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Melbourne : Ion, J'artriilf/f . and comprehensive, references have been introduced and g= numerous cases quoted throughout the text bearing on the ~* law of gold-mining in the other States of Australia and in M New Zealand, as well as references to the Acts of those | States ; and in addition, the Victorian Acts appearing in the ^ Appendix have been carefully annotated to facilitate comparison with the various Mining Acts now in force 25 throughout the States. 5$ Whilst retaining the original plan of the first edition, Cr> it has been found necessary to re-construct and re-write the whole of the Work, which, in its present form, though >Q dealing principally with the law of gold-mining in Victoria, L\ ^ may be regarded as illustrating the mining law of the s whole of Australasia. Kyneton, Vic., 1901. 422853 PREFACE TO THE FIRST EDITION. WITH the exception of Atkins's Notes to the Mining Statute and McFarland's admirable Digest, no work devoted entirely to the Law of Mining in Victoria has been published ; and as, since the last publication of the Digest in 1881, various changes have taken place in the statute law, and numerous judgmnts have been delivered ex- pounding that law, it is considered that this work will be found useful to the members of the profession as well as to others holding or acquiring mining interests. A work of this nature, though the result of the study and practice of a number of years, must necessarily be imperfect in many respects. When consideration is given to the fact that the whole of our mining law is founded on statutes for which no precedent existed in any other country ; that such statutes were made and repealed from time to time as occasion required ; that judgments on the construction of an Act since repealed do not necessarily apply to an existing Act: that many of the judgments are based on the constructions of by-laws, which have been successively amended or repealed ; and that the author's task was not only to reconcile as far as possible the numerous decisions upon which the construction of our mining law is based, but to weave together into one strand the various sources from which such law is derived to compare the many statutes, by-laws and regulations which form the mining code of the colony and to eliminate PREFACE TO THE FIRST EDITION. vn therefrom such portions as have become obsolete or useless; it is felt that no apology is necessary for any errors or omissions which may have occurred in the performance of the task. As the Mining Law in Victoria is a law standing by itself, originating within the colony, and not in any way affected by the decisions of the English courts (except as regard appeals to the Privy Council), reference has been made only to cases arising within the colony, and decided by the Victorian courts. Each of these cases has been carefully studied, whether it be in connection with the statutes or with the by-laws under which the cases arose ; the Digest of the Reported Cases has been ultilized where the head lines of the reports have seemed to constitute a fair digest of the cases, but these headlines have not been implicity relied on by the author without having been carefully examined with the reports they refer to. The law of mining companies does not come within the scope of this work, and has not been touched upon, except so far as a company may be considered as the holder of a claim or a lease, or as a party to a suit. It was also found necessary to considerably curtail the chapters on the Procedure and Practice of the Mining Courts, in order to keep within the prescribed limits of the volume. For these, however, the reader is referred to the Act itself and to the rules thereunder, which must in any event form the basis of the procedure of the courts. Kyneton, January 25th, 1891. AUSTRALASIAN REPORTS REFERRED TO. VICTORIA : Australian Jurist Reports. Australian Law Times. Argus Law Reports. Argus Law Reports (Current Notes). Argus Newspaper reports. Notes of Cases. Victorian Law Reports. Victorian Law Times. Wyatt & Webb's Reports. Wyatt Webb, & A'Beckett's Reports. NEW SOUTH WALES : Knox's Repoi'ts. New South Wales Bankruptcy Cases. New South Wales Law Reports. New South Wales Supreme Court Reports. Weekly Notes. SOUTH AUSTRALIA : South Australian Law Reports. QUEENSLAND : Queensland Law Journal. Queensland Law Journal (Notes of Cases). Queensland Law Journal (Appendix Vol. I). Queensland Law Reports. TASMANIA : Here's Digest of Tasmanian Cases. WESTERN AUSTRALIA : Western Australian Law Reports. NEW ZEALAND : Macassey's Reports. New Zealand Court of Appeal Reports. New Zealand Law Reports. New Zealand Law Reports Court of Appeal. New Zealand Law Reports Supreme Court. New Zealand Jurist Reports (New Series Mining Law). New Zealand Jurist Reports (New Series Supreme Court). ABBREVIATIONS USED IN THIS VOLUME. A.J.R A.L.R A.L.R. (C.N.) A.L.T App. Gas. .. A. R. or Argils C.A. Ex. F.C Knox Hore Dig L.J.P.C L.T. Mac. N.C N.S.W. B.C. N.S.W.L.R. X.S.W.S.C.R. N.Z.C.A N.Z.J.R N.Z.J.R. (N.S.)M.L. N.Z.J.R. (N.S.) S.C. Australian Jurist Reports (Vic.) Argus Law Reports (Vic.) Argus Law Reports (Current Notes) Australian Law Times (Vic.) Law Reports Appeal Case Argus Newspaper Reports (Vic.) Court of Appeal Exchequer Reports Full Court Knox's Reports (N.S.W.) Hore's Digest of Tasmanian Cases Law Journal Reports Privy Council Law Times Macassey's Reports (N.Z.) Notes of Cases (Vic.) New South Wales Bankruptcy Cases New South Wales Law Reports New South Wales Supreme Court Reports New Zealand Court of Appeal Reports New Zealand Jurist Reports New Zealand Jurist Reports (New Series) Mining Law New Zealand Jurist Reports (New Series) Supreme Court New Zealand Law Reports New Zealand Law Reports Court of Appeal New Zealand Law Reports Supreme Court Privy Council Queen's Bench Reports Queensland Law Journal Queensland Law Journal (Appendix to Vol. I) Queensland Law Journal (Notes of Cases) Queensland Law Reports South Australian Law Reports Victorian Law Reports Victorian Reports Victorian Law Times Weekly Notes (N.S.W.) Western Australian Law Reports Wyatt & Webb's Reports (Vic.) Wyatt, Webb & A'Beekett's Reports (Vic.) CONTENTS INDEX OF CASKS xvi TABLE OF STATUTES, etc. XLIV INTRODUCTORY - 1 BOOK 1. INTERESTS IN GOLD MINING CLAIMS. CHAPTER I. THE MINER'S RIGHT. Sec. I. -Privileges Conferred by the Miner's Right 13 Sec. II. Who May Hold a Miner's Right 18 Sec. III. Title under Miner's Eight - 20 Sec. IV. -As a Condition Precedent to Sue 23 Sec. V. Held by Incorporated Companies 26 Sec. VI. Consolidated Miners' Rights 27 CHAPTER II. GOLD MINING CLAIMS ON CROWN LAND. Sec. I. What is a Claim 30 Sec. II. Frontage and Block Claims - 32 Sec. III. Mining Board By-laws 38 Sec. IV. Occupation of Claims 40 Sec. V. Title to Claims 44 TABLE OF CONTENTS. xi CHAPTER II. continued. I' A OK Sec. VI. Amalgamation of Claims 47 .See. VII. Land Exempted from Occupation as a Claim 50 (a) Reserves for Public Purposes 50 (b) Public Highways 52 Sec. VIII. The Effect of Marking Out a Claim for a Lease - 56 Sec. IX. Subsidiary Claims - 57 CHAPTER III. THE MEANS BY WHICH INTERESTS IN CLAIMS MAY BE ACQUIRED. Sec. I. By Marking Out 61 (a) Manner of Marking Out 63 (b) Priority of Marking Out 66 (c) Marking Out Ground the subject of an Application for Lease 68 Sec. II. By Adjudication of the Warden 71 Sec. III.-- -Application for Claims 74 Sec. IV. Registration of Claims 75 Sec. V. Protection Registration 80 CHAPTER IV. WRONGFUL INTERFERENCE WITH MINING INTERESTS. Sec. I. Trespass (a) What will Constitute Trespass 86 (b) Who can Sue for Trespass - 92 (c) Suits for Trespass 95 Sec. II. Encroachment 97 (a) What will Constitute Encroachment 97 (b) Who can Sue for Encroachment 98 (c) Suits for Encroachment - 101 (d) Damages for Encroachment - 102 (e) Orders of Inspection 104 Sec. III. Injunction - 105 (a) Injunction Orders - 105 (b) Breach of Injunction Order- - 109 xii TABLE OF CONTENTS. CHAPTER V. THE MEANS BY WHICH INTERESTS IN CLAIMS MAY BE DETERMINED. PAGE Sec. I. By Abandonment () Actual or Intentional Abandonment (6) Constructive Abandonment - 114 (c) Means of Enforcing Abandonment - 118 Sec. II. By Forfeiture 119 (a) Forfeiture under the By-Laws 119 (b) What will Constitute Forfeiture 122 (c) Illegal Occupation - 129 (rt) Means of Enforcing Forfeiture 131 BOOK II. INTERESTS IX GOLD MINING LEASES. CHAPTER I. GOLD MINING LEASES. Sec. I. Gold Mining Leases of Crown Lands - 141 Sec. II. Tailings 153 Sec. III. Tribute Agreements 155 CHAPTER II. APPLICATION FOR (iOLD MINING LEASES. Sec. I. Requirements Preliminary to Granting of Leases 159 Sec. II. Granting or Refusal of Leases 168 Sec. III. Marking for a Claim pending Application for a Lease 1 70 Sec. IV. -Priority of Leases - 176 Sec. V. Application by Holders of Miners' Rights to Avoid Leases 178 Sec. VI. Leases of Reserved Lands - - 180 TABLE OF CONTENTS. xm CHAPTER III. FORFEITURE OF GOLD MINING LEASES. PACK Sec. I. What will constitute Forfeiture 182 Sec. II. Means of Enforcing Forfeiture 186 CHAPTER IV. GOLD MINING ON PRIVATE LAND. Sec. I. Licences to Mine for Gold 190 Sec. II. Gold Mining on Private Land in Victoria - 193 (a) Gold Mining Leases - 193 (b) Gold Mining Claims 201 Sec. III. Mining on Private Land in the other States and New Zealand 202 (a) New South Wales - 203 (6) South Australia 206 (c) Queensland - 207 (d) Western Australia - 209 (e) New Zealand - 209 BOOK III. MINING INTERESTS OTHER THAN CLAIMS AND LEASES. CHAPTER I. MINING PARTNERSHIPS OTHER THAN INCORPORATED COMPANIES, 212. CHAPTER II. WATER RIGHTS AND PRIVILEGES, 220. xiv TABLE OF CONTENTS. CHAPTER III. DUTIES AND OBLIGATIONS OF MINE OWNERS. TAOK Sec. I. Regulation and Inspection of Mines - 228 Sec. II. Drainage of Mines - 232 Sec. III. Municipal Assessments 235 Sec. IV. Nuisances 238 CHAPTER IV. SITES FOR RESIDENCE AND BUSINESS. Sec. I. Under the Mining Acts 242 Sec. II. --Residence Areas 244 Sec. III. Business Licences - 255 BOOK IV. MINING JUDICATURE. CHAPTER I. MINING COURTS OF JUSTICE, 259. CHAPTER II. WARDENS OF THE GOLDFIELDS. Sec. I. The Office of Warden - 264 Sec. IT. Jurisdiction of the Warden - 267 Sec. III. Procedure and Practice before the Warden- 274 (a) Summons 274 (6) Parties 278 (c) Service of Summons 281 (d) Amendment - 283 TABLE OF CONTENTS. xv CHAPTER II. continued. I'AOB Sec. TIT. Procedure and Practice before the Warden continued. (e) Hearing 285 (/) Decision and Order of the Warden 289 ( I 68 Brown, Burch v. ... 310, 322 r*io4- xT^.*-*-Urt*.^ c*^. 164 Brunt v. No. 2 South Louisa G. M. Co. 339 Bryant v. Saunders 217 Bryer, ex parte, Reg. v. Heron 24, 281, 290 Bryson ?;. McCarthy .. 118, 136 Buchanan, Thorburn v. 185 Bull, Davis v. 126 Bulli Coal Co. , in re 138 Bungaree Road Board, Mayor &c. of Ballarat v. 252 Bunn, ex parte, in re Rogers 53, 106, 247 , Meredith v. ... 51, 106 Burch v. Brown ... 310, 322 Burke, Hooke v. ... ... 140, 284 Burton, Landry v. ... 113 Busby Chambers v 191 Butel, Gilmour v. ., ooo xx INDEX OF CASES. P A OB Butler v. O'Keefe ... ... ..82,127 v. Saddle Hill G. M. Co. ... ... ... ... 32 Byers P. Rolls 335 CALEDONIAN G. M. Co., Hoskings v. ... 231 , Sawyer v. . . . 334 Callaghan, Ryan v.... ... ... ... 307, 317 Campbell v. Ah Cheong ... ... ... ... 224,238 - r. Mcln tyre ... ... ... ... . . 225 , 246 - v. Parker's Extended Q. M. Co. ... ... ... 231,276 v. Stawell Road Board ... ... ... ... 237 Campion v. Turton ... ... ... ... ... 21, 32 Cant, Attorney-General v, ... .. ... ... 105 Carlisle?;. Thome ... ... ... ... .. 163 Carlisle Co. . Mayor &c. of Sandhurst ... ... ... 236,237 Carpenter?;. Boyce... ... ... ... ... ... 137 Carr, Frayne r. .. .. ... ... ... ... 322, 324 , Reg. r. ... ... ... ... ... ... 265,292 Carroll, Bohning r. ... ... .. ... ... 224 , Rees v. ... ... ... ... ... ... 323 Carvalho r. Black Hill South Extended Co. ... ... ... 53, 55, 92 Cawley v. Ling ... ... ... ... .. ... 16, 45 Chalk, Gibson r. .. ... ... ... ... ... 230 Chambers v. Busby . ... ... ... ... 191 Chapman v. Pratt .. ... ... ... ... ... 163 Chappell v. Samper ... ... ... ... ... 184 Chibnall, Kidd i: ... .... ... ... ... ... 108 Chin Fan v. Davis ... ... 220,223 Ching Tong Fong ?-. Lee Chung ... ... ... 132,135,270 Chisholm, Palmer v. ... ... ... ... 65,288,340 ,.. United Extended Band of Hope Co. ... 20, 28, 103 Christian, Guffie v. ... .. ... ... .. 59,239- - v. Kenworthy .. ... ... .. 118,126,234 Christensen, Jones r. ... .. .. ... 17S, 247 Chung Goon v. Reform Co. ... ... .. ... ... 157 City of Melbourne G. M. Co. v. The Queen ... ... ... 143, 169- Clarence United Co. v. Goldsmith ... ... ... 161,177,183 Clarke r. Cowper ... ... .. ... .. ... 286 v. Pitcher ... ... ... ... ... ... 192 v. Round ... ... ... ... ... ... 272 O'Sullivan v'. ... ... .. ... ... 68, 128 r. Tressider... ... ... ... ... ... 46 Clayton, Barrell I*. .. ... ... .. ... ... 277 v. Morrison ... ... ... ... ... 147 Clerk, in re ... ... ... ... ... 265,276,299- - v. Wrigley ... ... ... ... 22,48,121,125,135,287 Clow, in re, ex parte Hewitt ... ... ... ... 30,233 INDEX OF CASES. xxi Clow, Reg. v., expartf. Hewitt ... .-j r ... ... 142 Reg. v., exparte Oliver ... ... ... 133,268,282 Clunes, Borough of, Clunes United Co. v. ... ... ... 237 Chines United Co. v. Borough of Clunes ... .. ... 237 Coates v. South Loch Fyne G. M. Co. (1) ... ... 53, 226, 277 v. South Loch Fyne G. M. Co. (2) ... ... 40, 72, 136 r. South Loch Fyne G. M. Co. (3) -.: . ... 295, 303, 314 Cobham, Wakeham v. ... .. ... .. 51,252,269 Cock v. Sayers .. ... ... .. ... ... 324 v. Stawell Amalgamated Scotchman's and Cross Reefs United Q. M. Co. ... ... ... ... ... 57, 174, 183. 189 Cogdon, Reg. v., exparte Hartmann... ... ... ... 290 re, ex parte McDermott ... ... ... ... 267 Cohn r. Heine ... .. ... .. ... .. 117,217 Coles v. Sparta ... .. ... ... 48,115,123,126 Collie, McKinnon i: .,. ... ... ... .-.. 219 Collins, Dunn r. ... ... ... ... ... 222 , Galsworthy v. ... ... ... ... ... 251 v. Hayes (1).. .. ... ... ... .. 330,339 r. Hayes (2)... ... ... .. ... ... 139 v. Locke .. ... ...- ... -,, ... 213, 214 r. O'Dwyer... ... ... ... ..111,115,121,132 Colonial Bank v. Willan ... ... ... ... 101,302,314 Colonial Sugar Refining Co., Melbourne Harbour Trust Commis- sioners v. ... ... ... ... ... . 239 Commercial Bank, Watson v. ... ... .. ... 31 + Commissioner of Lands, Thomas v. , in re White ... ... 153 of Mines, in re ... ... ... ... 186 of Railways, Monte Christo G. M. Co. v. ... 147 Constable, ex parte, Reg. v. Strutt ... ... ... ... 290 r. Pigtail Q. M. Co. ... ... 57, 163, 175, 265, 287 r. Smith ... ... ... ... ... 266,318,326 Conway v. Louchard ... ... ... ... ... 323,335 Cook, Murphy v. ... ... ... ... ... ... 52 Cooper v. Komata, G. M. Co. ... ... ... 322 v. Rutherford ... ... .-.. ... ... 289 , Summers v. (1) .. ... ... ... 22, 47, 246 , Summers v. (2) ... .-.. ... ... 287,291,336 , Summers v. (3) ... ... >.. ... 249,257,273 , Summers v. (4) ... -,,. ... ... ... 252 v. White... ... ... ... ... 70,90,123,287 Cope, Reg. v., in re Moore ,.. -,.. ,,. -..-. 303, 312, 335 Cornish Q. M. Co. v. North Cornish Q. M. Co. -..-. ... 292 Cosmopolitan G. M. Co., Astley United G. M. Co. . ... 102, 108, 110, 192 Costello v. O'Donnell ... .. ... ... 170, 222, 279 Coster, Harwood v. ... .^ ... ./. 17,145 Costin, ex parte, Reg. v. Thomson n-. >.,, ... 273, 290, 314 xxn INDEX OF CASES. Cotter, Warrior G. M. Co. v. ... ... 62, 101, 132, 216, 246 Cotter and United Band of Hope Co., Murphy v. ... ... 308 Count Bismarck G. M. Co. , Laurenson v. ... .. ... 229,230 Cowley, Hannan's Proprietary Development Co. t: ... ... 1 68 Cowie v. Berry Consols Extended G. M. Co. ... ... 229 Cowper, Clarke v. ... ... ... ... ... 286 Coyle, Anderson v. ... ... ... ... ... ... 336 Craig v. Adams . . ... ... ... ... ... 172 Craven, Stevens v. .. ... .. .... ... ... 235 Craven's New Chum Co., Garibaldi Co. . ... 56, 100, 149 Creaver, Extended Cross Reef Co. r. ... 93, 147, 270 Creswick Shire, Shannahan r. ... ... ... 238 Cribb, Reg. v. ... ... ... ... ... .. 80,267 Crisp v. Kent .. ... ... ... ... ... 154 Critchley, Band of Hope v. ... ... ... ..'. ... 280,321 r. Graham (1) ... ... ... ... 96,103,272 r. Graham (2) ... ... ... 41,66,71,111,122,133 Crocker ?-. Wigg .. ... ... ... ... 17,46,133,326 Crowley, Cruise r. ... ... ... ... 26,74,96,286 Croudace , Zobel i: . . .. ... ... ... ... 200, 203 Cruise v. Crowley ... ... -... ... ... 26,74,96,286 Cruthers r. White ... ... ... ... ... ... 107 Cuff v. Jordan ... ... ... ... ... ... 60 Gumming, Jenkinson r. ... ... .... ... ... 341 Cummins, MeCafferty r. ... ... ... 35,101,329 Cunningham, Allardyce i: ... ... ... . .. 44, 215 Curthoys v. Kilbride ... ... ... ... 229 Curtis, Raynor ;-. ... ... ... ... ... 162 Cusack, Reg. v. ... ... .. ... ... . 292 Cutten r. Howell . . ... ... ... ... ... 60 , Ross v. ... ... ... ... ... ... 60 DALY, Nightingale i 1 . ... ... ... ... .. 223,224 v. Wallace ... ... ... ... ... ... 298 D'Angri, Keast v. .. ... ... ... 23,62,107,111,299 Davenport's Case ... ... ... ... ... ... 267 Davidson v. Stawell Road Board ... ... .. 236,237 Davies, Reg. r. (1) ... ... ... ... ... ...17,31,34 , Reg. r. (2) ... ... ... ... ... ... 30 Davis r. Bull ... ... ... ... ... ... 126 , Chin Fan r. ... ... ... ... ... ... 220,223 v. Robertson ... ... .... ... ... ... 139,226 v. The Queen ... ... ... ... .. ... 100,149 Day Dawn Block G. M. Co., Mills v. ... ... ... 176 Dean, McCormick r. ... ... ... ... ... 272 Delaney, Grayson r. ... ... ... ... 154 Delia Ca, Abraham v. (1) 251 INDEX OF CASES. xxm PAOK Delia Ca, Abraham v. (2) ... ... ... ... ... 336 , Abrahamt?. (3) .. .. ... ... ... 297,340 Demamiel, Sims v. ... ... ... ... ... 53,273,290 Dempsey, ex parte ... ... ... ... ... ... 292 Dennis v. Vivian . ... ... ... ... ... 215,317 .Vivians. ... ... ... ... ... ... 58,99 Derry T. M. Co. v. Garibaldi T. M. Co. ... ... ... 224 Dibdin, Talent v. ... .. ... ... ... ... 64,339 Dickson v. Western Freehold G. M. Co. ... 240 Dillon, Antony v. ... ... ... ... 19,90,129,172,174 , Lehanv. ... ... ... ... ... ... 103 -^.Matthews ... ... .. ... ... 324 , McMillan v. ... ... ... ... 183,187,271 r. Wood ... ... ... .. ... ... 32 Doane v. Fairbairn ... ... ... ... ... ... 225 Dodds v. Parsons ... ... ... ... ... ... 154,273 Dohertyv. Atkins .. ... ... ... ... ... 271 Donaldsons. Llanberis Co. ... ... ... ... ...49,75,79 Dooley v. King ... ... ... ... .. ... 286 Do wling, Keg. v., ex parte McLean ... ... ... 20,252,254 Doyle, United Extended Band of Hope Co. ?. .. ... 24,132 Droscher, ex parte, Reg. v. Orme ... ... ... 133, 174, 290 Drought, Koh-i-noor Mining Co. v. ... ... ... ... 55,149 Drummond, in re, ex parte D unbar ... ... ... ... 68, 123 Duchess of Edinburgh Co., Barwick v. ... ... 69, 137, 144, 150 Duffy v. Tait ... ... ... ... ... 43,82,124 Dunbar, ex parte, in re Drummond ... ... ... ... 68, 1 23 Duncan v. Fullerton ... ... ... ... ... 280,286 , Rees v. ... ... ... ... ... ... 154 Dunn v. Collins ... ... ... ... ... ... 222 Dunne v. Frost ... ... ... ... ... ... 225 , Reg. v. , ex parte Baillie ... ... .. ... 306,311 Dunstan v. Stewart .. ... ... ... ... 231 Durant v. Jackson .. ... ... ... 69, 87, 90, 123, 150, 335 Dyer, Higgins v. ... ... ... ... ... ... 90 , Small v. ... ... ... ... ... 87,119,340 EAGER, Grace v. ... ... ... ... .. ... 297 Earle, Woodward v. ... ... ... ... 25,85,112,124 Early r. Barker ... ... ... ... .. ... 289,321 Eddy, Sim v. ... ... ... ... ... 289,292,320 Edwards v. Ustice ... ... ... ... ... ... 39 Ellery, Mathers v. ... ... ... ... ... ... 264,265 Elliott, Fitzgerald v. ... ... ... ... 249, 270, 293 , Osborne v. ... ... ... ... ... 87,98,310 Elmslie v. Mackay ... ... ... ... ... ... 274 Enright, Inspector of Licences v. ... ... ... .. 25 xxiv INDEX OF CASES. Erk, Hutcheson v. ... .. ... ... 55, 90, 161, 174 Ettershank r. The Queen .. ... ... ... "... 185 Eureka Extended Co. v. Allen ... ... ... -230 Evans Freehold Co., Star Freehold Co. v. ... ... 192 Evans, Wardle v. ... ... ... ... ... 292 Extended Cross Reef Co. v. Creaver ... ... ... 93, 147, 270 Extended Hustler's Freehold Co. v. Moore's Hustler's Freehold Co. ... ... .. ... ... 53 FAHEY v. Koh-i-noor Q. M. Co. .. ... ... 99, 177, 247, 340 Fairbairn, Doane r. ... ... ... ... ... 225 FalknerG. M. Co., McKinnery r. (1) ... ... 333 , McKinnery v. (2) ... ... ... ... 332 Falvey r. Tregoweth .. ... ... ... ... 272 Fancy v. Billing .. .. .. ... ... 122,247,248 v. North Hurdsfield United Co. 93, 250, 335 Farnsworth, Shamrock Co. v. ... ... ... 56, 148 Fattorini i-. Band and Albion Consols (1) ... .. ... 336 v. Band and Albion Consols (2) ... ... 23, 77, 341 Ferrier r. Smith ... ... ... ... ... ... 93 Finnegan v. Wissing ... ... ... ... 129,170,188 , Wisaing r. ... ... ... ...152,170,188,271 Fitzgerald r. Elliott ... ... ... ..'. 249,270,293 Flinn v. Kilgour ... ... ... .. ... ... 68 , Kilgour v. ... ... ... 73,127,307 Flood, in re ... ... ... ... ... ... 288 Foley v. Norton ... ... ... ... ... 19,43,245,275 Forbes, Hanton r. ... ... ... ... ... . 253 . Reg. r. ... ... ... ... 314 Forrester r. Great Western Long Tunnel G M. Co. ... 152, 170, 188 Forwood v. Selheim ... ... ... ... 267 Fowler, Johns v. ... ... ... ... .. .. 154 Eraser, ex parte, Reg. r. Sherard ... .. .. 279,282 , Miller v. ... ... ... .. ... 37 Frater v. Howe ... ... ... ... 226 Frayne v. Carr ... ... ... ... ... ... 322,324 Frazer v. Hartley ... ... ... ... ... ... 69 Frederick the Great Tribute Co., re ... ... ... ... 197, 273 Froggart, Wearne v. ... ... ... ... .. 92, 311 Frost, Dunne v. ... ... ... ... ... ... 225 Fullerton, Duncan v. .. ... ... ... 280, 286 GALLAGHER v. Talty ... ... .. ... ... 213 Galsworthy v. Collins ... ... ... ... 251 Garden Gully United Q. M. Co., Newey -v. ... ... 273 Garibaldi Co., Craven's New Chum Co. v. .. ... 56, 100, 149 Garibaldi T. M, Co., Derry T. M. Co. r. .. 224 INDEX OF CASES. xxv PA Gaunt, Reg. v., ex jmrte Bahlman ... ... 291 Gay, Sawtell r. ... ... ... ... 269 Gee, Reg. v., ex parte Wendt .. ... 16 Gibbons, Gordon v. ... .. ... ... ... 213 Gibbs, Brabender v. ... ... ... ... 81,127 Gibson v. Chalk 230 Gilbee, ex parte, Reg. v. Belcher ... ... ... 282,290,314 Gilmour v. Butel . ... .. ... ... ... 222 Golden Fleece Co. , Lennox v. ... ... ... 1 37, 335 Golden Fleece and Heales Co., Lennox v. ... ... 14, 22, 130 Golden Gate Co., Smith v. ... ... ... ... 128,137,171 Goldsmith, Clarence United Co. v. ... ... ... 161,177,183 Goodman v. Kelly ... ... ... ... 25 Gordon v. Gibbons ... ... ... ... ... ... 213 Gorman v. McLellan ... ... ... '";. ... 173,246 Gorrie, Hall?; ... 142,223 Grace v. Eager ... ... ... ' ... ... 297 Graham, Critchley v. (I) ... ... ... ... 96,103,272 , Critchley v. (2) ... ... ... 41, 66, 71, 111, 122, 133 , Mayor &c. of Sandhurst v. ... ... .... .... 253 Grand Junction Co., Volunteer Extended Co. v. ... ... 18,26 Granger v. St. Mungo Co. ... ... ... ... ... 23 1 Grant v. Lawlor ... ... ... ... ... 28,45,299,341 , Lawlor v. ... ... .. ... ... ... 324 Grayson v. Delaney ... ... ... ... ... 154 Great Britain Co., Penistan v. ... 94,148,157 Great Extended Sluicing Co. v. Hales ... 59,109 , McMillan v. ... ... ... 59,269 Great Gulf Co. v. Sutherland ... ... ... 156 Great Gulf G. M. Co., Scottish and Cornish G. M. Co. o. ... 18, 33 Great Hannan's Aurora G. M. Co. v. Barnes ... ... 152 Great North West Co. v. Mehennet .. ... ... 20, 26 v. Sayers ... ... ... ... .. ... 116,125 Great Northern Co. v. Brown ... ... ... ... 164 Great Republic G. M. Co. v. Hussey ... ... ... 271 Great Western Co., Western Freehold Co. v. ... .. 99,192 Great Western Long Tunnel G. M. Co., Forrester v. 152, 170, 188 Green, Reg. v. ... ... ... ... ... ... 290 Greenhill v. Braidley ... ._ ... ... 70,176,288 Greville, Pearce v. ... ... ' ... ... ., 64 Guffiev. Christian... .. ... .. ... ... 59,239 Gunnr. Harvey ... ... ... 101,302,314 , Reid?;. ... ... ... ... .. ... 248,250 HACK, Baker's Creek C. G. M. Co. v.- >., 120 Hadley, Rendall v. w ... ... ... 90,122,148 Hales, Great Extended Sluicing Co. v. ... - w. '."' ... 59,109 INDEX OF CASES. Hall r. Oorrie Halpen, Lindgren r. Hancock r. Vanderstoel Hannah, Lane r. Hannan's Proprietary Development Co. v. Cowley Hanson, Lindsay v. (1) ... 142,223 285 ... 293, 337 87, 97, 193 168 306, 323, 337 ... 269, 287 253 ... 114.272 226 268 46,216 279 45,93,320 192 161 77 ... 51,257 137,218,327 341 69 290 ... 219,304 101, 302, 314 160 ... 66, 140 ... 17, 145 336 21, 55 ... 18, 157 ... 31, 72, 122, 131 . 219,274 ... 330, 339 139 .. 137, 274 . . 117, 217 ... 117, 217 ... 84, 124 321 ... 143, 170 24, 281, 290 ... 93, 250 144 ... 30,233 142 305 90 Hauton v. Forbes ... Harders v. Abbott Hargan v. West Australian Bank Haruey v. Minister of Mines Harp of Erin Co., Parle v. ... Harris, Karlson v. ... l ' ^^ Vn Fr hold Co Rue r Harrison >: Smith ... Hartley, Frazer v. ... Hartmann, ex parte, Reg. r. Cogdon ... Harvey r. Rodda ... , Gunii c. Harwood v. Beavan Haufe, Beech v. Haughton v. Hockings Hawkins, Reg. v. ... Hayes, Barlow v. ... Bovd r Collins v 11) , Collins v. (2) Heine, Cohn v. v Klein Henderson, Tait i\ Herbert v. Millan ... Hercules G. M. Co., Perkins v. Heron, Reg. v. , ex parte Bryer Hetherington, Madden v. ... Hewitt, ex parte, in re Clow Higgans, James v. ... Higcrins f. Dyer INDEX OF CASES. xxvn Higgins, Melville v. ... ... ... ... ... 324 Hitchins v. The Queen ... ... ... ... ... 169 Bookings, Haughton v. ... ... ... ... .. 21,55 Hogan, Aheam v. ... ... .. ... ... ... 93 Hok John v. Yung Hing ... ... ... ... ... 326 Holmes v. Reynolds ... ... ... ... ... 54,164 Holstein, Brinkman v. ... ... ... .. ... 304,311 Holt v. Pratt ... ... ... ... ... ... 48 Homeward Bound G. M. Co. v. McPher son ... ... ... 19,26 Hooke v. Burke ... ... ... ... ... .. 140, 284 Hookway v. Muirhead ... ,.. ... .. ... 15,20 Hopkins, Bellamy v. ... ... ... ... ... 226 Hortin, Maa Mon Chin v. ... ... ... ... ... 162 Hoskings v. Caledonian G. M. Co. ... ... ... .. 231 Hoskins, Kenwood v. ... ... ... ... ... 312 House t>. Ah Sue ... ... ... ... ... 17,55,273 Howe, Borton v. ... ... ... ... ... 10.0,191,221,239 , Fraterv. ... ... ... ... ... ... 226 Howell, Cutten v. ... ... ... .. . ... 60 v. Ross ... ... ... ... ... .. 63,319 Howse, Weddell v. (I) ... .. ... ... 70,84,127 , Weddell v. (2) ... ... .. ... 66,175,278,336 Hunter v. Aratraveldt ... ... ... 40,79,129 v. McNulty ... ... ... ... 39, 82, 126, 137 Hussey, Great Republic .G. M. Co. v. ... ... ... 271 Hustler's Consols, Attorney-General v. ... ... ... 105 Hutchesonv. Erk ... ... ... ... ... 55,90,161,174 Hutton v. Morris ... ... ... ... ... ... 254 Hyde, Ren wick v. ... ... ... ... ... ... 305,327 Hyndman v. Micke ... ... ... ... ... 226 INCH v. Sellheim ... ... ... ... ... 266,297 Inkerman and Durham Co., Star Freehold Co. v. ... ... 193 Inskip v. Inskip ... ... ... ... ... ... 330,337 , Inskip v. ... ... ... ... ... ... 330,337 Inspector of Licences v. Enright ... ... ... .. 256 Ironstone Hill Lead G. M. Co., Kaye v. ... ... . 230 , Woolleyu. .. ... ;.. .. ... 92,191 Irving v. Minerva G. M. Co. ... ... ... . 216 Irwin , W heal Terrill Q. M. Co. v. . . . ... ... ... 233 Issell, Watson v. ... ... ... ... ... 317 Ivesw. Lalor ... ... ... ... ... ... 137,188 JACKSON, Durant v. ... .... ... 69,87,90,123,150,335 Jacomb, Sayersv. ... ... ... ... ... 74,77,290 James v. Higgans ... ... ... 305 Jarvis, Lomax v. ... ... ... ... 239 xxvin INDEX OF CASES. I'AUE Jeffery, Brooks v. ... ... ... ... ... ... 68 Jeukinson v. Gumming ... ... ... ... ... 341 Jennings v. Kinsella ... ... ... 15,23,45 , \Yalhalla Co. v. ... ... ... ..52,145 Johns w. Fowler ... .... ... ... ... ... 154 Johnson v. Mount Reid S. M. Co. ... ... ... 143 v. Ralph ... ... ... ... ... ... 55 ^.Thomson .. ... ... ... ... 155 Jolly r. Stephens ... ... ... ... 136,174,280 , Stephens v. ... ... ... 56,91,145,277 Jones r. Abraham ... ... ... ... ... 25,216 i: Christensen ... ... ... ..i 178,247 /. Joyce ... ... .. ... ... ... 246 , Llanberis Q. M. Co. r. ... ... ... 255 , Turnbull r. ... ... ... ... 273,339 Jordan, Cuff r. ... ... ... ... ... .. 60 , Norbury r. ... ... ... ... ... 60 Jorgensen v. Boyce .. ... ... ... ... 218 Joss, ex parte, re Keith ... ... ... .. ... 256 Joyce, Jones r. ... ... ... ... ... ... 246 Jutland Flat (Waipori) G. M. Co. r. Mclndoe ... ... 239 , Mclndoe v. ... ... ... 239 KAPATZO, Ah Tan i-. 92 Karlson t: Harris ... 279 Kaye v. Ironstone Hill Lead G. M. Co. 230 Keast v. D'Angri ... 23, (52, 107, 111, 299 Keating, Barker's G. M. Co. v. ... 42, 47, 56, 76,98, 175, 333 Keddell, Reg. v. 227 Keith, re, ex parte Joss 256 Kelly, ex part e 283 O nor] ? 25 Kennedy v. Neill ... 247 Kent, Crisp v. 154 Kenwood r. Hoskins 312 Kenworthy, Christian r. 118, 126,234 Kermode, ex parte 32 Kidd v. Chibnall ... 108 Kilbride, Curthoys v. 229 Kilgour v. Flinn 73,127,307 , Flinn v. 68 King Sing v. Won Paw ... 216,270 King, Dooley v. 286 v. Mclvor 170 Kinnear, Thomas v. (1) .. 120, 338 Thomi" v (^M 335 Kinsella, Jennings v. 15,23,45 INDEX OF CASES. xxix Kirk v. Barr ... .. ... .. ... ... 289,313 Kirkbride v. Minister for Justice and New Day Dawn Freehold G. M. Co. 186 Kitchingman and Milton, ex parte ... ... ... ... 215 Klein, Heine v. ... ... .v. "... ... ... 117,217 Koch, Sung You i\ ... ... ... ... ... 310 Koh-i-noor Mining Co. v. Drought ... ... ... ... 55,149 Koh-i-noor Q. M. Co., Fahey i>. ... ... ... 99,177,247,340 United, Sir William Don G. M. Co. v. '.. ' ... 50, 102 Komata G. M. Co., Cooper v. ... ... .. 322 LA GERCHE v. Ah Hann .. ... ... ... ... 14 Labes, Harris v. ... ... ... ... ... 45,93,320 Lady Barkly G. M. Co., Mayor &c. of Eaglehawk v 236 Lalor, Ivesr 137, 188 Lambert, Thiessen r. ... ... ... ... ... 196 Lambert and another, Thiessen v. .. ... ... ... 195 Lamont v. Stawell Road Board ... ... ... ... 238 Land, Thompson r. ... ... ... ... 43,64,120 Landrigan, Atwell v. ... ... .. ... ... 117 Landry r. Burton .. ... ... ... ... ... 113 Lane i'. Hannah ... ... ... ... ... 87,97,193 Lansell, Attorney-Generalr. (1) .. ... ... ... 104,193 , Attorney-General v. (2) .. ... 193 , Attorney-General v. (3) ... ... ... ... 96 , Attorney-General v. (4) ... ... ... .. 88,101 , Attorney-General v. (5) ... ... ... 88 , Tie v. ... ... ... ... ... ... 156 Laurenson v. Count Bismarck G. M. Co. ... ... ... 229,230 Lawlor, ex parte, in re Strutt ... ... ... ... 295 , ex parte, Reg. r. Strutt ... ... ... ... 266,291 i'. Grant ... ... ... ... .. ... 324 , Grant?'. ... ... ... ... ... 28,45,299,341 v. Stiggants ... ... ... ... 62,120,135,290 Learmonth v. Morris ... .. ... ... ... 19 Leary v. United Hercules Hydraulic Sluicing Co. ... ... 59 Lee v. Robertson ... ... ... ... ... ... 24 Lee Chung, Ching Tong Fong v. ... ... ... 132,135,270 Lee Gow v. Williams ... ,. ... ... ... 269 Lehan v. Dillon ... ... ... ... ... ... 103 Lennox v. Golden Fleece Co. ... ... ... ... 137,335 v. Golden Fleece and Heales Co. ... ... 14, 22, 130 Leslie, Zeppon v. ... ... ... ... 120 Levinson, Hayes v. ... ... ... ... 137, 274 Lewis r. Pearson ... ... ... ... ... .. 118,330 Lightbourne v. Stitt ... ... &j ... ... 48,65 Lindgren v. Halpin .. ... ... .. ... 285 xxx INDEX OF CASES. Lindsay v. Hanson (1) .. ... .. ... 306,323,337 - v. Hanson (2) 269,287 Ling, Cawley r. ... ... ... .. .. ... 16,45 Li nson r. Walsh ... ... ... ... .. ... 39,98 Lithgow, Moe Coal Co. v. ... ... ... ... ... 142 Little v. McDonald ... ... ... ... ... 213 , Oxleyt- 77,120,130,280 Llanberis Co. , Donaldson v. ... ... ... ... ... 49, 75, 79 Llanberis Q. M. Co. v. Jones ... ... ... ... 255 Locke, Ah Wye v 192 , Collins v. ... ... ... ... ... ... 213,214 Lomax v. Jarvis ... ... ... ... ... ... 239 Long, ex parte ... ... ... ... ... ... 275 Longbottom . White ... ... ... ...119,126,269,335 Louchard, Conway v. .. ... ... ... .... 323,335 Lucas, ex parte ... ... ... ... ... ... 327 v. Bourke ... ,.. ... ... ... ... 280,332 , Bourke v. ... ... ... ... ... ... 94,320 v. Neeld ... ... ... ... ... ... 116 Luke, Moule v. ... ... ... ... ... ... 197 Lynch r. Wood ... ... ... ... ... ... 267 Lyons r. Moore ... ... ... ... ... ... 169 v. Winter ... ... ... ... ... ... 323 MA A Moii Chin r. Hortin ... ... ... ... ... 1 62 Maconochie v. Woods ... ... ... ... ... 324 Mackay, Elmslie v. ... ... .. ... ... 274 Mackeprang r. Watson ... ... .. .. ... 25, 216 Macoboy, Reg. v., tx parte, Stevens .. ... ... ... 324 Madden v. Hetherington ... ... ... .. ... 93, 250 Mahoney, ex parte, Reg v. Smith ... ... ... ... 274,284 Marina, Fringe. ... ... ... ... ... ... 222 Marshall, Broadbent r. ... ... ... ... ... 92,192 Martin r. Baker ... ... ... ... ... ... 184 , Raleigh v. ... ... ... .. ... 121 Mathers v. Ellery ... ... ... ... ... ... 264,265 Mattz?. Peel ... ... ... ... ... 151 Matthews, Dillon r. ... ... ... ... .. 324 Mau, Randall r. ... ... .. ... ... ... 152,216 Mayor of Ballarat v. Bungaree Road Board ... ... ... 252 of Ballarat East v. Victoria United G. M. Co. .. ... 105, 108 of Eaglehawk v. Lady Barkly G. M. Co. ... ... 236 v. Waddiiigton ... ... ... 32,53 of Sandhurst, Badenhop v. ... ... ... ... 54 , Carlisle r. ... .. ... ... 236,237 v. Graham ... ... ... 253 of Sebastopol, Reg. v. ... ... ... ... 54 INDEX OF CASES. xxxi PAGE Mayor of Walhalla, Reg. v., ex parte O'Grady ... . . 55 Meehan I?. Oliver ... ... ... ... ... ... 213 Mehennet, Great North West Co. v. ... .... ... 20,26 Melbourne Harbour Trust Commissioners v. Colonial Sugar Refining Co. ... ... ... ... ... 239 Meldrum v. Atkinson ... ... ... ... ... 214 Melville r. Higgins ... . ... ... ... 324 Meredith v. Bunn ... ... ... ... ... ... 51, 106 Meyenberg v. Pattison ... ... ... ... ... 214 Micke, Hyndman v. ... ... ... ... ... 226 Middlemiss, Basham v. ... . ... ... ... 163 Milano, Rinaldi v. ... ... ... ... ... 253 Millan, Herbert r. ... ... ... ... ... 321 Millar v. Wildish .. ... ... ... ... ... 191,193 Miller v. Fraser .. ... ... ... ... 37 v. Rigby ... ... ... ... ... ... 213 Mills v. Day Dawn Block G. M. Co. ... ... ... 176 ex parte, in re Mills ... . . ... ... ... 267 Milne . Morell- ... ... ... ... ... ... 36,140 Minerva G. M. Co., Irving v. ... ... ... ... 216 Minister for Justice and New Day Dawn Sluicing G. M. Co., Kirkbridev. ... ... ... ... ... 186 for Works, McNamara v. .. ... ... ... 223 of Mines, Harney v. ... ... ... ... 268 , Rosebery G. M. Co. v 169 Missingham, Smyth v. ... ... ... . ... 252,273 Mitten v. Spargo ... ... .. ...120,138,308,335 Moe Coal M. Co. v. Lithgow ... ... ... ... 1 42 Mole v. Williams ... ... ... ... ... ... 318,326 Mongan v. Readford ... ... ... ... ... 113 Monte Christo G. M Co. v. Commissioner of Railways 1 47 Moor, ex parte ... ... ... ... ... ... 266 Moore, L}'ons v. ... ... .. ... ... ... 169 , in re, Reg. v. Cope . ... ... ... 303, 312, 335 v. White ... ... ... ... 40, 76, 125, 279, 298 Moore's Hustler's Freehold Co., Extended Hustler's Freehold Co. v. ... ... ... ... ... ... 53 Morell, Milne i>. ... ... ... ... ... ... 36,140 Morgan, Central Q. M. Co. v. ... ... ... ... 323, 331 , Osborne v. ... ... ... ... 44, 183, 189 Morris, Hutton ?\ ... ... ... .. ... ... 254 , Learmonth v. ... ... ... ... ... 19 .Robertsons ... ... ..'. ' J 44, 179, 187 Morrison, Clayton v. ... ... ... ... ... 147 v. Teague ... ... ... '.'.. 157, 268, 274 Morton, Perry v. ... ... ... ... ... 214 Morwood, Watson v. .. 313,333 xxxn INDEX OF CASES. Moule w.Luke ... ... ... ... ... ... 197 Mount Reid S. M. Co. v. Johnson ... ... ... ... 143 Muirhead, Hookway i: ... ... ... ... ... 15, 20 Mulcahy, Salmon v. ... ... ... ... ... 19,25 - v. Walhalla Co. ... ... 23, 108, 109, 115, 289 Mullen r. Bray ... ... ... ... ... ... 292 Munro v. Sutherland (1) ... ... ... ... 21 r. Sutherland (2) ... ... ... .. 70,88,145 Murn, Scully v. ... ... ... ... ... . 332,337 Murphy v. Cook ... ... ... . . ... ... 52 r. Cotter and United Hand and Band Co. ... ... 308 v. Neil ... ... ... ... .. ... 324, 331 Murray, McCormack v. ... ... ... ... .. 256 Myrtle Creek Co., McLennan v. ... ... ... ... 331 Mysterious Q. M. Co., O'Sullivan t>. ... .. ... .. 84,136 McAxDREW v. McLean ... ... ... ... ... 43 McAuly, Sieversr. ... .. ... ...37,41,63 McCafterty i'. Cummins .. ... ... ... 35,101,329 McCarthy, Bryson r. ... ... ... ... ... 118, 136 MoCall, Bain v. ... ... ... ... 70,171,337 McCormack v. Murray ... . . ... ... . . 256 McCormick r. Dean ... ... ... .. 272 McDermott, Power v. ... ... ... ... ... 292, 3 1 9 McDonald, Little v. ... ... ... ... ... 213 McDougall v. Webster ... ... ... .. ... 19,25 McGallan , Ward r. ... ... ... ... ... 324 , Whiteman v. ... ... ... ... ... 308, 325 McG ill , Tatham v. ... ... ... .. ... 32, 292 v. Tatham .. ... ... ... ... ... IS McGrath v. Wilson ... ... ... 81,84,127 Mclndoer. Jutland Flat G. M. Co. ... ... ... ... 239 , Jutland Flat (Waipori) G. M. Co. v. ... ... 239 Mclnnes, ex part e. ... ... ... ... ... 49,62,213 Mcln tyre, Campbell v. .. .. ... ... ... 225,246 , Reg. v. , ex parte Ah Hen . . . .. ... ... 240 Mclvor, King v. .. ... ... .. -.. ... 170 McKenzie, in re, ex parte Turnbull ... ... ... ... 60 McKinnery v. Falkner G. M. Co. (1) ... 333 v. Falkner G. M. Co. (2) ... ... 332 McKinnon v. Collie ... ... .. ... ... 219 McLachlan, Reg. v. .. .. ... ... ... 162,321 McLean, McAndrew v. ... ... ... ... ... 43 v. Wearn... ... ... ... ... 20,225,254 McLellan, Gorman v. ... ... ... ... ... 173,246 McLennan v. Myrtle Creek Co. ... ... .. ... 331 McLeod v. Whittield ... ... ... .. ... 309,336 INDEX OF CASES. xxxm PAOB McMillan v. Dillon ... .. ... ... 183,187,271 r. Great Extended Sluicing Co. .. ... ... 59,269 McNamara v. Minister for Works ... ... ... ... 223 McNulty, Hunter v 39,82,126,137 McPherson, Homeward Bound G. M. Co. v. ... ... ... 19, 26 NATIONAL Bank, United Hand-in- Hand and Band of Hope Co. v. 214 Neeld, Barclay v. ... /.. . ... 25, 107 , Lucas v. ... ... .. ... ... ... 116 Nelson, Stewarts. ... .. ... ... ... ... 217 , Tangyes v.... .. ... ... ... 312 Neil, Murphy r. ... ... ... ... 324,331 Neill, Kennedy v. .. ... ... .. ... ... 247 New Day Dawn Freehold G. M. Co., Kirkbride v. ,.. ... 156 Newey v. Garden Gully United Q. M. Co. ... .. ... 273 Newington Freehold Co. v. Harris ... ... ... ... 192 Newman, Rush r. ... ... ... ... ... .. 59 Nicholls, Baw Baw Sluicing Co. v. ... ... ... ... 226 Nicholson, Thomas v. ... ... ... ... ... 94 Nickless, exparte, Reg. i: Pohlman ... ... ... ... 271 Niemann v. Weller ... ... ... ... ... 15, 24 Nightingale v. Daly ... ... ... ... ... 223,224 No. 1 North Phoenix G. M. Co. v. Phoenix G. M. Co. ... 287, 333 No. 2 South Louisa G. M. Co. , Brunt r. .. ... ... 339 Norbury v. Jordan... ... ... ... ... .. 60 North Brothers Home v. Triangle Co. ... .. .. 223 North Cornish Q. M. Co., Cornish Q. M. Co. ?. ... ... 292 North Duke Co., O'DriscolH-. ... ... .. 230,231 North Hurdsfield United Co., Fancy v. ... .. 93, 250, 335 Norton, Foley v. ... ... ... ... ... 19,43,245,275 , Reardon v. ... ... ... ... 39, 246, 336 ODGERS v. Waldron ... .. ... ... ... 330,331 O'Donnell, Costello v. ... ... . 170,122,279 , Thomas c. ... ... ... ... 245,250 O'Donoghue, Smith v. ... .. ... ... ... 218 O'Driscoll v. North Duke Co. ... ... ... ... 230,231 O'Dwyer, Collins v. ... ... ... ...111,115,121,132 CTGrady, exparte, Reg. v. Mayor &c. of Walhalla ... ... 55 O'Keefe, Butler v. ... ... ... ... ... ... 82, 127 O'Malley v. Ward ... ... ... ... ... ... 39 O'Reilly v. Bright District and Smoko G. M. Co. ... ... 269,278 O'Rorke, Vallancourt u. (1) ... ... ... ... ...28,91,92 , Vallancourt v. (2) ... ... ... 312,321,333 O'Sullivan v. Clarke ... ... ... ... ... 68,128 v. Mysterious Q. M. Co. ... ... ... ... 84,136 Oliver, exparte, Reg. v. Clow ... ... ... 133,268,282 xxxiv INDEX OF CASES. PAGE Oliver, Meehan v. ... .. ... ... ... 213 Omant v. Stephen ... ... ... ... ... ... 144 Orme, Reg. v., ex parte Droscher ... 133, 174, 290 Osborne v. Elliott . ... .. ... ... 87,98,310 v. Morgan 44,183,189 Oxley v. Little .. 77,120,130,280 PALMER v. Chisholm ... .. ... ... 65,288,340 Parade G. M. Co. v. Black Hill South Extended G. M. Co. ... 110 v. Royal Harry G. M. Co. ... ... 51, 88, 247 v. Victoria United Co. ... ... 36, 64 Park, Bowes v. ... ... ... 334 Park Co. v. South Hustler's Reserve Co. (I) ... ... 306 v. South Hustler's Reserve Co. (2) ... ... 87, 94, 306 Parker v. Brooks ... ... ... ... ... .. 68 Parker's Extended Q. M. Co., Campbell v. ... ... 231, 276 Parker's Freehold United Q. M. Co. v. Parker's United Co. ... 102 Parker's United Co., Parker's Freehold United Q. M. Co. v. ... 102 Parkin, Wheeldon r. ... ... ... ... 319 Parle r. Harp of Erin Co. ... ... 46, 216 Parslow, Walsh .... ... ... ... ... ... 271 Parsons, Dodds v. ... ... ... ... 154,273 Paterson, in re ... ... ... ... ... ... 221 Pattison, Meyerberg v. ... .. ... ... ... 214 Payne, Scctt v. ... ... ... .. ... ... 69,174 Peakhills Goldfields Limited, Wright r. ... ... ... 174 Pearce v. Greville .. ... ... ... ... ... 64 , Sichelv. ... ... ... ... ... ... 125 Pearson, ex parte ... ... ... ... ... .. 275,281 , Lewis v. ... ... .. ... ... ... 118,330 Peel, Matt v. ... ... ... ... ... .. 151 Penglase v. Broken Hill Junction North S. M. Co. ... ... 161 Penistan v. Great Britain Co. ... ... ... 94,148,157 Perkins ?. Hercules G. M. Co. ... ... ... ... 143,170 - r. Sharpies ... .. ... ... ... 119 Perriam, White v. ... ... ... ... .. 75,92,134 Perry v. Morton ... ... ... ... ... .. 214 Phillips, Barker r. ... ... .. ... ... 320 , Rider w. ... ... ... ... ... ... 39 Phoenix G. M. Co., No. 1 North Phoenix G. M. Co. r. ... 287, 333 Pigtail Q. M. Co., Constable v. ... ... 57, 163, 175, 265, 287 Pitcher, Clark v. ... ... ... ... ... .. 192 Plant, Attorney-General v. ... ... ... ... ... 191 V.Harris ... ... ... ... ... 161 v. Rollston ... ... ... ... ... ... 192 Plowman v. Wright ... ... ... ... . . 335 Pohlman, Reg. v., ex parte Nickless ... ... ... 271 INDEX OF CASES. XXXV PAGE Potter v. Wilkins ... .'.. 52, 155 Power v. Me Dermott ... 292,319 Powning, Truswell v. 67, 91, 98 Pratt, Chapman v. ... 163 , Holtv. 48 Pride of the East G. M. Co. v. Wimmer (1) ... .. 219, 320 v Wimmer () 273 320 Prince of Wales Co., Attorney-General v. ... 105, 162 Bon"haw Freehold G M Co v (1) 106 238 240 Bon^haw Freehold G M Co v () 109 192 240 34, 91, 102 314 331 United \Vorkini? Miners M Co v (^} Pring v Marina 222 Pund, Allen v. 223 Pye, ex parte 24 QUEEN, The, City of Melbourne Co. r. ... 143, 169 Davi" v .. 100, 149 , Etter shank v. 185 Hitchin" v 169 Quinlan, Reg. v., ex parte Sampson ... 312, 315, 331 RALEIGH ?;. Martin 121 Ralph, Johnson v. ... 55 Randall v. Matt .. 152, 216 Rawlins v. Re veil ... .. ... ... .. 292 Raynor v. Curtis, ... 162 Readford, Mongan v. 113 Reardon v. Norton 39, 246, 336 95 125 Rebora, Bacon v. ... ... ... 176 Rees v. Carroll 323 v. Duncan 154 Reform G. M. Co., Chun Goon v. 157 Reg. v. Akehurst (1) 283 v. Akehurst (2) 283 v. Akehurst (3) 268 v. Belcher, ex parte Gilbee 282, 290, 314 v. Bowman, ex parte Willaii 306 v. Brewer and Walhalla Co. 289, 297, 319 v. Carr ... 265, 292 v. Clow, ex parte Hewitt 142 v. Clow, ex parte Oliver 133, 268, 282 v. Cogdon, ex parte Hartmann ... 290 v. Cope, in re Moore... 303, 312, 335 v. Cribb ... 80, 267 v. Cttsack 292 xxxvi INDEX OF CASES. Keg. v. Davies (1) ... ... ... ... ... ...17,31,34 r. Davies (2) ... ... ... ... ... ... 30 r. Dowling, ex parte McLean ... ... ... 20,252,254 v. Dunne, ex parte Baillie ... ... ... ... 306,311 v. Forbes ... ... ... ... 314 ?. Gaunt, ex parte Bahlman ... ... ... ... 291 r. Gee, ex parte Wendt ... ... ... ... 16 r. Green ... ... ... ... ... ... 290 v. Hawkins ... ... ... ... ... ... 18, 157 v. Heron, ex parte Bryer .. ... . 24, 281, 290 r. Keddell ... . ... ... ... ... 227 r. Macoboy, ex parte Stevens ... ... ... ... 324 r. Mayor of Sebastopol ... ... ... ... 54 of Walhalla, ex parte O'Grady .. ... ... 55 r. McLachlan ... ... ... ... 162, 321 r. Mclntyre, ex parte Ah Hen ... ... ... 240 v. Orme, ex parte Droscher ... ... ... 133,174,290 v. Pohlman, ex parte Nickless ... ... ... ... 271 r. Quinlan, ex parte Sampson ... ... ... 312,315,331 r. Robinson ... ... ... ... ... 290 r. Rogers (1) .. ... ... ... ... 311,313 r. Rogers (2)... ... ... ... ... ... 314 /. Sherard... ... ... ... ... ... 268,290 , ex partt Fraser ... ... ... . 279,282 /-. Skinner, ex parte Smith ... ... ... ... 306 v. Smith ... ... ... ... ... 273 , ex parte Mahoney ... ... ... ... 274,284 r. Stephenson, ex parte Black ... 77 r. Strutt ... ... ... ... ... 275,290,314 , ex parte Constable ... ... ... ... 290 , ex parte Lawlor .. ... ... ... 266,291 v. Thomson, ex parte Costin ... ... ... 273, 290, 314 . Warden at Donnelly's Creek... ... ... 268 r. Webster ... ... ... ... ... ... 21,225 r. Wilson ... ... "... ... 17, 191 r. Wood 292 Reidr. Gunn ... .. ... ... ... ... 248,250 RendalH'. Hadley 90,122,148 Renvvick v. Barkas ... ... ... ... ... 215 v. Hyde ... ... ... ... 305, 327 Revell, Rawlinsr. ... ... ... ... ... ... 292 Reynolds, Holmes r. ... ... ... ... 54, 164 Rice, Rosales v. ... ... ... 244,274 Rider r. Phillips ... ... ... ... ... ... 39 Rigby, Beavan v. ... ... ... ... ... 77,80,136,175 , Miller w. ... ... ... ... ... ... 213 Rinaldi v. Milano .. ... ... ... . ... 253 INDEX OF CASES. Robertson, Davis v. ... .. ' PAGE ... 139, 226 Lee v. 24 v. Morris 144, 179, 187 216 14, 121, 220 290 154 279 ... 225, 266 ... 219, 304 53, 106, 247 279 ... 325, 335 .. 311, 313 314 335 161 ... 244,274 37, 278, 284 Kobinson v. Blundell Wallace Bethanga M & S Co v Robson, ex parte, re Rogers Rocky Mountain Extended Sluicing Co. , Trahair v. Rogers, in re, ex parte Bunn , re, ex pare o^on... Reg v (1) Reg v (2) Rolls, Byers v. Rollston, Plant v. ... Resales v. Rice Roscrow v. Webster Rosebery G. M. Co. v. Minister of Mines ... ... ... 169 Rosewarne, Uren v. ... ... ... ... ... 229 Ross v. Cutten ... ... ... ... ... ... 60 , Howellv. ... ... ... ... ... ... 63,319 , Teelow v. . ... ... ... ... ... 247 Round, Clark v. ... ... ... .. ... ... 272 Row, Vicary v. ... ... ... ... ... ... 320 Royal Harry Q. M. Co., Parade G. M. Co. v. ... 51, 88, 247 Rue v. Harris ... ... ... ... 77 Rush v. Newman .. ... ... ... ... 59 Rutherford, Cooper v. ... ... ... .. . 289 Ryan, Atwell v. ... ... ... ... .. ... 117 - v. Callaghan 307, 317 SADDLE Hill G. M. Co., Butler v. ... ... ... .. 32 St. Bathan's Channel Co. v. Watson ... ... .. 224 St. George and Band of Hope Co. v. Band of Hope and Albion Consols ... ... ... ... ...31,51,88,96,247 , Band of Hope and Albion Consols Co. v. ... ... 108 St. George United Co. v. Albion Co. ... .. ... 88,103 , Albion Co. v. ... ... ... ... 27, 30, 311 , Band and Albion Co. v. ... .. ... ... 105 St. Mungo Co. , Granger v. ... . .... ... 231 Salmon v. Mulcahy ... .. ... ... ... 19,25 Samper, Chappel v. ... -.. ... ... ... 184 Sampson, ex parte, Reg. v. Quinlan ... ... ... 312, 315, 331 Sampson, Hetherington v. .. ... 144 Sanderson, Attorney General v. ... ... ... .. 144,177 INDEX OF CASES. PAGE Sandhurst, Mayor &c. of, Badenhop v. ... 54 , Carlisle v. ... ... .. ... ... 236,237 Saunders, Bryant v. ... .. ... ... 217 Sawtell v. Gay ... ... ... ... ... ... 269 Sawyer v. Caledonian G. M. Co. ... ... ... ... 334 Sayers, Cock v. ... .. ... ... ... ... 324 , Great North West Co. v. ... ... ... ... 116,125 v. Jacomb ... ... ... ... ... 74,77,290 , Reardonv. ... ... .. ... ... ... 95,125 Schlemm, Whitely r. ... ... ... ... ... 70,94 Scholes, Attorney- General i: ... ... ... ... 107, 193 Schonfeldt r. Beel... ... - ... ... 53, 273 Scott v. Payne ... ... ... ... ... ... 69,174 , Wood 17. ... .. ... .. ... ... 149 Scottish and Cornish G. M. Co. r. Great Gulf G. M. Co. ... 18, 33 , Smith v. ... ... ... ... ... ... 26,34 Scully f. Murn ... ... ... ... ... 332,337 Sea Quartz Co., Sea Queen Co. v. ... ... 94,103,271 Sea Quartz Mining Co. v. Sea Queen Q. M. Co. ... 27, 307 Sea Queen Co. v. Sea Quartz Co. ... ... 94, 103, 271 Sea Queen Q. M. Co , Sea Quartz Mining Co. v. ... ... 27,337 ,exparte... ... ... ... ... ... 312,335 Sealr. Bebro ... ... ... ... ... 48,78,127 v. Webster Street Freehold G. M. Co. ... ... ... 238 Sebastopol, Mayor &c. of, Reg. v. .. .. ... 54 Secretary of Public Instruction v. Auld ... ... ... 317 Sellheim, Forwood v. ... ... ... ... ... 267 , Inch;;. ... ... ... ... ... 266,297 Sexton, Bannerinan v. ... ... ... ... ... 254 Shamrock Co. ;-. Farnsworth ... ... ... ... 56,148 Shannahan v. Creswick Shire ... ... ... ... 238 Sharp, Allison v. .. ... ... ... ... ... 160,341 Sharpies, Perkins v. ... ... ... .. 119 Shean, ex parte, in re Rogers ... ... ... ... 325,335 Sherard, Reg. v. ... ... ... ... ... ... 268, 290 , Reg. v., exparte. Fraser ... ... ... .,. 279,282 Shire of Bulla v. Allison ... ... ... ... 237 of Creswick, Shannahan v. ... ... ... ... 238 Sichel v. Pearce ... ... .. ... ... 125 Sievers r. McAuly ... ... ... ...37,41,63 Sim v. Eddy ... ... ... ... .., 289,292,320 Simpson, Wilson r. ... ... ... ... ... 271 Sims v. Demamiel ... ... ... ... ... 53,273,290 Skinner, Reg. v., exparte Smith ... ... ... ... 