a license to do tin act which without the license would have been illegal on other grounds ; and to omit to take the necessary steps for procuring a license was not a breach of the regulation which prescribed a mode of procuring it, but was merely an omission to provide a license which would have been a justification for what, without it, was a breach of some other enactment, or of some proprietory right—that is, the proprietory rights of the Crown. He was disposed to say that, under clause 14 of section ii. of the Act of 1566, a regulation might have been framed which would have brought this offence within the jurisdiction of the Warden, but no such regulation had been framed, and he was therefore of opinion that whatever final liability, if any, might have been incurred by the defendants, it was not within the jurisdiction of the Warden to enforce it. He would, therefore, allow the appeal, and reverse the Warden's decision, without costs, below—each party to bear his own costs of the appeal, except the costs of Court, which should be divided.