306 Small t-. Dyer ... ... ... ... ... 87,119,340 Smith, Constable v. ... ... ... ... 266, 318, 326 ^ , ex parte, Reg. v. Skinner ... ... ... ... 306 INDEX OF CASES. Smith, Ferrier v. v. Golden Gate Co. v. Harrison ... , Harrison v. -, in re v. O'Donoghue XXXIX PAOK parte Mahoney v. Scottish and Cornish Co. ... Smyth v. Missingham Southern Freehold Co. , Attorney-General v. ... South Loch Fyne G. M. Co., Coates v. (1) , Coates v. (2) ... , Coates v. (3) ... South Hustler's Reserve Co., Park Co. v. (1) '... , Park Co. . (2) Spargo, Mitten v. ... Sparta, Coles v. Spiers v. W hi teside Star Freehold Co. v. Evans Freehold Co. - v. Inkermann and Durham Co. ... Stawell Amalgamated Scotchman's and Cross Reefs Cockv. ... Stawell Road Board, Campbell v. , Davidson v. , Lamont v. ... Stephen, Omantv. ... Stephens v. Jolly ... , Jolly v Stephenson, Reg. v. , ex parte Black ... Stevens v. Craven ... , ex parte, Reg. v. Macoboy v.Webster... Stewart v. Berry man , Dunstan v. v. Nelson .. Stiggants, Lawlor v. Stitt, Lightbourne v. Strutt, in re, ex parte Lawlor , Reg. v. , Reg. v., ex parte Constable ... , Reg. v. , ex parte Lawlor Stubbs, Taylor v. ... Summers v. Cooper (1) v. Cooper (2) v. Cooper (3) v. Cooper (4) 128, 137, 171 341 137, 218, 327 340 218 273 ... 274, 284 26, 34 ... 252,273 50 58, 226, 277 40, 72, 136 295, 303, 314 306 87, 94, 306 120, 138, 308, 335 48, 115, 123, 126 . . 299, 300 M. Co., 57, 174, 183, 189 237 ... 236,237 238 144 56, 91, 145, 277 136, 174, 280 77 235 , ... 324 ... 225, 339 .. 228, 231 231 217 62, 120, 135, 290 48, 65 295 275, 290, 314 290 ... 266,291 ... 283, 309 22, 47, 246 287, 291, 336 249, 257, 273 252 XL INDEX OF CASES. PAGK Sung You r. Koch ... .... ... ... ... 310 Sunki v. Simpson ... ... ... ... ... .. 213 Surplice v. Broken HillJunction S. M. Co. ... ... ... 295 Sutherland, Great Gulf Co. v. ... ... .. ... 156 , Munrov. (1) ... ... ... ... 21 , Munrov. (2) ... ... ... 70,88,145 Swindley, Aitken v. ... ... .. ... 211 Sydenham Q. M. Co. v. Ah Cheong ... .. ... ... 154, 254 TAIT, Duffy ;. ... ... ... ... ... -13,82,124 V.Henderson ... ... .. ... ... 84,124 Talent v. Dibdin ... ... ... ... ... ... 64,339 Tallandoon G. M. Co., Vickers v. ... ... 269, 284 Talty, Gallagher v. ... ... ... 213 Tangyes v. Nelson ... ... ... ... ... ... 312 Tatham v. McGill .. ... ... ... ... 32, 292 , McGill v. ... . .. ... ... .. 18 Taylor, Harvey v. ... ... ... ... 160 v. Stubbs 283,309 , United Claims Tribute Co. v. ... ... 88,339 Teague, Morrison v. ... ... .. ... 157,268,274 Teelow v. Ross ... ... ... ... ... ... 247 Tennant, United Extended Band of Hope Co. r. 34, 116, 127 Theodore v. Theodore ... ... ... ... 19 , Theodore i.'. ... ... ... ... .., 19 Thiessen v. Lambert ... ... ... ... ... 196 r. Lambert and another ... .. ... ... 195 Thomas v. Commissioner of Lands, in re White ... ... 153 v. Kinnear (1) ... ... ... ... ... 120,338 v. Kinnear (2) ... ... ... ... .. 335 v. Nicholson ... ... ... ... ... 94 v. O'Donnell ... ... ... ... ... 245, 250 Thompson v. Begg .. ... ... ... 45, 82, 139, 281, 331 v. Land ... ... ... ... ... 43,64,120 Thomson, Johnson v. .. ... ... ... ... 155 , Reg. v., exparte Costin ... ... ... 273, 290, 314 Thorburn v. Buchanan ... ... ... ... ... 185 Thorne, Carlisle v. ... ... ... ... 1 63 Tie v. Lansell .. .. ... ... ... ... 156 Trahair v. Rocky Mountains Extended Sluicing Co. ... ... 225,266 Tregoweth, Falvey v. .. ... .. ... ... 272 Tressider, Clarke v. .. ... ... ... 46 Triangle Co., North Brothers Home v. ... ... 223 Trustees, Executors aud Agency Co. and the Mining on Private Property Act 1S84 ... ... ... 197 Truswell v. Powning ... ... ... ... ...67,91,98 r. Woods ... 47, 65, 251 INDEX OF CASES. XLI Turnbull v. Jones ... ... .. ... .. ... 273,339 , ex parte, in re McKenzie ... ... ... ... 223 Turton, Campion v. ... ... .. ... ... 21, 32 UNITED Claims Tribute Co. v. Taylor ... ... ... 88,339 United Extended Band of Hope Co. v. Chisholm ... 20. 28, 103 v.Doyle ... ... ... .. ... ... 24,132 v. Tennant ... ... ... 34,116,127 United Hand and Band of Hope Co. v. Winter's Freehold Co. ... 104 United Hand in Hand and Band of Hope Co., Attorney- General v. ... ... ... _ ... ... 50 v. National Bank of Australasia ... ... .. 214 United Hercules Hydraulic Sluicing Co. , Leary v. ... . 59 United Sir William Don G. M. Co. v. Koh-i-noor Q. M. Co. ... 50, 102 United Working Miners G. M. Co. v. Albion Co. ... ... 34 v. Prince of Wales Co. (1) ... ... ... 34,91,102 v. Prince of Wales Co. (2) ... ... ... ... 314,331 Uren v. Rosewarne ... ... ... ... ... 229 Ustice, Edwards v. ... ... ... ... 39 VALLA^CODRT v. O'Rorke (1) v O'Porl'c () 28, 91, 92 312 321 333 Vanderstoel, Hancock v. Verdon, in re, ex parte Albion Co. ... Vial v. Allender Vicary v. Row ... 293, 337 26 15, 22, 42, 251 320 Vickers v. Tallandoon G. M. Co. Victoria United G. M. Co., Britannia United G. M. Co. v. , Mayor &c. of Ballarat East v. Parade M Co v ... 269,284 94 ... 105, 108 36 64 Vivian v. Dennis ... , Dennis v. ... Volunteer Extended Co. v. Grand Junction Co. 58, 99 ... 215, 317 18, 26 WADDINGTON, Mayor &c. of Eaglehawk v. ... ,.. ... 32,53 Wade, Brereton v. ... ... .. ... ... ... 161 Wakeham v. Cobham ... .. ... ... 51,252,269 Waldron, Odgers v. ... ... .. ... ... 330,331 Walhalla G. M. Co. v. Jennings ... ... ... ,.. 52,145 , Mulcahyv. ... ... .. 23,108,109,115,289 Walhalla, Mayor &c. of, Reg. v., ex parte O'Grady ... ... 55 Wallace, Daly v. ... ... ... ... ... ... 298 Wallace Bethanga Mining and Sluicing Co. v. Robinson ... 154 Walsh, Linson v. ... ... ... ... .. ... 39, 98 v. Parslow ... .., ... ... .. ... 271 Ward v. Bernston .., ... ... ... ... 322 v. McGallan .. 324 XLII INDEX OF CASES. PAOF. Ward, O'Malley v. ... ... ... ... 39 Warden at Donnelly's Creek, Reg. i-. .. ... ... 268 Wardle v. Evans ... ... ... ... ... ... 292 Warrior G. M. Co. v. Cotter ... ... 62, 101, 132, 216, 246 Watson, Brennan v. (1) ... ... ... .. ... 319,323 , Brennan v. (2) ... ... ... ... ... 330,339 , Bondv 39,82,280 v. Commercial Bank ... .. ... ... .. 314 . v. Issell ... ... ... ... .. ... 317 , Mackeprang r. .. .. ... ... ... 25, 216 v. Morwood... ... ... ... . . ... 313,333 , St. Bathan's Channel Co. v. ... ... ... ... 224 WaverlyG. M. Co., Bottrell i'. ... ... ... 42,87,101,122 Wealth of Nations G. M. Co., Robertson v. ... ... ... 216 Wearn, McLeans ... . ... ... ... 20,225,254 Wearne v. Froggatt .. ... ... ... ... 92,311 Webster, McDougall r. ... ... ... ... ... 19,25 , Reg. v. ... ... ... ... ... .. 21, 225 , Roscrow v. .. ... ... ... 37,278,284 , Stevens v. ... ... ... ... ... 225, 339 Webster Street Freehold G. M. Co., Seal?;. ... ... ... 238 Weddell i'. Howse (1) ... ... ... ... 70,84,127 v. Howse(2) ... ... ... ... 66,175,278,336 Weller, Neimann v. ... ... ... .. ... 15,24 Wellington, Bishop of, Wi Parata v. ... ... 139, 211 Wendt, ex parte, Reg. v. Gee ... ... ... ... 16 West Australian Bank, Hargan v. ... ... ... ._ 226 Western Freehold G. M. Co., Dickson r. ... ... .. 240 v. Great Western Co. ... ... ... 99, 192 Wheal Terril Q. M. Co. v. Irwin ... ... ... ... 233 Wheeldbn v. Parkin 319 White, Cooper v. ... ... ... ... ... 70,90,123,287 , Cruthers v. ... ... ... ... .. 107 , in re, Thomas v. Commissioner of Lands ... .. 153 , Longbottom r. ... ... ... ...119,126,269,335 , Moore v. ... ... ... ... 40,76,125,179,298 - v. Perriam ... ... ... ... ... 75, 92, 134 Whitely . Schlemm ... ... ... ... ... 70,94 Whiteman v. McGallan ... ... ... ... . 308,325 Whiteside, Spiers v. ... ... ... ... ... 299,300 Whitfield, McLeod i: ... ... ... ... ... 309,336 Wi Parata v. Bishop of Wellington ... ... ... ... 139,211 W T igg, Crocker v. ... ... ... ... .. 17,46,133,326 Wildish, Millar v. ... ... .. ... ... ... 191, 193 Wilkinson v. Harris ... ... ... .. ... 51,257 Willan, Colonial Bank v. ... ... ... ... 101,302,314 , ex parte, Reg. v. Bowman ... ... ... ... 306 INDEX OF CASES. XLIII PAGE Williams, Lee Gow v. ... ... ... ... 269 , Mole?;. ... .. ... ... ... ... 318,326 Williams Freehold Co., Band of Hope Q. M. Co. v. ... 53, 100, 104 Willox, Barrington v. ... ... ... ... ... 66 Wilson, Australasia Co. v. .. ... ... ... 19,147,308,334 v. Broadfoot ..." ... ... ... ... 302,304 , McGrath?;. ... ... ... ... 81,84,127 , Reg. . ... ... . ... ... .. 17, 191 v. Simpson ... ... ... ... ... ... 271 Wimmer, Pride of the East G. M. Co. v. (1) .. ... ... 219, 230 Pride of the East G. M. Co. v. (2) ... ... ... 273, 320 Winter, Lyons v. .., ... ... ... ... ... 223 Winter's Freehold Co., United Hand and Band of Bope Co. v. ... 104 Wissing v. Finnegan ... ... ... ...152,170,188,271 , Finnegan v. ... ... ... ... 129,170,188 Wood, Dillon v 32 , Lynch v. ... ... ... ... -... 267 , Reg. v 292 v. Scott ... ... ... ... ... ... 149 Woods, Machonochie i. ... ... ... ... ... 324 , TruswelU-. ... ... ... ... 47,65,251 Woodward v. Earle ... ... ... ... 25,85,112124 Woolley v. Ironstone Hill Lead G. M. Co. ... ... ... 92,191 Won Paw, Kin Sing v. ... ... ... ... ... 216,270 Wong Pang, Baker v. .. ... ... ... ... 46 Wright, Bourke i\ ... ... ... ... ... 15, 94 v. Peakhills Goldfields Limited ... ... ... 174 Plowman v. ... ... ... ... ... 335 Wrigley, Clerk v. ... ... ... 22,48,121,125,135287 YOUNG Band Extended Co. v. Band of Hope and Albion Consols Co. (1) ... ... ... ... ... ... 47, 89 v. Band of Hope and Albion Consols Co. (2) ... ... 89 v. Band of Hope and Albion Consols Co. (3) ... ... 77, 165 , Band and Barton United Co. v. ... ... ... 98.108 Young, ex parte ... ... ... ... ... . . 246 Yung Hing, in re ... ... ... ... ... ... 110 , HokJohnv. ... ... .. ... ... 326 ZEPPONV. Leslie ... ... ... ... ... ... 120 Zobel v. Croudace ... 200, 203 INDEX OF STATUTES, &c. STATUTES. VICTORIA : VICTORIA continued. 15 Vic. No. 15 (Goldfields Act 29 Vic. No. 291 continued. 1852) 2, 42, 259 sec. 42 183 17 Vic. No. 4 (Goldfields Act 71 (xii) 77 1853) 2, 31, 260 71 (xiv) 233 71 (xv) 233 18 Vic. No. 37 (Goldfields Act 80 39, 73 1855) 3, 14, 242 82 328 21 Vic. No. 32 (The Goldfields 101 (i) 309 Act 1858) 14, 73, 98, 132, 260 101 (iii) 244 sec. 3 102 171 328 4 17 , 50 194 328 14 301 237 77 70 76 77 41, 122, 225 292 214 36 Vic. No. 446 (Mining Amendment) .. 8, 70, sec. 3 170, 261 69, 189 84 292 4 189 90 Ill 39 116 24 , 63 256 37 Vic. No. 480 (Regulation of Mines) .. 229 sec. 5 230 24 Vic. No. 117 (Crown Lands) 50 8 '.'.'. ... '.'.. 230 25 Vic. No. 148 (Mining Leases) 145 41 Vic. No. 583 (Regulation of Mines) sec. 11 224, 225 sec. 12 230 25 Vic. No. 153 (Drainage of Reefs) 233 41 Vic. No. 596 (Drainage of Mines) 233 27 Vic. No. 228 (Mining Com- 45 Vic. No. 709 (Residence panies) 215 Areas) ... ... 51, 99, 178, 242 28 Vic. No. 273 (Insolvency) 306 sec. 7 122 28 Vic. No. 274 (Common Law 47 Vic. No. 761 (Judicature) 4,329 Procedure) sec. 4 262, 329 sec. 243 110 5 262, 329 29 Vic. No. 288 (Waterworks) 240 6 7 262, 329 329 29 Vic. No. 291 (The Mining Statute 1865) 4, 37, 70, 171, 261 47 Vic. No. 783 (Regulation of Mines) ... 276 sec. 3 173 48 Vic. No. 796 (Mining on 6 .'. ... . 77 Private Property) 10, 70, 99, 190 1 77 48 Vic. No. 801 (Residence 24 70 Areas) 242 INDEX OF STATUTES, &c. VICTORIA continued. VICTORIA continued. 48 Vic. No. 826 (Accidents 54 Vic. No. 1120 continued. Relief Fund 11 sec. 30 251, 258 52 Vic. No. 993 (Residence Areas) 242 32 ... 33 ... 35 ... 122,249,257 250,257 253 54 Vic. No. 1074 (Companies 36 ... '..'. 255 Act 1890) ... 101, 142, 212, 306 39 ... .. 245, 253 sec. 201 281 40 ... 245, 253 309 (i) 94 41 253 54 Vic. No. 1079 (Crimes Act 43 ... 247,254 1890) 44 221, 254 sec. 108 30 45 ... 254 54 Vic. No. 1080 (Crown Remedies and Liability Act 1890) 169 46 ... 47 48 ... 49 ... 51, 178, 247 51, 247 152 70, 151, 173, 327 54 Vic. No. 1102 (Insolvency 50 ... 142, 227 Act 1890) 52 ... 145 sec. 109 306 55 ... 37 fiO 227 54 Vic. No. 1103 (Instruments Act 1890) sec. 212 215 ou 64 ... 65 21,70, 67 ... ... 220,224,236 39,129,145,161,171 168, 170 54 Vic. No. 1106 (Land Act 68 ... 56, 176, 202 1890) 268 70 17, 66 , 89, 100, 147, 171 sec. 65 199 71 ... 56 , 89, 100, 128, 172 68 199 72 ... 128, 173 114 52, 155 76 ... 150 118 199 77 ... 143, 170 121 199 81 ... 286 83 78, 286 54 Vic. No. 1112 (Local Gov- 106 '.'.. 6, 39 304 ernment Act 1890) 106 (iii) 17,37 sec. 246 236 395 54, 100, 148 106 (iv) 106 (vii) 63, 221 120, 221 54 Vic. No. 1116 (Married Women's Property Act Act 1890) 43 106 (ix) 106 (x) 106 (xi) 106 (xii) 74, 221 114,221 39 221 54 Vic. No. 1120 (Mines Act 106 (xiii) 77 1890) 5, 10, 38, 68 106 (xv) 40, 155, 241 sec. 2 39 106 (xvi) 40, 241 3 30, 63, 143 107 ... 39 4 13, 19, 22, 29 108 ... 39 5 16,77,220,243 110 40 7 32,75 115 ... 303, 307 8 .. . 32,47,75 118 ... 303, 305 10 114 120 ... 307 11 255 134 ... 308 12 246, 255 135 ... 107, 132, 147, 302 13 14, 256 135 (i) ... ... 118, 227, 3G9 14 22 135 (iii) 95, 101, 225, 270, 274 15 50, 102 135 (vi) 225 16 ... 50 135 (vii) '... 214, 219 17 57,252,257 135 (x)... 225 18 54 138 ... 280 19 17, 52, 164 139 ... 307 22 257 143 ... 307 23 257 145 307 24 257 149 308, 310 25 257 156 ... 310 27 245, 255 160 ... 310, 319 28 249, 258 163 310 29 245 165 ... 308 INDEX OF STATUTES, &c. VICTORIA continued. VICTORIA continued. 54 Vic. No. 1120 continued. 54 Vic. No. 1120 continued. sec. 166 310 sec. 261 323, 326 171 308 262 319, 326 172 310 263 109, 315 173 310, 319 265 139,262,329 180 315 266 293,342 181 311 267 267 182 312 268 313,340 183 32 269 327 188 321 278 296 192 321, 323 279 295 193 321 280 295, 315 195 107, 315 281 292,295 196 107, 315 298 ... 23, 78, 132, 216 197 316 315 319 198 316 379 235 199 316 380 334 200 316 381 334 201 316 382 334 202 316 383 235 207 313, 315 3H5 235 209 262, 313, 336 386 236 210 . ... 262, 329, 339 389 77 211 330, 333 396 268,290,314 212 317, 330 schedule xxii 275 213 326 xxiii 275.284 214 330, 337 xxxi 321 215 264 xxxiii 340 216 95,101,147,219 , 268, 274 54 Vic. No. 1126 (Police 217 218 219 ... 158, 197, 220 333 296 279, 321 275 Offences Act 1 890) sec. 41 (xi) 31, 229 54 Vic. No. 1142 (Supreme 221 282 Court Act 1890^ 222 284 sec. 6 107 227 '.'.', '.'.'. '.'. 278, 283 7 107 228 296 8 107 232 296 63(5/>) 187 233 '.'.. '.'.'. '.'. 289, 295 63 (8) 106, 110 234 278, 289 54 Vic. No. 1149 (Transfer of 235 289, 298 Land Act 1190) 145 236 109, 289, 339 sec. 74 151 237 238 239 72, 133 225 95, 101 54 Vic. No. 1156 (Water Act 1890) 240 240 219 54 Vic. No. 1160 (Wrongs 242 32, 293 Act 1890) ... ... 230 243 244 104, 245 298, 300 199, 300 106, 298 54 Vic. No. 1202 (Mines Act 1890 (No. 2)) sec. 5 271 246 107, 299 6 271 247 300 248 249 110, 299 199, 294 55 Vic. No. 1222 (Partnership Act 1891) 250 110, 294, 296 sec. 37 (i) 217 251 294 61 Vic. No. 1514 (Mines Act 252 32, 294, 296 1897) 10, 17 253 298 sec. 6 14 254 289, 317, 321 7 14 255 324 7 (i) 22 256 325, 326 8 16 257 325 10 47 258 327 11 257 260 320 15 250, 257 INDEX OF STATUTES, &c. VICTORIA continued. 61 Vic. No. 1514 ( sec. 16 ... 16 (i)... 16 (ii) 16 (iii) 18 19 .. 24 ... 27 ... 28 ... 28 (i) 29 ... 30 ... 31 ... 32 ... 33 ... 34 ... 35 36 ... 37 40 . 42 . 44 . 46 48 . 49 . 51 . 52 . 53 53 (i) 56 67 68 (i) 69 . 71 73 73(1) 73(2) 73(4) 73(6) 74 . 75 . 76 . 76(3) 77 . 77(1) 77(2) 77(3) 77(5) 78 . 78(6) 79 . 80 . 81 . 83 . 84 VICTORIA continued. ntinued. 61 Vic. No. 1514 continued. 257 sec. 90 201 252 94 201 252 95 58, 201 252 96 200 122, 249 97(1) 198 248 97(2) 198 255 98 198 52, 253, 257 99(4) 202 148, 180 100 198, 202 143 101 199 153 102 1JO, 200 ... 142, 160, 180 103 53, 199 178, 182 104 199 178 107 199 179 109(1) 196 179 109(2) 196 187 109(3) 196 144, 179 Ill 119, 195 144, 187 112 198 180 120 158, 200 179 121 158, 200 180 122 201 180 128 229 180 130 231 220 132 231 202 135 30, 231 ... 152, 168, 188 135(1) 229 17, 67, 147 1^5(11) 230 158 135(14) 230 158 135(42) 231 153, 180 136 228 155 139 232 161 140 231 194, 200 142 232 193 143 232 194 144 232 194 145 232 194 148(1) 229 195 148(2) 231 201 149 232 195 152 230 195, 219 153 232 195,209 157 233, 234 195 158 156 198, 271 159 156, 158 196 160 157 196 161 157 19(J 162 156, 157 201,319 163 157 197 165 158 197 167 304 197 sched. iv 156 198 198 196 NEW SOUTH WALES : 200 25 Vic. No. 1 149, 184 199 30 Vic. No. 8 62, 176, 213 195 37 Vic. No. 13 (Mining Act 199 1874) 161, 169, 323 196 sec. 2 31 196 5 191 198 9 38 201 10 16,43 INDEX OF STATUTES, &c. NEW SOUTH WALES continued QUEENSLAND continued. 37 Vic. No. 13 continued. 62 Vic. No. 24 (Mining Act sec. 14 15 1898) 267 15 245 sec. 3 31 , 48 15(1) 245 5 43 15(2) 221 7 16 16 75 8 37 17 32, 48 11 15 19 24 12 ... 223 22 51, 257 13 ... 27 25 '.'.'. ... ... 50 15(2) 220 26 51, 257 15(3) 220 27 52 15 (4) 220 28 53 15 (5) 245 33 25, 142, 176 15(6) 245 39 166 16 45 50 145 16(3) 32 65 38, 269 17 245, 256 67 263 23 52 69 268 24 142 70 275 28 183 78 327 38 ... 145 79 334 46 50 87 106 58 207 88 107 59 (1) 207 93 297 59(2) 207 106 263, 327 59(3) 207 115 263, 329, 332 59(4) 207 48 Vic. No. 18 sec. 45 93 59(5) 59(6) 59(7) 207 208 208 57 Vic. No. 32 (Mining on Private Land) 200, 203 59 (8) 59(9) 208 208 sec. 4 203 60 208 5 203 61 208 8 204 63 208 11 204 64 208 12 204 65 208 16 204 66 208 17 204 67 208 18 204 68 208 20 204 69 208 21 204 70 207 205 71 245, 254 28 204 104 268 29 205 109 297 33 205 Ill 32 40 205 123 106 42 205 124 282 125 107 60 Vic. No. 40 (Mining on Private Land) 200, 203 150 160 329 24 sec. 2 204 184 233 5 204 193 228 11 206 247 38 Part VI 203 IX, Div. ii 275 QUEENSLAND : v 334 38 Vic No 11... 37.44,154, 223, 317 vi 263 sec. 47 67 327 32 vii 263, XIII, Div. i 304 228 69 19 SOUTH AUSTRALIA : 50 Vic. No. 32 154 51 & 52 Vic. No. 448 (Mining sec. 21 254 on Private Land) 203 INDEX OF STATUTES, &c. SOUTH AUSTRALIA continued. WESTERN AUSTRALIA continued. 51 & 52 Vic. No. 448 continued. 59 Vic. No. 40 continued. sec. 6 206 seo. 32 142, 221 8 'i 206 37 166 9 206 45 ... 180, 183 11 206 52 268 17 206 53 275 21 207 66 106 22 207 67 107 23 207 71 ... :.. 297 23 (ii) 207 86 263 23 (iii) 207 99 38 56 & 57 Vic. No. 587 (Mining 1 .Act 1893) 16 62 Vic. No. 16 (Goldfields) ... 183 sec. 4 31 sec. 7 183 7 16 10 69 8 ... ... ... 50, 53 16 142 17 268 22 263 18 20 20(vii) 25 27 268 275 24 263, 304 15, 16 62 Vic. No. 29 (Mining on Private Land) 233, 209 63 Vic. No. 31 (Mining on Private Land) 203,209 32 176 220 244 63 Vic. No. 43 (Sluicing and Dredging) sec. 4 59, 59 209 33 (i) 33 (ii) 36 53 38 16 TASMANIA : 39 146 42 75 46 Vic. No. 20 144 45 32 47 Vic. No. 10 143 46 49 48 43 57 Vic. No. 24 (Mining Act 51 ... 142 1893) 31 52 (ii) 178 sec. 4 3 1 65 256 7 43 69 244 8 .. 3 82 233 17 16 92 38 23 .. 15 105 "' 183 24 27 106 180 26 19 108 178 27 17 1U5 ... .. ... 117 l/o 145 28 32,245, 256 128 334 29 145 Part IV VI 228 37 30 34 142, 36 245 144 145 58 & 59 Vic. No. 626 (Mining on Private Land) 203 43 153, 183, 49 186 220 sec. 9 206 57 50 58 53 WESTERN AUSTRALIA : 60 154 59 Vic. No. 40 (Goldfields 67 154 Act 1895) 173, 228 78 297 sec. 4 31, 48 88 228 7 16, 43 116 233 9 244, 256 125 154 14 15 129 245 15 27 136 143 16 244 147 169, 268 17 24 149 106 18 19 150 219 21 50 151 297 22 52 159 334 23 52 161 263 INDEX OF STATUTES, &c. TASMANIA continued. NEW ZEALAND continued. 57 Vic. No. 24 continued. 62 Vic. No. 38 continued. sec. 170 38 sec. 58 211 178 203 59 211 191 52 62 (3) 16 59 Vic. No. 35 sec. 3 245 245 64 65 15 27 75 60 59 Vic. No. 39 38 76 (3) 221 sec. 9 38 79 ... 61,63 63 Vic. No. 39 221 80 59 sec. 4 221 81 59 83 ... 45, 59 NEW ZEALAND : 89 91 59 ... 220, 221 30 Vic. No. 32 25, 109, 226, 320 92 221 sec. 5 256 105 154 6 239 108 154 62 '270 117 245 108 89 124 256 41 Vic. No. 42 273 129 48 sec. 96 32 130 81 13] 85 49 Vic. No. 59 256 136 '.'.. 74, 90, 166 50 Vic. No. 51 59, 256, 322, 334 139 32 sec. 96 153 147 ... ... 71, 121 97 153 149 ... 122, 128 217 231 150 139 249 292 151 112 54&S5 Vic. No. 33 272 151 (4) 250 sec. 125 287 272 322 157 183 232 183 228 210 62 Vic. No. 38 (Mining Act 233 210 1898) ... 7, 138, 170, 203, 320 234 210 sec. 5 31 237 210 10 16, 43 238 210 18 53 239 210 23 50 242 219 25 50 254 268 28 50 256 297 50 209 265 (6) 32 51 209 268 106 52 210 269 '.'.' '.'.'. '.'.'. 32 52(1) 210 275 294 52(2) 210 278 275 52(4) 210 280 334 53(1) 210 281 263 53 (2) 210 291 304 53(3) 210 292 329 53(4) 210 Part VIII 214 53(5) 210 63 Vic. No. 29 245 55 210 sec. 5 256 56 211 15 156 57 21] 22 154 BY-LAWS. BALLAKAT : BALLARAT continued. May 14, 1858 No. Ill (June 15, 1858), 53 No. Ill (Aug. 17, 1866) cl. 10, 11 35 36 sec. 14 127 No. Ill (May 11, 1868) 77 INDEX OF STATUTES, &c. BALLARAT continued. GIPPSLA N D continued. No. VII 45 No. 17 118 No. VIII, sub. 4, sec. 3 45, 76 , 82 No. 29 118 No. XI 23 No. 40 48, 72 No. .XI (Oct. 31, 1873), sec. 4 49, 75, 82, 127 MALDON LOCAL COURT REGULATIONS : No. XIV Local Court Regulations ... 134 33 March 6, 1857,, rule 4 ... 37,58 BKKCHWORTH : MARYBOROUGH : 1859 113 No. VII (May 1, 1866) No. X, sec. ii No. XIV (Nov. 19, 1867) 48, 65, No. XXIV, sec. vi 77 63 117 223 Aug. 6, 1S4, cl. 116 .11 Aug. 26, 1864, cl. 112 cl. 116 V"Q ^ 124 83 83 154 No. 36 (i) (ii) 271 271 Nol 60 (July 2, 1869) No. 67 84 84 No. 41 (iii) No. 44 (June 25, 1869) ... 81 84 No. 68 (Dec. 16, 1868) I". No. 76 (Sept. 17, 1866) ... 66 81, 127 No. 84 (Sept. 17, 1866) ... 31 CASTLEMAINE : No. Ill, cl. 8 113, 272 SANDHURST : cl. 10 64, 113 Sept. 16, 1866, sees. 59-66 74 No. V, cl. 1 75 No. VI, sec. 2 28, 118 No. VI, cl. 7 135 6 73 No. X 272 9 118 No. XII, cl. 8 ... 117, 118, 128 39 234 No. VI f (March 4, 1864) ... 83 GlPPSLAND : No. VII, sec. 3, cl. 4, 16, 18 sec. 5, cl. 3 37 133 No. 7 (March 9, 1883) ... 82, 124 No. VIII, sec. 4, cl. 5 ... 126 No. 12 (March 9, 1883) ... 82, 124 No. X. sec. 4, cl. 5 80 RULES AND REGULATIONS. VICTORIA : VICTORIA continued. General Rules for Proceed- General Rules for Proceed- ings in Courts of Mines 307 ings before Wardens Reg. 1 309 continued. 308 Reg 23 294 3 308 24 1. 294 12 310 25 294 18 311 26 275, 294 22 308 sched. i 294 24 308 iii 283 29 31 314 314 Regulations relating to Lic- ences to Cut Races, &c. 222, 226 36 325 Rules under the Judicature General Rules for Proceed- Act Order L (11), (12) 106 ings before Wardens . . . Reg. 1 137 2 275 , 268 276 Order in Council regulating the Granting of Leases of Public Water Reser- 3 4 281 283 voirs 227 5 1.1 12 282 295 Regulations relating to Mining Leases 159 13 285 (Oct. 8, 1897, revised to Aug. 13, 1900) 14 292 Reg. 1 160 15 283 4 160, 166 21 288 4b 161 INDEX OF STATUTES, &c. VICTORIA continued. \ NEW SOUTH WALES continued. Regulations relating to Mining Leases con- Regulations under 37 Vic. No. 13 ... 113, 116, 183, 225 tinued. Reg. 3 281, 282 Reg. 4c 162 28 69 163 47 ... 180 4e 164 123 .. 269 4/ 164 124 269 5 142, 149, 165 126 .. 269 6 166 266 275 8 176 1 f\f\ ... 11 loo 166 QUEENSLAND : 12 1 Q 167, 181 167 Regulations under 38 Vic. lo 14 1 E\ 166, 340 166 No. 11 9 Reg. 32 ,63 252 10 16 166 54 267 18 166 19 167, 181 27 ... . 16S, 17o' 188 SOUTH AUSTRALIA : 30 170 Regulations under the Min- 32 I2M, 15-2, 189 ing Act of 1893 52 35 186 Reg. 78 .> 52 36 186 79 52 40 43 .. 44 167 167, 296 167, 296 Regulations under 56 & 57 Vic. No. 587 (Part XII) Reg. 30 37 58 45 .. 46 181 181 53 154 47 168 48 168 WESTERN' AUSTRALIA : 50 168 168 Regulations under 59 Vic. 53 186 No. 40 69 sched. A ... 161, 163 Reg. 2 69 U 166 102 180 E 166 103 69 F '". '.'.'. '.'.'. 166 130 32 G 183 Q 168 NEW ZEALAND : Regulations relating to Gold Mining leases (1871) Regulations under 62 Vic. No. 38 124 Reg. 28 152, 181 Reg. 15 60, 221 44 187 16 60, 221 47 187 24 90 86 210 NEW SOUTH WALES : June 18, 1900 (No. 5) ... 24 Regulations under 30 Vic. Nelson Goldfields Regula- No. 8 65 tions 222 Reg. 14 65, 213 Reg. 18 222 CORRIGENDA. The Leasing Regulations of 1897 having been revised after Book II was in type, the following corrigenda become necessary : At page 159, note (a), add "revised to 13th August, 1900." ,, 160, fifth line from top, for " seven " read " ten." ,, 166, fourth line from top, make the same correction. THE LAW OF GOLD MINING, &c. INTRODUCTORY. THE growth of a law in a new country, and under new introductory. conditions, will naturally develop with the growth of necessity which requires that law. So it was with the first Mining Law of Victoria from the time of the first gold-fields proclamation in August, 1851, up to the date of the present extensive mining code of the State, numerous Acts having been passed and regulations made successively, as occasion arose from time to time for any amendment of or addition to the existing law. At the time of the first discovery of gold no mining law * ' proclamation. whatever was in existence in New South Wales, of which Victoria then formed a part, and the first gold-fields law of the colonies was contained in a proclamation issued on August 15th, 1851, notifying that any person taking from INTRODUCTORY. introductory. an y lands within the colony any gold or gold ore, or digging or disturbing the soil in any lands then unalienated from the Crown without being duly authorized to do so would be prosecuted. Licence to mine. The authority referred to was given by licence to take up as a claim in .which to mine for gold a small area of Crown land limited by the proclamation on payment of a monthly fee to the Crown. The term and fee of this licence were subsequently altered from time to time, as was also the area allowed to be taken up or pegged out. This licence was required to be produced by its owner whenever he should be called upon to produce it, and the many harassing searches made for these licences, and the arrest of numerous diggers who failed to produce them when called on, known at the time as "digger-hunting," gave rise to many serious outbreaks amongst the miners on the various diggings of the colony, which culminated in the formidable Eureka riot at Ballarat. Tin.- lir-t Mining But though every attention was devoted by the Govern- ment to the protection of the revenue derived from these mining licences, yet the miner himself had no redress beyond physical force against the trespasser who jumped or encroached on his claim ; and it was not until January, 1852, that any legal means was available for the settlement of disputes between diggers with regard to trespass and encroachment. This means of redress was, however, granted to a certain extent by the first Mining Act of the colonies, which was passed in January, 1852 (a), and which authorized the appointment of certain officers called Gold Commissioners, who were empowered to enquire into disputes between miners and determine them in a summar3 r way. stvomi Mining The powers of the Gold Commissioners were enlarged by an Act passed in the following year (6), which also authorized two justices of the peace to award compensation for encroach- (a) 15 Vic. No. 15" An Act to (b) 17 Vic. No. 4" An Act for restrain by summary proceedings the better management of the gold- unauthorized mining on waste lands fields of the Colony of Victoria. " of the Crown." INTRODUCTORY. ment and trespass to an amount not exceeding 200, and introductory. also to hear and settle disputes between mates or partners. This method of dealing out justice was of the roughest Commissioners. fashion, and there was no appeal from a determination once given. The Gold Commissioner, an officer whose place was subsequently tilled by the Chairman of the Local Court and afterwards by the Warden (c), held his rough court where he pleased, and usually settled any dispute by visiting the claims and giving his decision on the spot, and that decision was final and conclusive. A subsequent Act (d), passed in June, 1855, repealed the Miner's right. previous Act and abolished the licence to mine, substituting for it the "miner's right" in a somewhat similar form to the document now issued, and also authorizing the issue of business licences and mining leases. The office of Gold Commissioner was also abolished, and for the administration of mining law local courts were instituted, consisting of a Local courts - chairman appointed by the Governor and nine holders of miners' rights, who were elected by the great body of miners in the local court district. These local courts had power to frame regulations in the nature of by-laws to regulate the taking up and working of claims and the settlement of disputes between miners. By proclamation made on June 29th, 1855, five mining districts were named, each of which had its local court instituted as above. The Goldfields Act (e), which came into operation on The Go June 1st, 1858, effected a still further reform in the mining law. It was b}^ this Act that Wardens of the Goldfields were created, with jurisdiction to decide cases of title to claims, encroachment and trespass, forfeiture and abandon- ment, subject to the right of appeal from their decisions to the District Courts of Mines, which were also first created by this Act, and from which latter courts a right of appeal (c) He. is still called the Commis- amend the law relating to gold- sioner in Tasmania; 57 Vic. No. 24 fields." (Tas.), sec. 8. (t) 21 Vic. No. 32. (d) 18 Vic. No. 37" An Act to I INTRODUCTORY. introductory, lay to the Supreme Court. The Act also authorised the appointment of elective bodies called Mining Boards, on which were conferred power to make by-laws regulating the taking up and working of claims in place of the former local court regulations. The chairmen of the several local courts were appointed the first Wardens. The Minhv, Statute lS(i.">. With the development of mining, however, this Act was found to fall short of the requirements of the gold-fields, and The Mining Statute 1865, the result of a Royal Com- mission on the mining industry, came into operation on January 1st, 1866 (/). Principles of tiie The general principles of the Act No. 32 were adhered to in the new Act, by which, however, they were greatly en- larged and extended. The jurisdiction of the Warden and of the Court of Mines was more clearly defined, and a new Court of Appeal was erected, called the Court of the Chief Judge of Courts of Mines, to which court appeal might be had from the Court of Mines : and both the Warden and the Judge of the Court of Mines had the right of stating a special case on any question of law arising in any proceeding before him for the opinion of the Chief Judge. This new appellate court was, however, abolished by The Judicature Act 1883 (g), and the jurisdiction given by The Mining Statute 1865 to the Chief Judge is now vested in the Supreme Court. The many weight}- and lucid decisions and opinions of the Chief Judge of this new court in the numerous and complicated cases which were brought before him, and the judgments on the Equity side of the Supreme Court, have in a measure reduced the mining law of Victoria to a firm and settled basis, and though these opinions and judgments were given to meet cases applicable only to the time at which they were delivered, they nevertheless form a solid foundation for the superstructure of mining laAV which has been built up on them ; and that not only for Victoria but Basis of the Mining Law. (/) 29 Vic. No. 291. (y) 47 Vic. No. 761. INTRODUCTORY. I for the other States of Australia. " It is a well-known fact," introductory. says Griffith, C. J. (h\ " that the mining law of Australia was jJ** other practically made by the decisions of Mr. Justice Molesworth and the Supreme Court of Victoria. When, therefore, our legislature (Queensland) adopted in The Goldfields Act 1874 (i) language identical with that which has received a settled interpretation for many years in the Supreme Court of Victoria, it must be taken, I think, that the legislature intended that the same meaning should be given to the words." The Mining Statute 1865 (No. 291) is in fact the foundation of all the mining laws of Australasia, and still remains embodied practically in its original form in Part I of the Mines Act 1890 of Victoria (j). From the earliest times possession and occupation have Possession and occupation. always been regarded as the strongest title to a mining claim. " The title to mine on the Crown lands of Victoria from their first being let open, to miners has been based on possession, the first person taking such possession under restrictions imposed being held to have the best right " (&). In fact the whole essence of The Mining Statute rests on two propositions : a title at law and occupation (I). The title is the miner's right, and the occupation is obtained by taking up in conformity with the by-laws ; and this law obtains in all the States. The various mining boards are within their several Mining Boards, districts authorized to limit the quantity of ground to be taken up, and to define the events in which claims shall be liable to forfeiture. A man may not take more ground than his miner's right entitles him to take. " The obvious general meaning of the Act," says Molesworth, Chief Judge (m), "is to enable all persons paying for documents called miners' rights a small tax which may be quite disproportionate to (h) Theodorev. Theodore, 8 Q.L.J. W.W. & A'B. (M.) 81 (1867). 76, F.C. (1897). (1) Band of Hope s ri s ht - the occupation of another, and he has no right to enter or search for gold on ground held by another person under miner's right or mining lease (g), nor during the pendency of an application for lease (Ji), or of an application for renewal of a lease (i) ; nor has he any authority under his miner's right to enter on land alienated from the Crown (j), save under the provisions of Part II of the Mines Act 1897 ; neither has he a right to mine on or under a public road without the permission of the local municipality or body having the care and management of it (k). The term " mining " includes obtaining and taking away and conse- quently appropriating the gold (I). A holder of a miner's right can, however, take up a claim Claim taken b J" (c) 57 Vic. No. 24 (Tas.), sec. 27. MINING ON PRIVATE LAND." (d) Crocker v. Wigg, 5 W.W. & (k) House v. Ah Sue, 2 W. & W. A'B. (M.) 20 (1868). (L.) 41 (1863); compare Act No. (e) Cawley v. Ling, supra. 1120, sec. 19, with Act No. 32, sec. (/) Act No. 1120, sec. 106 (iii). 4, under which this case was (g) Harwood v. Coster, 2 W.W. decided ; and see Meredith v. Bunn, & A'B. (L.) 163 (1865). Sup. Ct. Vic. April 4, 1860 ; Argus, (h) Act No. 1120, sec. 70. April 5, 1860. See post, Chap. II, (i) Act No. 1514, sec. 49. Sec. VII, (a) " Public Highways." (j) Reg. v. J)avies (I), 6 W.W. & (I) Reg. v. Wilson, 12 N.S.W. A'B. (L.) 246 ; N.C. 7, 16, 64 (1869). S.C.R. (L.) 258 (1874). See post, Bk. II, Chap. IV, "GOLD 18 THE MINER'S RIGHT. Bk. i. ch. i. as trustee for another person not holding one, and can Sec, I. thereby confer an equitable interest in the claim upon the cestui que trust (m). Title to gold. The miner's right is the authority or title by virtue of which a claim is acquired as against the rest of the public, and possession under it in conformity with the by-laws gives the holder of the miner's right a title not only to the claim but to all gold in and upon that claim (n), and that whether the gold be in the quartz or in the soil generally (o). Under a tribute agreement by which the tributers were to receive a percentage of the gold it was held that the title to the gold remained in the mine owner, and did not pass to the tributers (p). other privileges. Many other privileges, such as the right of residence, voting at elections for members of the mining board, con- structing races, dams and reservoirs, diverting water, erecting buildings, cutting fuel &c., are conferred by this important document; privileges which will be considered in the subsequent chapters. miner's rTh" Thus a miner's right may be said to be more extensive in the grant of powers and privileges under it than a grant of freehold land, or what is ordinarily known as a Crown grant, and upon no other condition than the payment to the Crown of a small fee annuall3 T , and the renewal from time to time of the miner's right. SECTION II. WHO MAY HOLD A MINER'S RIGHT, who may obtain The Mines Act 1890 enacts that a miner's right shall be a miner's right. granted to any person applying for the same on payment of the proper fee, and shall contain the Christian name and surname and the residence of the person to whom it is (m) Volunteer Extended Co. v. (o) Scottish db Cornish G.M. Co. Grand Junction Co., 4 W.W. & v. Great Gulf G.M. Co., 2 W.W. A'B. (M.) 6 (1867). & A'B. (L.) 103 (1865). (n) AfcGM v. Tatham, 2 W.W. ( p) Reg. v. Hawkins, 2N.Z. C.A. & A'B. (L.) 52 (1864). 367 (1874). WHO MAY HOLD A MINER'S RIGHT. 19 issued (a) ; and there appears to be no exemption from the Bk. i. ch. i. privilege. The address " of Melbourne " as descriptive of residence is sufficient (6) ; and it is not necessary that a miner's right should bear the full name of the holder ; it is only a question of proof of identity between the person named in the right and the claimant of the right (c). A married woman may hold a miner's right, and may Married woman. claim title under it, though it appears she cannot maintain a suit for forfeiture before the Warden as a feme sole (d). As before stated, separate miners' rights are not required Trustee. for both a trustee and his cestui que trust, it being sufficient for all purposes if the trustee is the holder of a miner's right (e) ; and a cestui que trust having no miner's right may sue his trustee who holds one in the Court of Mines for recovery of a share in a claim (/). The same principle may be applied to the case of a vendor vendor and and his purchaser (g) ; and to a mortgagor of mining shares seeking redemption (&). An incorporated company may be the holder of a miner's Companies. right (i), and such company is entitled to a miner's right in its corporate name (j); it is not necessary for each individual shareholder in the company to have one (k) ; or a consoli- dated miner's right (I) in the name of the manager or other trustee of the company for the proper number of miners' rights is sufficient for all purposes (m). (a) Act No. 1120, sec. 4. (b) Antony v. Dillon, 15 V.L.R. 240 ; 10 A.L.T. 231 (1889). (c) Homeivard Hound G.M. Co. v. McPherson, 17 N.S.W.L.R. (E.) 281, 323 (1896). (d) Foley v. Norton, 4 V.L.R. (M.) 13 (1878); see 54 Vic. No. 1U6. (e) Volunteer Extended Co v. Grand Junction Co., 4 W.W. & A : B. (M.) 6 (1867). ' (/) Mc.Douqall v. Webster, 2 W. W. & A'B. (L.') 164 (1865) ; and see Theodore v. Theodore, 8 Q.L.J. 76, decided under the Act 38 Vic. No. 11 (Q.), sec. 69 (1897). (g) Learmonth v. Morris, 6 W.W. & A'B. (E.) 74 (1869). (h) Salmon v. Mulcahy, 3 W.W. & A'B. (E.) L'59 (1863), note (c). (i) Australasia Co. v. Wilson, 4 A.J.R., 13,63 (1873); Volunteer Ex- tended Co. v. Grand Junction Co., mpra;AlbionCo.v.St.Geor(jeUnited Co., 4 W.W. & A'B. (M.) 37 (1867). (./) So in Tasmania ; 57 Vic. No. 24 (Tas.), sec. 26; and in Western Australia ; 59 Vic. No. 40 (W.A.), sec. 18. (k) In re Verdon, ex part* Albion Co., 1 W.W. & A'B. (L.) 207 (1864). (I) Act No. 1120, sec. 4. (m) Albion Co. v. St. George United Co., supra. 20 THE MINER'S RIGHT. .BA-. i. ch. i. But it is absolutely necessary that a company hold a sufficient sufficient number of miners' rights, or an equivalent consoli- dated miner's right, for the number of men's ground held in the company's claim, otherwise the title to the claim will be defective, and the rights of the company circumscribed (n), it being entirely foreign to the policy of the Mines Acts to permit a number of men's ground to be taken up and held under an insufficient number of miners' rights (o). SECTION III. -TITLE UNDER MINER'S RIGHT. Title based on The title to a mining claim is based on possession. The possession. occupier of a claim must be and continue the holder of a miner's right in force (), and all that is required of him is that he shall hold and occupy his claim in conformity with the by-laws of the mining district or division in which the claim is situated (b). Defective re- Even if the certificate of registration of the claim is not gist rat ion. o in the form required by the by-laws, occupation under a miner's right is not regarded as unauthorized occupation of Crown land, and a complaint for illegally occupying Crown lands is sufficiently answered by a defendant showing that he is in occupation under a miner's right, whether he be actually engaged in mining or not (c). occupation. Provided a claim is taken up and held in conformity with the by-laws, occupation of it by virtue of a miner's right is paramount to every other right, except as against the Queen (d) ; and the title of a person in occupation of a (n) Bebro\. Bloomfifld, 5 V.L.R. V.L.R, 516; 19 A.L.T. 161; 4 (M.) 26 ; 1 A.L.T. 27 (1879) ; Chis- A.L.R. 17 (1898). holm v. United Extended Band of (b) McGitl v. Tatham, 2 W.W. Hope Co., 4 W.W. & A 'B. (M.) 31 & A'B. (L.) 52 (1864). (1867) ; Great North Went Co. \. (c) McLean v. Wearn, 1 A.J.R, Mehennet,* W.W. & A'B. (M.) 64 152 (1870); Walceham v. Cobham, (1867). 1 V.R. (M.) 34; 1 A. J.R. 93(1870); (o) See post Sec. V, "MIXERS' Recj. v. Doiclimj, ex parte McLean, RIGHTS HELD BY INCORPORATED 2 A.J.R. 56 ; 2 V.R. (L.) 61 (1871). COMPANIES." (d) Hookway v. Mnirhead, 1 (a) As to lapse of miner's right, W. & W. (L.) 107 (1861). see Vial v. Allender, (F.C.) 23 TITLE UNDER MINER'S RIGHT. 21 claim under a miner's right is not in any way affected by Bk. i. ch. i. an application for a mining lease of the land occupied by him (e). But mere possession of a claim under a miner's right is not a reservation within the meaning of section 74 of the Transfer of Land Act 1890 (/), and such possession is no answer to an action of ejectment brought by the holder of a certificate of title for the same land (g). Any question of title as between the holder of a miner's ^^^ a n of right and the registered proprietor under a Crown grant or certificate of title will be sufficient to oust the jurisdiction of the justices to hear a complaint (h). Within the four corners of Part I of the Mines Act 1890 Duplication of miner s right. a title cannot be made by one miner's right to more than one claim or one man's ground, unless otherwise provided by the bjr-laws (i) ; but a by-law can lawfully be made enabling the holder of one miner's right to take up several single men's ground or claims under it without requiring the duplication or multiplication of the miner's rights (j ). As a miner's right under section 5 of Act No. 1 1 20 only Private land, gives per se the privilege of taking up and occupying parcels of Crown lands, it does not authorize mining for gold on private land ; but Part II of the Act No. 1514 permits the holder of a miner's right issued under the former Act to enter upon and occupy private land. Under the Act No. 1120 payment is made for a miner's right to work Crown lands, and Crown lands only (k). Under certain conditions imposed by the Mines Act 1897 (I), miner's rights are now available for mining on any private land, though this does not include the privilege of residence, constructing (e) Aladdin G.M. Co.v. Aladdin Haughton \. Hackings, 24 V.L.R. v a purchaser of a mine to enforce his rights against a vendor that the purchaser should have a miner's right at all (p). The miner's right on which a plaintiff relies as a condition Proof of miner's precedent to sue must be produced at the hearing. The (i) Salmon v. Mulcahy, 3 W.W. (71) Woodward v. Earle, 2 N.Z. & A'B. (E.) 139, note (c) (1863); J.R. 12(1874). Niemann v. Wetter, supra. (o) Lennox v. Golden Fleece and (j) Learmonth v. Morris, 6 W.W. Heales Co., 5 A. J.R. 18 (1874) ; and & A'B. (E.) 74 (1869). see Vial v. Allender, supra. (k) Jones v. Abraham,2W. & W. (p) Barclay v. Neeld, 11 W.N. (L.) 158 (1863); Mackeprang v. (N.S.W.) 9 (1894) ; Mackepmnti v. Watson, 2 W.W. & A'B. (L.) 106 Watson (supra), Learmonth v. Mor- (1865). ris (supra), considered ; see 37 Vic. (1) AfcDougall v. Webster, 2 W. No. 13 (N.S.W. ), sec. 33; the ap- W. & A'B. (L.) 164 (1865). plicant for a lease must hold a (m) Goodman v. Kelly, 1 W. & miner's right in that State. W. (L.) 332 (1862). 26 THE MINER'S RIGHT. fc. /. ch. i. books of the mining registrar are not evidence for the col- lateral purpose of showing that a person taking up a claim had a miner's right at the time of the injury complained of, so as to enable him to recover ; though such books might be evidence to show the existence of a miner's right in such person as his qualification for taking up the claim (q). SECTION V. HELD BY INCORPORATED COMPANIES. Must be An incorporated company may hold a miner's right (a) ; but where a company never had a miner's right, but obtained a consolidated miner's right as for two men's ground only in the name of its manager, it was held that the company holding more than two men's ground had not a sufficient miner's right to enable it to sue (6). in corporate A mining company was held entitled to obtain a miner's right in its corporate name, and it was not necessary for each individual shareholder to have one (c) ; and vice versa conipan'y- it was held sufficient if each member of an incorporated company -held a miner's right, though the company had not one in its corporate name (d). A company registered in Victoria can acquire a miner's right to mine for gold in New South Wales, and (following In re Verdon, ex parte Albion Co. (c}} it is only necessary that a corporation should possess one miner's right, and it is not necessary for each member of the corporation to hold one (e). But in an application by a company and its manager for an injunction, the production of a miner's right in the name of the manager only as (q) Cruise v. Crowley, 5 W.W. & Co., I W.W. & A'B. (L.) 207 (1864). A'B. (M.) 27 (1868). (d) Smith v. Scottvth & Cornish (a) Volunteer Extended Co. v. Co., 2 W.W. & A'B. (L.) 121 (1865) ; Grand Junction Co., 4 W.W. & and see Band of Hope & Albion A'B. (M.) 6 (1867) ; Australasia Co. Consols v. St. George & Band of v. Wilson, 4 A.J.R. 18, 63 (1873). Hope United Co., 1 V.R. (E,) 183; (b) Great North West Co. v. 1 A.J.R. 174; on appeal 2 A J.R Mehennet, 4 W.W. & A.B. (M.) 62 127 (1870). (1867); Chiiholmv. United Exten- (e) Homeward Bound G.M. Co. ded Band of Hope Co., 4 W.W. & v. McPherson, 17 N S W L R (E ) A'B. (M.) 31 (1867). 281, 323 (1896). (c) In re Verdon, ex parte Albion HELD BY INCORPORATED COMPANIES. 27 trustee for the company is not sufficient to entitle them to t. /. ch. i. Sec. V. relief ; and the manager cannot in such a case apply in his own name for an injunction ( / ). A mining company can, however, sue for trespass if hold- ing a miner's right at the time of the trespass in respect of which relief is sought, though it may not have had one at the time the trespass actually commenced (g). But where a company sued in the Court of Mines to set aside the sale of a claim and machinery by the bailiff of the Court under a warrant of execution on the ground of irregularity, and miners' rights to the trustees of the company were produced, but no miner's right to the company, it was held on appeal that the company could not support its suit as to the claim, as it did not hold a miner's right (h). SECTION VI. CONSOLIDATED MINERS' RIGHTS. A consolidated miner's right may be in force for any By whom number of years not exceeding fifteen, and may be obtained on the application of the manager or any trustee or trustees of any company or persons who shall have agreed to work in partnership any registered claim or claims; and when granted is in lieu of and represents and is of the same force and effect as a number of miners' rights granted for the same period of time equal to the number of miners' rights by virtue of which such claim or claims shall have been originally taken possession of (a). A registered company may hold a consolidated miner's Roistered f r J J companies. right either m its corporate name or in the name of its manager (6) ; but a consolidated miner's right being for a (/) Grant v. Lawlor, X V.L.R, (a) Act No. 1120, sec. 4; see also (M.) 15 (1877). 59 Vic. No. 40 (W.A.), sec. 15; 62 (g) Sea Queen Co. v. Sea Quartz Vic. No. 24 (Q.), sec. 13 ; 57 Vic. Co., 4 A.J.R. 130, 174, (1873) ; and No. 24 (Tas.), sec. 24 ; 62 Vic. No. see Clerk v. Wrigley, 4 W.W. & 38 (N.Z.), sec. 65. A'B. (M.) 74(1867). (b) Albion Co. v. St. George (h) Volunteer Extended Co. v. United Co., 4 W.W. & A'B. (M.) Grand Junction*- Co., 4 W.W. & 37 (1867). A'B. (M.) 6 (1867). 28 THE MINER'S RIGHT. Bk. i. ch. i. corporation holding no land except by trustees is not a con- solidated miner's right within the meaning of the Act (c) ; and a manager holding a miner's right in his own name as trustee for a company which has no miner's right or con- solidated miner's right cannot apply for an injunction in his own name (d) ; and a consolidated miner's right held by a manager as trustee for a company applies only to companies having been or seeking to be registered for a particular claim : it cannot be applied generally ( execution in any New Zealand Court (m) ; and semble, where a claim has been taken in execution a magistrate has jurisdiction to entertain an interpleader summons, notwith- standing a question of title to land is involved (n). Under the Queensland Act 38 Vic. No. 11, sec. 67 (o), a bailiff sell- ing land held under a miner's right in execution of a judg- ment had power to give immediate possession to the par- chaser (p). SECTION II. FRONTAGE AND BLOCK CLAIMS. Title to oid in There are only two kinds of claims known to the law, claims. viz., frontage and block claims ; and every holder of a block claim has equally with the holder of a frontage claim a right to all gold within the boundaries of that claim, whether the gold be in quartz or in the soil generally (a). There is no difference between quartz and alluvial block claims ; a () Mayor d-c. of Eaglehawk v. (1) Butler v. Saddle Hill G.M. Waddington, 5 W.W. & A'B. (M.) 6 Co., 2 N.Z.L.R. (S.C.) 296 (1884). (1868). (m) Under 41 Vic. No. 42(N.Z.), (;) Act No. 1120, sec. 8. Com- sec. 96; see 62 Vic. No. 38 (N.Z.), pare 37 Vic. No. 13 (N.S.W.), sec. sees. 265 (6), 269; as to warrants 17; 56 & 57 Vic, No. 587(8. A.), sec. under Act No. 1120, see sees. 183, 45 ; 62 Vic. No. 38 (N.Z. ), sec. 139 ; 242, 252. 57 Vic. No. 24 (Tas.), sec. 28 ; Regs. (n) Campion v. Turton, 3 N.Z.L. under 59 Vic. No. 40 (W.A.), cl. R. (S.C.) 337 (1884). 130 ; 62 Vic. No. 24 (Q.), sec. 16 (3). (o) See 62 Vic. No. 24 (Q.), sec. (k) Dillon v. Wood, 2 N.S.W. 111. L.R. (L.) 298 (1881). In Victoria a (p) Ex parts Kennode, 1 Q.L.J. claim belonging to an infant must (N.C.) 91 (1876). be registered by his guardian; Act (a) Tat ham v. McGill, 2 W.W. No. 1120, sec. 7. & A'B. (L.) 113 (1865). FRONTAGE AND BLOCK CLAIMS. 33 holder of a block claim though registered only for a "block Bk -/ e - (i C jj 11 ' quartz claim" is unrestricted in his rights as holder of a block claim pure and simple (6). The system of marking off frontage claims came origin- OAIMS E ally from Ballarat, and was for a time found to be very effective in developing new alluvial ground. The primary idea of the system was simple, and it answered a good purpose for a while as a means of prospecting and tracing new leads. The method of marking off frontage claims was defined by marking * the regulations of the local court of the district of Ballarat (c), and was as follows : A datum peg was fixed in a spot immediately over the known position of the lead, and from this datum peg radiating lines were laid out at such an angle as to include the probable course of the gutter or lead between them. The frontage claims, or length of gutter as allowed by the by-laws, were bounded by concentric parallel lines drawn from the central datum peg, and extended from one radiating line to the other. In other mining districts a plan was subsequently adopted of laying down a right line along the supposed course of the lead, and the longitudinal boundaries of the frontage claims were laid off at right angles to such right line, instead of by the concentric parallels. These lines or boundaries, called the frontage parallels embraced the claim, and the owner of it might sink shafts and search for gold anywhere within the parallels which formed his boundaries. As soon as the lead was discovered within the frontage claim the lateral boundaries (i.e. those formed by the radiating lines) were narrowed down to a size regulated by the by-laws, and the ground so narrowed, running its full length between the parallels, became a permanent claim, the balance of the frontage claim being abandoned (d). (b) Scottish tfc Cornish G.M. Co. (L.) 73 (1868), as to frontage claims. v. Great Gulf G.M. Co., 2 W.W. & The first by-law passed defining the A'B. (L.) 103 (1865). mode of laying off frontage claims (c) Gov. Gazette., March 7, 1856. was made by the Ballarat Mining (d) See the judgment in McCaf- Board under the Act No. 32, on ferty v. Cummins, 5 W.W. & A'B. May 14, 1858. GOLD MINING CLAIMS. Bk, I. Ch. ll. Hee. 11. What is com- prised in a frontage claim. A frontage claim embraces the whole surface between the frontage parallels until it is narrowed down under the by- laws ; and the claimholder is entitled not only to the gold upon the lead in respect of which the claim is registered, but to all gold within the parallels until so narrowed ; and when narrowed, he is entitled to all gold at whatever depth within the claim as narrowed (e) ; and where a lead, after being worked through a frontage claim, passes into an adjoining frontage claim and then returns into the first claim, the holder of the first claim is entitled to work it between his parallels (/). frontage The holder of a frontage claim possesses a title to the whole ground marked off, which enables him to exclude from every portion of its area, either before or after it is narrowed, persons who take up a block claim within the parallels (g) ; and the prohibition to interference with a frontage claim on a lead undefined will not apply to frontage claimants on other leads intersecting, but their priority of title will depend on the question which lead the gold is upon (h) ; and moreover, registration of a frontage claim cannot be effected on the undefined leads within the boun- daries of a frontage claim in which the course of the lead has not been ascertained (i\ Ground cannot he held under two titles. A claimholder cannot hold one piece of ground under two distinct titles ; he must take either a frontage claim or a block claim ; the holder of a frontage claim taking up a block claim within his frontage area may forfeit his rights to that portion of his frontage area comprised in his block claim (j), though he does not necessarily forfeit his rights (e) St George & Band of Hope Co. v. Band of Hope & Albion Consols, 2V.R. (E.)206; 2 A.J.R. 81, 127 (1871); McGill v. Tatham, 2 W. W. & A'B. (L.) 52 (1864). ( / ) United Working Miner* G. M. Co. v. Prince of Wales Co. (1), 5 W.W. & A'B. (M.) 50 (1868). (g) United Extended Band of Hope Co. v. Tennant, 3 W.W. & A'B (M.) 41 (1866); United Sir William Don G.M. Co. v. Koh-i-noor Q.Af. Co., 3 W.W. & A 'B. (M.)63 (1866) ; McGill v. Talham, supra ; St George & Band of Hope Co. v. Band of Hope & Albion Console, supra. (h) United Working Miners G.M. Co. v. Albion Co., 4 W.W. & A'B. (M.) 1 (1867). (t) Smith v. Scottish d- Cornish Co., 2 W.W. & A'B. (L.) 121 (1865), quoting McGill v. Tatham, supra. (j] United Extended Band of Hope Co. v. Tennant, 3 W. W. & A'B. ( \i . ) 41 (1866); McGill v. Tatham, supra ; FRONTAGE AND BLOCK CLAIMS. 35 to the remaining portion of his frontage claim; for where Bk. LCh.^n. the holder of a frontage claim takes possession of a block claim within his frontage parallels, such possession affords evidence to be taken most strongly against him of abandon- ment of that part of his frontage claim included in such block claim (k) ; and where the holder of a block claim acquires from another person a frontage claim over a portion of the block claim, semble that the frontage title will merge in the block title in the same manner as if the holder of the block claim had held the frontage claim at the time of taking up the block claim (I). The frontage system was abolished at Ballarat by by-law The frontage No. Ill of the district mining board (971), it being found to have become very complex in its working in the cases of junction of leads, and leads returning within the parallels. It was shown, moreover, that the practical unjust working of the frontage system was inconsistent with the spirit of the by-laws, as it enabled persons having a previous claim over a single lead to engross all the gold in their area, work- ing where they liked on the pretence of searching for the lead, stopping all others from working, and prolonging the period of uncertainty by delaying their works; and the abuses were remedied by the repeal of the frontage by-laws. The frontage system, however, still exists in other mining districts of Victoria in a modified form, and in all the districts in which frontage by-laws are in force the method has been adopted of marking off longitudinal lines at right angles to a base line in lieu of the concentric parallels. The com- plexity of the system at Ballarat gave rise to many almost interminable suits in the Supreme Court and in the Court of the Chief Judge, and though for the most part the elaborate judgments on the law of frontage claims are of comparatively little value now that the system is practically Great North West Co. v. Sayers, 4 W.W. & A'B (L.) 73 (1868). W.W. & A'B. (M.) 64 (1867) ; Clerk (1) United Working Miners G.M. v. Wrirjlty, 4 W.W. & A'B. (M.) 74 Co. v. Prince of Wales Co. (1), 5 (1867). ' W.W. & A'B. (M.) 50 (1868). (k) McCap.rty \. Cummins, 5 (m) Gov. Gazette, Aug. 17, 1866. 36 GOLD MINING CLAIMS. Bk. i. c/i. if. obsolete, yet many of the points and questions decided by the courts in these cases are applicable to the mining law of the present day. BLOCK CLAIMS. A block claim is a parcel of land that is marked out by defined metes and bounds, and taken up and registered in accordance with the by-laws as a defined block of land. Every claim other than a frontage claim is a block claim , irrespective of any explanatory name by which it may be called. The dimensions and form of a block claim are regulated by the by-laws, as well as the procedure to be adopted in marking out and registering the claim. Marking out a claim is universally done by fixing pegs or posts to mark the angles and boundaries of the claim, or along the approximate base line of a quartz reef ; and where two corners of a claim are on a public street the claim may be effectually marked out by putting the pegs in the street, although the party fixing the pegs might be doing an un- lawful act by encroaching on the highway (n). Area of claim. In most of the by-laws the area of a claim, or one man's ground, in deep alluvial workings is regulated by the known or assumed depth of the lead. The depth or computed depth of the lead on which the by-laws base the quantity of land to be taken may, and in most cases must, be assumed at the time of registration, and the depth so assumed is con- clusive (o) ; a claim cannot be enlarged or restricted on discovery of a mistake. In a suit for possession of land where the depth of lead is assumed, a variance between the plaint and the plan annexed to it is not fatal, but subjects the complainant only to getting a smaller quantity of land as shown by the plan, and does not invalidate the title altogether (p). worjun^ beyond In some instances a claimholder is allowed to go beyond the limits of the area of his claim as marked on the surface. '(?) Parade G.M. Co. v. Victoria cl. 10, 11. United Co., 3 V.L.R. (E.) 24 (1877). ( p) Milne v. Morell, 3 V.R. (M.)- (o) See Ballarat By-laws, No. Ill, 4 ; 3 A. J.R. 21 (1872). FRONTAGE AND BLOCK CLAIMS. 37 Thus, where a local Court regulation (q) provided that the & { CA. IT. width of a claim should be one hundred feet on each side of the line of reef, and that the holders should be entitled to the dips and angles of all reefs within the boundary, and might follow them to whatever distance they might dip, it was held that the claimholders were entitled to hold spaces between the reef and a line running parallel to its actual course, and were also entitled to follow the dips and angles of the reef connected with it, though beyond the one hun- dred feet (r). Where a by-law (s) provided as to ordinary claims " as '^*ffi far as practicable all claims shall be marked off in a rectangular form," and as to special claims of a larger extent that any miners taking them up " must mark off the proposed claim in a rectangular form," it was held that ground which could not be marked out in a rectangular form could not be taken up as a special claim, but semble, that it might be taken up as an ordinary claim (). Under the Queensland Goldfields Act 1874 (it), reg. 44, Reward claims. reward claims were given for discovery of gold on a new reef at a certain distance from a known reef ; and it was held that the ordinary rules as to taking possession did not apply to these claims (v). Under the Mining Act of South Australia (w) money rewards may be given to the discoverer of a new mineral district ; so, now in Queensland, in lieu of reward claims (x). Under the Victorian law the Governor is empowered to grant special leases to discoverers of new goldfields (y). (q) Maldon Local Court Regula- (t) Roscrow v. Webster, 5 W.W. tions, March 6, 1857. & A'B. (M.) 64 (1868); and see (r) Miller v. Fraser, 4 W.W. & Bryson v. McCarthy, 6 W.W. & A'B. (M.) 29 (1867); Vivian v. A'B. (M.) 35 ; N.C. 18 (1869). Dennis, 3 W.W. & A'B. (M.) 29 (u) 38 Vic. No. 11 (Q.) ; see 62 (1866); and see Thomas v. Kinnear Vic. No. 24 (Q.), sec. 8. (2), 2 W. & W. (L.) 231 (1863); (v) Sievers v. McAuly, 1 Q.L.J. compare Act No. 1120, sec. 106 App. 54 (1879). (iii), as to power of mining boards (w) 56 & 57 Vic. No. 587, Part to make by-laws determining boun- VI ; Regs, under Part XII. daries. (x) 62 Vic. No. 24 (Q.), sec. 8. (*) Sandhurst By-law No. VII, (y) Act No. 1120, sec. 55. sec. 3, cl. 4, 16, 18. 38 GOLD MINING CLAIMS. fi*. i. ch. ii. With the ordinary claims known as block claims may be Ker-. II. _ . otheTbiociT included prospecting claims, sluicing claims, tunnelling claims. claims and others, which will be considered in a subsequent section of the present Chapter (z). SECTION III. MINING BOARD BY-LAWS. r rh*i mi Mining Boards. constitution of r he mining boards were first instituted by the Act Xo. 32, and were by that Act authorised to make by-laws, which took the place of the local court regulations then in force. Under the Mines Act 1890 (No. 1120) the constitu- tion of the mining boards is retained, and their powers are more definitely stated ; while their powers and duties are further enlarged by the Mines Act 1897 (No. 1514). A mining board is constituted for each mining district, and consists of ten members, who are elected by holders of miners' rights who have held such rights for three months immediately preceding the day of polling (a). They are empowered to make by-laws for their respective districts, or for any division of a district, for any of the purposes set forth in the several sub-sections of section 106 of the Act No. 1120. in other states. Under the Mining Act of New South Wales (6) one mining board is constituted for the eight several mining districts, two of whose members are appointed by the Governor, and nine of whom are elected (sec. 65). In New Zealand the Mining Act (c) and the regulations thereunder take the place of by-laws ; so, in the other States (d). uefinin? claims. j t j s necessar y that the by-laws specify how the boundary lines of claims are to be drawn, otherwise they will be void (:) See post, Sec. IX, " SUB- (d) 56 & 57 Vic. No. 587 (S. A.), SIDIARY CLAIMS.'' sec. 92; 62 Vic. No. 24 (Q.), Part (a) Act No. 1120, Part I, Division XIV, sec. 247; 59 Vic. No. 40 1(12). (W.A.), sec. 99; 57 Vic. No. 24 (b) 37 Vic. No. 13 (N.S.W.), sec. (Tas.), Part XIII, sec. 170, and 59 9. Vic. No. 39 (Tas.), sec. 9. (c) 62 Vic. No. 38 (N.Z.) MINING BOARD BY-LAWS. 39 for uncertainty (e), and they must also define the form of Bk. i. ch. n. the claim (/). If there is any question as to the validity of a by-law it J/^"f J s alidlty must be tested by the mode of procedure prescribed by the Act No. 1120, sec. 108. The courts cannot entertain any question whether a by-law is ultra vires under sec. 106 (g). Before a by-law is fully in force it must be certified as * approved by the law officers of the Crown (h) ; and the date of coming into operation of by-laws dates from the certifi- cate of approval, and not from the time when they were made by the mining board (i) ; section 107 of the Act No. 1120 has no retrospective, operation. Neither can by-laws be made to operate retrospectively (j) ; and similarly, sec- tion 80 of the Act No. 291, preserving existing interests relating to by-laws made before the coming into operation of that Act, was not retrospective, and would not make legal and valid by-laws that were previously illegal and invalid (k), but any possession, right, title or interest to any claim obtained under any by-law cannot be impeached on the ground only of the invalidity of the by-law. Under the Act No. 32, section 111, mining boards could a only make by-laws for the whole district for which they were appointed (I), but under the Mines Act 1890 by-laws can be made for any division of a district, and when so made are in force only in such division (m). (e) Linson v. Walsh, Sup. Ct. (1862) ; Sayerx v. Jacomb, 3 V.R. Vic., March 23, 1860; Argus, (L.), 132; 3 A.J.R. 66 (1872); March 24, 1860. Diiffyv. Tail, 4 W.VV. & A'B. (M.) (/) Edwards v. Ustice, Sup. Ct. 17 (1867) ; Oxley v. Little, 5 W.W. Vic., Nov. 29, 1860; Argus, Nov. & A'B. (M.) 14 (1868); Rider v. 30,1860. The foregoing cases were Phillips, 10 V.L.R. (L.) 147; 6 decided with regard to by-laws A.L.T. 37 (1884). made under Act No. 32, sec 111, (h) Act No. 1120, sec. 107. with which compare Act No. 1120, (i) Reardon v. Norton, 5 V.L.R. sec. 106 (iii), (xi), as to purposes for (M. j 12 (1879). which mining boards may make by- (j) Bond v. Watson, 4 W.W. & laws. A'B. (M.) 85(1867). (g) Hunter v.McNulty, 13 V.L.R. (k) Sayers v. Jacomb, 3 V.R. (L.) 416; 9 A.L.T. 33 (1887); as to 132; 3 A.J.R. 66 (1872); see Act questioning the validity of by-laws No. 1120, sec. 2. see O'MaUey v. Ward, 1 W. & W. (l)Jenkinsonv. Gumming, 1 W.W. (L.) 277 (1862); Jenkinson v. (L.) 337 (1862). Gumming, 1 W. & W. (L.) 337 (m) Act No. 1120, sec. 106. the 40 GOLD MINING CLAIMS. Bk. i. ch. u. In construing by-laws the courts will be guided by the onl^Tctkui of same rules as are a PP lied to Acts of Parliament (n) ; and y-iaws. where a right is given by a by-law, and by the same section of such by-law a remedy for its enforcement is provided, the right can be enforced only by the remedy given (o). When a by-law clashes with a statute, the statute must govern ( p). Rates made by mming boards. The mining boards have power to make by-laws for hu- posing rates on land, claims, plant and machinery for the purposes of section 106 (xv), (xvi) (g), and any person so rated may within one month after the rate is made appeal to the nearest court of petty sessions against the assess- ment (r). Right based on Limited to one title. SECTION IV. OCCUPATION OF CLAIMS. The right to occupy any portion of Crown lands as a claim under the title of a miner's right is based on possession (a), followed by application for the claim in accordance with the by-laws of the district in which the claim is situated, and completion of the title by registration in the books of the mining registrar. A right to a claim based on possession must, however, be limited to one title, for the mining public are not, when insisting that the last title is bad, to be baffled by some other title ; and if a claimholder feels afraid of some adverse title and buys it up, and takes an assignment and becomes registered as assignee of such former title, he takes all the benefit of such former title as his own, and loses the pro- tection of his title previously acquired, which will be deemed (r,) Lawlorv. Stigc/ants, 2 V.L.R. (M.) 17 (1876). (o) Hunter v. Aratraveldt, 3 W.W. & A'B. (M.) 59 (1866). (p) Coat-es v. South Loch Fyne G.M. Co. (2), 25 V.L.R. 543; 6 A.L.R. 62 (1900). (q) Act No. 1120, sec. 106 (xvi). (r) Ibid, sec. 110. (a) Moore, v. While, 4 A.J.R. 17 (1873) : Warrior G.M. Co. v. Colter, 3 W.W. & A 'B. (M.) 81 (1866). OCCUPATION OF CLAIMS. 41 to be abandoned by his taking an assignment of another Sk \ I e - e c ^ 1L title (b). It is a fundamental principle of the mining law that the $2ftS v ' holder of a miner's right cannot, without further warrant than entering on and marking out land, seize or take pos- session of ground which was previously occupied by another, or which is alleged to have been forfeited or constructively abandoned by the previous occupant ; before the rights given by the Act can be acquired by miners they must ad- here to the mode prescribed by the Act for determining those rights, and must not take on themselves to decide whether a forfeiture has been committed or not. Therefore, before the holder of a miner's right can avail himself of a forfeiture or constructive abandonment of a claim in the actual possession of other miners, he is bound first to obtain the adjudication of the Warden on the subject (c) ; and the same principle applies to persons seeking to deprive miners in possession of too much ground (d). Under the Queensland Goldfields Act the same principle ^J^ was followed, and it was held that if a party was in posses- sion of a claim any person seeking to obtain possession of it must apply to the Warden ; by taking forcible possession without adjudication he would forfeit all right or title he might have acquired or possess (e). The case of CritcJiley v. Graham was decided under a Applied to Act former Goldfields Act (/), but the principle is upheld under the Act No. 1120, and is an established principle of mining law which has, in fact, been echoed by the by-laws on most of the goldfields (?istiation laws, and is based on possession ; a defendant in a suit cannot set up a title not duly registered at the time of the trial (g). But a miner's right is no part of the title to a claim beyond the limits prescribed by the Act (h), even though the holder may be registered for it ; and under the Ballarat bjMaws (i) only a claimholder who is registered for a claim in the books of the mining registrar can obtain the benefit of the by-laws permitting suspension of work during a period of protection registration ( j). But regis- tration alone will not give a title ; the mere possession of a claim, though not strong or satisfactory evidence of title, may, in the discretion of the Warden, on an application for injunction, be deemed a sufficient title for the purpose, but otherwise, where the evidence of title to a claim is a recent transfer, it will in such case require to be supported by showing the title of the transferror, or something else (k). As regards the Crown the interest which the holder of a HOW title miner's right has in his claim is at the utmost an estate at ' e will, terminable by exemption of the land from occupation for mining purposes at any time, and for an estate of this nature an action of ejectment cannot be brought in the Supreme Court (I). A share or interest in a claim may be assigned to a person Assignment. not holding a miner's right, if the miner's right appropriated to the share or interest be assigned with it (??i). And a person having a share or interest in a claim with others cannot be excluded from such share or interest without his consent ; so where the owners of a claim, excluding one of (.7) Moore v. White, 4 A.J.R. 17 62 Vic. No. 38 (N.Z.), sec. 83; 62 (1873). Vic. No. 24 (Q.), sec. 16. (h) Harrwv. Labei, 1 N.Z.J.R. (*) Grant v. Lawlor, 3 V.L.R. (X.S.) M.L. 10 (1872). (M.) 15 (1877). (i) Ballarat By-law No. VII, No. (/) Jennings v. Kinsdla, 1 W.W. VIII, sub. iv, Oov. Gazette, 1869, p. & A'B. (L.) 47 (1864). 1729. (m) Cawley v. Ling, 6 W.W. & (j) Thompson v. Begg, 2 V.R. A'B. (M.) 12 (1869). (M.)l; 2 A.J.R. 34(1871); and see 46 GOLD MINING CLAIMS. at. i. c/i. n. them, affected to deal with the claim in forming a new com- V'C. V. pany, though the excluded partner has no right to object to other shareholders forming themselves into a company and assigning shares to him, or totally excluding him from the company, yet such shareholders have no right to appropriate to themselves the share in the claim of such excluded partner, and he may enforce his title to his share or interest in the claim (). minere' J ri"hts Under the Act Xo. 1120, Part I, the holder of a miner's right cannot take up and hold more than one man's ground as a claim. One person is not allowed to multiply himself or his powers by multiplying his miner's right unless the by-laws expressly enact that multiplied miners' rights should give power to take up multiplied quantities ; and thus one person cannot, in the absence of an authorising by- law, by obtaining five miners' rights in his own name take up and retain possession of five men's ground (o). But a by-law empowering the holder of one miner's right to take up several men's ground under it is not ultra vires (p)' } and under a b} T -law permitting one man holding a miner's right to hold not more than fifty men's ground, a holder of a miner's right may take up, or become the transferree of, claims not exceeding fifty men's ground (q). So, after claims have been taken up and registered, such claims and the several miners' rights under which they are taken up may be transferred to a purchaser from several partners (r). t^uoTre'roiar When two adverse persons are in possession of the same claim the law accords possession to him who has the title (s); and where persons are in actual occupation of ground, though the occupation may not be strictly legal or regular, other (n) Parlev. Harp of Erin Amal- 21 (1877). (jamattd Q.M. and Crushing Co., 3 ( p) Crocker v. Wirjg, 5 W.W. & W.W. & A'B. (E.) 9S (1866) ; War- A'B. (M.) 20 (1868). rior G.M. Co. \. Cotter, 3 W.W. (q} Baker v. Wong Panr/, 8 V.L.E. A'B. (M.) 81 (1866) ; and see pout, (M.) 28 ; 4 A.L.T. 28(1882). Bk. Ill, Ch. I, " MINING PARTNER- (r) Cawley v. Liny, #upra. SHIPS." (a) Clarke v. Tre'ssider, 4 W.W. (o) Gaidc.yv. Lino, supra ; Milne &. A'B. (L.) 164 (1867). v. Morell, 3 V.R. (M.) 4 ; 3 A.J.R. TITLE TO CLAIMS. 47 persons have no right to come in upon them and disturb Bk ' e C y IL such possession, but can only take advantage of any defect in the title by proceeding before the Warden or in the Court of Mines (t). It is a question whether a title under a miner's right Title restored 1 f . , . lj .v rtnewal of liable to forfeiture for omission to renew such miner's right miner's right, is restored by one being taken out before any adverse pro- ceedings are taken ; but a title could be defeated by a registration during the period of omission (u\ In a late case it was held that a title was not absolutely invalidated by neglect to take out a miner's right immediately on or before the expiration of the last one taken out (?;). The courts will jealously guard the rights and interests of Proceeds of litigants coming before them, and a claimholder whose title litigation, is the subject of litigation will not be allowed to retain the proceeds of his claim pending litigation. Where the title to auriferous land is in dispute the gold should be retained till the rights of the parties have been ascertained, no practical injury being inflicted on either side, the mine being worked under restrictions, so as to ensure that the balance after deducting the necessary expenses being placed in a bank should be available to either plaintiffs or defendants, which- ever might be ultimately held entitled to it (w). SECTION VI. AMALGAMATION OF CLAIMS. The amalgamation of claims is contemplated and authorised Authorised by by the Mines Act 1890 (a) in cases where adjoining claim- holders have agreed to work in partnership. It is the usual (0 Barker's G.M. Co. v. Keating, A.L.T. 161 (1898). 1 V.R. (M.) 18; 1 A.J.R. 55 (1870). (iv) Band of Hope and Albion (u) Summers v. Cooper (1), 5 Consols ~v. Young Band Extended Co. V.L.R. (M.)22; 1 A.L.T. 46(1879). (1), 8 V.L.R. (E.) 120; 3 A.L.T. (v) Truswellv. Woods, 24 V.L.R. 125 (1882). 742 ; 5 A.L.R. 62 ; 20 A.L.T. 210 (a) No. 1120, sec. 8, amended by (1899), following Vial v. Ailender, No. 1514, sec. 10. 23 V.L.R. 516 ; 4 A.L.R. 17 ; 19 48 GOLD MINING CLAIMS. m. i. ch. n. practice to amalgamate small claims adjoining each other where the depth of working is such that the separate claimholders would be at great expense in working a number of small claims, in cases where the whole ground could be more profitably and more expeditiously worked as a single claim (6). Amalgamation The titles to the several claims must be good before the of bad titles. amalgamation, and the amalgamation of a claim liable to forfeiture with other ground legally held will not cure the forfeiture (c) ; nor will subsequent working of the claim cure a forfeiture previously incurred (d), for where amalga- mation is effectual for all purposes of working it is also effectual for all liabilities for not working, and all excuses for not working (e). irregular In a case under the Beechworth by-laws (/) where a party took up four adjoining claims by erecting four posts only, one at each angle of the ground taken up, and registered each claim separately, and afterwards registered them as one amalgamated claim; it was held that they should in the first instance have marked off each claim separately as a distinct claim, and that they had not priority over persons who had properly marked out such claims (g) ; and it was subsequently held under the same by-laws that several per- sons taking up ground of dimensions to which they are jointly entitled may take possession effectually by pegging and trenching the entire area and not the separate single men's ground (k). The distinction between the two cases is apparent. In the latter case the ground was marked out and taken up as one amalgamated claim by a party of miners, whereas in Holt v. Pratt (g) separate claims were (b) Amalgamation of claims is also A'B. (M. } 21 (1 866). authorised in the other States. See (e) Stal v. Bebro, 5 V.L.R. (M.) 56 & 57 Vic. No. 587 (S.A.), sec. 46 ; 4 (1879). 37 Vic. No. 13 (N.S.W.), sec. 17; (/) Beechworth By-laws, Nov. 62 Vic. No. 24 (Q.), sec. 3 ; 59 Vic. 19, 1867. No. 40 (W. A.), sec. 4 ; 62 Vic. No. (g) Holt v. Pratt, Ch. Ct, of 38 (N.Z.), sec. 129. Mines, Dec. 1, 1868 ; Ar-iui, Dec. 2, (c) Clerk v. Wrighy, 4 W.W. & 1868. A'B. (M.) 74 (1867)'. (h) Lightbourne v. Stitt, 1 A.J.R. d) Coles v. Sparta, 3 W.W. & 71 (1870). AMALGAMATION OF CLAIMS. 49 registered by each individual without being individually Bk.i.ch.n. marked out, and subsequent amalgamation did not cure the defect. In the case of The Parade G. M. Co. v. The Victoria irregular United Co. (i) it was held that if an amalgamation of claims were irregular it had the effect of throwing the owners back on their original titles under their single claims, and reviving the rights under the claims prior to amalgamation ; this ruling, however, which was in an interlocutory application, was reversed in the case of Donaldson v. Llanberis Co. (j), where it was decided that where an amalgamated claim had been registered, a new title had been created and the old ones abandoned, and that the previous registered titles to the claims amalgamated could not be relied on (k). Amalgamation of claims unites them as to work on one of amalgamation them saving a forfeiture of the others, but not as to making a trespass upon one a trespass upon all (I) ; it gives important new rights, especially the preserving from forfeiture any part by working on other parts (m) ; for immediately on amalgamation the several amalgamated claims previously held separately become one single claim, which is thereafter worked as a single claim, and is subject to the same liabilities, as it is entitled to the same privileges, as if such amalgam- ated claim had been originally taken up as a single claim. In a New South Wales case it was held that a miner must be the holder or actual possessor of a claim before he could shlp- amalgamate it with claims of others ; and that amalgamation does not constitute a partnership in respect of such claims, but only enables separate claimholders to work together and mingle their produce (n). (i) 3V.L.R. (E.) 24 (1877). (/) St. George & Band of Hope. (j) 9 V.L.R. (M.) 21 ; 5 A.L.T. Co. v. Band of Hope cfc Albion 54 (1883). Consols, 2 V.R. (E.) 206 ; 2 A.J.R. (i) Ballarat By-laws No. XI. sec. 81, 127 (1871). iv ; and see United Extended Band (m) Donaldson v. Llanberis Co. , of Hope Co. v. Tennant, 3 W.W. & supra. A'B. (M.) 41 (1866), quoted in the (n) Ex parte Mclnnes, 9 N.S.W. above cases. S.C.R. (L.) 28 (1870). 4 50 GOLD MINING CLAIMS. SECTION VII. -LAND EXEMPTED FROM OCCUPATION AS A CLAIM. () Reserves for Public Purposes. Bh-.i.ch.ij. Certain Crown lands are exempted from occupation for whntl 7 mining purposes by section 15 of the Act No. 1120 (a), and exempt. ne Qovernor-in-Council has power under section ] 7 (am- ended by section 11 of Act No. 1514) to except from such occupation any specific portion or class of Crown land. In New Zealand Native lands are exempted, but may be avail- able for mining purposes in certain cases (6). Land reserved Thus, land reserved for a public use or purpose cannot be for sale. r JT r taken up as a claim ; though were land was only reserved for sale and was not dedicated to any specific purpose (c), it was not thereby taken out of the operation of the Mining Act, and the title of miners in occupation of it was not invalidated (d). Reserve to Reservation to a public use or purpose is sufficient to exempt land from occupation under miner's right, without the necessity of improvements being effected on it, and land reserved for a park need not necessarily be enclosed for the purpose of dedication to the use of the public, any more than a road must necessarily be fenced in and metalled to be a road (e) ; and permissive occupancy, granted by the Governor-in-Council, of land " to be used for recreation and gymnastic purposes," was held under the Act No. 32, sec. 4, to be a sufficient reservation or application to a public pur- pose of the land, so as to prevent it being taken up as a co-.mnons. claim (/). Land proclaimed as a common is not deemed to be applied to a public use or purpose (g). (a) See also as to other States Co., 4 W.W. & A'B. (E.) 66 (1867) ; 37 Vic. No. 13(N.S.W.), sec. 25; Att-Gen. v. United Hand in Hand 56 & 57 Vic. No. 587 (S.A.), sec. 8 ; cfc Band of Ho t >e Co., 4 \V.W. & (i-2 Vic. No. 38 (N.Z.), sec. 23 ; 62 A'B. (E.) 66 (1S67). Vic. No. 24 (Q.), sec. 4(3; 59 Vic. (e) Att-Gm. v. Southern Freehold No. 40 (W.A.), sec. 21 ; 57 Vic. Co., supra. No. 24 (Tas.), sec. 57. (/) United Sir William Don G. (b) 63 Vic. No. 38 (N.Z.), sees. M. Co. v. Koh-i-noor Q.M. Co., 3 25, 28. W.W. & A'B. (M.) 63 (1S66); and (c) Under The Cron-n Land* Act compare with above section Act No. I860 (24 Vic. No. 117). 1120, sec. 15. (d) Att-Gen. v. Southern Freehold (cj) Act No. 1120, sec. 16. LAND EXEMPTED FROM OCCUPATION AS A CLAIM. 51 The Governor-in-Council cannot apply Crown lands pre- Bk. i. ch. n. rl ^ L #ec. VII. viously held as a claim to a public use or purpose under Lan( f^[~ nder section 15 of the Act No. 11 20, but he may under section 17 miner ' s right - exempt such land from further occupation under miner's right, and then use the land without regard to the rights of the claimholder. The words used in section 17 are quite sufficient for this purpose, as to the commencement and con- tinuance of mining ; " for a claimholder might hold for ever, in spite of the greatest public inconvenience, land wanted for public purposes, unless some words were found in the Act authorising the Crown to terminate his interest in the claim " (h). A proclamation under 37 Vic. No. 13 (N.S. W.), sees. 22, 26, reserving land from occupation for mining pur- poses, does not operate so as to extinguish the rights of the holder of a business licence then in occupation of such land (i). It was held in the case of The Parade G. M. Co. v. The subsoil of reserves. Royal Harry Q.M. Co. (j) that the subsoil of Crown lands applied to any public purpose, or held under miner's right or business or other licence (as distinguished from a mining lease) might be within the limits of a claim, and unless excepted by the Governor-in-Council might be mined upon, so long as the surface rights were not interfered with ; but Residence areas The Residence Areas Act (k), validating gold mining leases below the surface of residence areas, prohibits any person not being the holder of a lease rrom mining thereunder, and consequently such area could not be included (either on or below the surface) in a claim held under miner's right (I). But such land may be exempted from occupation as a resi- (h) Per Molesworth, Ch. Judge, A.L.T. 129, 241 ; 2 A.L.R. 51 in Wakeham v. Cobham, 1 V. R. (M. ) (1896). 34; 1 A. J.R. 93(1870). (k) 45 Vic. No. 709; consoli- (i) Wilkinson v. Harris, 9 N.S. W. dated by Act No. 1120, sees. 46, 47; L.R. (L.) 70 ; 4 W.N. 159 (1888). and see Act No. 1514, Part I, sub. 2. (j) 2 V.L.R. (L.) 214 (1876); (0 St. Georye and Band of Hope following In re, Rogers, ex parte Co. v. Band of Hope and Albion liimn, Sp. Ct. Vic., Nov. 24, 1859 ; Consols, 2 V.R. (E.) 206 ; 2 A.J.R. Argu*, Nov. 25, 1859, and Meredith 81, 127 (1871); and see post, Bk. v. Bunn, Sp. Ct. Vic., April 4, 1860; III, Chap. IV, " SITES FOR RESI- Argus, April 5, 1860 ; Sims v. DEXCE AND BUSINESS." JJemamitl, 21 V.L.R. 634; 17 52 GOLD MINING CLAIMS. Bit. i. ch. it. dence area (m), when it becomes available for mining subject to payment of compensation. And the same law obtains in the other States (ri). Reserve of A reservation in a gold-mining lease of a creek, with liberty of access to it, will protect the creek from occupation for alluvial mining under a miner's right, such occupation not being based upon any legal proceeding (o). Removing soli. The restriction in the Land Act (p) against removing soil from Crown lands applies to searching for on, or removing from, such Crown lands that which has always been there in situ, and not that which by human means may have been deposited there, such as quartz tailings or mullock (q). dafm done(1 -A- 11 abandoned claim (New South Wales) having been exempted from occupation under miner's right by procla- mation previous to the abandonment, cannot be taken possession of for mining purposes so long as the procla- mation stands (r). (b) Public Highways. on road*. The Acfc ^ Q IIZ Q^ p art j g^horizes the holder of a miner's right or of a mining lease to mine upon or under any street, road, or highway, on certain conditions as to prevention of injury to property, or obstruction to the high- way, and provides for a permit being issued for the purpose by the body having the care and management of the high- way (a) ; but the grant by such body to the holder of a miner's right of an order permitting him to mine on or under the road does not of itself entitle him to use the sub- soil for the purpose of extracting gold ; the authority to do so is conferred by the miner's right, the permit being only (m) Act No. 1514, sec. 24. ninga, 1 V.L.R. (M.) 12 (1875). (n) Regulations under The Min- (p) 54 Vic. No. 1106, sec. 114. imj Act 1893 (S.A.), cl. 78, 79; 37 (q) Potter v. Wilkins, 2 V.L.R. Vic. No. 13 (N.S.W.), sees. 26, 27 ; (L.) 47 (1876). 57 Vic. No. 24 (Tas.), sec. 191 ; 59 (r) Murphy v. Cooke, 2 W.N. Vic. No. 40 (W.A.), sees. 22, 23; (N.S.W.)55 (1S86). 62 Vic. No. 24 (Q.), sec. 23. (a) Act No. 1120, sec. 19. (o) Walhalla G.M. Co. v. Jen- LAND EXEMPTED FROM OCCUPATION AS A CLAIM. 53 for the purpose of making sure that the surface soil is not BA-. i- ct>. n. injured (6). A street or road cannot, however, be taken up as a claim under the by-laws, and the Warden has no juris- diction to adjudicate on a summons seeking a declaration of forfeiture and to be put in possession of such street or road (c). The Warden may, however, grant an injunction against a miner on private land restraining him from encroaching on roads adjoining his claim (d). But land must be legally made and proclaimed a road before it is excepted from occupation as a claim (e). The Court of Mines has jurisdiction to grant an injunction Jurisdiction of . Court of Mines. by one party of miners, mining underneath a public street, against another partjr interfering with them, although the land mined upon could not be held under miner's right as a claim, on the principle that the earliest in possession is entitled to protection against a mere wrongdoer (/). A permit to mine under streets or roads given by a Permit to mine, municipal council does not merely remove obstructions to acquiring title, but confers privileges unconnected with any other title, and does away with the necessity of applying for the ground or registering it under the by-laws, and such title is good, except as against the real owner (g) ; but a permit to mine is not to be relied on as conferring title ; it is simply a privilege granted by the clemency of the govern- ing body, and is no guarantee of title (h). (b) Simsv. Demamiel, 21 V.L.R. 6 (1868); as to mining on public 634 ; 2 A.L.R. 51 ; 17 A.L.T. 129, roads in other States, see 56 & 57 241 (1896), following Parade G.M. Vic. No. 587 (S.A.), sees. 8, 36 ; 57 Co. v. Royal Harry Q.M. Co., 2 Vic. No. 24 (Tas.), Part V (1), sec. V.L.R. (L.) 214 (1876), and Beg. v. 58; 37 Vic. No. 13 (N.S.W.), sec. Brewer and Walhalla Co., 4 W.W. 28 ; 63 Vic. No. 29 (N.Z.), sec. 18, & A'B. (L.) 124 (1867), and dissent- et seq. ing from Extended Hustler'* Free- (f) In re Rogers, ex parte Bunn, hold Co. v. Moore's Hustler's Free- Sp.' Ct. Vic., Nov. 24, 1859 ; Argus, hold Co., 5 A.J.R. 116 (1874). Nov. 25, 1859 ; Meredith v. Bunn, (c) Sehonffldt v. Beel, 1 V.L.R. Sp. Ct. Vic., April 4, 1860 ; Argus, (M.) 1 (1875) ; House \. Ah Sue, 2 April 5, 1860 ; Band of Hope Q.M. W. & W. (L.)41 (1863); tt. George Co. v. Williams Freehold Co., 2 and Band of Hope Co. v. Band 'of V.L.R. (E.) 257 (1879). Hope and Albion Consols, 2 V.R. (g) Extended Hustler's Freehold (E.) 206; 2 A.J.R. 81, 127 (1871). Co. v. Moore's Hustler's Freehold (d) Act No. 1514, sec. 103, et seq. Co., 5 A.J.R. 116 (1874) ; and see (e) Mayor . 11. tion for lease of the same ground, and therefore the holder of a miner's right has no authority to mark out as a claim ground the subject of an application for lease, and the Warden cannot put him in possession pending the applica- tion (c) ; so, in an application for a renewal of a lease (d) ; neither can the Warden declare a claim forfeited pending an application for a lease of the same ground by the claim- holder, unless default in compliance with the leasing regu- lations be shown ; but if a complaint seeking forfeiture be brought before him, the temporary obstruction of the mark- ing out for a lease is a ground of adjournment from time to time until the application for lease is disposed of (e). If the lease be granted, the lessee will take his title under it ; if the lease be refused, the Warden can then adjudicate on the complaint for forfeiture. But a lease, if obtained, will not be effectual against a person lawfully entitled and in occu- pation under a miner's right previous to the application for lease (/). However, this subject, i.e. the rights of a claimholder as Rights of claim- against an applicant for a lease, and the rights of an applicant for a lease to immunity pending his application as against the holders of miner's rights, will be more fully discussed in a subsequent portion of this work, dealing with interests in gold-mining leases (g). SECTION IX. SUBSIDIARY CLAIMS. In addition to the mining claims before mentioned the c ^viousi o by-laws of all the mining districts provide for what may be ferred ta called subsidiary claims, such as prospecting claims, creek (c) Hutchwm v. Erk, 3 V.L.R. G.M. Co., 24 V.L.R. 165; 4A.L.R. (M.) 1 (1877). 219 ; 20 A.L.T. 85 (1898). (d) Act No. 1514, sec. 49. (/) Stephens v. Jolly, 5 A. J.R. (e) Constable v. Pigtail Q.M. Co., 162 (1874) ; and see Coates v. South. 3 V.L.R. (M.) 7 (1877) ; Hutcheson Loch Fyne G.M. Co. (2), 25 V.L.R. v. Erk, supra; this ruling was cjnes- 543 ; 6 A.L.R. 62 (1900). tioned in Cock v. Staivell Amalya- ({/) See post, Book II, " IN- mated Scotchman's and Cross Jie^fo . TERESTS ix GOLD-MINIXG LEASES." 58 GOLD MINING CLAIMS. Bk.i.ch.n. claims, sluicing claims, bank sluicing claims, tunnelling claims, machinery areas, dam sites, &c., all of which are a species of block claim, as the area taken up in each case is defined by metes and bounds in the same manner as an ordinary block claim (a). Extended Most of the by-laws admit of extended claims being taken up on old worked and abandoned ground, the title to which is the same as that of an ordinary block claim, a slight difference being made in the form of application. Areas for Areas for the erection of machinery may also be taken up under the by-laws ; but a person holding a machinery area or a dam site has no right to mine on it, as it is held for a special purpose and not as an ordinary mining claim. If he mines on such area he has no title to the gold in it, and he cannot claim title to a reef that passes through such area, his only title being that of unlawful occupation of the ground as a mining claim ; though the holder of an adjoin- ing claim following the dips and angles of a reef passing through a machine area (6) was held to be in constructive possession of the gold in such area (c). Failure to erect machinery within six months from the date of occupation, as required by the by-laws (d), will leave the area open to forfeiture (e\ prospectin- Prospecting claims are taken up at a certain distance, fixed by the by-laws, from the locality of any operative gold workings, and enlarged areas are granted, to be occu- pied provisionally as a prospecting area until the discovery of payable gold therein, after which the area is reduced to that of an ordinary claim (/). creek claims. Creek claims are those which include the bed of a creek () As to the variety of claims A ! B. (M.) 29 (1866). which may be taken up in South (d) Gippsland By-laws, No. 40. Australia, see Regs, under 56 & 57 (e) Coates v. South Loch Fi/ue Vic. No. 587 (S.A.), No. 30. G.M. Co. (1), 25 V.L.R. 51 ; 5 (b) See Maldon Local Court Kegu- A.L.R. 276 ; 21 A.L.T. 223 (1899). lations, rule 4, Gov. Gazette, March (/) As to prospecting areas on 6, 1857. private land, see Act No. 1514, sec. (c) Vivian v. Dennis, 3 W.W. & 95. SUBSIDIARY CLAIMS. 59 or river, and are limited by the by-laws to a certain length Bk. i. ch.u. in the direction of the course of the stream, and to a certain width. In New Zealand, where it is necessary for the Warden to define the banks of a stream, he must define the existing visible banks bounding the present bed of the stream (g). An ordinary sluicing claim is a form of block claim taken sluicing claims. up in any portion of the district to be worked by water sluices, and includes the right to water privileges. The holders of sluicing claims are not entitled to sluice and run off debris and sludge on the Crown lands of their water- shed, and on through other water channels and rivers of the country by virtue of their grants either of sluicing claims or of head races terminating at their claims, or of tail races (h); and where a holder of a sluicing claim cannot exercise his right to discharge water and debris from his claim without trespassing on his neighbour's land he is bound to refrain from exercising that right, and he may be held liable, although he is only one of a number of persons whose united acts are doing the injury (i). The measure of damages where a person is wrongfully deprived of his property is not the amount for which the use of the property might have been obtained voluntarily from the owner, had he desired to lease it ; in such a case the Courts will not be nice in weighing the damages (j). In respect of sluicing claims there is nothing in the Act 30 Vic. No. 32 (N.Z.)(A;) rendering the common law right of lateral support applicable to lands held for mining purposes (I). In Western Australia, by special enactment, leases may be granted for the purpose of sluicing and dredging for gold in any lakes, swamps, or marshes not suited for ordinary mining (m). (g) Riishv. Newmann, 1 N.Z.L.R. 420 (1890). 117 (1888), under Act 50 Vic. No. (k) Compare Act 62 Vic. No. 38 51 (N.Z.) ; see 62 Vic. No. 38 (N.Z.), sees. 83-89. (N.Z.), sees. 80, 81. (/) Grrat Extended Sluicinc, Co. v. (h) Guffie. v. Christian, 1 N.Z. J.R. Hales, Mac. (N.Z.) 896 (1871) ; and (N.S.) S.C. 96 (1875). see post, Bk. Ill, Ch. Ill, Sec. IV, (i) McMillan v. Grtat Extended " NUISANCES." Sluicing Co., 4 N.Z.L.R. S.C. 377 (m) The Sluicing and Dredging (1886). for Gold Act 1899' (63 Vic. No. 43 (j) Learyv. United Hercule* Hy- (W.A.), sec. 4. draulic Sluicing Co., 10 N.Z.L.R. 60 GOLD MINING CLAIMS. Rk. i. ch. ii. Bank sluicing claims are those which do not include the Sec. IX. BaniTsIuicln"- ^ed ^ a cree ^ or river, but include the ground on either side of it, and extend to a prescribed distance along the course of the creek, by a prescribed width regulated by the by-laws. ci"ini* llins? Tunnelling claims are block claims taken with a view to work from tunnels instead of shafts, and the ground from the mouth of the tunnel to the face is frequently outside the boundaries of the claim altogether, the tunnel itself being merely in the nature of an easement to the claim. Machine and Machine areas for the erection of puddling or crushing plants &c., dam sites, and water privileges are also easements to the mining claims to which they are appurtenant. iTz') 11 rlail " ^ n New Zealand special claims as well as extended claims may be taken up (n) with extended areas, for working alluvial ground, quartz reefs, stream-beds, and sea beaches. All other claims are ordinary claims (o). The by-laws regulating these subsidiary claims differ more or less in each of the mining districts according as circum- stances may require, and in this respect the by-laws of each district are a law to the district itself. (n) 62 Vic. No. 38(N.Z.), sec. 75; visionally granted, see Cutt.en v. Regs. 15, 16. Howtll,Ros8\. Outten, 16N.Z.L.R. (o) As to special claims applied (S.C.) 373 (1898) ; as to rent due in for on land held on perpetual lease, respect of special claims, see Cuff see /;* re McKenzie, ex parte Turn- v. Jordan, 16N.Z.L.R. 117 (1897)'; bull, 16N.Z.L.R. (S.C.) 291 (1898); JVor&ury v. Jordan, 16 N.Z.L.R. as to licenses for special claims pro- (S.C.) 179 (1897). CHAPTEE III. THE MEANS BY WHICH INTERESTS IN CLAIMS MAY BE ACQUIRED. SEC. I. BT MARKING Our. (a) Manner of Marking Out. (6) Priority of Marking Out. (c) Marking out ground the SEC. II. BY ADJUDICATION OP THE WARDEN. SEC. II T. APPLICATION FOR CLAIMS. SEC. IV. REGISTRATION OF CLAIMS. subject of an Application i SEC. V. PROTECTION REGISTRATION. for Lease. SECTION I. BY MARKING OUT. THE various mining boards have power to make by-laws, Bk. i^ci^ 11 to be in force in their respective districts, for prescribing Bv .j~ the manner in which claims shall be taken possession of (a), and marking out or pegging has by all the by-laws been made the first proceeding to be taken by anyone desirous of acquiring a claim (6). As before stated (c), possession in conformity with the T . itle ty posse by-laws is sufficient to give the holder of a miner's right a title to the claim marked out and taken up by him, and to (a) Act No. 1120, sec. 106 (iv). 38 (N.Z.), sec. 79. (6) Hutcheson v. Erk, 3 V.L.R. (c) Ante, Chap. II, "GoLD MJN- (M.) 1 (1877) ; and see 62 Vic. No. INU CLAIMS." 62 ACQUISITION OF CLAIMS. Kk. i. ch. in. all gold found in or upon that claim (d}, but it is absolutely necessary in taking possession of a claim that the require- ments of the by-laws be complied with, otherwise the holder will be in illegal occupation of his claim. And the by-laws will always be construed strictly (e), and according to the rules which courts of justice have applied to the construc- tion of Acts of Parliament (/). Basis of mie. The basis of title to a claim is possession ( in- consent of the company, as a title by way of possession as against Truswell. In re Drummond ex parte Dunbar (h), Hunter v. Aratravcldt (i), and Flinn v. Kilgour (j) are quoted in the judgment. Sfandi)ni"fiit n of ^ s snown ^7 ^ ne judgment in Truswell v. Poivning the maridng;. person first properly marking out has priority of title. It sometimes happens, however, that a claimholder deeming his title unsound re-marks and re-registers his claim, with- out regard to the effect of such a proceeding. A claim may be lost by excess of caution. Thus, Clarke on April 28, 1868, pegged out and registered under the Beech worth By- laws an ordinary quartz claim. On May 18, and again on May 26 he registered a quartz tunnelling claim, the boun- daries of which included the quartz claim originally marked out by him. There was no provision in the by-laws for taking up and registering a quartz tunnelling claim, eo nomine. On discovery of this, and deeming his title insecure, Clarke re-pegged the original quartz claim on Sept. 9, but failed to follow up his pegging by registration. On Sept. 25 Clarke applied for a lease of the whole ground, and on November 5 O'Sullivan summoned Clarke before the Warden, seeking a declaration of forfeiture and an order for possession of the claim. On special case, the Chief Judge held that each successive registration by Clarke con- stituted an abandonment of his previous title ; that the re- pegging of his original claim on Sept. 9, not having been followed by registration, did not redeem or revive his title to the claim ; and that his application for a lease afforded no protection to nor alteration in any previous title (k). (c) Marking Out Ground the Subject of an Application for Lease. Before the passing of the Act 36 Vic. No. 446 (a) an (h) 2 W. & W. (L.) 280 (1863). Dec. 2, 1868 ; and see Brooks v. (i) 3 W.W. & A'B. (M.)59(1866). Jeffery, 15 N.Z.L.R. (S.C.) 727 (j) Ch. Ct. of Mines, June 15, (1897) ; Parker v. Brooks, 16 1868 ; 5 W.W. & A'B. (M.) 32. N.Z.L.R. (C.A.) 276 (1897). (k) O'Sullivan v. Clarke, Ch. Ct. (a) On Dec. 17, 1872 ; consoli- of Mines, Dec. 1, 1868 ; Argus, dated in Act No. 1120, Part I. ' MARKING OUT. 69 application for a lease did not prevent any person taking Bic. i. c*. ///. up the ground applied for as a claim under miner's right, though in the event of the lease being granted the lessee could proceed for encroachment and for restitution of the gold taken out of the leased land (6). But under section 70 of the Act No. 1120 (which is a re-enactment of section 3 of the Act No. 446) " pending the application for a lease it shall not be lawful to mark out as a claim, or to include within the boundaries of any claim, the land applied for, or any part thereof, and no such marking out shall confer any right or title to the said land " (c) ; and the same law applies pending an application for renewal of a lease (d). Under the New South Wales regulations (e) a holder of a miner's right can take up a quartz claim on land in respect of which an application for a gold mining lease is pending ; if the lease is refused, his position is good against a subsequent appli- cant (/). And under The Goldfields Act 1895 Amendment Act 1898 of Western Australia (g) an alluvial claim may be taken up by the holder of a miner's right pending the granting of a lease of the land (h). However, the termination of a leasehold title terminates Expiration of the interest under it, and land formerly held under a lease which has expired by effluxion of time may be marked out and applied for as a claim without the necessity of an adjudication by the Warden (i) ; and possession of ground may be similarly taken after the Crown has recovered possession and declared a lease void (j) ; or in cases where a Le . ase declared default has been made in the application (k) ; but possession may not be so taken of land the lease of which is merely (b) Barker's O.M. Co. v. Keating, ( f) Fraztr v. Hartley, 1 W.N. 1 V.R. (M.) 18 ; 1 A.J.R. 55 (1870) ; (JJ.S.W.) 101 (1891). and see Hjttehtwmv. V/fc, 3 V.L.R, (g) 62 Vic. No. 16 (\V.A.), sec. (M.) 1 (1877) ; Constable v. Pintail 10; regs. Div 1, cl. 2, 103. Q.M. Co., 3 V.L.R. (M.) 7 (1877). (h) Scott v. Payne, 1 W.A.L.R. (c) See post, Bk. II, Ch. II, (F.C.) 129 (1899). "APPLICATION FOR GOLD MINING (i) Durant v. Jackson, 1 V.L.R. LEASES." (M.) 6 (1875). (d) Act No. 1514, sec. 49. (j) Barwick v. ftuche*s of Edin- (e) 37 Vic. No. 13 (N.S.W.) sec. burgh Co., 8 V.L.R. (E.)' 70 ; 3 40, reg. 28, framed from section 3 of A.L.T. 68, 121 (1882). the Victorian Act No. 446 (No. (k) Antony v. Dillon, 15 V.L.R. 1120, sec. 70). 240 ; 10 A.L.T. 231 (1889). 70 ACQUISITION OF CLAIMS. Bk. i. ch. 111. alleged to be void (I) ; nor can land be legally marked out Defa for a claim prior to the expiry of a lease in anticipation of application ^ e ex pj ra tion of the term (m) ; though marking out a tease! atl< claim on the evening of the day on which the Gazette notice of the forfeiture of a lease of the land marked out is published, is a good marking out (n). sain v. McCoii. In the case of Bain Y McColl (o\ which was decided under the Act No. 291, it was held that section 37 of that Act (No. 1120, sec. 65), explaining section 24 (49), made leases valid as against persons taking up claims after the applica- tion for and before the granting of leases, but that it made them valid against such persons only when the application for the lease was made in accordance with the leasing regulations ( p). A case of this nature was, however, met by the provisions of the Act No. 446, passed subsequently to the decision in Bain v. McColl, protecting land during an application for lease (q). betoreWarden Though the holder of a miner's right has no means of acquiring a claim pending an application for a lease, he might during that period proceed before the Warden to be put in possession of the land subject to the fate of the ^rking- pre-_ application for the lease (r) ; and taking possession of a claim by marking out is good as against a person sub- sequently marking out the ground as for a lease, even though the registration of the claim is effected subsequently to the marking out for the lease (s). JerL a isp?e-" st Under the Act No. 1120, sees. 49, 65 (corresponding with foMease nm ' king Act No. 291, sees. 24, 37), marking out for a lease did not, as already shown, stop the power of acquiring title to a claim (1) 'Whitelyv. Schlemm, SV.L.R. (r) Hutcheson v. Erk,~3 V.L.R. (M.) 58 ; 4 A.L.T. 115 (1882). (M.) 1 (1877) ; see, however, Cock v. (m) Cooper v. White, 4 V.L.R. Stawell Amalgamated Scotchman's (M.) 10 (1878). and Cross Reefs G.M. Co., 24 (n) Weddell v. ffoivse (1), 8 V.L.R. 165; 4 A.L.R. 219; 20 V.L.R. (M.) 44 ; 4 A.L.T. 95 (1882). A.L.T. 85 (1898) ; and post, Bk. II, (o) 4 A.J.R. 62 (1873). Ch. Ill, " FORFEITURE OF GOLD (p) Munro v. Sutherland (2), 5 MINING LEASES." A.J.R. 75, 139 (1874). (s) Greenhillv. Braidley, 4 V.L.R. (q) Act No. 446, sec. 3; re- (M.) 5 (1878). enacted by Act No. 1120, sec. 70. MARKING OUT. 71 by marking, except as to the rights of those previously BJe. i. ch. 111. marking for a lease (t), but the provisions of the Act No. 446, subsequently passed (u), meet the case, and make the marking for a claim pending an application for a lease in- effectual for all purposes (v) ; though where land was marked out for a lease by A, whose application was subsequently refused, and pending the application B marked it out as a claim, it was held that a stranger could take advantage of the irregularity under the Act No. 446, though B could not acquire title (w). This subject will be more fully discussed in a subsequent Right to acquire portion of this work (x), and the right of holders of miners' rights to acquire title to land the subject of a lease, or of an application for a lease, will be considered more at length, with a view to explaining the construction and effect of the before-mentioned protecting clauses of the Act No. 1120. SECTION II. BY ADJUDICATION OF THE WARDEN. It has already been shown that on the principle estab- when necessary, lished by Critchley v. Graham, before a miner can avail himself of a forfeiture or a constructive abandonment of a claim in the actual possession of another miner he must first obtain from the Warden a declaration of forfeiture or aban- donment, and an order to be put in possession. This prin- ciple has been echoed by all the by-laws, and has been enacted by The Mining Act 1898 of New Zealand (a); it does not, however, extend to cases of intentional or de facto abandonment (b). The Warden has jurisdiction to order possession of a Jurisdiction of claim to be given to any holder of a miner's right if the (t) Barker's O.M. Co. v. Keating, (1883). 1 V.R. (M.) 18 ; 1 A.J.R. 55 (u-) Ibid. (1870). (*) See post, Bk. II, "INTERESTS (u) Consolidated, Act No. 1120, IN GOLD MINING LEASES." sec. 70. (a) 62 Vic. No. 38 (N.Z.), sec. 147. () Weddett v. Hawse (2), 9 (b) Mulcahy v. Walhalla Co., 5 V.L.E. (M.) 13 ; 4 A.L.T. 179 W.W. & A'B. (E.) 103 (1867). 72 ACQUISITION OF CLAIMS. Bk. i. ch. in. claim has been constructively abandoned (c), or forfeited for non-compliance with the by-laws (d), or if the defendant is in illegal occupation of it (e) ; and in a complaint before the Warden for recovery of possession of a claim, if the com- plainant succeeds, the Warden is bound to put him in possession (/). Effect of But the Warden's order of forfeiture alone is not sufficient Warden's order. to give the complainant a title ; the order of forfeiture merely clears away the old titles, and authorizes possession Marking out by the complainant under his miner's right. Persons obtain- order. ing a Warden's order must therefore mark out the claim as upon taking up new ground, and they are not necessarily entitled to take up the whole of the ground forfeited unless they have sufficient miners' rights (g\ The correctness of the law as above stated was, however, questioned in Coates v. SoutJi Loch Fyne G.M. Co. (h), though the principle was not reversed. "Accepting the principle of Sayers v. Jacomb, Moore v. White, and Beavan v. Rigby as established," says Holroyd, J., " it would not, according to the authorities, afford a defence to the right of a successful applicant for forfeiture to be put in possession or to mark out first." Coates v. Smith A successf ul applicant for the forfeiture of a machinery Loch Fyne G.M. . area (i) which has been registered, and who is put in posses- sion by the Warden, need not mark out the ground afresh as on a new taking up in order to complete his title ; he succeeds to the forfeited area as a machinery site, and the order to put him in possession should be part of the Warden's decision (j). If the applicant does not assert his right to be put in possession, the declaration of forfeiture leaves the claim or area open to be marked out afresh for (c) Warrior G.M. Co. v. Cotter, A.J.R. 18 (1874). 3 W.W. & A'B. (M.) 81 (1866); (/) Act No. 1120, sec. 237. Collins v. O'Divyer, 5 W.W. & A'B. (g) Moore v. White, 4 A.J.R. 17 lM.) 30 (1868). (1873) ; Beavan v. Bigby, 2 V.L.R. (d) Clerk v. Wrigley, 4 W.W. & (M.) 7 (1876); Sayers v. Jacomb, 3 A'B. (M.) 74 (1867); Oxleyv. Little, V.R. (L.) 132-; 3 A.J.R. 66 (1877). 5 W.W. & A'B. (M.) 14 (1868). (A) 25 V.L.R. 543 ; 6 A.L.R. 62 ; (e) Barlow v. Hayes, 4 W.W. & 21 A.L.T. 223 (1900). A'B. (M.) 67 (1867); Lennox v. ({) Gippsland By-law, No. 40. Golden Fleece and Heales Co., 5 (j) Act No. 1120, sec. 237. BY ADJUDICATION OF THE WARDEN. 73 machinery or other mining purposes as if it were abandoned Bk. i. ch. in. ground. And qucere whether the original posts which marked out the site before registration ought to be main- tained, restored, or replaced by others (&). But where the by-laws provide that marking out subse- By-laws, quent to the adjudication is not necessary, it need not be done (I), though in ordinary cases marking and registration on the adjudication of possession by the Warden are neces- sary to give priority of title (m). Marking out a claim is not a necessary preliminary to be*ore proceeding before the Warden for forfeiture and posses- order- sion (n). There must be some legal means to enable a com- plainant to enforce the right of all miners, and requiring him to make a preliminary marking out of the claim of which he sought possession would be requiring a preliminary which would be a trespass upon possession if he proved wrong (o). A collusive recovery of land before the Warden will give a valid title, and even a large expenditure on a claim by holders previous to forfeiture will not entitle persons collusively recovering the land to protection against forfeit- ure without notice (p). Under the Act No. 32 a by-law ( U k a j us tertii, or the alleged power of intervention by a third party to prevent an unauthorised act, which power has not been exercised, cannot be set up by a trespasser who has not a shadow of title in himself against a tres- passer in prior occupation of the land (c). aYeas " g ut for Marking out and applying for a lease of land in the (w) Higgins v. Dyer, 1 N.Z.J.R. 240; 10 A.L.T. 231 (1889). (N.S.) M.L. 26 (1871) ; see Act 62 (a) Durant v. Jackson, 1 V.L.R. Vic. No. 38 (N.Z.), sec. 136, and (M.) 6 (1875). Reg. 24. (b) Cooper v. White, 4 V.L.R. (x) Kendall v. Hadley, 2 V.R. (M.) 10 (1878). (M.) 21 ; 2 A.J.R. 105 (1871). (c) St. George and Band of Hope (y) Hutcheson v. Erk, 3 V.L.R. Co. v. Band of Hope and Albion (M.) 1 (1877). Consols, 2 V.R. (E.)206; on appeal, (2) Antony v. Dillon, 15 V.L.R. 2 A.J.R. 127 (1871). TRESPASS. 91 occupation of a person under his miner's right is not a tres- Bk. i. ch. iv. pass upon or unlawful interference with the land applied for. It is an insult rather than an injury to the person in possession, and forms no ground of action, especially as the marking out is the only legitimate means for a person acquiring or seeking to acquire a title by lease, and trying the claimholder's title to the claim (d). Trespass suits are perhaps more frequently instituted for ^Tof title a the purpose of testing title, as in Truswell v. Pawning (e), than for the recovery of damages, as in Att-Gen. v. Boyd (/). The latter remedy is usually sought by suit for encroach- ment (g), though of course persons maintaining trespass are entitled to prove and recover damages against the trespasser. In cases where there is no proof of actual damage done oldame pro f where it is a mere matter of calculation and estimate it is necessary for the court to ascertain by distinct evidence that the parties are trespassers (A). The measure of damages will be ascertained as in an Measure of Ordinary action of trespass, and where the injury is remote damages will not be allowed. Thus, it is no ground for damages in a suit for trespass that the continuing trespass of the defendants caused an obstruction to the plaintiffs obtaining a lease of the land comprised in their claim (i). The measure of damages is always made high, and even where there is no proof of actual damage, a wilful trespasser will not be allowed the expenses of working the mine ; as against trespassers the highest value is taken, and the . Supreme Court can on appeal from the Court of Mines, increase the damages awarded by the latter court, if considered insufficient ( j). (d) Stephen* v. Jolly, 5 A.J.R. (h) Att-Gen. v. Boyd, 3 V.R. 162 (1874). (E.) 192; 3 A.J.R. 18 (1872). (e) 1 V.R. (M.)13; 1 A.J.R. 18 (i) Vallancourt v. O'Rorke (1), 1 (1870). V.R. (M.)43; 1 A.J.R. 158(1870). (/) 3 V.R. (E.) 192 ; 3 A.J.R. 13 (j) United Working Miners G. M. (1872). Co. v. Prince of Wales Co. (1), 5 (a) See post, Sec. II, "ENCROACH- W.W. & A'B. (M.) 50; N.C. 71 MEST." (1868). Bk. I. Ch. IV. Sec. I. Actual possession not necessary. Possession da facto. WRONGFUL INTERFERENCE WITH CLAIMS. (&) "Who Can Sue for Trespass. The holder of a miner's right who has established his title to a claim as against others who retain actual possession after adjudication against them can maintain trespass against those in possession. It is not necessary for a claimholder to have been in actual physical possession of his claim to entitle him to maintain trespass ; he is not bound h'rst to proceed for ejectment and obtain actual possession (a). And if a plaintiff in a suit for trespass prove prior possession de facto, the legality of such possession in respect of compliance with the by-laws cannot be questioned by the defendant (6) ; and a defect in a plaintiff's title owing to his occupying a claim intersected by a public road does not defeat his right to sue for trespass as against a defendant who has entered without legal process (c). Persons mining on private land before the passing of The, Mining on Private Property Act 1884 (d) with the consent of the owner were entitled to protection against trespassers (e) ; and an owner of land abutting on a public street might maintain trespass against any person mining on his half of the street (/). Holder of claim. Where the holder of a miner's right is in bond fide possession of ground, a lease of which he has applied for under a bond fide contract of purchase, he can maintain trespass against a mere wrongdoer (g) ; and the holder of a Trespass on private land, (a) White v. Perriam, 5 V.L.R. (M.) 31; 1 A.L.T. 95 (1879); see Cooper v. White, 4 V.L.R. (M.) 10 (1878). (b) Wear ne v. Froggatt, 2 V.L.R. (M.) 1 (1876) : Faheyv. Koh-i-noor Q.M. Co., 3 W.W. &. A'B. (M.) 4 (1866) ; Grant v. Lawlor, 3 V.L.R. (M.) 15(1877). (c) Vallanconrt v. (yiiorke (1), 1 V.R. (M.) 43 ; 1 A. J.R. 158 (1870). (d) 48 Vic. No. 796. (e) Woolleyv. Ironstone Hill Lead Co., 1 V.L.R. (E.) 237 (1875); Broadbent v. Marshall, 2 W. & W. (E.) 115 (1863); Amity United G. M. Co. v. Cosmopolitan G.M. Co., 4 W.W. & A'B. (E.) 96 (1867) ; and see Zobel v. Croudace, 18 N.S.W. L.R. (L.) 312 (1897). ( /') Carvalho v. Black Hill South Extended Q.M. Co., 1 V.L.R. (L.) 225 (1875); Jteg. v. Dames (1), 6 W.W. & A'B. (L.)246 (1869) ; Band of Hope Q. M. Co. v, William* Free- hold Co., 5 V.L.R. (E.) 257 (1879) ; but as to ownership of roads ad medium filum vice, see Garibaldi Go. v. Craven's New Chum Co., 10 V. L. R. (L. ) 233 ; 6 A. L. T. 93 (1884) ; and see post, Bk. II, Ch. IV, "GOLD MINING ON PRIVATE LAND." (g) Ah Tan v. Kapatzo, 1 N.Z. J.R. (N.S.) M.L. 16 (1872). TRESPASS. 93 permit under the Act 48 Vic. No. 18 (N.S.W.), sec. 45, who Bk.LCh.ir. had entered into possession in accordance with the Act and the regulations could maintain an action of trespass in respect of such land (h). But where the boundary marks are not properly maintained a claimholder cannot maintain a suit for trespass for interference against a person who has been misled, and has marked out a claim on it (i) ; and an action will not lie for damages and expenses incurred in defending a suit for trespass before the Warden where the proceedings were not shown to have been malicious (j). The lessee of land may bring a complaint against a person suit by lessee, trespassing on his leased land, whether such trespass be on the surface (as by erecting a fence) or otherwise, and whether mining operations have been thereby hindered or delayed or not, and the Warden has jurisdiction to hear and determine the complaint (/.:); and where, after the expiration of a lease, a miner, holding a miner's right, marked out land comprised in the lease, and entered into possession of the land as a claim, and the previous lessee, who held over after the expiration of his term, marked out the land for a lease, it was held that the miner was entitled to maintain tres- pass ; Critchley v. Graham (I) distinguished, as in that case the termination was by forfeiture or abandonment, while in the present case the lease was determined by effluxion of time, and the miner was in lawful possession (m). An uncertificated insolvent, who is the holder of a miner's u insolvent. right, may maintain trespass before the Warden, and the interposition of his assignee in insolvency is not neces- sary (n). But if an uncertificated insolvent obtains a miner's right and takes up a claim, that document and any claim he may acquire under it will pass to his assignee if he inter- (h) Ferrier v. Smith, 13 N.S.W. (m) Durant \. Jackson, 1 V.L.R. R. (L.) 146 ; 8 W.N. 14 (1892). (M.) 6 (1875) ; Cooper v. White, 4 (i) Harris v. Labes, 1 N.Z.J.R. V.L.R. (M.) 10 (1878). (N.S.) M.L. 10 (1872). (n) Fancy v. North Hnrdtficld (j) Ahearn v. Hogan, 1 N.Z.J.R. United Co., 8 V.L.R. (M.) 5; 3 (N.S.) M.L. 45 (1873). A.L.T. 89 (1882) ; see Madden v. (k) Extended Cross Keef Co. v. Hetherington, 3 V.R. (L.) 68 ; 3 Creaver, 4 A.J.R. 10 (1873). A.J.R. 41 (1872). (1) 2W. & \V. (L.)211 (1863). WRONGFUL INTERFERENCE WITH CLAIMS. lie has a right to institute proceedings before the Warden (p). Miner's right i condition precedent. Illegal occupation. No-liabilitj company. Tributers. Collusive recovery. The possession of a miner's right in a plaintiff claimholder is a condition precedent to a suit by him for trespass, but if he had a miner's right in force at the time when a cause of action for trespass accrued he is entitled to sue, although he may not have had a miner's right in force at the time the trespass began (g). A person who is in illegal occupation of land cannot maintain trespass against the legal owner who forcibly dis- possesses him. Thus, where Whitely and party, disputing the validity of a lease held and occupied by Schlemm, obtained miners' rights, entered on, and marked out and registered as a claim portion of the leased land, and being expelled by Schlemm, who was never out of possession, brought a suit for trespass against him, it was held that Whitely and party, having taken possession without legal warrant, were themselves trespassers, and could not proceed in trespass against Schlemm (r) ; and a no-liability company suing for trespass may be defeated by the defendant show- ing that five per cent, of its capital was not paid up at the time of its registration (s) in pursuance of the Companies Act 1890, Fart II (t); and the trustees of a company which has let its mine on tribute for a longer term than its own lease cannot after the expiration of the lease maintain trespass against the tributers (u). Possession by forfeiture collusively obtained gives no right to sue for trespass as against persons in possession. (o) Bourkev. Wright, 3 N.S.W. L.R. (L.) 145(188-2).' (p) Bourke v. Lucas, 3 N.S.W. L.R. (L.) 215 (1882). (q) Sea Queen Co. v. Sea Quartz Co., 4 A.J.R, 130, 174(1873); Clerk v. Wrigley, 4 W.W. & A'B. (M.) 74 (1867). (r) Whitely v. Schlemm, 8 V.L.R. (M.)58; 4 A.L.T. 115(1882). (s) Park Co. v. South H littler'* Co. (2), 9 V.L.R. (M.) 4 ; 4 A.L.T. 135 (1883). (t) 54 Vic. No. 1074, sec. 309(1). The five per cent, may be paid up either in money or money's worth ; Britannia United G.M. Co. \. Vic- toria United G.M. Co., 16 V.L.R. 533; 12 A.L.T. 46 (1890); and see Thomas v. Nicholson, 16 V.L.R. 861 (1890). ((t) Penistan v. Great Britain Co., 5 A.J.R. 18 (1874). TRESPASS. 9i Thus, the holder of a miner's right obtained a declaration of Bk 'j.' e f h j IV ' forfeiture and possession on payment for improvements ; he took possession, but did not pay the money. The latter part of that order was quashed, but meanwhile a friend of the defaulters in collusion with them obtained a declaration of forfeiture and possession against them, registered himself for the claim and transferred it to the plaintiffs, who instituted a suit for trespass against the defendants, who were in possession under the first forfeiture. It was held that the forfeiture collusively obtained did not form a new title, and plaintiffs could not maintain the suit (v). (c) Suits for Trespass. A suit for trespass may be instituted either in the Court Jurisdiction, of Mines (a) or before the Warden (6) ; but the jurisdiction conferred by the Mines Act 1890 on the Court of Mines and the Warden in trespass does not deprive a plaintiff of his right to proceed in another Court having jurisdiction. Thus, when a complaint for trespass is dismissed by the Warden by way of non-suit, the complainant having failed to make out his case, and no question of title having been decided, the complainant is not estopped from proceeding in the Supreme Court, although he has not appealed to the Court of Mines against the Warden's decision (c). In a suit for trespass which is virtually a test of title it is Title must be shown. the plaintiff's duty to show such a title as will empower him to maintain trespass. If the defendant challenges the complainant's title it lies upon him (the defendant) to show that the plaintiff in possession has a flaw in his title or is in illegal occupation, such as that he has not complied with the by-laws in taking up the claim (d ). (v) Reardon v. Sayera, 3 V.R. and Try Ar/uin United G.M. Co., 6 (M.) 19 ; 3 A.J.R. 126 (1872). W.W. & A 'B. (E.) 266 (1869). () Act No. 1120, sec. 135 (iii). (d) Mulcahy v. Walhalla G.M. (b) Ibid, sec. 216 ; as to duty of Co., 5 W.W. & A'B. (E.) 103(1868); W T arden or Warden and assessors on appeal to Privy Council, 40 L.J. in suits for trespass, see sec. 239. P.C. 41 ; 2 A.J.R. 93 (1871). (c) Aladdin G.M. Co. v. Aladdin 96 WRONGFUL INTERFERENCE WITH CLAIMS. Bk. i. ch. ir. Possession alone is primd facie evidence of title, and is a posj sufficient title against a mere wrongdoer. The defendant evidence o/titie. niust show his right to enter on the land ; and a defect in plaintiffs title suing for trespass will not subject him to be defeated in a suit by a defendant entering without legal process according to the doctrine of Critcldey v. Graham (e). W1 j ei j e ai a " ant , A miner's right or miners' rights held by the complainants ri*ht " ot miners ' are a condition precedent to a suit for trespass, and where a number of miners sue for trespass and only some of them have miners' rights in force, the Warden cannot make an order for possession in favor of the complainants general!}', or in favor of those holding miners' rights (/). Apportionment And in a suit for trespass where damages are sought, and of damages. where all the complainants have not miners' rights, the damages ought to be apportioned, and an apportionment recovered only by those who had miners' rights at the time the cause of action arose (r/) ; and in mining under a public Mining under \V / > road - road a person who has not obtained permission so to mine from the proper authorities cannot in a suit for trespass rely upon the fact that the opposite party had not obtained such permission (Ji). Trespasser not The law leans against trespassers, and as shown above entitled to gold. will not only not allow a trespasser any portion of the gold obtained by him from the claim trespassed upon, but where quartz has been removed by a trespasser, such quartz, in the absence of evidence to the contrary, will be held to be auriferous, and a decree made for an account of the value of the gold removed (i). Evident of Where land was found to have been undermined, and the tresj as-i. only communication with the part undermined was by (e) Cruise v. Crowley, 5 W.W. & Co. v. Band of Hope and Albion A'B. (M.) 27 (1868). * Consols, 2 V.R. (E.) 206; 2 A.J.R. (/) Bebro\. Bloomfidd, 5 V.L.R. 81 (1871). (M.)26; 1 A.L.T. 47 (1879). (i) Att-Gen. v. Laiwll (3), 8 (.7) Cntchley v. Graham (1),2W. V.L.R. (E.) 155; 3 A.L.T. 141 & W. (L.)71 (1863). (1882). (h) 6'<. George and Band of Hope TRESPASS. 97 drives from a shaft on adjoining land, it was held that in Bk. i^ch- H'- the absence of evidence to the contrary this afforded evidence of trespass and removal of the subsoil by the owner of such shaft (j). SECTION II. ENCROACHMENT. (a) What will Constitute Encroachment. A distinction is drawn in the Mines Act between trespass Definition of encroachment. and encroachment, though the legal deiinition of trespass will include encroachment. In mining law encroachment means encroaching or trespassing by the holder of a claim without right or justification beyond the boundaries of his claim, whether on or below the surface, upon and within the boundaries of an adjoining claim. It may be regarded as trespass, but only as between adjoining claimholders, for though a claimholder can trespass on a claim which does not adjoin his he cannot encroach on such a claim. As distinguished from trespass encroachment may be Suspicion of n r J encroachment. carried on underground for a long time before it is known, or even suspected. In case of a suspicion of encroachment an order may be obtained for inspection (a) of the mine the owner of which is suspected of encroaching ; and where owners of property suspect that it is being encroached upon they are quite right to wait until they can fix definitely the responsibility on the persons encroaching, before taking legal proceedings, and any such delay is not an acquiescence in the encroachment which would disentitle the parties to relief (6). If a person believes that his land is being encroached upon Ascertaining r boundaries. he should at once ascertain what his exact boundaries are, and if another person come near his boundary to sink a (?) Alt-Gen, v. Lansell (3), 8 or INSPECTION." V.L.R.(E.)155; 3A.L.T. 141(1882). (b) Lane v. Hannah, 1 W. & W. (a) See pout, Sec. II (e), "ORDERS (E.) 66 (1862). 98 WRONGFUL INTERFERENCE WITH CLAIMS. Bk. i. ch. iv. shaft, by reason of which he is led to believe that trespass or encroachment is intended, he should take immediate steps to assert his claim and prevent an encroachment, otherwise knowingly permitting an encroachment may be regarded as an acquiescence in it (c). But mere quiescence may not be acquiescence, and the doctrine of acquiescence does not apply to acts done on lands not belonging to the party said to have acquiesced (d). s^ffvhK.- ^ ne manner i n which the dimensions and boundaries of boundaries.- claims are shown must be specified by the by-laws. Under the Act No. 32 it was held that a by-law which omitted to specify how the boundary lines of a claim were to be drawn was void for uncertainty, and a complaint for encroachment could not be maintained in respect of a claim taken up under it (e). (b) "Who can Sue for Encroachment. Title as against All lawful holders of claims are entitled to prevent their a wrongdoer. neighbours from encroaching on them. A person in posses- sion of a claim, whether his title be good or bad, is entitled to recover damages in a complaint for encroachment against a common wrongdoer with no color of title (a). For though a miner may have a good title to his own claim, yet he has no right to mine beyond his boundaries and thus encroach upon land to which he has no title whatever. Possession with- And a person in actual possession of a claim which has occupation. been wrongfully taken up without legal process according to the principle of Critckley v. Graham can maintain a suit for encroachment against all but the rightful owner (6) ; and in like manner a title by occupation can resist a suit for encroachment (c). (c) Band and Barton United Co. (a] Oxburne v. Elliott, 6 W.W. & v. Younf] Band Extended Co., 7 .vB. (M.) 49 ; N.C. 20 (1869). V.L.R. (E.) 162 (1881). (6) Trmwdl v. Pawning. 1 V.R. (d) Borton v. Howe, 3 N.Z.C.A. (M.) 13 ; 1 A.J.R. 18 (1870); 5 ; 2 N.Z. J.R. 79 (1875). Wearm v. Froggatt, 2 V.L.R. (M.) (e) Linson v. Walsh, Sp. Ct. Vic., 1 (1876). March 23, 1860 ; Argus, March 24, (c) Barker's G.M. Co. v. Keating, I860. 1 V.R, (M.) 18 ; 1 A.J.R. 55 (1870). ENCROACHMENT. 99 The occupier of a machine area has no claim to the gold si-, i. ch. iv. within his area as against a person who holds the land Encroachment under miner's right as a claim ; and a miner occupying land onmachmearea - as a machine area under his miner's right by permit of the Warden cannot maintain encroachment against other miners within the boundaries of whose claim the machine area is situated for undermining such area and removing the gold. The occupier of the machine site has only a title to the sur- face. He has no right to the gold, and the claimholders have ; and it was held that it was not necessary that the claimholders should have obtained the Warden's adjudica- tion as against the holder of the machine area in accordance with Critdiley v. Graham (d) in order to establish their right (e). But where the holder of a miner's right was in occupation Residence area, of ground as a residence site (/), and the defendant applied for a lease of such site with other ground, and commenced mining on the ground and within such residence site, and the lease was subsequently granted, and the residence area was excised, it was held that a suit for encroachment might be sustained by the holder of the residence area against the applicant for the lease (g). Before the passing of The Mining on Private Property Private Act 1864 (k) a person holding a right to mine on private land could restrain another person holding a right to mine on adjoining private land from encroaching, on the principle of Broadbent v. Marshall (i), though an injunction was refused as to the auriferous earth raised, on the principle of Millar v. Wildish (j) ; and the same principle applied to mining under streets over private land (k). (d) 2 W. & W. (L.) 211 (1863). II, "RESIDENCE AREAS." (e) Vivian v. Dennis, 3 YV. W. & (h) 48 Vic. No. 796. . A'B. (M.) 29 (1866). (i) 2 W. & W. (E.) 115 (1863). (/) Before the passing of The (j) 2 W. & .W. (E.) 37(1863); Residence Areas Act 1881, 45 Vic. Astley United G.M. Co. v. Cosmo- No. 709. politan G.M. Co., 4 VV.VV. & A'B. (g) Fahey v. Koh-i-noor Q.M. Co., (E.) 96 (1867). 3 VV.W. & A'B. (M.) 4 (1866). As (k) Western Freehold Co, v. to the rights of holders of residence Great Western Co., 4 W.W. & A'B. areas see post, Bk. Ill, Ch. IV, Sec. (E.) 44 (1867) ; Woolky v. Ironstone 100 WRONGFUL INTERFERENCE WITH CLAIMS. Bk.i.ch. n: Where a company made a drive across a street past the Pubiicstreets centre of the road, and encroached on portion of the street occupied by another company, an injunction was granted against the encroachment, but only as to the ground beyond the medium filum vice (I). But in the subsequent case of The Garibaldi Co. v. Craven's New Chum Co. (in) it was- decided that a Crown grantee of land, with an exception or reservation in the grant of all gold and auriferous earth and stone, was not entitled to the road ad medium filum, and could not restrain a stranger from removing gold and auriferous earth and stone from the land, although such stranger might be a trespasser against the Crown, and that such a grant showed no title to the auriferous earth and stone ; and over-ruling Davis v. The Queen (><), it was held that the definition of the boundary of land in a Crown grant by a road did not create a property in the soil of the road ad medium filum vice (o). Lessee in A lessee in possession under a gold-mining lease is entitled: to maintain encroachment and to restrain tortious mining on the land included in his lease, and the removal of gold therefrom ( -p) ; and it was held that an applicant for a lease whose application has been granted could proceed for en- croachment and restitution of the gold taken out of the leased ground against a person who marked out and worked the ground for a claim subject to the application for the lease and before the granting of it (q). Hill Lead G.M. Co., 1 V.R. (E.) 1890; 54 Vic. No. 1112, sec. 395;. 237 (1870) ; on appeal to Privy and see ante. Ch. II, Sec. VII (b) T Council L.R. 2 App. Cas. 163; " PUBLIC HIGHWAYS." This ruling Broadbent v. Marshall, supra ; and is not followed by the New Zealand see pout, Bk. II, Ch. IV, " GOLD Courts. As to the property in the MIMXG ON PRIVATE LAND.'' soil on the side of a creek usque ad (I) Band of Hope Q.M. Co. v. medium Jilum aquce, see Borton v. Williams Frteho/d Co., 5 V.L.R. Howe, 3 N.Z.C.A. 5; 2 N.Z.J.B, (E.) 257 (1879) -,-Carvalho v. Black 97 (1875). Hill South Extended Q.M. Co., 1 (p) Aladdin G.M. Co. \. Aladdin V.L.R. (L.) 2-25 (1875) ; Davis \. The and Try Again United G.M. Co., 6- Queen, 6 W.W. & A'B. (E.) 106 W.W. & A ! B. (E.) 266 (1869). (1869). (q) Barker's G.M. Co. v. Keating, (m) 10 V.L.R. (L.)233;6 A.L.T. 1 V.R, (M.)1S; 1 A.J.R. 55 (1870), 93 (1884). See, however, Act No. 1120, sees. (n) Supra ; and other cases cited, 70, 71, passed subsequently to the note (/). above decision, making such an- (o) See the Local Government Act entry a trespass; and see Hutcht son ENCROACHMENT. 101 But a company registered under the Act 27 Vic. No. Ek.LCh.^iv. 228 (?) which did not represent the persons originally regis- Com an , not tered for a claim, some of the registered claimholders having "SSem been excluded from the company, could not maintain a suit for encroachment (s). Neither could a person sue for encroachment who had SSi^Jr. 1 * 1 marked out a claim under a by-law which was invalid as being ultra vires, though he might maintain trespass against a mere wrongdoer (t), even though such a person could not, under the doctrine of Critchley v. Graham (u}, be dis- possessed by mere entry without legal proceedings (v). (c) Suits for Encroachment. Any claimholder on whose claim an encroachment is Jurisdiction. made may institute a suit for such encroachment before the Warden (a) or in the Court of Mines (6). The latter court has a concurrent jurisdiction with the Supreme Court (c), though it stands on the footing of an inferior court (d). Possession is primd facie evidence of title, and is a good s e e ^j on and sufficient title per se as against a mere wrongdoer to subject him to a suit for encroachment ; the Mines Act, sec. 135 (iii), does not confine the remedy, for encroachment to plaintiffs having a good title, or indirectly oblige them to show a good title, in addition to showing their possession undisturbed (e). And where plaintiffs were exclusive licensees in possession Private land, of private land suing defendants for encroachment on the v. Erk, 3 V.L.R. (M.) ] (1877); 2 V.R. (M.) 16; 2A.J.R. 133(1871). Constable v. Pit/tail Q.M. Co., 3 (a) Act No. 1120, sec. 216 ; as to V.L.R. (M.) 7 (1877). duty of Warden or Warden and (r) The Mining Companies Limi- assessors in cases of encroachment, ted Liability Act 1884. see sec. 239. (s) Warrior G.M. Co. v. Cotter, 3 (b) Ibid, sec. 135 (iii). W.W. & A'B. (M.) 81; and the (c) Gunn v. Harvey, 1 V.L.R. same principle will apply to a com- (E.) Ill (1875). pany registered under the Com- (d) Colonial Bank v. Willan, 5 panics Act 1890 (54 Vic. No. 1074) A.J.R. 53 (1874). Part II. (e) Cruise v. Crowley, 5 W.W. & (t) M'Cajfertyv. Cummins, 5 W. A'B. (M.) 27 (1868); Truswell v. W. & A'B. (L.) 73 (1868). Powning, 1 V.R. (M.) 13 ; 1 A.J.R. (u) 2 W. & W. (L.) 211 (1863). 18 (1870). () Bottrdl v. Waverley G.M. Co., 102 WRONGFUL INTERFERENCE WITH CLAIMS. Bk. i. ch.ir. licensed land, it was held that it was not necessary to prove Evidence of encroaehmer Where no title in either party. the title of the licensor (/). A plaintiff in a suit for encroachment will not, however, be allowed to prove a different case to that put forward in his bill. Thus, where plaintiffs by their bill and affidavits made a case of encroachment against the defendant company by means of branch drives, but failed to substantiate such encroachment, they were not allowed to prove encroachment by means of the defendant company's main drive, which was constructed live years previously, as that encroachment was a different case to the one set forth in the bill ((/). Evidence of a defendant's manager who was engaged in an encroachment and his mining book as to underground workings should be received as true so far as they are con- sistent and uncontradicted (h). Where neither party has title the Court will not interfere. Under the Act No. 32, sec. 3 (z), a suit by one company driving for gold under a reserve from a shaft outside the reserve against another company similarly situated was dismissed without costs (j). Valuation of damage. (d) Damages for Encroachment. The valuation of damage done by encroachment is always made high, with the feeling of odium spoliatoris (a) ; and on appeal to the Chief Judge (6) from the decree of the Court of Mines awarding damages for encroachment, the appellate Court may increase the damages if such damages be considered too low (c). (/) Astley United G.M. Co. v. Cosmopolitan G.M. Co., 4 W.W. & A'B. (E.) 96 (1867). (0) Parker's Freehold United Q. M. Co. v. Parker's United Co., 1 V.L.R. (E.) 16; 2 A.L.T. 130(1881). (h) Att-Gen. v. Lansell (4), 9 V.L.R. (E.) 172; 5 A.L.T. 71, 143 (1883). (1) Compare Act No. 1120, sec. 15. (j\ United Sir William Don G.M. Co.v. Koh-i-noor G.M. Co., 3 W.W. & A'B. (M.) 63(1 866). (a) Att-Gen. v. Boyd, 3 V.R. (E.) 192; 3 A.J.R. 18, 99, 130 (1872). (b) Now the Supreme Court. See post, Bk. IV, Chap. IV, "THE APPELLATE MIXING COURT," as to the vesting of the jurisdiction of the Chief Judge in the Supreme Court. (c) United Working Miners' G.M. Co. v. Prince of Wales Co. (1), 5 ENCROACHMENT. 103 Where an encroachment by a neighboring company has Bk. i. ch. iv. been unintentional and unconcealed the company encroach- Unin ^~ al ing is entitled to be allowed the costs of working the ground encroa hment - encroached upon (d) ; but a wilful trespasser will not be wiifui trespass, allowed, in taking an account of the value, any expenses of mining and separating the gold, and where there is no proof of actual damage done the maxim applies that as against trespassers the highest value is taken (e). The damage done to plaintiff's works by encroachment is Damage to works. the province of a court of law and is not a matter for an account in equity where the damage is reducible to the loss of gold ; nor can the defendant be ordered to repair the damage (/). In a complaint for encroachment before the Warden, where ail parties have not miners' where several claimholders (plaintiffs) had not miners' rights rights. at the time of the encroachment, it was held that the Warden should assess damages generally, and out of them award an amount in proportion to the number of shares held by the claimholders entitled to institute proceedings by virtue of their miners' rights (y) ; and where a mining company holding its claim by two trustees instituted a suit for encroachment, and miners' rights were produced for the company and one trustee but not for the other, the by-laws requiring registration of holders of claims as necessary to a valid title, it was held that the Warden should assess damages to those who produced miners' rights in respect of their shares only (h) ; and in case of an encroachment de die in diem, if some of the complainants have not miners' W.W. & A'B. (M.) 50 (1868), where Cosmopolitan G.M. Co., 4 W.VV. & the various modes of estimating the A'B. (E.) 96 (1867). value of auriferous earth are con- (g) Critchley v. Graham (1), 2 W. sidered. & W. (L.) 71 (1863); Bebro v. (d) St. George United Co. v. Albion Bloomfield, 5 V.L.R. (M.) 26; 1 Co., 4 W.W. & A'B. (M.) 88 (1867); A. L.T. 47 (1879); Chi*holm\. United Lehan v. Dillon, 19 V.L.R. 730 Extended Band of Hope Co., 4 W.W. (1893). & A'B. (M.)31 (1867). (e) Att-Qen. v. Boyd, 3 V.R. (E.) (h) Sea Queen Co. v. Sea Quartz 192 ; 3 A.J.R. 18, 99, 130 (1872). Co., 4 A.J.R. 130, 174 (1873). (/) Astley United G.M. Co. v. 104 WRONGFUL INTERFERENCE WITH CLAIMS. Bk. i. ch. iv rights the Warden or the Court should divide the time, and Sec. II. fi give the damages accordingly (i). (e) Orders of Inspection. Wanlti ers of Apart from the power inherent in the Supreme Court to order inspection, the Warden has special power vested in him (a) by writing under his hand to authorise an entry, which is usually done by a mining surveyor, on any land or claim to ascertain if the owner of such claim is encroaching on his neighboring claimholders, and for that purpose to make use of the machinery of the party suspected of encroaching (6) ; and with regard to the power of obtaining use of use of such machinery, it has been held that orders for liberty to inspect a mine which is in full operation at the time the order is made are based on the supposition that the mine will go on working, and that there will consequently be facilities for going up and down (c). imifr^otob^t 11 -^ * s on ty reasonable that a mine owner should object to any inspection of his mine by adjoining mine owners, and to the publication of a knowledge of his works ; and the Court will recognise this disinclination of mining companies to submit to inspection of their mines. Thus, where there was a suspicion that inspection was sought for an indirect object of obtaining a knowledge of the workings of an ad- joining mine, the application for inspection was refused with costs (d) ; and in cases of encroachment, an order of inspec- tion will not be granted so long as there are other means open to the parties of obtaining the required information (e). inspection for But otherwise for the rectification of an error. Where a rectification of error. plan forming part of an agreement as to the boundaries of two mines showed the shaft in the wrong position, the (i) Critchhy v. Graham (1), 2 W. (1880). & W. (L.) 71 (1863). (d) United Hand and Band of (a) Act No. 1120, sec. 244. Ho,>e Co. v. Winters Freehold Co., 3 (6) See pout, Bk. IV, Chap. II, V.R. (E.) 77; 3 A.J.R. 59- (1872). Sec. V, " SPECIAL POWERS OF THE (e) Band of Hope Q.M. Co. \. WARDEN." Williams Freehold Co., 5 V.L.R. (c) Att-Gen. v. Lansell (1), 6 (E.) 257 (1879). V.L.R, (E.) 134; 1 A.L.T. 177 ENCROACHMENT. 105 evidence of the surveyor was not received to explain the Bk.i. Ch - IV - discrepancy, but it was ordered that plaintiff should be at liberty to inspect defendant's mine in order to procure evi- dence of the true position of the encroachment complained of with reference to the real boundaries ( /). In a motion by plaintiffs to restrain defendants from Hearsay. encroaching on plaintiffs' ground, and to ascertain the extent of the encroachment, if any, the case made by the plaintiffs was one of hearsay. But as the defendants by their answer had not stated in detail what they were actually doing, but made a general assertion that they were not encroaching, and had not stated that any definite injury would result from the inspection of their mine, an order of inspection was granted (g). And an order was made for the inspection by plaintiffs of Private land, the mining works of the defendant alleged by plaintiffs to be an encroachment on their private land (h) ; but inspection of a mine on private land was refused where no demand was made by a person entitled to inspect as on behalf of the Crown (i). And where persons are mining underneath public streets, streets. and subsidence takes place, the corporation in charge of such streets may obtain an order of inspection ( j ). SECTION III. INJUNCTION. (a) Injunction Orders. An injunction may be granted or a receiver appointed by jurisdiction of interlocutory order of the Supreme Court on such terms as (/) Band and Albion Co. v. St. Co., 3 V.R. (E.) 121 ; 3 A.J.R. 70 George. United Co., 3 A.J.R. 20 (1872) ; but see now Act No. 1514, (1872). Part II, sub. 9, as to encroachment (<)) Att-Gen. v. Prince of Wale* on private land. G.M. Co., 5 W.W. & A'B. (E.) 208 (j) Mayor d-c. of Ballarat Eaat (1868). v. Victoria United G.M. Co., 4 (h)- Att-Gen. v. Cant, 2W. & W. V.L.R. (E.) 10 (1878) ; and see Act >) Kidd v. Chibnall, 4 V.L.R. (E.) 10(1878). () Mulcahy v. Walhalla Co., o W.W. & A'B. (E.) 103 (1868). (v) Astley United G.M. Co. v. (Josmopolitan G.M. Co., 4 W.W. & A'B. (E.)96 (1867). (f) Mulcahy v. Walhalla Co., supra. (x) Band of Hope and Albion Consols v. All Saints Co., 2 V.R. (K.)83; 2 A. J.R. 37,49(1871). INJUNCTION. 109 obtaining registration therefor, was held not to be a Bk.i.ch.iv. sufficient defence to such application (y). But on an application for an injunction under the Act 30 Vic. No. 32 (N.Z.), in an action for injury to lateral support, to restrain the defendant from continuing or repeating acts calculated to affect injuriously the plaintiff's land, it was held that the plaintiff might rely on his possession merely, without show- ing in what way he acquired the right to mine (0). In case ! case of of an appeal from the Warden an order for an injunction or receiver pending the appeal may be granted by the Warden whose decision is appealed from, on the application of any of the parties interested in the appeal (Act No. 1120, sec. "263) ; and a similar order may be made when a special case is reserved by the Warden for the opinion of the Supreme Court (sec. 236). (6) Breach of Injunction Order. The fact that a complete and literal compliance with an Excuse for injunction order would stop the defendants from working is not an excuse for breach of the injunction ; it is a ground for moving the Court to modify the injunction, and such a motion may be made by a defendant even when in contempt for disobedience of the order (a). But finishing work necessary to the stability or use of a mine is not a breach of an injunction against the owner of such mine not to work it (6). If the works cannot go on without doing some mischief, the works must be stopped, or the injunction will be regai'ded as broken ; but a mere oversight subjecting a defendant to the liability of the consequences of the breach of an injunction will not be considered a contempt (c). And where after an injunction was granted the defendant ?^ erof purchased the interest of some of the plaintiffs in the claim, and continued mining regardless of the injunction, it was (y) Grant v. Lawlor, 3 V.L.R. & A'B. (E.) 140 (1868). (M.) 15 (1877). (6) Mulcahy v. Valhalla Co., 5 (z) Great Extended Sluicing Co. W.W. & A'B. 103(1868). v. Hales, Mac. (N.Z.) 896 (1871). (c) Bonshaw Freehold G.Af. Co. (a) Bonshaw freehold G. M. Co. v. Prince of Wales Co. , supra. v. Prince of Walt* Co. (2), 5 W.W. ,110 WRONGFUL INTERFERENCE WITH CLAIMS. Bk. i. ch. iv. held, on motion to commit him for alleged breach of the injunction order, that the motion must be refused, as he ought not to be punished for doing that which some of the plaintiffs had, by transferring their interest to him, allowed him to do (d). estate S of ati n f Where the order directing an injunction was bad and company. unworkable, sequestration of a company's estate for dis- obedience of it (e) was refused ; and it appears that in any event a rule for the sequestration of the property of a com- pany for breach of an injunction could not be made absolute without production of the writ in Court (/). Defect in title. A defect in plaintiff's title is no answer to a motion for breach of an injunction which has been granted, though such defect might be shown and taken advantage of in answer to a motion for the injunction (g). commitment on Disobedience of a Warden's order to cease trespassing is punishable by commitment under the Act No. 1120. sec. 249 (ft), and an order for commitment may be obtained ex parte on proof by affidavit of wilful disobedience ; and a prisoner so committed may be discharged on performance of such injunction order, or upon payment to or on behalf of the person obtaining such order of commitment of full compensa- tion for the breach of such part of the injunction order as can no longer be performed, together with all costs incurred in obtaining the commitment (i). Private land. The procedure for injunction with regard to private land will be dealt with in a subsequent chapter relating to gold- mining on private land (j). (d) Att-Gen. v. Boyd, 4 A.J.R. ished by The Judicature Act, and 18, 99, 130 ; 3 V.R. (E.) 192 (1873). an injunction is now granted under (e) Under The Common Law Pro- that Act by interlocutory order of cedure Statute 1865, sec. 243. the Supreme Court; 54 Vic. No. (/) Parade G.M. Co. v. Black 1142, sec. 63 (8). Hill South Extended G.M. Co., 5 (g) Astley United G.M. Co. v. A.J.R. 85 (1874). Under The Com- Cosmopolitan G.M. Co., 4 W.W. & mon Law Procedure Statute an in- A'B. (E.) 96 (1867). junction might be enforced by (h) Re Yung Hing, 4 A.J.R. 57 sequestration of the property of a (1873). company and the rule nisi was re- (i) Act No. 1120, sec. 250. quired to be drawn up on reading (j) See Bk. II, Ch. IV, " GOLD- the writ of injunction. The writ MINING ON PRIVATE LAND " ; and of injunction was, however, abol- see Act No. 1514, sec. 102, et seq. CHAPTEB V. THE MEANS BY WHICH INTERESTS IN CLAIMS MAY BE DETERMINED. i. I. BY ABANDONMENT. (a) Actual or Intentional Aban- donment. (b) Constructive Abandonment. (c) Means of enforcing Abandon- ment. SEC. II. BY FORFEITURE. (a) Forfeiture under the By-laws. (6) What will constitute For- feiture. (c) Illegal Occupation. (d) Means of enforcing Forfeiture. SECTION I. -BY ABANDONMENT. () Actual or Intentional Abandonment. A CLAIMHOLDER may voluntarily abandon his claim at any 5 *- c *- v - time, and such abandonment amounts to a relinquishment Vollintar T of it in favor of any portion of the mining public who may abandomnent - choose to take it up ; and where a claim has been actually abandoned it is open to the first legal claimant (a), and may be marked out as a claim by any holder of a miner's right (b) ; or applied for as a lease. The well-known case of Critchley v. Graham (c) formu- critcMey v. lated an axiom that claims forfeited or constructively (a) Collins v. O'Dwyer, 5 W.W. & A'B. (M.) 30 (1868). (6) Keast v. D'Angri, 4 A.J.R. 61 (1873). (c) 2W. & W. (L.)211 (1873). 112 DETERMINATION OF INTERESTS IN CLAIMS. Bk. I. Ch. Sec. I. Applied to abandoned claims. Adjudirntioi not neress.ii 1 Where claim renounced. abandoned could only be taken possession of under the adjudication of the Warden. But this axiom will not apply to a claim which has been actually or intentionally abandoned. No express renunciation of a claim is necessary to show that it has been abandoned, as a miner, after satisfying himself that his claim was worthless, could not be expected to give notice to the world that he had thrown up his interest in it (d). And, indeed, the application of Critcldey v. Graham to claims actually and intentionally abandoned would neces- sarily result in great hardship and inconvenience, for it would be manifestly unjust to require a person wishing to take up a claim registered in the name of another, and which may have been actually abandoned for a long time, to search through the world for the original registered owner for the purpose of making him a defendant, or to obtain substitution of service of a summons upon him in case he could not be found ; while it would be still more unjust to submit to vexatious proceedings before the Warden, and consequent costs, a man who had voluntarily relinquished his claim, and who had no desire to defend his title. And thus it is now a settled principle in mining law that where ground has been abandoned de facto it may be taken up by any holder of a miner's right, without any previous adjudication of abandonment (e) ; though in cases where possession has not been actually and intentionally abandoned, the possessory right of the occupier can only be put an end to by a regular adjudication of forfeiture or abandon- ment (/). In Critchley v. Graham the Court had to deal with the case of forfeiture against miners in clear visible possession, and intimated that it would decide otherwise in case of (d) Warrior G.M. Co. v. Cotter, 3 W.W. & A'B. (M.) 81 (1866) ; and . see 62 Vic. No. 38 (N.Z.), sec. 151. (<) Mulcahy v. Walhalla Co., 5 W.W. & A'B. (E.) 103 (1868) ; on appeal to Privy Council, 40 L.J. P.C. 41 ; 2 A.J.R. 93(1871). (/) Woodward v. Earle, 2 N.Z. J.R. 12 (1874) ; following Critchley v. Graham, supra. BY ABANDONMENT. 113 actual abandonment. In an earlier case, Landry v. Burton Bk -j^. C j- v - (g), it was taken for granted that abandonment without a Warden's order put an end to title. In that case, L took up a quartz claim under the Maryborough by-laws, 1859, which provided that a quartz claim should be taken posses- sion of by fixing two posts along the line of reef, one at each end of the claim, and the claim would extend laterally 150 feet on each side of the base line ; but on one side he could not take the full width allowed, as C already occupied an alluvial claim there. This claim was afterwards aban- doned by C, and L took possession of it as part of his quartz claim without re-pegging. Subsequently B pegged out the alluvial claim without any adjudication, alleging that it had been abandoned de facto by C, whereupon L sued him for trespass on his quartz claim, contending that on abandon- ment of his claim by C, that claim, being within 150 feet of his base line, became part of his original quartz claim. It was held that as L had not re-pegged or done anything to assert his right to the alluvial claim after the abandonment by C, his quartz claim remained as it was as to its boun- daries, and that B was entitled to take up the abandoned claim, and was not a trespasser. The question of abandon- ment was not argued ; C had evidently relinquished the claim without any intention of coming back to it, and people forgetting a right as valueless would not be likely to expressly say that they abandoned it (h). So, where a person took up a prospecting area under the New South Wales regulations, and left it unoccupied for two years, his title to the land lapsed absolute!}', and any other person could become the registered holder of it (i). And in like manner a sluicing claim duly applied for (j) can be taken possession of as abandoned ground without an adjudication of forfeiture or abandonment if abandoned de facto ; but if the alleged abandonment is merely suspension (g) Sp. Ct. Vic., June 27, 1862 ; (i) Monyan v. Readford, 5 N. S. W. Argus, June '28, 1862. L.R. (L.) 383 ; 1 W.N. 86 (1884). (h) Warrior G.AI. Co. v. Cotter, (j) Castlemaine By-law No. Ill, 3 W.W. & A'B. (M.) 81 (1866). sec. 8, and By-law No. X. 114 DETERMINATION OF INTERESTS IN CLAIMS. of work on the claim which is bond fide for want of suffi- cient water for sluicing actual abandonment (k). Bk. I. Ch. V. Sec. I. cient water for sluicing purposes, this will not amount to By-laws What is abandoned ground. The Act No. 1120, sec. 106 (x), authorises the mining boards to make by-laws determining what shall constitute relinquished, abandoned, or deserted claims, as distinguished from forfeited claims ; and section 10 provides that " any claim which shall be apparently unoccupied, and upon which there is no plant or machinery, and which has been unworked for a longer period than is a.llowed by the by- laws of the district, or for any division or part thereof, in which such claim is situated, shall be deemed to be actually abandoned ground, and may, without any adjudication of forfeiture or abandonment, be taken up and registered as a claim in accordance with the by-laws by any holder of a miner's right, but subject nevertheless to the rights (if any still subsisting) of any previous occupier of such ground." registration 1 f ^ n v ' ievf ^ this provision, therefore, though such a pro- ceeding is, as before shewn, unnecessary, it may prove a wise precaution for a claimholder who desires to relinquish his claim within the time stated by the by-laws under the above section to expressly abandon it, and apply to the mining registrar to have his registration of it cancelled, in order to save himself from the possible contingency of a complaint before the Warden at the suit of any person who may be desirous of taking up the abandoned claim. (6) Constructive Abandonment. A claimholder may, however, without wishing to relin- quish his claim, by default in working it or by other means so neglect it that the law justly construes such neglect or default into a virtual abandonment of the claim. This is called constructive abandonment as distinguished from actual or voluntary abandonment, and in such a case the principle (k) Harders v. Abbott, 9 A.L.T. 152 (1887). BY ABANDONMENT. 115 of Critchley v. Graham will apply, viz., that the Warden's Bk. i. en. F. adjudication of possession must be obtained as against the claimholder by any person seeking to take advantage of the abandonment (a). The courts will always lean against the view of actual or Evidence of intentional abandonment unless the claim be relinquished abandonment. by express declaration of the owner, such as cancellation of his registration. Intentional abandonment is only to be proved by cogent evidence of express declaration, or of unambiguous acts or conduct ; on the other hand any act or proceeding on the part of the claimholder showing that he had no intention of abandoning his claim, or that he still claimed to retain his interest in it, is sufficient to bring the case within the dictum of Critchley v. Graham (6). Resumption of work on a claim which has been actually Resumption of or constructively abandoned will not cure the defect in the title, or create a new title. To make land unoccupied so that it can be taken up as a new claim it should either have been actually abandoned or adjudged forfeited by the Warden ; otherwise all forfeitures might be avoided by a mere resumption of work and going through the form of re- pegging the ground (c). " The next objection," says Molesworth, J. (d), "is that the xuicahy\. ground said to have been abandoned ought to have been declared abandoned by a Warden before the plaintiffs were at liberty to occupy it, but the cases which require such an adjudication are those of constructive forfeiture, and not of abandonment in fact." In the case under notice the holders of a claim, after registering it under the by-laws, obtained a lease of part of the same ground, and it was held by Molesworth, J., that this afforded a presumption that they had abandoned any portion of the original claim which was (a) Collins v. O'Dwyer, 5 W.W. P.C. 41 ; 2 A.J.R. 93(1871). & A'B. (M.) 30 (1868) ; Warrior (c) Coles v. Sparta, 3 W.W. & G.M. Co. v. Cotter, 3 W.W. & A'B. A'B. (M.) 21 (1866). (M.) 81 (1866). (d) Midcahy v. Walhalla Co., 5 (b) Mulcahy v. Walhalla Co., on W.W. & A'B. (E.) 103 (1868). appeal to Privy Council, 40 L.J. 116 DETERMINATION OF INTERESTS IN CLAIMS. BA-.^cft. r. not included in the parcels of the lease ; and that working a shaft which was partly on the excluded ground, but merely for the purpose of working the ground included in the lease, did not negative the presumption of abandonment. On appeal to the Privy Council, however (e), their Lordships held that the very smallest act animo possidendi was sufficient to negative the presumption of abandonment, and that in the absence of some strong evidence to the contrary, or of some adverse possession, the continued possession of any part of any district of land held under one title was in itself continued possession of the whole. afresh"' " p ^^^ Taking up a claim afresh is an abandonment of the title acquired by a previous taking up (/), and in re-pegging arid re-registering a claim each successive registration will constitute an abandonment of the previous title ((/). Block claim Thus, taking up a block claim within the limits of a < >laii - frontage claim will be cogent evidence of an intention to abandon the frontage title to the extent of the block claim taken up ; and a claimholder holding under such new title cannot, when the new title is assailed, set up his former title as a defence (h). N.S.VV. But where A took up and registered in succession two regulations. * CT quartz claims under the New South Wales regulations, each of the full area allowed, and B, contending that the taking up of the second claim was a constructive abandonment of the first claim, pegged out and applied to be registered for the first claim as being an abandoned claim, but did not get actual possession, it was held that the occupation of the second claim by A was not constructive abandonment of the first claim and that B's registration was not conclusive against A (i). ( fc ) 40 L.J.P.C. 41 ; 2 A.J.R. 93 Hope Co. \. Tennant, 3 W.W. & (1871). A'B. (M.) 41 (1866); Great North- (/) Barker's G.M. Co. v. Keat- West Co. v. Sayer*, 4 W.W. & A'B. ing, 1 V.R. (M.) 18; 1 A.J.R. 55 (M.) 64 (1867) ; M'Caferty v. Cum- (1870). mine, 5 W.W. & A'B. (L. ) 73 (1868). (cj) 'Sullivan v. Clarke, Ch. Ct. (i) Lucas v. Neeld, 16 N.S.W. of 'Mines, Dec. 1, 1868; Argus, L.R. (E.) 257; 12 W.N. 17, 57 Dec. 2, 1868. (1S95). (h) United Extended Band of BY ABANDONMENT. 117 A collusive recovery for forfeiture does not constitute a Bk -^ c ch j v - new title to the claim ; though acquiescence in such a Collusive collusive recovery is an abandonment of the title of the recover J'- previous holder as between him and the mining public ( j). Pumping water out of a claim at the expense of an Pumping, adjoining claimholder, unless such pumping be for the purpose of reaching and working the earth in the claim, is not working the claim, and is not sufficient (k) to protect it from the consequences of abandonment ; nor is burning quartz upon the claim, where the quartz was taken from another mine, and unconnected with the mining of the claim (7). But a delay in proceeding to work (m) pending survey of a Excusable delay, claim, where the applicants had difficulty in obtaining the services of a surveyor, who had no office within ten miles, was held not to constitute proof of abandonment under the by-laws (n). Where a shareholder in a claim offered his share to his share lyin^ co-partners if they would give him a release, which they refused to do, and he afterwards allowed his share to lie dormant, and refused to pay his share of expenses towards sinking a shaft, it was held that he had not been guilty of such conduct as would reasonably lead his partners to suppose that he had abandoned his share, and that he was entitled to his interest in the claim (o). But otherwise where a partner resigned his share, and through carelessness refrained from asserting his right to it for a period of nine years (p). A person applying for too much ground (Gippsland by- Abandonment of (j) Moore v. White, 4 A.J.R. 17 (n) Atioett v. Ryan, Atwdl v. (1873); Reardonv. Bayers, 3 V.R. Landrigan, 6 W.W. & A ! B. (M.) (M.) 19 ; 3 A.J.R. 126 (1872). 21 (1869). (k) Castlemaine By-law, No. XII, (o) Heine v. Klein, Sp. Ct. Vic., sec. 8, Aug. 18, 1863. March 21, 1861 ; Argun, March 22, (I) Longbottomv. White, 3 W.W. 1861. & A'B. (M.) 35 (1866). (p) Cohn v. Heine and others, Sp. (m) Beech worth By-law, No. XIV, Ct. Vic. (E.), Oct. 31, 1867 ; Argus, Nov. 19, 1867, as to laying off, sur- Nov. 1, 1867 ; and see Bk. Ill, Ch. veying and taking up frontage I, pout, " MINING PARTNERSHIPS." claims. 118 DETERMINATION OF INTERESTS IN CLAIMS. Bk.i.ch.r. laws, 17, 29) may abandon part of the claim improperly taken, and defend his title to the portion properly taken, if he has been put in possession of the proper claim by the Warden (q) ; but the part into possession of which he has been put by the Warden will become a new claim, and should be pegged and registered as the smaller area. Payment of Under a by-law containing a provision that a claim should drainage J . assessment. no fc b e liable to forfeiture during any period for which drainage fees were being paid (r) the claim is not protected from being declared abandoned by the Warden, on an application to be put in possession of such claim, on the ground that the owners of it are liable to pay drainage assessment whether such payment has been made or not ; and qucvre whether an actual payment of such drainage fees and not a mere liability to pay would be sufficient, for persons are not allowed to obtain claims at the trifling expense of a miner's right, and ignore occupancy as a condition of title (s). (c) Means of Enforcing Abandonment. jurisdiction. The question whether or not a claim may be considered constructively abandoned may be determined by the Court of Mines (a) or by the Warden (6) ; and the inference of abandonment is a matter that is left to the absolute discre- tion of the Court or Warden before whom the question is tried (c). Complaint The usual means of enforcing abandonment is by com- before the / plaint before the Warden, who has jurisdiction under a by-law to hear and determine suits as to abandonment (d) without being expressly named in the by-law ; for it is not necessary to the efficacy of a by-law made under section 106 (x) of the Mines Act 1890 that it should point out a (q) Rrymn \. McCarthy, 6 W.W. (a) Act No. 1120, sec. 135 (i). & A'B. (M.) 35, N.C. 18 (1869). (b) Ibid, sec. 216. (r) Sandhurst By-law, No. VI, (c) Lewis v. Pearson, 4 W.W. & sees. 2, 9. A'B. (M.) 23 (1867). (*) Christian v. Kemvorthy, 3 W. (d) Castlemaine By-law, No. XII, W. & A'B. (M.) 11 (1866). sec. 8. BY ABANDONMENT. 119 person to adjudicate, as section 216 shows an intention to W-j^j v - give jurisdiction to the Warden in all cases of disputed ownership of claims, and the duty of adjudication .may be left to him as the ordinary officer (e). Under the Act No. 32 a by-law providing that the Warden Relinquished might declare any claim " relinquished " if not worked in a bond fide manner was held good and sufficient under section 111 of that Act, enabling mining boards to make by-laws prescribing the events in which claims should be deemed to be " abandoned " (/). It is not necessary for a plaintiff in seeking to enforce Negativing exception. abandonment or forfeiture to negative all the exceptions in a by-law protecting an unworked claim from abandonment which rest upon facts lying peculiarly within the defendant's knowledge (g). An adjudication of abandonment by the Warden enures Effect of Warden's order. only to the party in whose favor the Warden decides ; it cannot be taken advantage of by others (h). And in a com- plaint seeking to enforce abandonment before the Warden, the Warden must decide whether the claim is abandoned or not ; such a question is not a proper ground for a special case, resting as it does upon facts (i). work SECTION II. BY FORFEITURE. (a) Forfeiture under the By-laws. When a miner has lawfully acquired a claim the law obligation to requires nothing more from him than an obligation to work it, and this obligation may be regarded as the true considera- (e) Lour/bottom v. White, 3 W.W. boards to make by-laws as to "re- ft A'B. (M.) 35 (1866) ; see post, Bk. linquished " claims. IV, Chap. II, " WARDENS OF THE (f enforcing forfeiture, in such a case (o) a claimholder resum- ing the proper working of his claim within the prescribed time will cure his liability for the previous forfeiture for non-working (p}\ and non-compliance with a regulation (New Zealand) prescribing the annual renewal of certificates of registration will not necessarily work a forfeiture (q). mine! 1 "" f If> however, a by-law requires work to be resumed within a stated time after the expiration of a period of protection registration, and enacts that otherwise such claim shall be liable to forfeiture (?), and a claimholder is prevented from resuming work by reason of his claim being flooded, a for- feiture will nevertheless be incurred, even though the claim could not be drained except at an enormous expense, and the maxim actus Dei nemini facit injuriam will not apply (s). And a second certificate of suspension from work, or protection registration, will not cure a forfeiture incurred during the period of the first certificate of suspension, the conditions of which have not been complied with (t). registration ^^ ie mere obtaining of a certificate of protection registra- tion will not cure a forfeiture already incurred, for a suspension certificate does not amount positively to a constructive working of the claim during the period of suspension so as to cure a previous forfeiture for non-work - (o) Gippsland By-laws, No. VII, (.*,) Duffy v. Tait, 4 W.W. & A'B. XII, March 9, 1883. (M.) 17 (1867); see O'Suliiran v. (p) Hunter v. McNulty, 13 My.iteriou* Q.M. Co., 1 V.R. (M.) V.L.R. 416 ; 9 A.L.T. 33 (1887). 4 ; 1 A.J.R. 13 (1870). (q) Woodward v. Earle, 2 N.Z. (t) Tait v. Henderson, Ch. Ct. of J.R. 12 (1874). Mines, March 11, 1867 ; Argux, (r) Maryborough By-laws, Aug. March 12, 1867. 26, 1834, cl. 116. BY FORFEITURE. 125 ing (M.), where a limitation of time for enforcing the Bk.i.ch:v. forfeiture is prescribed by the by-laws (v) ; the protection registration would not in such a case be equivalent to a resumption of work. And where no time is prescribed for enforcing forfeiture, Coles v. Sparta will apply, so as to render protection registration altogether useless to cure the previous forfeiture. A collusive recovery before the Warden for forfeiture collusive will not form a new title to the claim so recovered so as to cure a forfeiture previously incurred, though the claimholder acquiescing in such collusive recovery will be deemed by such recovery to have abandoned his previous title (w). " In the case of claimholders having committed a forfeiture, and subject to eviction by an informer, I do not think a collusive recovery by a friend undertaking to hold as a trustee should be allowed to form a new title for the defaulter " (x). Working on other laud adjoining the claim alleged to be working from forfeited may be working to save a forfeiture of a claim, if done with a decided intention to mine the claim, and with as great rapidity as to result as working on the claim itself might reasonably have (y) ; though this principle applies only where the adjoining lands are the property of the same owner, and cannot be taken advantage of where the lands belong to different owners, even with a prospective contin- gent arrangement for their eventually becoming the property of the same owner (z). It is not necessary that the work done shall be actual working to be * bomt Jide. digging in the mine; any bond Jide work performed for the purpose of winning the gold will be sufficient to save a for- feiture. Thus, where a by-law provided that pumping out water should be a protection to a claim from forfeiture for (M) Hunter v. McNulty, 13 V.L.R. Reardon v. Sayers, 3 V.R. (M.) 19 ; 410 ; 9 A.L.T. 33 (1887). 3 A.J.R. 126 (1872). (v) Gippsland By-laws, No. VII, (y) Clerk v. Wrigley, 4 W.W. & MI, March 9, 1883. A ! B. (M.) 74 (1867); Sichel v. (u-) Moore v. White, 4 A.J.R. 17 Pearce, Sp. Ct. Vic., Sep. 11, 1861. (1873). (z) Schonfeldt v. Bed, 1 V.L.R. (x) Per Molesworth, Chief Judge, (M.) 1 (1875). 126 DETERMINATION OF INTERESTS IN CLAIMS. Bk. i. ch. v. non- working (a), it was held that pumping with a bond fide design of reaching and working at earth within the claim would be considered as working it (6). insufficient \ n altogether different ground of forfeiture is where a number of party of claimholders do not altogether neglect to work, but continue work on the claim with a lesser number of men than are required to be employed under the by-laws. A by-law which positively requires a certain number of men to be employed according to the size of the claim in effect says negatively that not less than that number of men shall be employed (c). Thus, where a by-law required a certain number of men to be employed in proportion to the area occupied (d), and the claimholders, finding they could not keep down the water, knocked off some of the men and employed a horse, and took steps to erect machinery but did not erect it, it was held that the non-compliance with the by-laws, however occasioned, rendered the claim liable to forfeiture (e) ; for though protection registration may be Machinery in obtained under the by-laws pending the erection of lieu of labor. & machinery, yet machinery will not be considered in lieu of labor until it is erected (/); and the mere drawing of water at the expense of an adjoining mine, or burning on the claim quartz belonging to other persons, and not for the purpose of extracting minerals from the claim in dispute, will not be regarded as working the claim so as to save a forfeiture (g). Money expended Under by-laws so enacting money laid out on a claim on claim. may, however, protect the claim from forfeiture for non- working as against the parties expending such money, though not as against parties who obtained possession of the claim as by forfeiture by means of collusive proceed- to) Castlemaine By-law, No. XII, (e) Davis v. Bull, 3 V.R. (L.) 138; sec. 8, Aug. 18, 1863. 3 A.J.R. 66 (187'J) ; Christian v. (b) Loiifjbotlomv. White, 3 W.W. Kemcorthy, 3 W.W. & A'B. (M.) 11 &A'B. (M.) 35 (1866). (1866). (c) Huiiterv.McNuIty, 13V.L.R. (/) Coles v. Sparta, 3 W.W. & 416 ; 9 A.L.T. 33 (1887). A'B. (M.) 21 (1866). (d) Sandhurst By-law, No. VIII, (). Where, however, a complainant in a suit for forfeiture admitted on cross-examination that another person had joined with him in advancing money for the purpose of the suit, and was to have a share in the claim if recovered, it was held to present the objection of champerty and maintenance, and the suit was dismissed. " The plaintiff has no right except one which can be acquired by litigation, and the inception of that litigation was through a bargain contrary to public policy " (q). Binding And it is not necessary in order to constitute champerty, contract not * necessary. fti&t there should be a binding contract between the parties, which apart from its illegality would be valid. But where a plaintiff has a good title, he is not to be defeated on the ground merely of remunerating the attorney whom he employs ; though where the plaintiffs' solicitor had paid the expenses of the suit, and taken out miners' rights, and was to have half of each of the plaintiffs' interest in the land when recovered, it was held that the proceedings were in their inception and concoction based upon champerty and (p) InreBulli C.M. Co., 20 N.S. in Mitten v. Spargo, 1 V.R. (M.) W.L.R. (E.) 91 (1899). 22 ; I A.J.R. 69(1870). (q) Per Molesworth, Ch, Judge, BY FORFEITURE. 139 maintenance, and the suit was dismissed (r). But when the Bk -^ c fj v - complainants have a perfect legal right independent of any illegal arrangement with other parties, the defendant cannot defeat the complainant's legal claim by proof of such collateral agreement on the ground of champerty (s) ; and a shareholder in a registered company, who had forfeited his shares, was allowed to bear part of the expenses of a suit by another shareholder to have the forfeiture set aside (t). The by-laws in some cases of forfeiture followed by Fineiniieu J of forfeiture. resumption of work permit of a fine being inflicted in lieu of forfeiture of the claim. The decision in Coles v. Sparta (u\ rests upon the peculiar circumstances of the case (v) ; and in a case where early neglect was followed by zealous continuous work, or where the claimholder had fallen into technical errors only, it was held that a fine might properly be inflicted in lieu of forfeiture, though it would not be permitted where the claimholder had been guilty of aggra- vated neglect (w). Forfeiture of a water right licence in New Zealand for Forfeiture of water right non-user may be enforced by complaint before the Warden, licence. Where the holder of a water right failed to use the water for mining purposes for a period of two months and a half, though work was done by him with a view to supplying a neighbouring town with water by means of his water right, and the original race was entirely disused and the water allowed to flow down its natural channel, it was held Chat work done for other than mining purposes would not be regarded as work done in connection with the water right, and that the Warden might decree forfeiture for non-user, but that a fine might be inflicted in lieu of forfeiture (x). A third person is not entitled to take up a claim as Fending decision on special case. (r) Collin* v. Hayes (2), 6 W.W. A'B. (M.) 74 (1867). & A'B. (M.) 5 (1869). (?) Thompson v. Seng, 2 V.R. (.s) Carpenter v. Boyce, supra ; (M.) 1 ; 2 A.J.R. 34(1871). This is and see Harnty \. Minister of also permitted by the New Zealand Mines, 1 W.A.L.R. 146 (1899). Mining Act, 62 Vic. No. 38 (N.Z.), (t) Woodv. Freehold United G.M. sec. 150. Co., 1 A.J.R. 173 (1870). (x) Dam* v. Robertson, 1 N.Z. (u) 3 W.W. & A'B. (M.)21 (1866). J.R. (N.S.) M.L. 36 (1873). (v) Clerk v. Wrigley, 4 W.W. & 140 DETERMINATION OF INTERESTS IN CLAIMS. Bk. i. ch. v. abandoned pending the decision of the Supreme Court on a special case in respect of the same ground, for the inchoate rights of a complainant under a complaint for forfeiture are not to be obstructed by the right to have a special case reserved which is given by the Act No. 1120, sec. 265, to the defendant (?/). forfeiture for ^ summons f r forfeiture before the Warden must allege distinctly the grounds on which the forfeiture is sought, and the by-laws which have not -been complied with (z), and the same principle applies to a summons for being in illegal .Jnrisdic'tiou of r r rr & wanHn. occupation (a). The Warden has jurisdiction in all cases of forfeiture under the by-laws though he may not be named as the person to adjudge a forfeiture in the by-law under which the forfeiture is sought, as he is the proper officer to hear and determine the complaint, and derives his juris- diction from the Mines Acts (6). withdrawal ot rpj ie withdrawal from the proceedings of one of a number of complainants does not defeat the others, and they may recover their share of the land as if there had been no such withdrawal (c). practice. ' The subject of the jurisdiction of the Warden in cases of forfeiture, and of the procedure and practice in suits before him, is, however, more fully dealt with in a subsequent part of this work (d}. (y) Hanrood v. Beavan, ~2 V.L.R. (b) Lone/bottom \. White, 3 W.W. (M.) 13(1876). & A'B. (M.) 35 (1866); Laidor v. (2) Hooke\. Burke,4A.J.R. 122 Stiggants, 2 V.L.R. (M.) 17 (1876). (1873). (c) Milne v. Morelt, 3 V.R. (M.) (a) Bar-ton \. Band of Hope and 4 ; 3 A.J.R. 21 (1872). Albion Consols (1), 5 V.L.R. (M.) (d) See post, Bk. IV, Chap. II, 18 ; 1 A.L.T. 30 (1879). " WARDENS OF THE GOLDFIELDS.'' BOOK II. INTERESTS IN GOLD MINING LEASES, CHAPTER I. GOLD MINING LEASES. SEC. I. GOLD MINING LKASE.S OF I SEC. II. TAILINGS. CROWN LANDS. SEC. III. TIUBUTK AGHKKMKNTS. SECTION I. GOLD MINING LEASES OF CROWN LANDS. ANY Crown land not already held under mining lease or ^ * ex tent and form of the land included in a gold- mining lease are such as the Governor, on the recommenda- tion of the Minister, may decide (k). Separate leases are not now issued for the various classes of land, and application may be made for a mining lease to include Crown land, reserved lands, and private land, or any of them, and the rent is adjusted according to the areas of the several classes of land included in the lease (I). Lease not a A gold-mining lease is not a claim (m) ; and the interpre- (o) Act No. 1120, see. 49. 33. (6) Seelbid, sec. 50, for definition (i) 62 Vic. No. 16(\V.A.), sec. 16, of " elective body corporate." and 59 Vic. No. 40 (W.A.), sec. 32; (c) 54 Vic. No. 1074. 57 Vic. No. 24 (Tas.), sec. 34 ; 62 (d) Mot Coal M. Co. \. Lithyow, Vic. No. 24 (Q.), sec. 24. 20 V.L.R. 80; 15 A.L.T. 222(1894). (/) 62 Vic. No. 38 (N.Z.). (e) Under Act 38 Vic. No. 11 (Q.). (k) Regulations relating to min- (/) Hall v. Gorrie, 3 Q.L.J. 113 ing leases, cl. 5. (1888). (/) Act No. 1514, sec. 29. (g) 56 & 57 Vic. No. 587 (S.A.), (in) Rerj. v. Clow, ex par te. Hewitt, sec. 51. 2 W. & W. (L.) 160 (1863). (h) 37 Vic. No. 13 (N.S.W.), sec. LEASES OF CEOWN LANDS. 143 tation clause of the Act No. 1120 declares that a claim shall sk.iL ch. i. not include any land comprised in any lease granted for mining purposes (n). The title acquired by means of a gold-mining lease is -fite under separate and distinct from any other title, and is obtained only by application made for it under regulations made by the Governor-in-Council in pursuance of the Mines Act (o) ; and the granting or refusal of the lease is entirely in the discretion of the Governor (p). The holder of a gold lease in Tasmania (q), having obtained a permit to mine for gold on land of which a silver lease had been granted, was held to have a limited title, and could use his right only as long as the silver lessee was not interfered with (r). The term of a gold-mining lease may not exceed fifteen Tenn of lease - years from the time of granting it (s), and so long as the covenants of such lease are complied with the lessee may enjoy the land and privileges demised during such term without interference. The labor covenant of a gold-mining lease, i.e. the The labor covenant. covenant by which the lessee binds himself to work the land bond fide for mining and to keep employed on the leased ground a certain number of men prescribed by the lease, is the real consideration given for the granting of such lease, for the rent is merely nominal ; and therefore such covenant will be strictly construed. "The testing and opening of new ground by means of a stipulated amount of labor employed is the value given by the lessee to the Crown in return for the exclusive right to mine on a portion of the public lands supposed to be auriferous. This covenant, therefore, ought to be strictly construed, and a lessee has no ground of complaint if the performance of it be rigorously (,i) Act No. 1120, sec. 3. (1868). (o) Act No. 1120, sec. 77, author- (q) Under 47 Vic. No. 10 (Tas.). ising regulations to be made. (r) Mount Reid S.M. Co. v. (p) City of Melbourne G.M. Co. Johnson, HoreDig. (Tas.), 77 (1893); v. The Queen, 4 W.\V. & A'B. (E.) but see now 57 Vic. No. 24 (Tas.), 148 (1867) ; Perkiv* v. Hercules sec. 136. G.M. Co., 5 W.W. & A'B. (M.) 48 (*) Act No. 1514, sec. 28 (i). 144 GOLD MINING LEASES. Bk. IL ch. i. enforced " (t). And a lease is not rendered irrevocable by the fact that the lessee has done work or expended money in exercise of his rights, nor would such a fact form an equitable plea (it). ^ase ig .ranted foie ^ n a PP^ can ^ for a gold-mining lease acquires no title to the land until his lease is granted; he is not entitled to mine on the land before the granting of the lease, though he has power to prevent other people mining on it ; if he does mine he is regarded as an unauthorised trespasser on public property (v). Under the Tasmanian law, though a lessee took no interest at law or in equity as against the Crown (w) until he had obtained his lease, yet until, then he could bring no action of trespass (x). And the Gazette notice of forfeiture under the Act No. 1514, sees. 35, 36, and of an intention to grant a lease to the applicant for such forfeiture, will not entitle such applicant to mine 011 the land in expectation of his lease being obtained, as against another person who has marked out the land and applied for a lease of it (^/) ; and a person who obtains a Crown grant of land of which a mining lease has been previously granted cannot mine on it, or authorise others to mine on it, during the currency of the lease (z) : and (1 fortiori, such land cannot be applied for or taken up under Part II of the Act No. ] 514 (a) during the term of the existing lease. Exclusive No person other than the leaseholder has any right to mine on land held under a gold-mining lease from the Crown, as the lease passes all mining privileges exclusively to the lessee. The holder of a miner's right has no authority to (t) Per Higinbotham, J., in Bar- (Tas.). wick v. Duchtx* of Edinburgh Co., 8 (x) Omant \. Stephen, Here Dig. V.L.R. (E.) 70; 3 A.L.T. 68, 121 (Tas.) 78 (1891); see present Act (1882) ; see Act No. 1514, Part I, 57 Vic. No. 24 (Tas.), sec. 34. sub. 4, as to breach of labor (y) Robertson v. Murrix, 7 V. L.R. covenant. (M.) 1 ; 2 A.L.T. 109 (1881). () Hetherington v. Samson, 4 (z) Alma Consols G.M. Co. v. N.Z.J.R. (N.8.) S.C. 84 (1878). Alma Extended Co., 4 A.J.R. 144, (v) Att-Gen. v. Sanderson, 1 V.R. 190 (1873). (M.)18; 1 A.J.R. 21 (1870). (n) Relating to mining on private (w) Under Act 46 Vic. No. 20 land. LEASES OF CROWN LANDS. 145 mark out a claim (6), or to search for auriferous quartz or Bk. //. CA. /. to prospect on the leased land (c), for a mining lease having been granted gives to the lessee the exclusive right to mine on the leased land, and any entry by other miners is a trespass so long as the lease remains valid (d). And so, where a creek with full and free access thereto Trespass by was reserved in a gold-mining lease of land which included miner's rif?ht. part of the creek, and the holder of a miner's right took up a portion of the creek as a claim, it was held that the occupation under miner's right was illegal, and that, as between the parties, the creek was protected from occupa- tion, such occupation not being based on any legal proceeding; and qucere, whether the holder of a miner's right could obtain possession by legal proceedings (e). But a gold-mining lease, even if granted, will not be Por occupation ' under miner e effectual as against the holder of a miner's right in lawful ri *> rht - possession of the leased land, though a residence area may be included in an application for a lease upon payment of compensation (/), and a certificate of title under the Transfer of Land Act of the leased land in the name of the lessee, purporting only to grant the land, does not include a mine or a claim held under miner's right at the date of the lease, but only the surface above such mine or claim (g). The claimholder is not bound to resist the granting of a lease of his claim applied for by another person, but he is entitled to do so, and he may protect himself against the lease when granted by showing his lawful title ; and his not objecting will not invalidate his title previously acquired (h). (b) Act No. 1120, sec. 65. 29, 36. The Court will not set (c) I/arwood v. Coxter, 2 W. & aside a lease of land held under W. (L.) 163 (1865), decided under miner's right, as it is a nullity and The Leases of Auriferous Lands Act there is nothing to set aside; a (25 Vic. No. 148); compare Act lease, though including the same No. 1120, sec. 65. area, does not apply to land held (d) Compare 56 & 57 Vic. No. 587 under miner's right ; Aladdin G.M. (S.A.), sec. 117 ; 62 Vic. No. 24 Co. v. Aladdin and Try Again (Q.), sec. 38; 37 Vic. No. 13 G. M. Co., 6 W. W. & A'B. (E.) 266 (N.S.W.), sec. 50. (1869). (e) Walhalla G.M. Co. v. Jen- (g) Munro V.Sutherland, 5 A.J.R. nimj*, 1 V.L.R. (M.) 12 (1875). (2) 75, 139 (1874). (/) Act No. 1120, sec. 52; and (h) Stephens v. Jolly, 5 A.J.R. compare 57 Vic. No. 24 (Tas.), sees. 162 (1874). 10 146 GOLD MINING LEASES. Bk ' sec C i h ' L ^ a gold-mining lease be granted by the Crown comprising land at the time of the demise lawfully occupied by the holder of a miner's right, who has not assented to the lease, such lease is void quoad the land so occupied, and no pro- ceedings to set it aside are necessary (i). Olainihokler may apply for lease. Consent by persons interested. The holder of a claim may if he choose apply for a lease of the land held by him under miner's right, or any part of it, or may include it in an application for a lease of other adjoining ground ( j). In South Australia, if payable gold is found in a claim the Warden is empowered to order the claimholder to applj- for a lease of the land, with the alternative of forfeiture of all right to his claim on his refusing to make such application (&). But when the holder of a claim applies for and obtains a lease of part only of the ground comprised in his claim, it will be presumed that he has abandoned any portion of the original claim which is not included in the parcels of the lease (I). "If the holder of a claim under miner's right consider it advisable to abandon that title and obtain a lease, he may do so ; and any lease granted to any other person is subject to his right, so that he, although the holder of a mere licence, and of no estate at all, is put in a higher position than the holder of a lease" (m). An applicant for a gold-mining lease must, if able to do so, obtain the consent in writing of all persons having to the knowledge of the applicant any interest in the land applied for (n), and though a claim legally acquired and occupied is paramount to a subsequent application for lease so as to make the consent of the claimholder necessary, yet the consent of persons only equitably interested in a claim is not necessary, though the consent of a trustee to the grant- (i) Aladdin G.M. Co. v. Aladdin and Try Ai/ain United G.M. Co., 6 W.W. & A'B. (E.) 266 (1S69); Coates v. South Loch Fyne G.M. Co. (2), 25 V.L.R. 543; 6 A.L.R. 62; 21 A.L.T. 223(1900). (j) Act No. 1120, sec. 68. (k) 56 & 57 Vic. No. 587 (S.A.), sec. 39. (/) Mulcahy v. Walhalla Co., 5 W.W. & A r B. (E.) 103 (1868) ; see judgment on appeal to Privy Coun- cil. 40 L.J.P.C. 41; 2 A.J.R. 93 (1871). (m) Per Stawell, C. J., in Aladdin G.M. Co. v. Aladdin and Try Again United G.M. Co., supra. (n) Leasing Regulations, cl. 5. LEASES OF CROWN LANDS. 147 ing of a lease in fraud of those interested might form a Bk. j/. ch. i. ground of equitable interference (o). A lessee in possession under a gold-mining lease may Le^may maintain trespass against all persons interfering with his trespass. lease. He is entitled to restrain any tortious mining on, or removal of gold from, the leased land (p), or he may bring a complaint against any person trespassing on such land, whether the trespass be on the surface or otherwise, and the Warden has jurisdiction to hear and determine the com- plaint under the Act No. 1120, sees. 135, 216 (q). Posses- sion of the site comprised in a lease from which earth has slipped is primd facie evidence of property in the earth to enable the lessee to sue for trespass (r) ; and in a gold- mining lease under the Mining Act of Western Australia, reserving to the Crown "stone, gravel, earth, or other material for any lawful public purpose," the words do not include gold, and the Government are not entitled under the reservation to remove from leased land gold-bearing material for the construction of a railway (s). Marking out as a claim land the subject of an application Ma [ k .j" ^{Jf, for lease pending the application is a trespass (t) ; so, pend- j l PP 1 e icatlon for ing application for renewal of a lease (u). And marking out land held under lease prior to the expiry of the term of the lease will not confer any title upon the person marking out such land as a claim, even though he is and remains in possession ; and in a suit for trespass on the leased land the lease itself may be put in evidence to show that at the time of the marking out the term of the lease had not expired (v). But lessees who have let their mine on tribute, and of Tributers - which the tributers are in possession, have no possessory title, and therefore cannot sue third parties for trespass (o) Australasia Co. v. Wilson, 4 C.A. 263 (1873). A.J.R. 1$ 63 (1873). (s) Monte Christo G.M. Co. v. (p) Aladdin G.M. Co. v. Aladdin Commissioner of Railways, 1 VV.A. and Try Again United G.M. Co., L.R. 161 (1899). supra. (t) Act No. 1120, sees. 70, 71. (q) Extended Cross Reef Co. v. (u) Act No. 1514, sec. 49. Creaver, 4 A.J.R. 10(1873). (v) Cooper v. White, 4 V.L.R. (r) Clayton v. Morrison, 2 N.Z. (M.) 10 (1878). 148 GOLD MINING LEASES. Bk. IT. ch. i. upon it, though they may sue for damage to their rever- sionar} r interest (w). A_ct NO. 29i see. Before the date of the coming into operation of the Act No. 446 (x) trespass could be maintained under section 37 of the Act No. 291 (No. 1120, sec. 65) by an applicant for a gold-mining lease against a person who was not previously in lawful occupation of the land applied for, and who after the application for such lease obtained as against the applicant an adjudication of forfeiture by the Warden as a claim of the land subject matter of the application for lease, and purporting to enter upon the land in pursuance of such adjudication, and remaining on and actually working it (y). " This clause (Act No. 1120, sec. 65) restricts the right which persons would otherwise have to take up after an application for a lease, and makes them provisional trespassers subject to the fate of the application, and I think by necessary implication subjects them to have their titles, whatever they may be, defeated by the lease " (z). This section was en- larged by section 3 of the Act No. 446 (section 70 of the Act No. 1120), which makes marking out for a claim pending an application for lease a trespass, and invalid for all purposes. resent lands Land granted or reserved for railways, waterworks, public parks, places of recreation, or other public purposes and vested in the Board of Land and Works or the railway commissioner may be included in a gold-mining lease (a), and public roads, being vested in the Crown (b), may be applied for as ordinary Crown land (c) ; and though it was formerly held that a mining lease as of Crown land could not give the right to mine under the half of a road which had previously become private property by virtue of a Crown (if) Penistan v. Great Britain Co., in Kendall v. Hadley, 2 V.R. (M.) 5 A.J.R. 18 (1874). See post, Sec. '21 ; 2 A.J.R. 105 (1871). " III, " TRIBUTE AGREEMENTS." (a) Act No. 1120, sec. 53; No. (*) Dec. 17, 1872. 1514, sec. 27. (y) Hutcheion v. Erk, 3 V.L.R. (b) Local Government Act 1890 (M.) 1 (1877) ; Constable v. Pigtail (54 Vic. No. 1112), sec. 395. Q.M. Co., 3 V.L.R. (M.) 7 (1877). (c) Shamrock Co. v. Farnsworth, (=) Per Molesworth, Ch. Judge, "2 V.L.R. (E.) 165 (1876). LEASES OF CROWN LANDS. 149 grant conveying the land abutting on it (d), yet it was * II - ch. i. subsequently held by the Full Court that property in the soil ad medium filum vice in a public street, road, or high- way in Victoria cannot be, and never has been, created merely by a grant from the Crown of the land adjoining such street, road, or highway, the property of which remains in the Crown (e). Crown land within a proclaimed gold- field in New South Wales (/) was similar to reserved land, and could not be taken up as a conditional mineral pur- chase (g). Nevertheless the local municipality, being the body having Breaking sur- to face of roads. the control of a street or road, is entitled to receive notice of an application for a gold-mining lease of such road (h), and the permission of such municipality must be obtained by the applicant for the lease if he desires to break the surface of the road or street. In a proceeding before justices for disturbing the soil of Jurisdiction of a street the defendant claimed the soil of the street under a mining lease and contended that the jurisdiction of the justices was ousted, a claim of title being involved ; it was held that the objection was not tenable, for if the land was a street the defendant had no power to disturb it, and the only question for the justices to decide was whether the place was a street or not (i). In Victoria, Western Australia. Tasmania and Queensland Miner's right ^ held by the applicant for a lease need not be the holder of a miner's a PP licant - right, though the possession of a miner's right or mineral licence by the applicant is necessary in New South Wales and New Zealand. The determination of a lease is a termination of the title Acceptance of held under it, and after the expiration of a lease by effluxion ^| 1 ration of (d) Davis v. The Queen, 6 W.W. (g) Wood v. Scott, 6 N.S.W.L.R. & A'B. (E.) 106 (1869). (L.) 83 (1885). (e) Garibaldi Go. v. Craven's New (h) Leasing Regulations, cl. 5. Chum Co., 10 V.L.R. (L.) 233; 6 (i) Koh-i-noor Mining Co. v. A.L.T. 93 (1884). Drought, 3 V.R. (L.) 75 ; 3 A.J.R. (/) Under Act 25 Vic. No. 1 48(1872). (N.S.W.). 150 GOLD MINING LEASES. Bk. ii. ch. i. of time, acceptance of rent by the Crown does not confer Sec. I. _ r any new title on the lessee (j ) ; but qucere whether such acceptance of rent during the currency of a lease would not avoid a forfeiture for breach of the labour covenants incurred previous to such acceptance (7c). cteTennTned ^ n or( ^ er ^ determine a gold mining lease before the expiration of the term the Crown must take some step beyond simply declaring it void. Until such a step is taken the lessee remains entitled, as between it and individuals, to keep possession, and to mine and retain the proceeds of mining, and to maintain a suit for trespass against persons trespassing. Land liable to be forfeited, and declared to be forfeited, but still in the possession of a tenant, cannot be Barwick v. forcibly taken from him by a stranger. Thus, Barwick and Duchess of J J *> Edinburgh Co. party were the lessees from the Crown of a gold-mining lease which contained a proviso for forfeiture in case of breach of covenants, and the lease was by Gazette notice declared to be forfeited, but the Crown did not re-enter or take possession. The defendant company was mining on the land under colour of its having taken possession of it under miner's right subsequent to the declaration of forfei- ture. Barwick and party filed a bill against the company to restrain it from trespassing, and for an account of the gold raised. It was held by the Full Court (Williams, J., dissentiente), affirming Higinbotham, J., that as the lease was not forfeited merely by the declaration in the Gazette, Barwick and partjr were entitled to maintain the suit, and an injunction was granted, and an account directed (I). where covenant The Crown cannot lawfully grant a lease which contains ultra vires. * & a covenant inconsistent with the policy of the Act, so as to reduce mining leases to tenancies at will, or to invest a body (j) Durant v. Jackson, 1 V.L.R. burgh Co., 8 V.L.R. (E.) 70; 3 (M.) 6 (1875). A.L.T. 121 (1882). As to leases (k) Barwick v. Duchess of Edin- which have been declared void burgh Co., 8 V.L.R. (E.) 70; 3 where other persons have been put A.L.T. 68, 121 (1882) ; Ivev v. in possession, or have obtained Lalor, 13 V.L.R. 941 ; 9 A.L.T. 98 possession under colour of title from (1887). the Crown, see Act No. 1120, sec. (I) Barwick \. Duchess of Edin- 76. LEASES OF CROWN LANDS. 151 not possessed of powers for judicial investigation of facts Bk. n. ch. i. (e.g. the Governor-in-Council) with the conclusive determin- ation of facts which should constitute a forfeiture ; never- theless, if a lessee accepts and executes a lease, a covenant of which is ultra vires the Mines Act 1890, Part I, he is nevertheless bound by such execution from objecting to it, and cannot at the same time insist that the lease is effectual to pass the estate to him, and ineffective as providing for its termination, on the ground that he took the lease which the Governor might grant or withhold, and which he had no right to insist upon, and then reject the terms it imposed ; and a certificate of title under the Tranfer of Land Act 1890 (in) of leasehold land obtained on transfer of a mining lease, although made paramount by section 74 of that Act, does not defeat the right of the Crown to determine the estate (n). The Crown cannot grant a reversionary lease to a person Reversionary lease cannot be applying lor a new lease during the currency 01 a termer granted, one under section 49 of the Act No. 1120, and section 70 does not apply to such an application ; if the lessee desires to obtain a renewal of his lease he must apply for it in the ordinary \v&y after the expiration of his current lease (o). A person holding a lease for which he is virtually a Lease held by trustee for a company, though he may not have transferred the lease to the company, will be declared to be a trustee only ; and this will apply to assignees of the company, or to purchasers of the company's effects from the sheriff under execution. Thus, where three persons, holding a gold- mining lease in their own names, formed a company which worked the ground, but the lease was never transferred to the company, and plaintiff obtained a judgment against the company, and at the sheriff's sale under the execution bought the interest of the company in the lease, it was held that the lessees were trustees for the plaintiff, and should (m) 54 Vic. No. 1149. (o) Durant v. Jackson, 1 V.L.R. (n) Matt v. Peel, 2 V.R. (M.) 27; (M.) 6 (1875). 2 A.J.R. 133 (1871). 152 GOLD MINING LEASES. Bk ' i C i' L trans ^ er tne l ease to hi m ( P}- A purchaser also at a sheriff's sale of all the property of a company would be entitled to a lease granted subsequently to the purchase to a person who applied for it as trustee for the company before the pur- chase (q). sale by sheriff. j n Western Australia the sheriff is entitled to seize under an execution a share or interest in a gold-mining lease in the name of the execution debtor (r). Execution with- Under the leasing regulations of 1871. cl. 28 (s), if the in prescribed applicant failed to execute the lease within sixty days after the day of the date of the Gazette in which a notice that the lease was ready for execution by the lessee had been published, the lease was deemed void; and this from what- ever cause the default arose. Thus, after the granting of a gold-mining lease to the manager of a company, who died before executing it, application was made by his successor to the Minister of Mines for permission to execute the lease in his stead ; such permission was not granted within sixty days after the Gazette notice that the lease was ready for execution, and proceedings were taken by the holder of a miner's right before the Warden to be put in possession of the land as being in illegal occupation of the company ; it was held that the lease was deemed void under the then existing regulations (t), and that the Warden might so regard it, and that there was no legal or equitable interest in the representatives of the deceased lessee to make them necessary parties (u). Death of Under the Tasmanian Act 57 Vic. No. 24, sec. 43, where an applicant for a lease died before the lease was executed, it was held that his partner was entitled to preference on an (p) Randall v. Man, 2 V.R. (E.) (u) Forrester v. Great Western 158 ; 2 A.J.R. 103 (1871). Long Tunnel G.M. Co., 13 V.L.R. (q) Australasia Co. v. Wilson, 4 381 ; 8 A.L.T. 177 (1887) ; Wishing A. J.R. 18, 63(1873). v. Finnetjan, 3 V.R. (M.) 16; 3 (r) Great Hannan's Aurora G.M. A.J.R. 126 (1872). Under the Act Co. v. Barnfs, 1 W.A.L.R. 1 (1898). No. 1514, sec. 48, in case of the (,s) Compare Leasing Regulations death of the applicant before issue of 1897, cl. 32. of the lease, such lease may be (t) Leasing Regulations of 1871, issued in his name, and be executed cl. 28. by his representatives. LEASES OF CROWN LANDS. 153 application by him to have the lease cancelled and re-issued Bk - | cp- * to himself (v). However, by the existing leasing regulations (w), unless ^ ulations of the applicant execute the lease within twenty-one days from the date of the publication in the Gazette of a notification that the lease is awaiting execution, the Governor-in-Council has a discretionary power immediately after the expiration of the period to declare the lease void. Thus, the lease is not void, but merely voidable at the discretion of the Governor-in-Council. The yearly rent payable in respect of a gold-mining lease Rent, of Crown land is two shillings and sixpence for every acre demised (x). SECTION II. TAILINGS. The ownership of tailings left by a lessee on Crown land ownership of r * tailings. formerly held by him under a gold-mining lease which has expired by effluxion of time, or has been surrendered or declared void, and which he has neglected to remove, or to bond fide treat, within twelve months after the avoidance of the lease, is dealt with by section 53 of the Act No. 1514, by which section licences are authorised to be issued to persons desirous of treating the tailings. Most of the by-laws provide for registration of sites for By-laws, tailings for the purpose of stacking or treating, or for the purpose of protecting them on abandoned claims, in a form and in manner similar to that prescribed for the registration of ordinary claims; and a like provision obtains in the other States. The former Mining Act of New Zealand (a) gave the New Zealahd - holder of a claim the exclusive right to tailings stacked upon (v) In re White, Thomas v. Com- 1897, cl. 32. mistiontr of Lands, Hore Dig. (Tas.) (x) Act No. 1514, sec. 28 (i). 80 (1896). (a) 50 Vic. No. 51 (N.Z.), sees. 96, (iv) Leasing Regulations, Oct. 8, 97. 154 GOLD MINING LEASES. Bk. ii. ch. i. the ground by a former owner, where such tailings were not protected as provided by the regulations (6). Under the Queensland. Queensland regulations a tailings area could be taken up (c), as also an auriferous sands claim (d), and both might be taken by the same person under the combined provisions of the Acts (e), though an auriferous sands claim could not be taken up on a tailings area in the occupation of another person (/). The Warden had no jurisdiction in his judicial capacity to cancel a tailings area for non-user ; that could only be done by the Crown, or by the Warden acting as a ministerial officer ((/). Title to tailings. Tailings do not become part and parcel of the land on which they are deposited (h) : and the holder of a mining licence in New Zealand cannot enter upon the ground and remove tailings or soil or washdirt after the term of his licence has expired (i). Licence to treat. ^ licence to treat tailings granted under section 53 of the Act No. 1514 gives a right to the licencee to remove the tailings for treatment, or to treat them on the ground ; a gold-mining lease of the land may, however, be granted to another person, subject to the rights of the licencee (j ). Quartz tailings which have been abandoned (k) may be be the subject matter of an action of trover by the party who separated them from the land for the purpose of ex- tracting gold therefrom ; when abandoned they remain the chattels of the party who severed them from the land, who has a right to them against everyone (/). This decision was (b) Grayson v. Delaney, 10 N.Z. (N.C.) 39(1897), following Smyth v. L.R. 134 (1891) ; see now 62 Vic. Mistingham, 8 Q.L.J. (N.C.) 26. No. 38 (N.Z. ), sees. 105, 108; and 63 (h) Wallace Jiethanga M. . ii. A person who has taken up part of a road under his miner's right in accordance with section 19 of the Act No. road under -Q20, and has applied for a permit to mine under it from the local municipality, is a person in lawful occupation, and is entitled to be served with notice by any person applying for a lease of such road after the permit is applied for and before it is granted, and omission to serve such an occupier is a default in the application (iv). occupiers to be served. V. DF.I-OSIT 01 FEES. As it is necessary that the names of all occupiers must be inserted in the notice, an applicant for a lease should take care to ascertain who are the real occupiers before drawing up the notice ; for if a person be named as an occupier who is not in fact an occupier, it is assumed he must receive notice, for it has been held that the list of occupiers published by the applicant in his notice of application is evidence against him that the persons named are occupiers (x), and by implication that they should all be served. 5. The next requirement (reg. 4 (E)) is the deposit with the clerk of the Warden nearest to the land by the ordinary road of the necessary fee of five pounds, and the applicant must in addition to the deposit of five pounds, if required by the Warden, deposit a sufficient fee to cover the cost of survey, in accordance with the scale in schedule C of the regulations (reg. 4 (F)). tee'for's^rvev f ^ke ^ ee rec l u i re d for survey is prescribed as such further sum or sums as may be considered necessary in addition to the deposit of five pounds ; and non-payment within seven days prior to making the application of a sum of money to cover the cost of surveying interior lines and connecting them with the nearest fixed point, is a default in proceeding with the application within sec. 71 of the Act No. 1120 (y). vi. CONSENT OF Q The applicant must also (reg. 5), if able - to do so, previous to the application obtain from every person owning (K-) Holmes v. Reynolds, 11 V. Albion Consols, supra. L.R. 711 (1885). (y) Great Northern Co. \. Brown, (x) Barton \. Band of Hope and 8 V.L.R. (M.) 1 ; 3 A.L.T. 89 (1882). OCCITIHIW PRELIMINARY REQUIREMENTS. 165 or occupying the land, or having or claiming to the knowledge Bk. n. ch. n. of the applicant to have any rights therein or any part thereof and willing to give the same, a written consent duly witnessed to the application being granted ; and any occupier not willing to give such consent is at liberty to object to the application (reg. 5). These written consents, if obtained, are annexed to the declaration of the applicant or put in evidence at the enquiry before the Warden, and are forwarded by him with his report to the Minister of Mines. Though an occupier refusing his consent is at liberty to l^l^ e&l object to the lease being granted as regards the portion need not ol) J ect - occupied by him, a person in legal occupation of the ground under his miner's right is not bound to do so, and a lease of land occupied by virtue of a miner's right is invalid as to such ground, unless the consent of such occupier to the granting of the lease has been obtained ; and the Governor is not warranted in granting a lease to a person or corporation not the applicant, against the protest of the applicant (z). Thus, where a number of persons, holders of miner's rights and equally interested in a claim, appoint one of their number to apply for a lease of the ground on behalf of the whole of them, the written consent of the others to the application should nevertheless be obtained, as they are all occupiers, and something beyond the statement of the applicant will be required to show that he is a trustee for, or that he sufficiently represents, all the owners of the claim. The registered holder of a claim, though only trustee for consent by others as the manager of a company, can without the authority of his cestuis que trustent give a valid consent to a portion of his claim being included in a lease, and the con- sent of the beneficiaries is not necessary (a). (z) Aladdin G.M. Co. v. Aladdin Co. (3), 9 V.L.R. (E.) 37 ; 4 A.L.T. and Try Again G.M. Co., 6 W.W. 137 (1883) ; affirmed on appeal, 9 & A'B. (E.) 266 (1869). V.L.R. (E.) 71 ; 5 A.L.T. 12. As (a) Band of Hope and Albion to application for licence for mining Consols v. Young Band Extended privileges in New Zealand, compare 166 APPLICATION FOR LEASE. Bk. ii. ch. 11. Having complied with the preliminary requirements the APPLICATION FOR a PP^ ca tion itself is then made under reg. 6. This is an echo of the notice of application, and must be lodged with the Warden within seven days after marking out the land under reg. 4 (A), and presumably may be lodged immediately all the preliminaries are complied with (6). To the applica- tion must be appended a statutory declaration of the applicant in the form of Schedule E showing how the preliminary requirements have been complied with by him or his agent ; and the newspaper advertisement, receipts for deposits and consents of occupiers must be annexed thereto as exhibits (reg. 6). The Warden then, unless otherwise instructed, directs the mining surveyor to survey and make a plan of the land (reg. 9), and should no objection to the application be lodged within three days after the posting of the surveyor's notice under reg. 11 (c), the applicant is not NO com- of required (unless directed by the Minister) to attend at any enquiry held, f ur t} ier enquiry, and no court of enquiry will be held by the Warden unless required by the Minister, but the whole of the papers and the statutory declaration and exhibits will be forwarded to the Minister by the Warden together with unless directed his report and recommendation (reg. 14). The Minister, by Minister. may, however, require that a court of enquiry be held, notwithstanding that no objection be made to the applica- tion (reg. 15). court o" re M Should any person object to the application being granted enquiry. ft ie \Varden will in due course hold a court of enquiry, of which notice is given by him to the applicant and others interested, to consider the application and hear objections thereto (reg. 16 et seq). This court of enquiry is open to the public and the mode of conducting the business of the court is in the discretion of the W T arden (reg. 18). As soon as the evidence is taken by the Warden (on the expiration Act 62 Vic. No. 38 (N.Z.), sec. 136; 39. and for lease in Western Australia, (b) Sched. D to Leasing Regula- compare Act 59 Vic. No. 40 ( W. A. ), tions. sec. 37 ; and in New South Wales, (c) Sched. F to Regulations. Act 37 Vic. No. 13 (N.S.W.), sec. PRELIMINARY REQUIREMENTS. 167 of three days after the adjournment of the court of enquiry) B*. n he transmits to the Minister of Mines the application, plan, report of the mining surveyor, consents of occupiers, objec- tions (if any), evidence written and documentary, and all other writings relating to the application, together with his observations and opinion thereon (reg. 19). Any person objecting to the application for a lease must OBJECTIONS TO within the time prescribed by the regulations lodge with the Warden and serve upon the applicant, or if more than two then upon any two named in the application, at his or their address as stated in the notice, a statement in writing of the grounds of his objection. The service may be personal or by posting the notice of objection to the address stated in the application in a registered letter. No particular form of objection is required, so long as it clearly shows whose application is objected to, the grounds of the objection, and the address of the objector (reg. 12). He must also (reg. 13) deposit with the clerk of the Warden a sum of five pounds, which deposit, as also the deposit of the applicant, is subject to the orders of the Minister of Mines or of the Warden for payment of costs (regs. 43, 44). Any person occupying any part of the land applied for Wh .en compen- under any licence or right derived under the Mines Act 1890 is entitled to be compensated for buildings or improve- ments thereon, whether he has objected to the application or not (d). The applicant for a lease must be a person or persons, or a Applicant, corporation. The Governor has no power to lease to anyone but the applicant ; it is his pretensions that the Governor is to weigh, and individuals interested in opposing are to resist. A contemplated company cannot be an applicant, and a lease applied for by a person on behalf of a company which does not then exist will, if granted at all, be granted to the applicant in his own name, and not in that of the company (e). (d) Leasing Regulations, cl. 40. and Try Again United G.M. Co,, (e) Aladdin G.M. Go. v. Aladdin 6 W.Wl & A'B. (E.) 266 (1869). 168 APPLICATION FOR LEASE. 77. Ck. II. Sec. I. Withdrawal. Transfer. Transfer &e. of lease. An applicant may withdraw his application at any time, and it is thereupon deemed abandoned (/). He may also transfer his interest in the application ; and in case of his death the lease may be issued in his name and be executed by his executor or administrator (g). If the applicant be out of the State he may act by attorney (h), and such attorney is bound to comply with the regulations in the same manner as his principal, if present, would be bound to comply with them (i). A leaseholder may by the licence of the Governor transfer, underlet, mortgage, or otherwise dispose of, or encumber his lease (j) ; and should he be desirous of working and winning other minerals than those specified in his lease, he may obtain through the Warden a licence to do so (k). Discretion in the Crown. Date when granted. SECTION II. GRANTING OR REFUSAL OF LEASES. The Crown is not in any way bound to grant a mining lease. Section 67 of the Alines Act 1890 vests an arbitrary discretion in the Governor to grant or refuse an application for a lease, and such discretion cannot be reviewed or con- trolled by a court of justice. In Western Australia (a) it was held that a lease is granted as of the date of the approval of the application (6). Refusal of lease. No tribunal is provided by the Mines A cts for entertain- ing the reasonableness or otherwise of the reasons for refusing a lease. It is merely the duty of the Governor to inform the applicant of the reasons for which a lease is refused, but there does not appear to be any jurisdiction, by mandamus or otherwise, to compel the performance of that (/) Leasing Regulations, cl. 47. (g) Act No. 1514, sec. 48. (h) Form in Sched. Q to the Regulations. (i) Leasing Regulations, cl. 49. ( /) Ibid, cl. 50. (k) Ibid, cl. 48. (a) Under The Goldfields Act of 1895(W.A.) (59 Vic. No. 40), sec. 36. (b) Hannaii's Proprietary De- velopment Co. v. Cotoley, 1 W.A. L.R. 196(1899). See Leasing Regu- lations (Vic.), cl. 27. GRANTING OR REFUSAL. 169 duty. " It is a class of questions which courts of justice are Bk. n. ch. n. not properly competent to entertain, involving a variety of points, enquiries in a different department of science, ques- tions of public and private convenience, and individual eligibility and ineligibility, which courts of justice cannot enter into " (c). Neither is there anything in the Act, or the regulations under it, to bind the Governor to follow the opinion of the Warden as to granting or refusing a lease (cl): though under the Tasmanian Mining Act (e) the decision of the Commissioner is final and binding on all parties, and on the Minister of Mines, who cannot refuse to grant the lease against the decision of the Commissioner (/). And a peti- tion under the Crown Remedies and Liability Act 1890 (g) will not lie against the Crown at the suit of the holder of a mining claim to restrain the issue to other parties of a lease of the land comprised in such claim (li) ; nor is there any necessity for such proceeding, as the lease, if granted, is invalid as to the claim (i). Land for which an application for a lease had been made but not granted was held (j) not to be land under lease for mining purposes within the Act (k). The Governor has no power to grant a lease to anyone TO whom lease but the applicant. Thus, he is not warranted in granting a gr lease to an alleged assignee of the applicant against the protest of such applicant ; he can only refuse the lease (I). And the representatives of a deceased applicant who died before the execution of the lease within the time prescribed by the regulations (ra) were held, prior to the passing of the Act No. 1514, to have no legal or equitable interest in such (c) Per Molesworth, J., in Hit- and Try Again United G.M. Co., 6 chins v. The Queen, 4 VV.W. & A'B. W.W. & A'B. (E.) 266 (1869). (E. ) 133 (1867). (/) Under New South Wales Min- (d) City of Melbourne G.M. Co. ing Act, 25 Vic. No. 13 (N.S.W.). v. The Queen, 4 W.W. & A'B. (E.) (k) Lyons v. Moore, 3 N.S.W. 148 (1867). L.R. (L.) 379 (1882). (e) 57 Vic. No. 24(Tas.). sec. 147. (I) Aladdin G.M. Co. v. Aladdin (f) Rosebery G.M. Co.v. Minister and Try Again United G.M. Co., of Mines, Hore Dig. (Tas. ) 78 (1895). supra. See Act No. 1514, sec. 48, (g) 54 Vic. No. 1080. authorising assignment of interest (A) City of Melbourne G.M. Co. in an application for lease. v. The Queen, supra. (m) See Leasing Regulations, cl. (') Aladdin G.M. Co. v. Aladdin 32. APPLICATION FOR LEASE. k. ii. ch. ii. lease, if applied for by the applicant as manager of and on behalf of a company (n). Waiver of com- pliance with regulations. When leasu takes effect. Attestation of execution. Under section 67 of the Act No. 1120 the Governor has power to grant a lease notwithstanding that the applicant may not in all respects have complied with the leasing regulations. This, however, relates to waiving objections before execution by the Governor, and not before execution by the lessee. After execution by the Governor, and before execution by the lessee, the lease according to the regula- tions operates by way of escrow. If such regulations are ultra vires section 77 of No. 1120 the lease is altogether inoperative (o). A lease under the Mining Act of New South Wales, as a lease, takes effect only from the time of its execution (p). It was not necessary to the validity of a lease (q) executed by the Governor's delegate that the witness should add his residence and occupation, nor were sealing and delivery necessary (?). SECTION III. MARKING FOR A CLAIM PENDING APPLICATION FOR LEASE. The Act passed to amend The Mining Statute 1865 (a) had the effect of materially altering the position between persons marking as for a lease, and persons marking as for a claim. It was held in the case of Perkins v. Hercules G.M. Co. (6) that an application by a claimholder for a lease of the ground covered by the claim did not exempt the (n) Forrester v. Grtat \\~extern Lowi Tunnd G.M. Co., 1.3 V.L.R. 381 '; 8 A.L.T. 177 (1887) ; Wissiny v. Finnegan, 3 V.R. (M.) 16; 3 A.J.R. 126 (1872); but see Act No. 1514, sec. 48. (o) Finntyan v. Wi^iixj, 4 A.J.R. 65 (1873). (p) King v. M'lvor, 4 N.S.W. L.R. (L.) 43 (1882). See Leasing Regulations (Vic.), cl. 27, 30. (q) Granted under Act 30 Vic. No. 32 (N.Z.), sec. 41. (r) Costdlo v. O'Donnell, 1 N.Z. L.R.C.A. 105 (1882). See Act 62 Vic. No. 38 (N.Z.), Part IV. (a) 36 Vic. No. 446 [incorporated with the Act No. 1120]. (6) 5 W.W. & A\B. (M.) 48 (1S68). MARKING OUT PENDING APPLICATION. 171 ground from forfeiture otherwise incurred under the opera- M. //. ck. n. tion of the by-laws ; and the application for a lease by a claimholder of the ground comprised in his claim did not under section 37 of the Act No. 291 (No. 1120, sec. 65) No - 291 > s - 3T - protect the claim from forfeiture incurred either before or after the application on the ground of abandonment or breach of a by-law (c), for the concluding words of section 65 show that all that is meant is that no taking up is good as against the lessee. The protection afforded by the application was only quoad the applicant for the lease, and the application for a lease did not prevent any person taking up the ground as a claim under miner's right. In case the lease should be granted, the lessee could proceed for trespass and restitution of the gold taken out of the leased ground (d). Thus, under section 65, trespass by marking out ground pending an application for a lease is not a trespass against the whole world, but only against the applicant for the lease, and a third party cannot take advantage of it (e). The case of Bain v. McColl (/), which was decided before Bai the passing of the Act No. 446, serves to show the position as between a claimholder and an applicant for a lease, with regard to section 65 of the Act No. 1120. Defendant, who was the holder of a miner's right, on August 10, 1871, applied for a lease of his claim and other ground, and obtained the recommendation of the Warden that it should issue. The plaintiff then, on March 1, 1872, obtained a decision of abandonment by the Warden, marked out the land as a claim, and sunk a shaft on it. Defendant summoned him for trespass pending the application for the lease, and the judge of the Court of Mines decided against him (the applicant), as he had failed to comply with the leasing regulations. Some months afterwards, on October 28, 1872, the Governor executed the lease, and it was (c) Smith v. Golden Gate Co., 5 1 V.R. (M.) 18 ; 1 A.J.R. 55(1870). W.W. & A'B. (M.) 5(1868); Ken- (e) Gorman v. iMcLdlan, 14 dull v. Hadley, 2 V.R. (M.) 21 ; 2 V.L.R. 674 ; 10 A.L.T. 51 (1888). A.J.R. 105(1871). (/) 4 A.J.R. 6'2 ; 5 A.J.R. 17 (d) Barker's G.M. Co. v. Keating, (1873). 172 APPLICATION FOR LEASE. Trespass under Xo. 291, s. 37. k. ii. ch.ii. executed on November 18 following by the defendant, who thereupon forcibly ejected the plaintiff, who then sued defendant for trespass. It was held that section 65 explained section 49 so as to make a person intruding on the ground pending the application liable if the lease were afterwards granted, yet he would not be so if the applicant had made default in complying with the leasing regulations, but that it was not necessary that the applicant should sue every intruder before taking the lease ; it would be sufficient if the latter were liable before the lease was issued ; and further, that though section 67 authorised the Governor to issue leases when there has not been full compliance with the leasing regulations, this qualities the restriction in section 49 against granting leases to persons not complying with the regulations as between them and the Crown or the public, but does not so qualify section 65 as to making a person having a lawful title before the lease lose his title and be made a trespasser retrospectively () Hutcheson v. Erk, 3 V.L.R. (M.) 1(1872). (s) Kfg. v. Orme, ex parte Dros- cher, 3 V.L.R, (L.) 343 (1877). See hereon Cock v. Utawell Amalgam- ated Scotchman's and Cross Reefs Q.M. Co., 24 V.L.R. 165; 4A.L.R. 219 ; 20 A.L.T. 95 (1898). (t) Jolly v. Stephens, 5 A.J.R. 169 (1874). (it) Hutcheson v. Erk, 3 V.L.R. (M.) 1 (1872). (r) Antony v. Dillon, 15 V.L.R. MARKING OUT PENDING APPLICATION. 175 under sections 70, 71 of the Act No. 1120 an application for a lease is sufficient to. prevent an order of forfeiture for non-working, unless default in complying with the leasing regulations be shown (w), and though the Warden should not pending the application for the lease put persons in possession, he should not dismiss the complaint, but adjourn from time to time under Act No. 1120, sec. 219 until the question of granting or refusal of the lease is decided, and he has jurisdiction to grant an injunction against mining until the application for the lease is disposed of (a;). An application for a lease is therefore only a provisional Application a provisional title. title. If the lease is refused it is just the same as if the application had not been made, and the Warden can then put a complainant in possession in the same manner as if a default in the application had been proved (y}. A title obtained in contravention of section 70 is bad. t e ra " ention Where land was marked out for a lease, and was subse- of No> 446- quently marked out for a claim while the application for the lease was pending, it was held that the holders of miners' rights suing for illegal occupation might insist under section 70 that the title of the defendants was bad, as obtained during the application for the lease, even though the lease was ultimately refused (z). It must be borne in mind that trespass under section 70 Marking out consists only of entering to mark out the ground applied |" e for under lease as a claim, and therefore in proceeding for Wa forfeiture or illegal occupation before the Warden pending the application for a lease the section is not contravened, inasmuch as marking out is not a condition precedent to a proceeding before the Warden (a). As, however, marking out is necessary after the Warden's adjudication (6), even an 240 ; 10 A.L.T. 231 (1889). (z) Wedddlv. Howse (2), 9 V.L.R. (w) Constable v. Pir/tail Q.M. Co., (M.) 13 ; 4 A.L.T. 179 (1883). 3 V.L.R. (M.) 7 (1871). (a) Kilgour v. Flinn, 5 W.VV. & (x) Hvtcheton v. Eric, 3 V.L.R. A'B. (M.) 32 (1868). (M.) 1 (1877). (b) Beavan v. Rigby, 2 V.L.R. (y) Barker'. G.M. Co.v. Keating, (M.) 7 (1876); Moore v. White, 4 1 V.R. (M.) IS; 1 A.J.R. 55 A.J.R. 17 (1873). (1870). 176 APPLICATION FOPv LEASE. Bk. ii. Ch. ii. order for possession will not authorise entry to mark out pending the application for the lase, and thus a person obtaining an adjudication of forfeiture cannot take posses- sion by marking. The refusal of the lease will, however, enable the Warden to order forfeiture and possession, and the complainant can then enter and mark out the claim, his title being thus in abeyance pending the granting or refusal of the lease. SECTION IV. PRIORITY OF LEASES. priority?'* 8 Gold-mining leases are granted according to priority of application, which priority is determined according to the time at which each application shall have been received by the Warden as endorsed on the application. If there are any reasons why priority should be granted to one applica- tion lodged subsequently to another the Governor is the sole arbiter, and it lies in his absolute discretion which application, if any, shall be granted (a). It is only in this latter manner that priority of marking out can take prece- dence of priority of application. Priority A person who first applied for a lease in accordance with preserved. the Act and regulations (6) was held to have acquired a right which could not be taken away by the place being subsequently proclaimed a goldfield (c). occupier under A person legally occupying under his miner's right land miner's right. L subject of an application for a lease has priority of title over the application, unless he consent to such application (d). So, in South Australia he has a preferent right to a lease (e). And mere taking possession by pegging out a claim is good (a) Leasing Regulations, cl. 8; Act 37 Vic. No. 13 (N.S.W.), sec. see Mills v. Day Dawn Block G.M. 33. Co., 1 Q.L.J. 98 (1882). (d) Greenhill v. Braidley, 4 V. (b) Under the Goldfields Act of L.R. (M.) 5 (1878). 1866 (N.S.W.). (e) 56 & 57 Vic. No. 587 (S.A.), (c) Bacon v. Rebora, 12 N.S.W. sec. 32 ; see Act No. 1120, sec. 68. S.C.R. (L.) 134 (1873) ; compare PRIORITY OF LEASES. 177 as against a person subsequently marking out for a lease, Bk.n. ch. n. although the claim may not be registered until after the marking out for the lease ; and as between a party applying for a claim and a party applying for a lease, a mistake made by the applicant for the claim in his notice of application, as to the time of taking possession, cannot be taken advan- tage of by the applicant for the lease (/). In fact the question of priority between one person mark- ing for a lease and another person marking for a claim will markin s out - not arise until all the preliminary requirements are com- pleted, and such priority will date, as to the person marking for a lease, not from the time when he pegged out the land, but from the time when he has fully complied with the leasing regulations as to painting the posts and affixing the metal plates (g). And where a person has no legal title, but is in possession t of Crown lands under his miner's right, a lease of which has Wlthout tltle - been applied for by others, the title of the applicant for the lease remains in abeyance until the lease is granted. If it is refused the occupier may bring an action against the applicant for trespass or encroachment committed during the pendency of the application (/t). An applicant for a lease has no right to mine on the land ^? n " l**^ applied for before the lease is granted, and any such mining lea is an unauthorised trespass on public property (i) ; but the applicant may defend his inchoate title, and may restrain other persons from mining on the ground (j). An application for a mining lease of land already held by anticipation of another person under lease, made in anticipation of the expiry of lease " expiration of the term of the current lease, is ineffectual ; (/) Greenhill v. Braidhy, supra. (i) See Act No. 1120, sec. 287. (g} Clarence United Co. v. Gold- (j) Att-Gen. v. Sanderson, 1 V.R. with, 8 V.L.R. (M.) 14 ; 3 A.L.T. (E.) 18; 1 A.J.R. 21 (1870); Kobert- 147 (1882). son v. Morris, 7 V.L.R. (M.) 1 ; 2 (h) Fahoy v. Koh-i-noor Q.M. Co., A.L.T. 109 (1881). 3 W.W. & A'B. (M.) 4 (1866). 178 APPLICATION FOR LEASE. Bk 'sec /r //- ^ e ^ rs ^ S ^ 6 P ^ ^ e ^ a ^ en i Q a Pplyi n g f r a lease is to mark out the ground, and such marking during the currency of an existing lease would be a trespass on the leased land. And even were this done by the lessee himself during his current lease, or with his consent, the application for a new lease must be refused, as the Crown cannot grant rever- sionary leases applied for before the expiry of a current lease (k). And of course this principle would apply to a lessee marking out as seeking a renewal of his lease ; neither before the passing of The Residence Areas Act 1881 (I) could the Crown grant a lease of land comprised in a residence area previously acquired, without the consent of the occupier (m\ SECTION V. APPLICATION BY HOLDERS OF MINERS' RIGHTS TO AVOID LEASES. The labour Every mining lease must contain a covenant by which the lessee binds himself to keep bond fide employed on the land a prescribed number of able and competent workmen and miners, not being Chinese, unless prevented by inevit- able accident, or during the execution of repairs (a). procedure. When a breach of the labour covenant in a lease has been committed by the lessee, any holder of a miner's right may apply to the Minister of Mines to have the lease declared void, and a lease of the land issued to the applicant (6). The mode of procedure is by an application to the Minister in the form set out in the second schedule to the Act No. 1514, and the Minister may, if he think fit, refer the appli- cation to the Warden with instructions to hold a public (I-} Durant v. Jack-son, 1 V.L.R. enacts that a lease conferring the (M.) 6 (1875). right to mine below the surface of (I) No. 1120, Part I (4). a residence area is as valid and (m) Jones\. Chrixtennen, 7 V.L.R. effectual as if granted with the con- (M.) 6 ; 2 A.L.T. 149 (1881). See sent of the occupier. post, Bk. Ill, Ch. IV, Sec. II, (a) Act No. 1514, sec. 30 ; com- " RESIDENCE AREAS." A clause pare 56 & 57 Vic. No. 587 (S.A.), was inserted in The Residence, Areas sec. 52 (ii), 108. Act to meet the judgment in this (/;) Act No. 1514, sec. 31. case (No. 1120, sec. 46), which APPLICATION FOR FORFEITURE. 179 enquiry concerning the alleged breach. The Warden is Bk. 11. ch. n. required to give such notice to the parties as he thinks necessary, and proceeds on the day arid at the place named by him in such notice to hold an enquiry concerning the breach, either ex parte or otherwise, and makes his report thereon to the Minister (c), forwarding with such report all evidence taken on the enquiry, and his remarks on the case. Either party may appeal to the Minister against the recom- mendation of the Warden (d). A person taking proceedings for forfeiture of a lease is Marking out not not required to mark out the ground as he would be required to do in applying for a lease in the first instance under the regulations (e). The Warden cannot determine a forfeiture, and put the Dut J { warden, applicant in possession. All he has to do is to enquire into the reality of the forfeiture or alleged breach of covenant. If he finds that a breach has been committed and a forfeit- ure incurred, and his finding is affirmed by the Minister, the granting of the lease applied for is a premium to the person giving the information which leads to the forfeit- ure (/). The object of the Act is to prevent "shepherd- ing " leases, and as the Governor-in-Council has authority to determine the matter of forfeiture and of granting a lease to the applicant (v owner. SECTION I. LICENCES TO MINE FOR GOLD. THE passing of The Mining on Private Property Act 1884, which came into operation on Nov. 25 of that year (a) caused a complete revolution in the law regarding mining on land alienated from the Crown. Previous to that date no means existed by which a miner could enter on freehold land for the purpose of mining without the consent of the freeholder, and consequently large areas of private land were locked up and unworked as mines, and many were not even prospected. It is true in most instances the miner could obtain a licence from the freeholder to enter and mine on his land, but only (a) 48 Vic. No. 796. LICENCES TO MINE. 191 on payment of heavy compensation in the shape of a per- Bk - I ^ h I - lv - centage of the gold obtained. Numerous attempts were made by successive Parliaments Legislation as to private land. from time to time to pass measures authorising and regu- lating mining on private land, but without success, it being considered that it was a matter not so much of public interest as of private enterprise, until the Act 48 Vic. No. NO. 796. 796 (6), imperfect as it was in many respects, formed the beginning of a new legislation. It has always been held in Victoria that gold whether Gold mines the J f property of the on Crown land or on private property belongs to the Crown. Crown - " By the law of England, which is also the law of this country, all gold mines belong to the Crown, and though the Crown may have granted the lands containing them to a subject without reservation, the gold under the grantee's land is not his, and neither he nor any one else has a right as against the Crown to take it" (c). For a Crown grant Effect of grant. does not pass to the grantee royal mines (i.e. gold and silver) that may be found under the land mentioned in the grant unless the intention that such minerals should pass is expressly stated in the grant in apt and precise words (d). In New South Wales it has been decided in like manner New south that the legal title and legal ownership of gold are in the Crown (e) ; and also in New Zealand that auriferous deposits New Zealand, belong to the Crown, subject to the goldfields law of the colony (/) ; though in a Queensland case, over-ruling Queensland. Plant v. Attorney -General (g), which followed the Victorian decisions, it was held that a grant in fee from the Crown (b) The Mining on Private Pro- 287 (1897). perty Act 1884. (d) Woolley v. Ironstone Hill (c) Per Molesworth, J., in Millar Lead Co., 1 V.L.R. (E.) 237 (1875), v. Wildish, 2 W. & W. (E.) 37 affirmed on appeal to P. C. sub. nom. (1863) ; and see Aladdin G.M. Co. Woollty v. Attorney-General, L.R. v. Aladdin n //>\\ mi be purchased, hundred feet from the surface (sec. / 1 (6)). Thus, in an (d ) What is private land is de- refer to the Act No. 1514, unless fined by No. 1514, sec. 67. Through- otherwise stated as applying to out Section II of the present chap- other Acts, ter the several sections quoted IN VICTORIA. 195 application for a lease of private land on which is a dam in w. i^ch.^iv. bond fide use and a dwelling house, and the owner objects to the lease being granted, an injunction will be granted to restrain the applicant from proceeding further with his application until the requirements of section 71 (6) with regard to purchase of the land have been complied with by him, notwithstanding that the Governor-in-Council may have determined to grant the lease (e). Where leases are applied for below the prescribed depths without the consent of the owner, compensation is payable to the owner ; but such a lease will only be granted on the conditions set out in section 72. Private land may be taken possession of for mining Marking: out. purposes by any holder of a miner's right, or by an applicant for a lease in accordance with the leasing regulations. In applying for a lease the land must be marked out by the applicant under the regulations, and the applicant may at all reasonable times and doing no unnecessary damage enter on the land for the purpose of marking ; and for the pur- pose of such marking out private land is deemed Crown land (sec. 73 (1), (2)) ; though an applicant for a lease has no right to enter on certain specified land for the purpose of marking out without the consent of the owner (sec. 73 (4)), and in order to enable an applicant to enter on land alienated from the Crown before December 29, 1884, it is necessary for him to obtain the written authority of the Warden, mining registrar, or a justice of the peace (sec. 73 (6)). A mining surveyor acting under the authority of the Minister may at any time enter upon the land for the pur- pose of surveying, fixing posts, and boundary marks without liability for trespass, and without payment of compensation (sec. 111). The application for a lease of private land is made under ^ ication for the same leasing regulations as control mining leases of Crown lands (sec. 81), which fully describe the preliminary (e) Thie-wen v. Lambert and another, 6 A.L.R. 113 (1900). 196 GOLD MINING ON PRIVATE LAND. Bk. ii. Ch. iv. requirements both for applications and objections (/). The PPI] pendency of an application for lease begins with the mark- appiic-ation. j n g QU ^ an( j con ti nues until the Governor-in-Council grants or refuses the same (sec. 99 (1)), though such pendency will cease under certain conditions specified in section 99 (2), (3). Restraining- Under the Act No. 1514, sec. 71, an application to restrain an applicant from further proceeding with his application where he had paid fees to the Crown in respect thereof, and other fees would become due if he were allowed to proceed, it is necessary for the plaintiff to join as a party to the proceedings some one as representing the Crown ( partnership or co-ach 7 enture established or to be established for mining purposes and not registered under The Mining Companies Limited Liability Act 1864 (p), upon any simple contract made by or with any other member of such part- nership or co-adventure on behalf of the same, unless such contract, or some memorandum or note thereof, shall be made or contained by or in some writing to be signed by the defendant in such action (q). The object of this clause is to protect a partner from an object of the action by a stranger with whom another of the partners has contracted on behalf of the partnership, unless the partner defendant has assented to the contract in writing. As to various dealings by partnerships, and payments made to persons without, it has never been held that the dealing not being binding, or the payment enforceable, under the Statute of Frauds, would exempt one partner from liability to con- tribute to the partner making the payment. Therefore, notwithstanding the section quoted, partners for mining purposes not registered as a company are, as to adjusting accounts between themselves, liable for expenditure incurred by other partners with sufficient authority from them, though there may be no written evidence of that authority (r) ; but a member of an unincorporated company is not liable upon a contract made by a manager or agent of the company to whose appointment he did not assent, and to whom he did not give authority in writing. Such a man- ager is agent only for those who appointed him, or authorised him to contract on their behalf ; the defendant's positive assent must be proved (s). Where miners holding a claim in partnership form them- Partners selves into an incorporated company and one partner is as a company. ( p) 27 Vic. No. 228. ing the repeal of the Act No. 228. (q) See Ex parte Kitchinijman (r) Allardyce v. Cunningham, 5 and Milton, 6 A.L.T. 246 (1885). A.J.R. 162(1874). This section will apply to any un- (s) Renwick v. Barkas, 2 V.L.R. registered company, notwithstand- (L.) 269 (1876). 216 MINING PARTNERSHIPS. Bk. in. ch. i. excluded, the partner so excluded cannot sue the company to be declared entitled to shares in the company as represent- ing his share in the claim. He must sue his co-partners for having appropriated his property as theirs in the amalga- mation (t) ; and if some of a number of partners form them- selves into a company to register it, excluding some of the partners, the new registered company does not represent the persons originally registered for the claim, and therefore cannot sue for encroachment (u). Remedy of creditors. The registration of a partnership as a corporation will not affect the remedies which creditors possessed as against the partnership before such registration (v) ; and it seems when a company is illegally registered under the Com- panies Act it remains an ordinary mining partnership, and the law of partnership as distinguished from that of mining companies will apply (w). company f r But where three partners, who were lessees from the Crown, floated and registered a company to work leased ground, but after registration of the company failed to transfer the lease, it was held that they were merely trustees and must transfer the lease to the company (x). exclusion from ^ partner, however, who has been excluded from an unregistered company cannot maintain a suit against his co-partners, seeking to be entitled to his share in the ground, unless he holds a miner's right in force at the time the cause of suit arose (y). But such an exclusion will not operate as a dissolution of the partnership as regards the excluded partner, and if several partners refuse to acknow- ledge another as a partner, where no time is specified for the continuance of the partnership, that will not necessarily (t)Parlev. Harp of Erin Amalga- tion* G.M. Co., 14 V.L.R. 584; 10 mated Quartz and Crushing Co. ,3 A.L.T. 29 (1888). W.W. & A'B. (E.) 98 (1866). (x) Randall v. Man, 2 Y.R. (E.) (u) Warrior G.M. Co. v. Cotter, 158; 2 A.J.R. 103 (1871). 3 W.W. & A'B. (M.) 81 (1866). (y) Mackeprang v. Watson, 2 W. (?) Irving v. Minerva G.M. Co., W. & A'B. (L.) 106 (1865) ; Jontx v. 3 W.W. &A'B. (L.) 78 (1866). Abraham, 2 W. & W. (L.) 158 (w) Robertson v. Wealth of Na- (1863). See Act No. 1120, sec. 298. MINING PARTNERSHIPS. 217 dissolve the partnership and exclude the partner whom the Bk.iii.ch.i. others have refused to acknowledge (z). A mining partnership may be dissolved according to the J^S^ 01 law regulating ordinary partnerships, but where an Act (a) provided that every partnership should be dissolved by the death or bankruptcy of any partner, it was held that this did not apply to mining partnerships (6). Where a partner abandoned his share and allowed his Abandonment r of share. rights to lie dormant for nine years after resigning his share he was held to be debarred by his negligence from asserting any right to such share (c) ; though it is otherwise where there is no negligence or carelessness. Thus, in May, 1858, K, a partner with others in a claim, attended a meeting of the partners, and declined to contribute towards sinking a shaft which his partners proposed to sink. He did not pay into the mine, and his partners continued working it. K offered to surrender his share to the other partners if they would give him a release from all liabilities in respect of the partnership, but the other partners declined to do this. Two years afterwards, in 1860, the mine became valuable and K claimed his share ; the other partners resisted on the ground that he had forfeited or abandoned his share. It was held that K had not been guilty of such laches as would reason- ably lead his partners to suppose that he had abandoned his share, and that he was entitled to his interest in the ground (d). A partner, however, who absents himself from the part- Absenting * . . without nership claim, but without the intention of abandonment, abandoning. cannot be deprived of his share by the remaining partners merely obtaining an order for possession from the Warden. One partner cannot jump another partner's share ; a partner (z) Kin Sing v. Won Paw, 1 W. (c) Cohn v. Heine, Sp. Ct. Vic. & W. (L.) 303 (1862). (K), Oct. 31, 1867 ; Argus, Nov. 1, (a] New Zealand Partnership A ct 1867. 1891, sec. 36 ; see Victorian Act 55 (d) Heine v. Klein, Sp. Ct. Vic., Vic. No. 1222, sec. 37 (i). March 21, 1861 ; Argus, March 22, (b) Stewart v. kelson, 15N.Z.L.R. 1861. As to shares in a company, S.C. 637 (1895); see 62 Vic. No. see Bryant v. Saunders, 2 V.L.R. 38 (N.Z.), sec. 249. (E.) 224 (1876). CHAPTER II. WATER RIGHTS AXD PRIVILEGES. Water rights conferred bv Jx m i n i n g parlance the term water-right may be held to include the privilege conferred by the Act No. 1120, Part I, on the holder of a miner's right of cutting, constructing and using races, tail races, dams and reservoirs for gold-mining purposes through and upon any Crown lands, and of taking and diverting water from any spring, lake, pool or stream situate or flowing through or adjoining any Crown lands, and to use such water for mining for gold, or for his domestic use (a). - nt - A water-right is analogous to an easement (6), and is a "gold-mining purpose " within section 5 of the Act No. 1120. " In Victoria, where the subject has often been considered, it has always been held that the making of a race is a ' mining purpose ' within the meaning of the Acts from which all our (New Zealand) Mining Acts are more or less borrowed " (c). (a) Act No. 1120, sees. 5, 64; the L.R, 396 (1892). latter section, relating to licences (c) Per Chapman, J., in Robinson to construct races &c., is extended v. Blunddl, Mac. (N.Z.) 683 (1867); to private land ; Act No. 1514, sec. and see as to water-rights in New 44. Zealand, 62 Vic. No. 38 (N.Z.), (b) Chin Fan v. Davis, 11 N.Z. sees. 91 et seq. WATER RIGHTS AND PRIVILEGES. 221 The means by which water-rights may be acquired arid B&. HI. ch. n. held are defined by the by-laws made under the Act No. How ^quired. 1120, sec. 106 (iv), which by-laws also provide for the events in which such water-rights are liable to become forfeited, relinquished or abandoned (sec. 106 (vii), (ix), (x)), and for their assignment (sec. 106 (xii)). In addition to the water privileges granted by section 5 ^"^ght. of the Act No. 1120 to the holder of a miner's right, the Governor-in-Council may also grant to any person for any term not exceeding fifteen years a licence authorising him to cut, construct and use races, drains, dams and reservoirs through or upon any Crown lands (d} or private land (e), whether such land shall or shall not be held under miner's right or mining lease, and to take or divert water from any spring, lake, pool or stream, in order to supply^water for the purpose of gold-mining, and the right conferred by such licence is deemed a chattel interest (/). The grant of a claim as a dredging claim (g) carries with Dredging claim, it the right to use the water of a river intersecting it for dredging, if it is the only practicable way of working the claim, and does not interfere with private rights. In such a case the Warden can refuse the application of another per- son to take and use the water running in the intersecting river, both on the ground that it is against the legal rights of the holder of the dredging claim, and also on the wider ground of its being against public interest and good admin- istration (h). A right to divert water (i) is not a right to erect a dam Erecting dam. and thereby raise the level of the water in a river (j); but (d) Act No. 1120, sec. 64. seq. (e) Act No. 1514, sec. 44. (g) See 62 Vic. No. 38 (N.Z.), sec. (/) As to grant of water-rights 76 (3) ; and regs., cl. 15, 16. in the other States, see 37 Vic. No. (h) In re Paterson, 16 N.Z.L.R. 13 (N.S.W.), sec. 15 (2) ; 62 Vic. (S.C.) 295 No. 24 (Q.), sec. 15 (2), (3) : 56 & (i) See 62 Vic. No. 38(N.Z.), sec. 57 Vic. No. 587 (S. A.), sec. 33 (1) ; 92. 57 Vic. No. 24 (Tas.), Part IV, sec. (j) Ah Mon v. Bradfield, 1 49, and 63 Vic. No. 39 (Tas.), sec. N.Z.J.R. (N.S.) M.L. 44 (1872); 4 ; 56 Vic. No. 40 (W.A.), sec. 32 ; and see Bortonv. Howe, 3 N.Z.C.A. 62 Vic. No. 38 (N.Z.), sees. 91 et 5; 2 N.Z.J.R. 97(1875). 222 WATER RIGHTS AND PRIVILEGES. Bk. iLLCh^ ii. a mere watercourse (Nelson Goldfield Regulations (N.Z.), cl. 18) is not a river (k\ And the erection of a dam across a running stream by a riparian owner is not lawful if it obstruct for one moment the flow of the entire stream so as to injuriously affect the rights of riparian proprietors below him (I). The right to recover damages for improper inter- ference with a watercourse depends upon the question whether in fact the plaintiff's lawful and reasonable enjoy- ment of the water has been sensibly affected by the act of the defendant, and this is entirely a question of fact for the jury (w). And such right to recover damages is not limited to miners ; a mill-owner on a goldneld was held to have a sufficient title to maintain an action for interference with his riparian rights although he did not hold a miner's right or a business licence (n). Regulations. The licence under section 64 of the Act No. 1120 to cut and construct races, dams, and reservoirs and to divert water for mining purposes is granted under regulations made in pursuance of the Act (o), which regulations define the mean- ing of the words race, drain, dam and reservoir. The con- ditions under which the licence is granted are embodied in the licence, which may be revoked by the Governor-in- Council at any time on payment of compensation. The owner of a licence may recover in a summary way before a justice any money due in respect of water supplied by him. Effect of water- A water-rio~ht licence merely gives to the licensee such right licence. J rights and privileges as are specified therein, viz. a water easement. It gives him permission to take and use water, not exceeding a specified quantity, from certain denned sources of supply, with the right to cut a race for the con- veyance of that water through certain specified lands, and with the right to a reasonable use of the land specified in the licence for the purposes of a water race, and so far as (jfc) Cottello v. O'DoHHtll, 1 N.Z. (n) Gilmour v. Buttl, 1 N.Z.J.R. L.R.C.A. 105 (1882). (N.S.) M.L. 23 (1873). (1) Pring v. Marina, 5 N.S.W. (o) "Regulations relating to licen- S.C.R. (L.) 390 (1866). ces to cut, construct and use races, (m) Dunnv. Collins, 1 S.A.L.R. drains and reservoirs," Oct. 30, 126 (1867). 18i3. WATER RIGHTS AND PRIVILEGES. 223 necessary therefor (p). In New Zealand, also, the rights of Bk. in. ch. n. a grantee of a water-race on the goldtields are analogous to easements, and the extinguishment of such rights in whole or in part are to be determined on the same principles which apply to the extinguishment of easements (q) ; and thus, under a former Queensland Act (r) a leaseholder was held to be entitled to mine under the surface of land occupied and registered as a water-right area (s). The grant of a water-right carries with it the obligation ^ 1 J^ t 'j' n in on the grantee of constructing the race in so skilful and water - race - efficient a manner that no overflow or percolation should escape on his neighbour's land ; where the land subsides it is a question of fact whether the fall is due to the inefficiency of the race or to the too close working of the soil by the owner of the adjacent land (t). At common law T every man may stop and use and appro- Ris?ht to rain priate all rain water, as distinguished from streams, flowing over his land, and may erect dams on his land to retain the water, but he cannot complain of a stranger interrupting the water above him (u). But this stopping and using of rain water would not be considered as a water-right, as would be the case were the water diverted from a stream. The owner of laud bounded by a stream or river is not, as between himself and others lower down the stream, war- ranted in diverting water so as to sensibly dimmish the volume of water in the stream or river (v). And it seems that the holder of a creek claim, with a race Priority of licence over and a creek right in connection therewith, under the by- cree laws (w) would not have priority over a licence granted (p) Allen v. Fund (Court of (u) Stevens v. Webster, 3 W. W. & Mines), 20 A.L.T. 44 (1898). A'B. (M.) 23 (1866) ; see Lyons v. (q) Chin Fan v. Davis, 11 N.Z. Winter, 6 A.L.R. 122(1900). L.R. 396 (1892). (v) Nightingale v. Daly, 3 W.W. (r) Queensland Mining Act, 38 & A'B. (M.) 7 (1866). As to sur- Vic. No. 11. face and storm water, and loss of (s) Hall v. Gorrie, 3 Q.L.J. 113 water in a natural stream by under- (1888) ; see 62 Vic. No. 24(Q.), sec. ground percolation, see McSamara 12. v. Minister for Works, 15 N.S.VV. (t) North Brothers Home Co, v. L.R. (E.) 173(1894). Triangle Co., Hore Dig. (Tas.) 36 (w) Beechworth By-laws, No. (1884). XXIV, cl. 6. 222 WATER RIGHTS AND PRIVILEGES. Bk. in. ch. ii. a mere watercourse (Nelson Goldfield Regulations (N.Z.), cl. 18) is not a river (It). And the erection of a dam across a running stream by a riparian owner is not lawful if it obstruct for one moment the flow of the entire stream so as to injuriously affect the rights of riparian proprietors below him (I). The right to recover damages for improper inter- ference with a watercourse depends upon the question whether in fact the plaintiff's lawful and reasonable enjoy- ment of the water has been sensibly affected by the act of the defendant, and this is entirely a question of fact for the jury (m). And such right to recover damages is not limited to miners ; a mill-owner on a goldfield was held to have a sufficient title to maintain an action for interference with his riparian rights although he did not hold a miner's right or a business licence (n). Regulations. The licence under section 64 of the Act No. 1120 to cut and construct races, dams, and reservoirs and to divert water for mining purposes is granted under regulations made in pursuance of the Act (o), which regulations define the mean- ing of the words race, drain, dam and reservoir. The con- ditions under which the licence is granted are embodied in the licence, which may be revoked by the Governor-in- Council at any time on payment of compensation. The owner of a licence may recover in a summary way before a justice any money due in respect of water supplied by him. Effect of water- A water-ricrht licence merely gives to the licensee such riyht licence. 3 * rights and privileges as are specified therein, viz. a water easement. It gives him permission to take and use water, not exceeding a specified quantity, from certain defined sources of supply, with the right to cut a race for the con- veyance of that water through certain specified lands, and with the right to a reasonable use of the land specified in the licence for the purposes of a water race, and so far as (k) Cottello v. O'Donnell, 1 N.Z. () Gilmourv. Butd, 1 N.Z.J.R. L.R.C.A. 105 (1882). (N.S.) M.L. 23 (1873). (I) Pring v. Marina, 5 N.S.W. (o) "Regulations relating to licen- S.C.R. (L.) 390 (1866). ces to cut, construct and use races, (m) Dunnv. Collins, 1 S.A. L.R. drains and reservoirs," Oct. 30, 126 (1867). 1893. WATER RIGHTS AND PRIVILEGES. 223 necessary therefor (p). In New Zealand, also, the rights of Bk. m. ch. n. a grantee of a water-race on the goldtields are analogous to easements, and the extinguishment of such rights in whole or in part are to be determined on the same principles which apply to the extinguishment of easements (q) ; and thus, under a former Queensland Act (r) a leaseholder was held to be entitled to mine under the surface of land occupied and registered as a water-right area (s). The grant of a water-right carries with it the obligation ^j^^ 1 ?," 1 on the grantee of constructing the race in so skilful and water - race - efficient a manner that no overflow or percolation should escape on his neighbour's land ; where the land subsides it is a question of fact whether the fall is due to the inefiiciency of the race or to the too close working of the soil by the owner of the adjacent land (t). At common law every man may stop and use and appro- Ri^ht to rain priate all rain water, as distinguished from streams, flowing over his land, and may erect dams on his land to retain the water, but he cannot complain of a stranger interrupting the water above him (u). But this stopping and using of rain water would not be considered as a water-right, as would be the case were the water diverted from a stream. The owner of land bounded by a stream or river is not, as between himself and others lower down the stream, war- ranted in diverting water so as to sensibly diminish the volume of water in the stream or river (v). And it seems that the holder of a creek claim, with a race Priority of licence over and a creek right in connection therewith, under the by- creek ri&ht - laws (w) would not have priority over a licence granted (p) Allen v. Fund (Court of (u) Stevens v. Webster, 3 W. W. & Mines), 20 A.L.T. 44 (1898). A'B. (M.) 23 (1866) ; see Lyons v. (q) Chin Fan \. Davis, 11 N.Z. Winter, 6 A.L.R. 122(1900). L.R. 396 (1892). (v) Nightingale v. Daly, 3 W.W. (r) Queensland Mining Act, 38 & A'B. (M.) 7 (1866). As to sur- Vic. No. 11. face and storm water, and loss of (9) Hall v. Gorrie, 3 Q.L.J. 113 water in a natural stream by under- (1888) ; see 62 Vic. No. 24 (Q.), sec. ground percolation, see McXamara 12. v. ^f mister for Works, 15 N.S.W. (t) North Brothers Home Co, v. L.R. (E.) 173(1894). Triangle Co., Hore Dig. (Tas.) 36 (w) Beechworth By-laws, No. (1884). XXIV, cl. 6. 224 WATER RIGHTS AND PRIVILEGES. Bk. in. ch ii. under the Act 25 Vic. No. 148, sec. 11 (x), and would not be entitled to deprive the holder of such licence of any portion Insufficient . J f supply of water. o f the quantity of the water specified in such licence when the natural supply is insufficient for both ; though quaere whether a licensee can stop the water of a stream to the extent prescribed in his licence as against a person having a legal right to water in the part of the stream through which its water is diverted (y). So, in New Zealand, in the event of application by two parties for a licence to draw water for mining purposes from a creek, and in the event of there not being sufficient water to satisfy both parties, the first occupier has the superior right (z). injury by It is incumbent on persons using a stream so to use it as owner cf water- ri-ht. no t to injure others. Thus, in an action for throwing sludge on plaintiff's land, whereby it was injured, defen- dants pleaded that as holders of miners' rights mining on Crown lands they used a stream flowing through those lands, which afterwards flowed through plaintiffs land, for washing auriferous earth and for their mining operations, and as an outlet for the water so used, in consequence of which the stream was discoloured, which was the grievance complained of ; but it was held on demurrer that the plea was bad (a), as it was incumbent on the defendants to do the acts complained of in such manner as not to injure the plaintiff. But a riparian owner has a right to the ordinary use of water flowing past his land, and may make a sluice, so long as he does not pollute the stream or interfere with the rights of other riparian owners either above or below him (6). The holder of a miner's right is entitled to occupy Crown lands for a dam for domestic purposes, though not actually (x) This section is re-enacted in (b) Derry T. M. Co. \. Garibaldi the Act No. 1120, sec. 64. T.M. Co., Hore Dig. (Tas.), 36 (y) Nif/htinc/ale v. Daly, 3 W.W. (1889). As to the right of claim- & A'B. (M.) 7 (1866). holders for compensation for dam- (z) St. Balkan's Channel Co, v. age by the construction of a tail- Watson, 5 N.Z.L.R. S.C. 184 (1886). race passing through the boundaries (a) Campbell v. A h Cheong, 1 of their race, see Bohningv. Carroll, V.R. (L.) 25 ; 1 A.J.R. 35 ; N.C. 1 N.Z.J.R. (N.S.) M.L. 47 (1874). 68 (1875). Dam for domestic purposes WATER RIGHTS AND PRIVILEGES. 225 engaged in mining ; no distinction can be drawn between Bk. in. ch. n. being the holder of a miner's right and being actually engaged in mining (c); and the holder of a water-race under the by-laws, who has complied with the by-laws, and who is the holder of a miner's right and resides on a goldfield, is entitled under the Act No. 1120, Part I, to hold a residence area (d). But the holder of a dam was not entitled under the Act Rfchtto watershed. No. 32 to claim the ownership of a watershed over the area of Crown lands from which the water would naturally flow to his dam, which right he could only get from the Crown by express grant ; the Act only protected him in the owner- ship of the dam itself, and against all direct injuries to it; it enabled him to do on Crown lands what he could on his own, with the same consequential rights (e). Where on a Jurisdiction of complaint for disturbing a water-race the defendant relied on a Crown grant of the land, and complainant on his miner's right, it was held that a bond fide question of title was involved which ousted the jurisdiction of the justices (/). In New Zealand the owner and occupier of land situated in New Zealand. a mining district may sue in the Supreme Court for damage to riparian rights ; the jurisdiction of the Warden is not exclusive (g). The Court of Mines and the Warden have jurisdiction (7i) Jurisdiction of to hear and determine a complaint by the holder of a water- and f warden, right licence for trespass, or unlawful interference with or injury to his right, whether wilful or by negligence, and for diversion or abstraction of water from his source of supply (i); (c) McLean v. Wearn, 1 A.J. R. Warden and assessors on a proceed- 152 (1870). ing as to right to divert water &c., (d) Campbell v. Mclntyre, Ch. see sec. 238. Ct. of Mines, Sept. 2, 1869 ; Aryu*, (i\ Trahair v. Rocky Mountains Sept, 3, 1869 ; and see pott, Ch. Sluicing Co., 11 V.L.R. 281 (1885) ; IV, Sec. II, " RESIDENCE AREAS." Doane v. Fairbairne (Argus, Sept. (e) Stevens v. Wtbst&r, 3 W. W. & 11, 1865) distinguished, 'in which A'B. (M.) 23 (1866) ; compare Act case it was held that under the Act No. 1120, sees. 5, 64. No. 32, sec. 70 the Warden had not (/) Reg. v. Webxter, 1 V.R. (L.) jurisdiction to restrain a diversion 82; J A.J.R. 78(1870). of water with rights under the (ft) Dunn v. Frost, 18 N.Z.L.R. subsequent Act 25 Vic. No. 148; (S.C.) 182 (1899). see Act No. 1120, sec. 64, which re- (h) Act No. 1120, sees. 135 (iii), enacts section 11 of the above Act. (vi), (x), 216. As to duty of 15 226 WATER RIGHTS AND PRIVILEGES. Bk. HLCh^ ii. but in a complaint for interfering with and trespassing on a right to use and divert water for mining purposes, by ab- stracting and diverting the same, the Warden cannot go into the question of prospective injury to the complainant's rights from the defendant's acts, or injury to any right which the complainant might have to the surface of the land, or o! trespass to the land occupied by complainant's race (j ). The Warden has jurisdiction to decree forfeiture of a water- right (k), and an original licence obtained by misrepresenta- tion may be cancelled by the Warden (I) although it has been several times renewed (in) ; and the holder of a miner's right (71) is entitled to institute proceedings before the Warden for the recovery of water-rights alleged to have been forfeited (o). Neglect or delay in constructing a water- race does not entail forfeiture, so long as the water-right is used for mining purposes (p) ; but work done for other than mining purposes will not count as work done in connection with water-rights so as to avoid a forfeiture (q). Assignment of licence. A licensee under section 64 of the Act No. 1120 may assign his licence, and by the regulations (?) it is provided that any person to whom a licence is issued may transfer it, provided he shall give notice of such transfer to the Minister of Mines. An application for the consent of the Minister is not a condition precedent to the transfer, as the regulations only require notice to be given to him after the transfer is complete and accepted (s). An equitable mortgage of a water-right (t) may be created without registration of any lien or transfer (u) ; and the holder of a water-right may also surrender or renew his licence (v). (j) Hyndman\. Micke,8 V.L.R. (M.) 39; 4A.L.T. 84(1882). (k) Act No. 1120, sec. 216. (I) Under New Zealand Act 30 Vic. No. 32. (m) Reg. v. Keddell, 1 N.Z.L.R. S.C. 185(1885). (n) Under the Gippsland By-laws. (o) Coates v. South Loch Fyne G.Af. Co. (1), 25 V.L.R. 51 ; 21 A.L.T. 223; 5 A.L.R. 276 (1899). (p) Fraterv. Howe, 1 N.Z.J.R. (N.S.) M.L. 30 (1873). (q) Darin \\ Robertson, 1 N.Z.J.R. (N.S.) M.L. 36(1873). (r) Regulations relating to licen- ces to cut races &c., supra. (s) Haw Baw Sluicing Co. v. Nicholls, 9 V.L.R. (L.) 208 ; 5 A.L.T. 73(1883). (t) 59 Vic. No. 40 (W.A.), sec. 13. (u) Hargan v. Western Austral- ian Batk,'l W. A.L.R. 107 (1899). (r) Act No. 1514, sec. 45. WATER RIGHTS AND PRIVILEGES. 227 A water-race which runs through private land (in New Sk. in. ch. n. Zealand) when abandoned merges in the freehold, dis- ^[ e r j^ d on charged from all rights of user for mining purposes, and any person desiring to use it as a water-race must take the same steps to acquire it as if he were about to cut a new race (w). The law relating to abandonment and forfeiture of claims Law j s to and wrongful interference therewith (x) applies to water- rights in Victoria (y). The Crown may also grant to any person not being an Leases of^ elective body corporate (z), subject to the provisions of the Act and to the regulations, a lease of any water reservoir constructed at the expense of the public (a), and may also grant such lease to an elective body corporate on such terms and for such rent and subject to such covenants and con- ditions as the Governor-in-Council may specially deter- mine (6) ; and on the granting of such lease any sum of money due in respect of water supplied from such reservoir may be recovered in a summary way before a justice (c). (w) Req.v. Keddell, 1 N.Z.L.R. (a) Act No. 1120, Parti (6), sees. S.C. (1882). 59-62. (a;) Ante Bk. I, Ch. IV, V. (6) See " Order in Council regu- (y) Act No. 1120, sen. 135 (i). lating the granting of leases of (z) See Act No. 1120, sec. 50, as public water reservoirs," Oct. 29, to meaning of "elective body cor- 1866. porate." (c) Act No. 1120, sec. 60. CHAPTER III. DUTIES AND OBLIGATIONS OF MINE-OWNERS. SEC. I. REGULATION AND INSPECTION | SEC. III. ML-MCIPAL ASSESSMENTS, OF MIXES. j SEC. IV. NUISANCKS. SEC. II. DKAIXAGE OF MINKS. SECTION 1. REGULATION AND INSPECTION OF MINES. Bk.iii.ch.ni. BY the Act No. 1514 (a) general rules are promulgated for the management of mines and mining works (6), and any Rules for . management of m i ne manager or any person in charge of the works and operations who contravenes or fails to comply with such rules is guilty of an offence against the Act, unless he prove that he had taken all reasonable means to prevent such contravention or non-compliance (c) ; and merely reporting want of appliances to the directors of a company was held not to be taking such reasonable means for prevention (d). Where under Act No. 1120, section 357 (1), a general rule required that an adequate amount of ventilation should be (a) 61 Vic. No. 1514, Part III, No. 13 (N.S.W.), July 16, 1889; Div. 1. 57 Vic. No. 24 (Tas.), Part VI, sec. (b) Rules cf a similar nature are 88 ; 62 Vic. No. 38 (N.Z.), Part V, in force in the other States. See sec. 183. 56 & 57 Vic. No. 587 (S.A.), Part (c) Act No. 1514, sec. 136. IV; 59 Vic. No. 40 (W.A.) ; 62 (d) Stewart v. Berryman, 9 V. Vic. No. 24 (Q.), Part XIII, Div. 1, L.R. (L.) 116 ; 5 A.L.T. 19 (1883). sec. 193; Regulations under 37 Vic. REGULATION AND INSPECTION OF MINES. 229 produced in every mine, it was held to be a question for the Bk - I1 ^ c ch l ' 111 ' jury to decide whether a mine-owner had taken all steps reasonably practicable to produce an adequate amount of ventilation (e). The owner of a mine includes an incorporated company J^M-OWM?! (/), and in case of an unincorporated company the person having the management of the mining operations ((/). Under a repealed Act (A) a mine-owner was held liable Manager or person in charge for contravention even though the miner injured may have of works - been negligent, unless the non-compliance with the pro- visions of the Act were attributable entirely to the miner ; where the accident was not caused by non-observance of the provisions of the Act the common law was held to apply, except that the owner was by the Act expressly made answerable for the acts of a fellow-servant of the injured miner, and contributory negligence on the part of such miner was held to be a good defence (i). What is a mine is defined by the Act (j)\ a mine includes a level wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral (k). The doctrine that a master is not responsible to one servant for injuries resulting from the negligence of another servant has been abrogated as regards mining accidents, and an action under the Act No. 480 (now repealed) was held to be sufficiently sustained by proof of the happening of the accident unless the defendant could show how it happened, and that it was the result of some vis major for which no one was to blame, or that it was the result solely (e) Cowie v. Berry Contois Ex- G.M. Co., 4 V.L.R. (L.) 83 (1878) ; tended G.M. Co., 24 V.L.R. 319 ; 4 compare Act No. 1514, sec. 148. A.L.R. 259 (1898). See Act No. (j) Act No. 1514, sec. 128. 1514, sec. 135 (1). (k) Cowie v. Berry Consols Exten- (f) Act No. 1514, sec. 128. ded G.M. Co., 24 V.L.R. 319; 4 (g) Curthoys v. Kilbride, 2 V.L.R. A.L.R. 259 (1898). As to meaning (L. ) 265 (1876). See Act No. 1514, of " mine " under the Police Offence-s sec. 136. Act 1890 (54 Vic. No. 1126, sec. 41 (h) 37 Vic. No. 480 ; see Act No. (xi)), see Uren v. Konetcame, 15 1514, sec. 148 (1). A.L.T. 36 (1894). (i) Laurenson v. Count Bismarck 230 DUTIES AND OBLIGATIONS OF MINE-OWNERS. Bk.iii.ch.iii. of the injured miner's neglect of the provisions of the Act(). The burden of proof that a workman has been selected with due care lies on the party asserting the fact, but if in the opinion of the jury there was evidence mat such workman was competent, that itself would be some evidence that he had been duly selected (in). Definition of Under section 2 of the before-mentioned Act No. 480 a drive which had been worked out and left unused was not deemed to be a drive or part of a mine (n) ; but in the existing Act special words are inserted to include a worked out or unused part of a mine (o). Protection to By sub-section viii of section 5 of the Act No. 4SO, which drives and excavations. j s re-enacted in section 135 (11) of the Act No. 1514, a drive or any excavation in connection with the working of a mine must be securely protected and made safe for persons employed therein, and this is not confined to injuries occurring in the drive or excavation which is not securely protected, but to persons working in the mine (p) ; and a Platform. platform (q) was held to mean something attached to the ladder or side of the shaft (r). contributory Where a miner was injured by a piece of timber intended neghgenoe. to keep the lift or pump tube secure in the shaft, which had fallen from its position, and the miner admitted that he had known of its being loose for nine months previously, and had not given information of the fact to the manager or anyone else in authority, it was held under the Act No. 583, sec. 12 (s) that the plaintiff had not been guilty of contri- butory negligence in not reporting as dangerous what had existed so long without occasioning injury (t). shaft signals. Providing a means of communication from the top to the (/) Kaye \. Ironstone Hill Lead (o) Act No. 1514, sec. 128. G.M. Co., 2 V.L.R. (L.) 148 (1876). (p} Gibson v. Chalk, 3 V.L.R. Compare Act No. 480, sec. 8 with (L.) 15 (1877). Act No. 1514, sec. 148; and see (q) Act No. 1514, sec. 135(42). Wrongs Act 1890 (54 Vic. No. 1 160). (r) Campbell v. Parker's Extended (m) 0'Dri*collv. North Duke Co., Q.M. Co., 10 V.L.R. (M.) 1 (1884). 17 A.L.T. 64; 1 A.L.R. 94 (1895). (s) Act No. 1514, sec. 152. (?i) Laurention v. Count Bismarck (t) Eureka Extended Co.v. Allen, G.M. Co., 4 V.L.R. (L.) 83 (1878). 9 V.L.R. (L.) 341 (1883). REGULATION AND INSPECTION OF MINES. 231 bottom of a shaft, or signalling by certain knocks with a Blf - II / e - c c ^- I1L hammer upon the centres of the top of the shaft, which was understood by the miners and proved effective (u), was held to be a sufficient compliance with the Act (v). The Act No. 1514, sec. 130, requires that miners shall not be employed below ground for more than forty -eight hours under in any week, nor more than eight hours in any day, except in cases of emergency ; but where miners are allowed half an hour for refreshment during their shift, which time is entirely at their own disposal, their employer is not liable to a penalty for keeping them eight hours and a half below ground ; he only emplo3 7 s them for eight hours, and during the half -hour they were not at the order of their employer, who during that time had no control over them (w\ Under a New Zealand Act (x) a tributer was held not to g^, n ed in be a person employed in a mine (y). The words " employed mine - in or about a mine " include the period during which a miner who was working there is lawfully going to and coming from his work at proper times (z). Section 135 (30) of the Act No. 1514 as to persons in section of ; machinery. charge of machinery applies only in the case of machinery in connection with the working of a mine, and does not apply to the mere erection of machinery (a). In proceeding before the Warden to recover compensation Proceedings ... before the for injuries sustained by complainant while working in warden, defendant's mine (6) the summons should allege which pro- vision of the Act has been contravened or not complied with, or it will be bad for vagueness, though it may be amended (c). Proceedings for damages may also be taken in the County Court or the Supreme Court (d). (u) Act No. 1514, sec. 135 (14). No. 1514, sec. 132. (v) Steivartv. Be.n-yman, 9 V. L. K. (z) O'Driscoll v. North Duke Co., (L.) 116 ; 5 A.L.T. 19 (1883). 17 A.L.T. 64 ; 1 A.L.R. 94 (1895). (w) Granger v. St. Mungo G.M. (a) Dunstanv. Stewart, 6 V.L.R. Co., 12 V.L.R. 5; 7 A.L.T. 107 (L.) 175 (1880). (1886). (6) Act No. 1514, sec. 148 (2). (x) 50 Vic. No. 51 (N.Z.), sec. (c) Campbell v. Parker's Extended 217. Q.M. Co., 10 V.L.R. (M.) 1 (1884). (y) Hoskings v. Caledonian G.M. (d) Act No. 1514, sec. 140. Co., 1 N.Z.L.R. 756(1889); see Act 232 DUTIES AND OBLIGATIONS OF MINE-OWNERS. Rk.iii.ch.ui. With the view of enforcing compliance with the pro- ins eetorTof visions of the Act the appointment of inspectors of mines is authorised (e), whose duty it is to inspect any mine or mining machinery for the purpose of ascertaining whether the provisions of the Act are being complied with, and the owner of the mine or machinery is required to render all ardent' facilities for the purpose of such inspection ; and notice of any accident occurring in a mine must be given to the local inspector within twent}<-four hours after the occurrence of the accident, and the portion of the mine where the accident occurred must not be interfered with until it has been inspected (/). Mine manager. Every mine is required to have a mine manager, whose name and address must be registered with the inspector, and a mine in which more than twelve men are employed may not be worked for more than fourteen days without such manager (g). Engine drivers. Engine drivers employed in connection with a mine are required to hold a certificate of competency obtained from a board of examiners for engine drivers (/i), and an unquali- fied person taking charge of machinery is guilty of an offence against the Act (i) ; and any holder of a certificate may be disqualified ( j). The board of examiners may also grant a licence authorising an engineer to inspect boilers, and give certificates as to their condition (k), who when licensed will take the place of an inspector under the general rules in section 135. SECTION II. DRAINAGE OF MINES. Natural Where a number of mines are being woi'ked along the drainage by deepest mine, course of a continuous reef or lode, the mine which contains (e) Act No. 1514, sec. 149. (i) Ibid, sec. 143. (/) Ibid, sec. 153. (./) Ibid, sec. 144. (g) Ibid, sec. 139. (k) Ibid, sec. 145. (h) Ibid, sec. 142. DRAINAGE OF MINES. 233 the deepest workings will naturally receive the drainage waters from other portions of the reef or lode bej^ond the boundaries of such mine ; and it would be manifestly unjust that one mine-owner should be burdened with the expense of draining the adjoining mines without receiving some compensation for so doing. This difficulty was experienced in the earliest times working deep mines, and several Acts were passed from drainage! 8 time to time dealing with the subject. The Quartz Drainage Act (a), regulating the drainage of mines on quartz reefs, proved to be inefficient, for in a case under that Act, where a person obtained a decree before the Warden against a company holding a gold-mining lease from the Crown, for money due as contribution for draining their claim, a rule was made absolute prohibiting further proceedings, but without costs, on the ground that the Act applied only to claims, and that a gold mining lease was not a claim (6). This Act was repealed by The Mining Statute 1865, which ^^ v t ? n< , empowered the mining boards to make by-laws for enforc- drama # e - ing and regulating the drainage of quartz reefs and claims(c), but the numerous complicated by-laws made in pursuance of this Act proved very cumbrous, and the sub-sections xiv and xv of section 71, and all by-laws made under them, were repealed by the present Drainage of Mines Act 1877 (d). Under this Act owners of pumping machinery may Drainage of require contribution from mine-owners whose mines are drained by such machinery, and contribution under the Act may be recovered from the owner of a mine on the same line of reef, although the machinery used for drainage purposes is also used for the general working of the mine (e). (a) 25 Vic. No. 153. and amended by the Act No. 1514, (b) In re Clow, ex parte Hewitt, 2 sec. 157. Analogous Acts are in W. & W. (L.) 160 (1863). force in other States ; 56 & 57 Vic. (c) Act No. 291, sec. 71 (xiv), No. 587 (S. A.), sec. 82 ; 57 Vic. No. (xv). 24 (Tas.), Part VII, sec. 116; 62 (d) 41 Vic. No. 596 ; re-enacted Vic. No. 24 (Q. ), Part XII, sec. 184. in Act No. 1120, Part III, Div. 2, (e) Wheal Terril Q.M. Co. v. 234 DUTIES AND OBLIGATIONS OF MINE-OWNERS. B *' 7 J?e' C //' 7/ ' * n case tlie P art ^ es interested cannot agree as to the pay- proc^edir^Tfor ment f drainage dues, the owner of the machinery may before b the 0n proceed against the mine-owners liable for such payment before the Warden, who may make an order on such mine- owners to pay such sums periodically or otherwise to the owner of such machinery as he shall think just and reason- able, and may in making his order impose on the owner of the machinery such terms as shall seem just for the efficient working thereof (/ ). Either party may require the matter and assessor, to be heard and determined before the Warden and assessors, and the proceedings are to be conducted in conformity with Part I of the Act No. 1120. ronlributkm ' ^ u determining which mine-owners shall be liable to contribute towards the expense of drainage, regard must be had to the total length of reef or lode affected by the drainage operations, and to the benefit derived therefrom by such mine-owners (No. 1120, sec. 381) who are entitled to receive credit for the value of any work they may perform in assisting to drain the reef or lode (sec. 382) ; and no drainage fees are payable during suspension of drainage operations (sec. 380). nonp e aymen f tof ^ u ^ under a by-law in force prior to the passing of The drainage dues. Drainage of Mines Act (g), containing a provision that a claim should not be liable to forfeiture during any period for which drainage dues were being paid, it was held that the claim was not protected from being declared abandoned by the Warden on an application to be put in possession of such claim, on the ground that the owners of it were liable to pay drainage assessment, whether such payment had been made or not ; there should be an actual payment, and not a mere liability to pay (A.). HOW dues The mode by which drainage dues payable are arrived at arrived at. J ^ J is by calculating Irwin, G V.L.R, (M.) 11 ; I A.L.T. cl. 39. 176 (1880). (A) Christian v. Kenworthy,3 W. (/) Act No. 1514, sec. 157. W. & A'B. (M.) 11 (1866). (<)) Sandhurst By-law, No. VI, DRAINAGE OF MINES. 235 (A) The interest on the value of machinery and plant /.///. CTL ///. used for drainage purposes only ; (B) The wear and tear of such machinery and plant ; (c) The cost of oil, grease, and packing ; (D) The proportionate cost of fuel expended, or of horses employed, in drainage operations ; (E) The wages of engine-drivers, or of other persons, in such proportions as such persons may be deemed to be employed in draining a mine ; and (F) Such other expenses as the owner of the machinery can prove have necessarily been incurred in respect of the drainage effected by such machinery (i). Contracts may be made, apart from the Act, between contracts for drainage. mine-owners on one line of reef, for the purpose of draining their mines. And where an owner of machinery covenanted by deed to keep down the water in a mine belonging to an adjoining mine-owner by means of pumping machinery, which the plaintiff was required to keep constantly at work, and he kept his pumps constantly at work during week days, but the machinery was not worked on Sundays, though the water was kept under, this was held to be a sufficient compliance with the contract (j\ The procedure before the Warden is regulated by the procedure. Act (k) and the moneys directed by the Warden's order to be paid become a charge upon the estate of the owner of the mine in respect of which such moneys are directed to be paid (I). SECTION III. MUNICIPAL ASSESSMENTS. Gold mines have always been exempt from pavment of Definition "mine?." municipal rates. The word " mines " is, however, capable of () Act No. 1120, sec. 379. (4) Act No. 1120, sees. 383-385. (j) Stevens v. Craven, 2 V.R. (L.) (/) Ibid, sec. 386. 37; 2 A.J.R. 35(1871). 236 DUTIES AND OBLIGATIONS OF MINE-OWNERS. Bk.in.ch. m. a very wide construction, and many attempts have been made by various municipalities to enforce rates payable, or claimed to be payable, on buildings or appurtenances of mines. Several decisions have, however, been obtained on the question, and the definition of mines within the meaning of the Local Government Act 1890 () is now fairly estab- lished. "The word ' mines ' includes every fair adjunct to the mine, and the adjuncts are not merely machinery for the purpose of moving the earth to the surface, but also machinery necessary for making it into a marketable state. But it includes nothing beyond that, and certainly not machinery used for crushing ore brought from other mines, or other ore belonging to a stranger" (6). buildings And ^ ne wor ^ " uiines " in The Local Government Act also includes any land held or at any future time to be held as a claim under miner's right for mining purposes, or included or to be included in a gold-mining lease, and there- fore if a building be part of a mine, and a necessary adjunct to that mine, it will be exempt from payment of rates, no matter for what purpose or use it may be applied (c). smithies. Smithies are not necessary adjuncts to a mine, and are ratable property (d), but a building enclosing an engine and batteries erected by two companies at the intersection Kn^me house. Q ^heir i easeS; an( j extending on to the ground of both companies, half the stamp heads being set apart for each company, is a necessary adjunct to the leased land of both companies, and is therefore exempted from rates (e). Blacksmith's Where, however, the property rated was described in the shop, othce, and f f J assessment as " engine and battery of twelve heads, with blacksmith's shop, office, and store," it was held that the battery as a necessary adjunct to the mine was, along with (a) 54 Vic. No. 1112, sec. 246. 593 ; 7 A.L.T. 72 (1885). (b) Per StawellC.J., in Davidson (d) Carlisle Co. v. Mayor, etc., of v. Stawell Jtoad Board, 1 W.W. & Sandhurst, 5 A.J.R. 14 (1874). A'B. (L.) 79 (1884). (e) Mayor, etc., of Eaylehawkv. (c) Mayor, etc., of Eaglehawk v. Lady Barkly G.M. Co., supra. Ladij Barkly G.^f. 'Co., 11 V.L.R. MUNICIPAL ASSESSMENTS. 237 the mine, exempted from rates, but that the other property Bic.iii.ck.ui. O0C. ///. as no such necessary adjunct was not exempted, and was liable to be rated (/). If mining property is rated as " works," and not as a when rated J as works. mine, the word " works" must be taken, in the absence of anything to the contrary appearing on the face of the rate, to mean only ratable property. " Describing merely as ' works ' land on which there are mines, is at the most an insufficient description and insufficiency of description in the rate does not form a valid objection to a demand for payment of such rate" (g); and where the whole mine has been rated, in default of an appeal against the assessment, the justices before whom the rate is sought to be enforced cannot reduce it to the amount due on the buildings actually ratable. If the defendant is liable for anything he is liable for all (7i). All machinery on the surface of the land used for pur- what machinery * is exempt. poses strictly subservient to the working of the mine should be regarded as part of the mine within the exemption from rates, and if an engine is not an adjunct to the mine on the land, the land is ratable. But all machinery to be exempted must have the character of being used for the purpose of exti'acting the mineral from the mine or extracting the metal from that mineral ; and land held under miner's crushing for mine and for right, on which was machinery used for the purpose others ; of crushing for the mine and for others not interested in it was held not to be exempted from rates (i) ; nor is land for lessee and held under lease on which is erected machinery used for crushing for the lessees and for strangers (j) ; nor is land for the public. on which is erected a public crushing machine, which is not a mine within the meaning of the Act, but crushing (/) Chines United Co. v. Borough Sandhurst, 5 A.J.R. 14 (1874). of Clunen, 2 W.W. & A'B. (L.) 96 (i) Davidwn v. Staiuell Road (1865). Board, 1 W.W. & A'B. (L.) 79 (g) Per Stawell C.J., in Shire of (1864). Blilla v. Allison, 1 V.R. (L.) 79 (j) Campbell v. Stawe.ll Road (1870). Board, 1 W.W. & A'B. (L.) 79 (h) Carlisle. Co. v. Mayor, etc., of (1864). 238 DUTIES AND OBLIGATIONS OF MINE-OWNERS. 1JI - machinery for the public (k) : nor were mines on private land - SECTION IV. NUISANCES. injury to A person wlio uses or exercises control over anything, or arljoiniii},' claim. J who permits the existence of a nuisance, is bound to adopt such measures as will prevent injury to others ; and miners on Crown lands are not justified in allowing a nuisance to continue which would injure owners of adjoining claims, or owners of private property (a). Flow of siuy the by-laws ; a transfer of a miner's home- stead lease under the Queensland Act (s) could only be effected as prescribed by the Act itself, and a transfer not in the prescribed form did not pass any interest (t). Cannot be taken A residence area is exempt from occupation for mining as a claim. . , . . purposes under a miner's right, and therefore in view of the Act cannot be taken as a claim (u) ; but, as already shown, the land included in a residence area may be applied for and taken under a gold-mining lease, provided the lessee coven- ant to make good any damage caused by subsidence (v). The occupation of land as a residence area gives the holder no title to tailings on the land (w). r of a claim does not by acquiring such claim acquire a right to reside on it, for the right to occupy a claim under a miner's right does not give the right to occupy it for the purpose of residence ; though the right to occupy for mining purposes might be an answer to an attempt to evict the occupant for unauthorised occupation (x). The language of section 5 of the Act No. 1120, and the long recognised practice under the section, forbid the con- tention that the holder of a miner's right can at the same time occupy, by virtue of his miner's right only, for mining purposes and also for residence. He may not be turned out, and may still mine on the land, but he will be liable to a penalty for occupying the land in an unauthorised way by residing on it, and may continue to be punished so long as he continues to do the unauthorised act (?/). occu l nticnf al ^ no ^ er ^ a m i ner ' s right cannot occupy as a residence area part of a claim already in the legal occupation of () 50 Vic. No. 32 (Q.), sec. 21. 138 ; 3 A.L.R. 270(1897). (t) Hut ton. v. Morri*, 8 Q.L.J. (a;) Mr, Lean v. Wearn, 1 A.J.R. (N.C.) 30 (1893); see the present 152(1870); Wakehamv. Cobham, 1 Act 62 Vic. No. 24 (Q.), Part VIII, V.R. (M.) 34 ; 1 A.J.R. 93 (1870) ; sec. 71. J^ e ff- v. Dowling, ex parte McLe.an, (u) Act No. 1120, sees. 43, 47. 2 V.R. (L.) 61 '; 2 A.J.R. 56 (1871). (v) Ibid, sees, 44, 45, 46. (y) Bannerman. v. Sexton, 16 (w) Sydenham Q.M. Co. v. Ah V.L.R. 601 ; 12 A. L.T. 96 (1890). Chtong, '23 V.L.R. 441 ; 19 A.L.T. RESIDENCE AREAS. 255 another person, if the surface so sought to be occupied for sk. in. ch. iv. residence is required for the purposes of the claim ; if the claimholder seeks to eject the holder of a residence area in occupation of part of his claim, he must prove that he requires the use of the surface of the claim in dispute for gold-mining purposes, but it is not necessary to prove that he had actualty used it for those purposes (0). When buildings have been erected on a residence area by R^ht of purchase. the holder, who has remained in possession for two years and a half, he has the right to purchase the land under certain conditions (a) ; and where the residence area is situated on the surface of land comprised in a gold-mining lease, and the surface is not required for mining or public purposes, the holder of a residence area has a similar right of purchase of the surface, at a valuation to be determined by an appraiser appointed by the Board of Land and Works (b). SECTION III. BUSINESS LICENCES. By the interpretation clause of sub. 4, Part I, Div. I, of similar to a J r residence area. the Act No. 1120 (sec. 27) a business licence is included in the term " residence area," so far as that part of the Act is concerned, and land held under such licence is subject to the provisions of the Act relating to residence areas. A business licence must be registered in the same manner as a residence area (c). A business licence is issued under the authority of section issue of licence. 11 of the Act No. 1120, and entitles the holder thereof during its continuance to occupy on any goldn'eld so much Crown lands as the by-laws may prescribe, not exceeding one acre, for the purpose of residence and carrying on business, w T ith the right to put up and remove buildings and (z) Llanberis Q.M. Co. v. Jones, (a) Act No. 1120, sec. 36. Sp. Ct, Vic., Nov. 12, 1890 ; Arrju*, (b) Act No. 1514, sec.' 19. (Legal Notes), Nov. 13, 1390. (c) Act No. 1120, sec. 28. 256 SITES FOR RESIDENCE AND BUSINESS. Bk. m.ch. iv. other erections. The property in the land is a chattel interest, and no person is entitled by virtue of his licence to occupy more than one such portion of land (b). Under a New Zealand Act (c) a business carried on by a mining agent on the goldfields was held not to be a business within the meaning of the Act (d). Dealings. A business licence and the land held by virtue of it may be sold and transferred (e), and may be encumbered (/), and on the death or insolvency of the holder will devolve on his personal representatives, or assignee in insolvency (g) : and generally the same law that applies to residence areas is applicable also to business licences (//). The holder of a NO right to mini-. k us j ness li cence need not hold a miner's right, and conse- quenth' his licence confers on him no right to mine on the land ; it is held simph- for the purpose of residence and carrying on business, and is exempted from occupation under miner's right for mining purposes (i). occupy f ri " IU to Where a person was charged under the Act No. 32, sec. 116, with carrying on business on a goldh'eld without a licence, it was held that the onus lay on the defendant to prove his right to occupy ; it was not for the prosecution to prove that he had not a licence, but for the defendant to prove that he had one ( j). Determination Occupation under a business licence may be determined of occupation. by notice in the Gazette exempting the land from occupa- (6) Act No. 1120, sec. 12. As to 26 (1867). similar licences in the other States, (e) Act No. 1120, sec. 13. compare 56 & 57 Vic. No. 587 (S. A.), (/) Re. Keith, ex parte Joss, 7 sec. 65; 37 Vic. No. 13 (N.S.W.), N.S.W.B.C. 75 (1897). sec, 22; 62 Vic. No. 24 (Q.), sec. (g) Act No. 1120, sec. 13. Under 17 ; 59 Vic. No. 40 (W. A.), sec. 9 : the Mining Act of New South 57 Vic. No. 24 (Tas.), sec. 28 ; 63 Wales it was held that land held Vic. No. 29 (N.Z.), sec. 5. In New under business licence was not Zealand, under the Act 50 Vic. No. subject to the provisions of the 51 (N.Z.), the Warden had power Bankruptcy Act ; Re Keith, ex to grant an occupation licence with- parte Joss, supra. out the consent of the pastoral (h) See ante, Sec. II, " RESIDENCE tenant of the land under the Act 49 AREAS." Vic. No. 59 (N.Z.) ; In re Beattie, (i) Act No. 1120, sec. 4S. 8 N.Z.L.R. 256 (1889) ; see Act 62 (j) McCormack v. Murray, 2 W. Vic. No. 38 (N.Z.), sec. 124. & W. (L.) 122 (1863). A charge of (c) 30 Vic. No. 32 (N.Z.), sec. 5. this nature would not arise under (d) Inspector of Licences v. the Act No. 1120. Enright, I N.Z.L.R. (N.S.) M.L. BUSINESS LICENCES. 257 tion for business purposes (fc), but the holder of a licence is Bk.ni.ch^iv. entitled to a demand of possession before being proceeded against for being in unauthorised occupation of Crown land (1), and he is entitled to compensation (m). A business Revocation of licence under the Mining Act of New South Wales (ri) is, like an ordinary licence, revocable at the will of the grantor, though it cannot be revoked until the expiration of the time for which it has been granted ; and when the land is proclaimed exempted from occupation while the licence is in force, and such licence is afterwards renewed, the rights of the occupier continue notwithstanding the proclamation (o). The Warden has jurisdiction to put a complainant in Jurisdiction of possession of land held under business licence, and may cause the defendant's buildings to be removed (p). But where the Warden dismissed a complaint seeking recovery of possession of a residence area, and on the soil were erected certain buildings and fixtures belonging to the com- plainant, it was held that the Warden had no jurisdiction to deprive the complainant of the buildings and fixtures (q). When any land held bond fide for residence or business when land ^w by the Crown. on which any building or erection has been put up is sold by the Crown the value of the buildings and erections is to be valued under the Act (r), and the holder of the licence is to have the value (s). Registration is essentially necessary to the validity of Registration, title by business licence coupled with residence, and the registration of the licence is effected by endorsement by the mining registrar on the licence of a notification of the fact of such registration, in the same manner as the registration (k) Act No. 1120, sec. 17; No. V.R. (M.) 34; 1 A.J.R. 93) not 1514, sec. 11. followed. (/) Reg. v. Dowlincj, ex parte (p) Act No. 1120, sees. 32, 33; M'Lean, 2 V.R. (L.) 61 ; 2 A.J.R. Act No. 1514, sees. 15, 16. 56 (1871). (q) Summers v. Cooper (3), 7 V. (m) Act No. 1514, sec. 24. L.R. (L.) 443; 3 A.L.T. 61 (1881). (n) 37 Vic. No. 13 (N.S.W.), See Act No. 1514, sec. 16, as to sees. 22, 26. removal of buildings and erections. (o) Wilkinson v. Harris 9 N.S. (r) Act No. 1120, sees. 22, 23, 24. W.L.R. (L.) 70; 4 W.N. 159 (s) Ibid, sec. 25. (1888); Wakeham v. Cobham (1 258 SITES FOR RESIDENCE AND BUSINESS. Iv - of a residence area is endorsed on the miner's right under which it is held (f). Ifc ma y be said that in almost all respects the title under a business licence is on an equal footing with the title under miner's right of a residence area, and is governed by the clauses referring to residence areas in Part I, Div. I, sub. 4 of the Act No. 1120, and Part I, sub. 2 of the Act No. 1514 (u). (t) Act No. 1120, sees. 28, 30. (w) See ante, Sec. II, " RESIDENCE AREAS." BOOK IV. MINING JUDICATURE. CHAPTER I. MINING COURTS OF JUSTICE. THE first Mining Act passed in Victoria (a) authorised the Bk - IV - ch - I - appointment of commissioners of Crown lands, afterwards commissioners known as Goldfields Commissioners, who were empowered to enquire into all cases of trespass and encroachment, and to determine the same in a summary way, in addition to other powers conferred on them, which, however, were restricted to the requirements of the small claims then permitted to be taken up. These matters of encroachment and trespass, and disputes between adjoining claimholders as to boundaries, were invariably settled by the Commis- sioner on the ground in the presence of the parties after personal inspection ; the decision of the Commissioner was (a) 15 Vic. No. 15. 260 MINING COURTS OF JUSTICE. Bk. iv. ch. i. final and conclusive, the "court" being held in a rough and ready fashion on the claim itself. j P usti e ces 0f Tne Judicial powers of the Commissioners were much enlarged and more clearly defined by the next following Goldfields Act (6), and in addition to the powers vested in the Commissioners, two justices were authorised to award damages for encroachment and trespass, and to adjudicate in cases of mining partnerships where the balance did not exceed two hundred pounds. The procedure in these cases was the same as that in an ordinary police court. theTyitem f -^ u ^ as ^ ne mining industry extended, this somewhat perfunctory means of settling disputes between miners was found to be altogether inefficient for the purpose of adminis- tering justice. It sufficed for the cases of single claim- holders, whose claims were mere shallow workings and very limited in area, but when a number of mates banded them- selves together and formed partnerships or companies to work leads and the deeper alluvial strata, it was seen that something more was required for the settlement of disputes than the ipse dixit of a Goldfields Commissioner, from which there was no appeal. Local courts. Accordingly in June, 1855, another Goldfields Act was passed (c), repealing the former Act, and instituting certain tribunals known as local courts, consisting of a chairman appointed by the Governor-in-Council and nine members, each of whom was required to be the holder of a miner's right, and was elected by the general body of miners. These local courts had power to make regulations, known as local court regulations, as to the extent and position of claims, the mode of taking them up, etc., and the local court regulations were the local laws which in many respects answered the purposes of the present by-laws. wardens cf the This Act continued in force until the year 1858, when a goldfields. * further mining Act was passed (d) by which the local courts (b) 17 Vic. No. 4. (d) 21 Vic. No. 32. (c) 18 Vic. No. 37. MINING COURTS OF JUSTICE. 261 were swept away, and in their place Wardens were Bk. iv. ch. i. appointed for the various mining districts established by the Act, with jurisdiction to hear and determine all disputes between miners, as well as suits for encroachment, trespass, forfeiture and abandonment. The Act also erected Courts of Mines for the several mining districts, with an original jurisdiction to adjudicate on mining disputes within their respective districts, and a right of appeal to this court was given from the decision of the Warden, a right of appeal being also established from the Court of Mines to the Supreme Court. In place of the local court regulations By-ia\vs. authority was given for the making of by-laws by an elective body called the mining board to be established for each mining district. In the year 1865 the statute mining law was still further Act NO. 291. amended by The Mining Statute (e), which repealed the Act No. 32, and which continued and greatly enlarged the powers and provisions of the repealed Act. By The Mining Appellate court. Statute 1865 a new court was erected, styled the Court of the Chief Judge of Courts of Mines, which was entirely an appellate court. The Warden or the judge of the Court of Mines was empowered to state a special case for the opinion of the Chief Judge on any point of law, and the Act also established a right of appeal to the Court of the Chief Judge from any decree or order of the Court of Mines, or from the order of any judge thereof. Subsequently, in the year 1872, ari amending Act was Act NO. 446. passed (/), principally regulating the machinery of appeals from the Warden and from the Court of Mines, and providing for other necessary amendments of the Act No. 291, including authority to either party to a suit before the Warden, or upon the hearing or re-hearing of any appeal from the Warden, to apply to the judge or the Warden to state a special case for the opinion of the Chief Judge. (e) 29 Vic. No. 291. (/} 36 Vic. No. 446. 2 MINING COURTS OF JUSTICE. . ir. ch. i. The Court of the Chief Judge of Courts of Mines was, court of the however, abolished by The Judicature Act 1883 (g), and the jurisdiction theretofore vested in that court was transferred to the Supreme Court, except as to business pending at the time the Act came into operation (July 1, 3884). The right of appeal from the Court of Mines, and of stating a case by the judge of that court or by the Warden, given by the Acts No. 291 and No. 446, exists under the present law, except that such appeal is now made to the Full Court (h), and such special case is now stated for the opinion of the Supreme Court instead of for that of the Chief Judge (i). consolidation. These Acts with others relating to residence areas, drain- age of mines, regulation of mines, and mining on private land, have been consolidated in the present Mines Act 1890 (No. 1120), which has been amended, chiefly with respect to the law of mining 011 private land and the regulation of mines, by the Mines Act 1897 (No. 1514). Division of the Part I of the Mines Act 1890 comprises two divisions, Mines Act 1S90. viz. (1) Mining Management, and (2) Courts and Procedure, the former dealing with mining interests in Crown lands under miners' rights and gold-mining leases, and the latter with mining judicature, which will be considered in the following chapters (j). Part II of the Act, " Mining on Private Property," and Part III, Division I, " Regulation and Inspection of Mines and Mining Machinery," have been repealed by the Act No. 1514. Appeal in the j n none of the other States is a Court of Mines estab- other States. lished identical with that erected under the Victorian Act, although each State is provided with machinery for appeal from the decision of the Warden. In all of them, except in (g) 47 Vic. No. 761, sees. 4, 5, 6, (No. 1120 and No. 1514) are com- 7. prised in the Appendix, post, with (h) Act No. 1120, sec. 210. comparative references to analogous () Ibid, sees. 209, 265. sections in the Acts of the other (j) The Mining Acts of Victoria States. MINING COURTS OF JUSTICE. 263 Tasmania, the Warden holds a " court," as distinguished Bk. iv. ch. i. from the Victorian procedure, under which all proceedings are taken " before a Warden of the Goldfields." In New N. s. Wales. South Wales the jurisdiction and practice of the Warden's Court are almost identical with the jurisdiction of the Warden and practice before him under the Act No. 1120 (&), and a right of appeal from his decision is authorised to the District Court sitting as a Court of Appeal in its mining jurisdiction (I), with a further right of appeal from such Court to the Supreme Court ; the Warden in this State may also summon assessors to adjudicate with him (m). In New New Zealand. Zealand the powers and procedure are somewhat similar (n), while in Western Australia the appeal from the Warden is ^g* r e ^" a direct to the Supreme Court in banco (o). The right of appeal given by the Mining Act of Queensland (p) is similar Queensland. to the procedure in New South Wales. In South Australia south Australia, the appeal from the Warden is to the Local Court of Full Jurisdiction (q); and in Tasmania, where the old title of Tasmania- Commissioner of the Goldfields is retained in lieu of the title of Warden, the appeal is to the Supreme Court (r). (k) 37 Vic. No. 13 (N.S.W.), sec. 86 ; 62 Vic. No. 16 (W.A.), sec. 22. 67, et sea. (p) 62 Vic. No. 24 (Q.), Part IX, (I) Ibid, sec. 106. Div. VI, VII. (m) Ibid, sec. 115. (q) 56 & 57 Vic. No. 587 (S.A.), (n) 62 Vic. No. 28 (N.Z.), sec. sec. 25. 281, et seq. (r) 57 Vic. No. 24 (Tas.), sec. 161. (o) 59 Vic. No. 40 (W.A.), sec. CHAPTER II. WARDENS OF THE GOLDFIELDS. SEC. I. THE OFFICE OF WARDEN. SEC. II. JURISDICTION OF THE WAR- DEN. SEC. III. PROCEDURE AND PRACTICE BEFORE THE WARDEN. (a) Summons. (b) Parties. (c) Service of Summons. (d) Amendment. (e) Hearing. (/) Decision and order of the Warden. (g) Enforcing decision. (h) Costs. SEC. IV. THE WARDEN AND ASSES- SORS. SEC. V. SPECIAL POWERS OF THE WARDEN. Appointment of Wardens. SECTION I. -THE OFFICE OF WARDEN. . iv. ch. n. WARDENS of the goldfields, colloquially designated Wardens, are appointed in the same manner as justices of the peace, and within the limits of the district for which they are appointed have and exercise the jurisdiction conferred on them by the Act (a). The appointment is not to be ques- tioned ; the presumption is that a Warden exercising his official duties in a district has been properly appointed (b). Present Wardens The jurisdiction of the Warden will be considered in the next following section. At the present time the police (a) Act No. 1120, sec. 215. (b) Mathers v. Ettery, 1 Q.L.J. 129 (18S3). THE OFFICE OF WARDEN. 265 magistrates occupy the position of Wardens in their respec- Bk - * ch. n. tive districts, and the office of Warden is not now, as formerly, a separate appointment. The offices, though dis- tinct, are analogous; and there is no sound distinction between the offices of police magistrates and wardens as to reviewing decisions, or giving notice of an application for certiorari (c). The Warden's tribunal is not strictly speaking a court, The warden's J v ' tribunal. and the Act No. 1120 does not anywhere apply the term " court " to the place and manner of a Warden's judicial acts (d), although the expression " Warden's Court " w r as used in the Act No. 446. Though it is usually spoken of as the Warden's Court, complaints should be made as before a Warden of the goldfields, and not as in the Warden's Court. Though the present practice is for the sake of convenience "here held, to make process returnable before the Warden at some build- ing occupied and used as a Court house, and though the tribunal is almost invariably spoken of as the Warden's Court, there is nothing in the Mines Acts to infer that there is any authority for so doing. In Queensland, where the Warden holds a Court, a Warden when located has all the powers of a Warden without the necessity of a Wai-den's Court being proclaimed in the district (e). The early prac- tice of the Warden visiting the claim subject of dispute, hearing evidence and deciding the matter on the spot, is still countenanced theoretically by the Victorian Act, and the Warden can adjudicate anywhere within his district. The Warden is required to have an office, but this is warden's office, chiefly for the convenience of suitors, and for the purposes of the leasing regulations ; the Warden's office named in the regulations being the place where he issues his summonses and orders, and not the Court or place where he sits and acts as judge (/). (c) Reg. v. Carr, 6 W.W. & A ! B. (e) Mathers v. Ellery, 1 Q.L.J. (L.) 240 ; N.C. 59 (1869). 129 (1883). (d) In re Clerk, 2 V.R. (M.) 11 ; (/) Constable v. Pigtail Q.M. Co., 2 A.J.R. 48 (1871). 3 V.L.R. (M.) 7 (1872). WARDENS OF THE ftOLDFIELDS. Bk. IV. Ch. JI. Sec. 1. Duties of Warden. In its general policy the jurisdiction given to the Warden by section 135 of the Act No. 1120, seems to provide for the decision of all disputes between mining people (g), and the range of the Warden's jurisdiction is of even greater extent than that of the original jurisdiction of the Court of Mines, which, however, still retains an inherent right to hear appeals from the decision of the Warden, or of the Warden and assessors, on any subject. The Warden's Court, to employ the popular phrase, is intended to be a court of quick action between parties often unrepresented by counsel or attorney (/<.), and as such may be placed on an equal footing with courts of petty sessions. But though his jurisdiction is restricted, the Warden is often required to deal with cases involving rights to property of large value, and to give decisions which bind those rights (i), so that though his tribunal is in a measure on a level with a court of petty sessions, his jurisdiction is relatively far more extended, and embraces far more subtle questions than that of the justices. Subject to the rules of procedure he controls the practice of his court, and the Supreme Court will not interfere with the Warden in such practice ; if he violates a rule of practice it may be a fair ground for a rehearing, but prohibition will not lie (j). The duty of a Warden may be regarded as judicial rather than ministerial, but section 203 of the Act No. 1120, authorising the Court of Mines to compel officers to perform the duties of their office, classes a Warden with other officers in such a way as to show that that section applies only to the enforcing of his ministerial acts (&). The Supreme Court will compel the Warden to act if he refuses to perform his duty, and where his duty is judicial and not merely ministerial, a writ of mandamus is the (.7) Trahair v. Rocky Mountains Extended Sluicing Go., 11 V.L.R. 281 (1885). (h) Constable v. Smith, 6 W.W. & A'B. (M.) 58 ; N.C. 70 (1869). () Mulcahy v. Walhalla Co., 5 W.VY. & A'B. (E.) 103 (1868). (?) Ex parte Moor, 1 W.N. (N. S.W.) 136(1891). (k) Req. v. Strutt,ex parte Lawlor, 3 V.L.R. (L.) 2 (1877); under Act No. 291, sec. 166. THE OFFICE OF WARDEN. 267 proper remedy (I). But it is not the duty of the Warden in st. iv^ch. n. Queensland (m) acting ministerially to register a claim for a greater area than that allowed by the regulations, and if acting judicially, it would be his duty to refuse to register such claim at all (n). The issue of a writ of execution or warrant of distress is a judicial act, and an action for damages will not lie against the Warden for refusing to issue such writ or warrant (o). And where a Warden simply obeys an order of a superior officer, mandamus will not be granted against him, on the principle that an inferior ministerial officer will not be compelled to obey a power which he is unable to resist (p). But mandamus will lie to compel the Warden to perform his duties (q) as to receiving, recording and reporting on applications for leases (7;); and mandamus was also granted to compel the Warden to inspect a register of leases, which he had refused to do(s); though mandamus was refused where the Warden declined to put parties in possession of a claim under a decree of the Court of Mines, in which decree there was an error of description, as an application might be made to the judge of the Court of Mines to rectify the error ; for if the Warden feels a difficulty on a question of fact, which can be set right by a party himself, he is not to be harassed by a mandamus, which does nothing to solve that difficulty ; a party cannot correct his own error at the Warden's expense (t). SECTION II. JURISDICTION OF THE WARDEN. r nrr>Pn Gei isdiction. In addition to the jurisdiction conferred on the Warden j; e r neral with respect to the several matters mentioned in section 135 (I) Ibid. So under Act No. 1120, ported (1867). sec. 267. (q) 38 Vi'c. No. 1 1 (Q. ). (m) Under 38 Vic. No. 11 (Q.), (r) Ex parte Mills, in re. Mills, 1 Reg. 54 Q.L.J. 1 (1881) ; see 62 Vic. No. 24 (n) Reg. v. Cribb, 2 Q.L.J. 157 (Q.). (1886). (v) Forwood v. Sellheim, Brisbane (o) Lynch v. Wood, Mac. (N.Z.) Week (Q.), Sept. 9, 1882. 179 (1868) ; see Inch \. Sfllhehn, (t) He Corjdon, ex parte M'Der- Brisbane Wetk (Q.), Nov. 18, 1882. mott, 2 W. & W. (L.) 139 (1863). (p) Davenport's cane (Q.), unre- 268 WARDENS OF THE GOLDFIELDS. Bk. iv. c/i. 11. of the Act No. 1120 (a), he has a further jurisdiction under Sec. II. section 216, as well as certain special powers and duties under the Act (6) ; and an additional jurisdiction is given to him under the Land Act (c), and under Part II of the Mines Act 1897 (d) as regards gold-mining on private land and assessment of compensation payable to freeholders and others for land taken for mining purposes (e). But where the subject matter in dispute is not an interest in land, his jurisdiction is limited to entertaining complaints between parties who reside within the district in which he is sitting (/). Reviewing The right of appeal from the decision of the Warden will decision by Supreme Court. J-JQ discussed in a subsequent Chapter. But with regard to reviewing decisions, or application for certiorari, the Supreme Court will interfere in a mining case, notwith- standing section 296 of Act No. 1120, where the Warden has acted without jurisdiction (g), though it will not do so where he has jurisdiction (A,), and the jurisdiction of the Warden will only be questioned after he has adjudicated (I). Thus, where the Warden dismissed a case on a state- ment that it was res judicata, which statement was un- true, it was held that he had already exercised his jurisdic- tion, and 'mandamus was refused to compel him to hear the case (j). The defence of res judicata may be good if raised by a new defendant claiming through one of the former de- fendants, though ordinarily it would be good only between persons who were parties to the former proceedings, and a (a) As to jurisdiction of the War- (/) Morrison v. Teague, 17 A.L.T. den in the other States, see 56 and 87; 1 A.L.R. 74(1895); General 57 Vic. No. 587 (S.A.), sees. 17, Rules for proceedings before War- 18 ; 57 Vic. No. 24 (Tas.), sec. 147 ; dens, Feb. 12, 1891, No. 1. 59 Vic. No. 40 (W.A.), sec. 52; (.7) Reg. v.Clow, ex parte Oliver, 37 Vic. No. 13(N.S.W.),sec. 69; 62 5 W.W. & A'B. (L.) 89 (1868). Vic. No. 24 (Q.), sec. 104; 62 Vic. (h) Keg. v. Sherard, Sp. Ct. Vic. No. 38 (N.Z.), sec. 254. Dec. 9, 1867 ; Argus, Dec. 10, 1867. (&) Act No. 1120, Part I, Div. 2. (i) Reg. v. Warden at Donnelly'* Sub. 2 (6). Creek, 3 A.J.R. 38 (1872). (c) 54 Vic. No. 1106. (j) Reg. v. Akehurst (3), Sp. Ct. (d) Act No. 1514. Vic. Dec. 7. 1868 ; and see Harney (e) See ante, Bk. II, Ch. IV, v. Minister of Mine*, 1 W. A.L.R. " GOLD MINING ON PRIVATE LAND." 146 (1899). JURISDICTION OF THE WARDEN. 269 defendant who is entitled and desires to avail himself of BK-. ir. ch. n. Sec. II. such a defence must prove that the matter in issue on the second summons was determined on the hearing of the first summons ; and such a plea cannot be heard and disposed of by the Warden until the complainant has called evi- dence (k). The jurisdiction conferred on the Warden (1) to hear and Jurisdiction not determine an action for money due on the sale of a residence area is not exclusive, and does not oust the juris- diction of a small debts court to hear a complaint for the balance of money due (771); and the Warden is not deprived of jurisdiction to hear a complaint for balance of money due under a contract because the claim is described as one for improper detention of money due (n). It seems that the jurisdiction of the Warden to deal with Question of cases of injury to lands (o) where questions of title are involved is limited to lands held under the Mining Acts (p). An objection to the jurisdiction of the Warden may be 9 b J e( * 10 ? to jurisdiction. made at any time before evidence is taken ; it is not too late when raised after assessors have been sworn (q). The Warden has jurisdiction in all cases of disputed Disputed ownership of claims (r) ; and also in cases arising between the Government and persons claiming under miner's right as regards suits for trespass against officials acting unlaw- fully on behalf of the Crown, though not against the Queen herself (s) ; and he had jurisdiction under section 77 of the (k) Sawtell v. Gay, 20 V.L.R. sec. 216. 559 ; 16 A.L.T. 48 (1894). (n) dickers v. Tallandoon G. M. (I) 38 Vic. No. 11 (Q.). Co., 23 V.L.R. 206 ; 3 A.L.R. 178 ; (m) Lee Gow v. Williaim, 6 Q.L. 19 A.L.T. 78 (1897). J. 232 (1895). And section 65 of (o) Under the Goldfields Act of the Act 37 Vic. No. 13 of New South New Zealand. Wales, which gives the Warden's (p) McMillan v. Great Extended Court jurisdiction to hear and de- Sluicing Co., 4 N.Z.L.R.S.C. 377 termine actions for trespass, does (1886). not take away the jurisdiction of (q) O'Reilly v. Bright District and the Supreme Court to entertain Smoko G. M. Co., 25 V.L.R. 440; actions for trespass in respect of 5 A.L.R. 321 (1899). land held under the Mining Act; (r) Lonf/bottom v. White, 3W.W. see regs. 123, 124, 126; Lindsay & A'B. (M.) 35 (1866). v. Hamen, (2) 20 N.S.W.L.R. (L.) (*) Wakeham v. Cobham, 1 V.R. 43 (1899) ; compare Act No. 1120, (M) 34; 1 A.J.R. 93 (1870). 270 WARDENS OF THE GOLDFIELDS. Bk. iv. ch. ii. Act No. 32 to hear and determine a complaint by a partner claiming an undivided share in a claim, and to put him in Partnership. possession, and to decide the question of partnership (). Trespass to The Warden has also jurisdiction to hear a suit for tres- surface. J pass by entering on the surface of land in possession of the complainant as a claim, or under gold-mining lease, and erecting a fence thereon (u) ; section 65 of the Act No. 1120 application for also extends the jurisdiction to cases where a lease is being applied for, but has not at the time been granted ; as also to cases of trespass on a lease after it has been granted. Sec- tion 135 (i) of the Act No. 1120 includes all disputes as to Crown land held as a claim or a mining lease ; sub-division iii extends to all suits for encroachment and trespass upon such land of which any person shall claim to be in posses- sion for mining purposes, and concerning any unlawful interference therewith or injury thereto, causing damage thereto, and whereby mining shall have been hindered or delayed. The word " and " before " whereby " should be construed " or," so that damage to the land or hindering of mining will be enough ; otherwise knocking down a miner's residence on his claim or lease w r ould not be cognisable. Section 65 seems to indicate that all entries upon and inter- ference with leased land after application and before lease shall be cognisable, and it would be inconsistent if such injuries after the lease is granted should not also be Residence area, cognisable (v). He has jurisdiction to adjudge the forfeiture of a residence area for non-payment of a lien, if proceedings are brought under both sections 135 (iii) and 216 of the Act Excess area. No. 1120 (iv) \ and forfeiture of an excess area (x) held under miner's right (y) ; and the Warden, being also a jus- infraction of J by-law. tice of the peace, is the proper person to entertain a complaint under section 289 of the Act No. 1120 for infraction of a (t) Kin Sing v. Won Pan-, 1 W. Creaver, 4 A. J.R. 10 ; (1873) and see & W. (L.)303 (1862) ; compare Act Act No. 1120, sec. 70. No. 1120, sec. 216, and the juris- (ic) Fitzgerald v. Elliott, 5 A.J.R. diction thereby conferred on the 3 ; see ante, Bk. Ill, Ch. IV, Sec. II, Warden in partnership cases. " RESIDENCE AREAS." (u) Under Act No. 1120, sec. 135 (a;) 30 Vic. No. 32 (N.Z.), sec. 62. (i). (y) Ching Tong Fong v. Lee Chang, (v) Extended Cross Reef Co. v. 1 N.Z.J.R. 139 (1873). JURISDICTION OF THE WARDEN. 271 by-law (z) ; and an allegation in a summons as to violation Bk. /F. Ch. n. of a by-law the breach of which involves a penalty does not deprive the Warden of his jurisdiction to award damages to the complainant, but it may if necessary be treated as sur- plusage (a). In the case of Wissing v. Finnegan (b) it was held that *^ e eiture of the Warden had jurisdiction to declare a gold-mining lease void, and to place a complainant seeking forfeiture of such lease in possession of the land as a claim ; and it was subsequently decided that he might entertain a complaint for forfeiture of a gold-mining lease for non-compliance with the labour covenant (c). Under the New Zealand Goldfields Act it was held that Execution. the Warden had jurisdiction to restrain the improper issuing of an execution out of his own court (d) ; and to contract, enforce a contract, notwithstanding the provisions of the Statute of Frauds had not been complied with (e). He has Interference. also jurisdiction to hear a complaint for unlawful interference with, or injury to, a claim (/), whether caused wilfully or by negligence (g) ; and he had jurisdiction (h) to determine the amount of compensation for surface damage to be paid by the holder of a miner's right to the owner of land entered on by the miner for the purpose of mining thereon (i). But f f ^j time he had no jurisdiction under the New Zealand Mining Act of 1891 to grant an extension of time for lodging a survey (z)Seg. v. Pohlman, fxparteNick- Lalor, 13 V.L.R. 941 ; 9 A.L.T. 98 less, 5 W.W. & A'B (L.) 31 (1S68). (1887). (a) Wilson v. Simpson, 22 V.L.R. (d) Great Republic G. M. Co. v. 642; 3 A.L.R. 38; 18 A.L.T. 179 Hussey, 5 N.Z.L.R. S.C. 126 (1880). (1897). (e) Doherty v. Atkins, 1 N.Z.J.R. (b) 3 V.R. (M.) 16 ; 3 A. J.R. 126 (N.S.) M.L. 2 (1867). (1872). (/) Beechworth By-laws, 36 (i), (c) McMillan v. Dillon, 6 V.L.R. (ii). (M.) 15 ; 1 A.L.T. 203 (1880). But ( nisfcbe of a claim every defendant must be served under the regula- tions or by substituted service; the Warden cannot determine that a number of defendants served sufficiently represent one defendant who is not served, and an order made against a defendant who is not served will not stand (/) ; and an order cannot be made against a person in court who was made a co-defendant against his protest, and who had not been served with the summons, though the Warden might (t) Thompson v. Berjg,2 V.R. (M.) L.R. (L.) 245 ; 13 W.N. 55 (1896). 1 ; 2 A. J.R. 34 (1871). (d) 54 Vic. No. 1074. (a) General Rules. No. 3. (e) Ibid, sec. 201. (b) 37 Vic. No. 13 (N.S. VV.), sec. (/) Key. v. Heron, e.x parte Bryer, 70, reg. 3. 2 V.R, (L.) 155; 2 A. J.R. 110 (c) Ex parte Pearson, 1" N.S.W. (1871). 282 WARDENS OF THE GOLDFIELDS. Bk '/el 'iii 1T ' ^ ave R dded him as a co-defendant (g) and then adjourned the case, which would have been equivalent to giving him notice to attend on the day to which the hearing had been adjourned (h); and certiorari will be granted to bring up proceedings before the Warden in order to have them quashed for non-service on one of a number of deiendants(z); but appearance will waive any irregularity as to service (j ). Order against unserved defendant. An order made against one defendant who has been served and one who has not is bad as against the unserved defendant, where there is no order for substituted service, and being bad as to him is bad altogether; and an unserved defendant who has not authorised anyone to represent him is not bound by the appearance of the other defendant (k). Dispute as to f sutfic service In case of dispute as to sufficiency of service, or if the Warden has any doubt on the matter, he may hear evidence and decide whether such service be good or otherwise, and under special circumstances appearing by affidavit he may order that a defendant not served, or insufficiently served, shall be deemed to be a defendant upon such terms as he may think fit (I). Substitute service. Absent defendant. Where a defendant cannot after diligent enquiry be found, and cannot from any cause by reasonable exertion be served with the summons, the Warden may, if satisfied of the facts, order that service be effected upon such person in such manner as the Warden by such order shall direct, and may postpone the hearing of the case to allow of such substituted service (m). Under the Mining Act of New South W T ales (n) the W'arden may proceed with the hearing of a case in the absence of a defendant if in his opinion (g) Act No. 1120, sec. 219. (h) Reg. v. Sherard, ex parte Fraser, 5 W.W. & A'B. (L.) 80 (1868). (f) Keg. v. Clow, ex parte Oliver, 5 W.W. & A'B. (L.) 89 (1868). (?) Reg. \. Strutt, 4 A.J.R. 147 (1873). (it) Reg. \. Belcher, exparle Gilbee, 4 A.J.R. 80, 110(1873). (I) General Rules, No. 5 ; and see Reg. v. Heron, ex parte Bryer, supra. (m) Act No. 1120, sec. 221 ; see also 62 Vic. No. 24 (Q.), sec. 124. (71) 37 Vic. No. 13 (N.S.W.),sec. 70 ; Rules of Practice, cl. 3. PROCEDURE AND PRACTICE. 283 there has been sufficient substituted service, either in the #* iv- ch. n. manner prescribed by the rules or otherwise (o). An order for substituted service under section 221 of the >g cation for Act No. 1120 ought to be applied for when the summons is returnable ; the Warden has no power to make an order for such service before the return day of the summons. He should adjourn the hearing of the case to admit of service in pursuance of his order (p), as the order can only be made at the hearing (q). The affidavit of service must be endorsed upon or written Affidavit of service under a copy of the summons served, showing how service was effected (r). Service of summonses and notices authorised by the rules Attorney" may be effected by delivering them to the attorneys of the parties (s). (d) Amendment. The power of amendment of in formalities in the summons I'owerof amendment. conferred on the Warden is very wide ; no objection may be taken to any summons or complaint for any defect, misnomer or inaccurate description, or for any variance between the summons and the evidence adduced by the complainant, but the summons may be amended by the Warden so that the subject matter in dispute between the parties shall plainly appear (a). Thus, in a summons seeking forfeiture of four claims Amalgamator alleged to be amalgamated, but no amalgamation being proved, though the Warden cannot adjudicate on the forfeiture of any one claim and find such one claim forfeited, he can amend the summons by striking out the statement as to amalgamation, and adjudicate accordingly (b) ; and where, in a complaint for forfeiture which did not specified. (o) Ex parte Kelly, 19 N.S.W. (r) General Rules, No. 4, sched. L.R, (L.)201 (1898). iii. (p) Taylor v. Stubby, 6 W.W. & () Ibid, No. 15. A'B. (M.) 16 (1869). (a) Act No. 1120, sec. 227. (q) Hey. v. Akehurst (1), 6 W. W. (b) Jolly v. Stephens, 5 A. J.R. 169 &A'B. (L.) 84 (1869). (1874). 284 WARDENS OF THE GOLDFIELDS. Bk. iv. Ch. ii. show under which by-law the forfeiture was incurred, possession being claimed by reason of non-compliance with the by-laws generally, it was held that if 110 objection were taken the Warden could adjudicate, and if the objection were taken he could amend (c) ; and he may amend a surplus ground, summons seeking possession of surplus ground by altering it to one seeking a declaration of trespass, and may add Form of co-defendants (d). When a summons does not exactly follow the form in the schedule to the Act (e) it is the duty of the W T arden to amend it so as to bring it into conformity with the schedule ; thus the alteration of the time for hearing a summons from 10 a.m., the time mentioned in the form in the schedule, to 9 a.m., is an informality only and ma} 7 be amended (/). Addition of The Warden may also at the hearing amend a summons parties. by the addition of any other persons as complainants or defendants, or otherwise ((/), or by striking out one or more of the complainants, upon such terms as he may think lit (li) ; and he may amend the vagueness in a summons seeking possession of land " of which the defendants are in illegal occupation " by inserting the objection to the defen- dant's title (i); he can also amend the vagueness in a summons claiming to be put in possession of only portion of an entire claim alleged to be forfeited by defining the Excess of portion possession of which is sought (j ) ; and excess of tion. jurisdiction appearing on the face of the summons may be amended by striking out the portion of it which does not conform to the evidence (k); and where a complaint was b\ ei uw'" g made under a by-law passed subsequently to the taking up of a claim, if no objection were taken the complainants were held entitled to prove forfeiture under the by-laws applic- (c) Hooke v. Burke, 4 A.J.R. 122 (h) Ibid, sec. 222. (1873). (i) Barton v. Band of Hope and (d)Oxleyv. Little, 5W.W. & A'B. Albion Consols (1), 5 V.L.R. (M.) (M.) 14 (1868). 18 ; 1 A.L.T. 30 (1879). (?) Act No. 1120. Sched. xxiii. (/) lioscrowv. Webster, 5 W.W. (/) Vicker* v. Talandoon. G.M. & A'B. (M.) 64 (1868). Co., 23 V.L.R. 206 ; 3 A.L.R. 178 ; (k) Keg. v. Smith, f.x parte Ma- 19 A.L.T. 78 (1897). honey, 3 A.J.R. 48 (1872). ( (e) Dodey v. King, 19 A.L.T. 2 ; raw v. Fulltrton, 14 N.S.W.L.R. 28 V.L.R. 53 ; 3 A.L.R. 113 (1897). (L.) 308 ; 10 W.N. 33 (1893). ( f) Clarkev. Coicper, 10 N.S. W. (d) Cruise v. Croicley, 5 W.\V. & L.R. (L.) 106 ; 5 W.N. 125 (1SS9). .vB. (M.)27 (1S68). PROCEDURE AND PRACTICE. 287 party may be set up to show the invalidity of the marking Bk.iv.ci n. out (g). And so, where on the hearing of a summons by L in the order of * Supreme Court. Warden's Court to restrain trespass by H o'n her land an order of the Supreme Court, dated previously to the sum- mons before the Warden, made in an action between the same parties, was put in evidence to prove the title of L to the land in question, it was held that the order was rightly received in evidence, and was conclusive evidence of L's title up to that date (h). It is for the Warden to draw inference of facts from inference of the evidence which he hears, and the Supreme Court will not do so on a special case stated (i), though on a mere question of fact, if anything turns upon it, the special case will be remitted to the Warden to have the point settled (j ), and after the Supreme Court has given an answer to a question, the appellant may then apply to the Warden for a rehearing to produce further evidence ( k ). On hearing a complaint for forfeiture, the Warden ought Evidence in not to act on evidence given before him in another case, such as an enquiry concerning the objections to the granting of a gold-mining lease (I). He can only give his decision in conformity with the evidence adduced at the hearing, and upon that evidence determine the case summarily (m) ; and he is not bound by a statement of facts agreed on between one party and other persons not parties to the suit (n). Where, on the registration of a claim, a mistake is made Evidence of as to the time of marking out, the Warden should receive evidence tendered to contradict the statement in the applica- (ij) Cooper v. White, 4 V.L.R. (k) Summers v. Cooper (2), 5 (M.) 10(1878). V.L.R. (M.) 42; 1 A.L.T. 115 (h) Lindsay v. Hansen (2), 20 (1879). N.S.W.L.R. (L.) 43. (/) Constable v. Pigtail Q.M. Co., (i) Clerk v. Wrigley, 4 W.W. & 3 V.L.R. (M.) 7 (1877). A ; B. (M.) 74 (1867). (m) Act No. 1120, sec. 219. (j) Barton v. Band of Hope, and (n) Xo. 1 North Phce?iix G.M. Albion Consols (3), 6 V.L.R. (M.) 1 ; Co. v. Phoenix G.M. Co., 6 Q.L.J. 1 A.L.T. 145 (1880). 307 (189b). 288 WARDENS OF THE GOLDFIELDS. Bk 'ifc 'in IIf ^ On Un( ^ er which the claim was registered, and to explain the error therein as to the time at which possession was taken (o). special case as If the Warden entertains any doubt as to the admissibilit v to evidence. of evidence, he may state a special case to the Supreme Court for the opinion of that Court on the matter (p). Construction of In the construction of Acts of Parliament, general words ACtS. in a statute, however wide and comprehensive in their literal sense, must be limited to the scope and object of the statute (q) ; and upon a question of construction arising concerning a subsequent statute upon the same branch of law, it is allowable to refer to the repealed statute (r). defence to be ^ n a com pl a i n t before the Warden, after the complainant's case has been stated, and before he has called any witnesses, the Warden may call upon the defendant to state the nature of his defence, and neither party will be allowed to depart from such opening statement or defence without leave of the Warden (s). But this rule does not necessarily require a complainant to state his case verbally as to those matters which he ought to have alleged in his summons (t). Adjournment. ^he Warden has full power to adjourn the hearing of a complaint to any other time or place than those named in the summons (u). Rehear^. j-[ e nas a j so power to grant a rehearing of any complaint decided by him, or by assessors before him, as often as he may think fit, and upon such terms as to payment of costs or otherwise as he may decide. A party applying for a rehearing must serve on the opposite party, within seven days from the time the Warden's decision was given, notice that the application will be made at the expiration of two (o) GreenhW v. Braidley, 4 V. (L.) 128; 8 W.N. 39 (1891). L.R. (M.) 5 (1878). (*) General Rules, No. 21. (p) Palmerv. Chisholm,5A.J.'R. (t) Barton v. Rand of Hope, and 169(1874). Albion Consols (1), 5 V.L.R. (M.) (q) In re Flood, 15 N.S.W.L.R. 18 ; 1 A.L.T. 30 (1879). (L.) 330; 11 W.N. 24 (1894). (u) Act No. 1120, sec. 219. () In re Baldwin, 12 N.S.W.L.R. PROCEDURE AND PRACTICE. 289 days from the date of service of such notice, or as soon Bk.i7.ch. n. thereafter as the application can be heard ; and if the Warden grants the application, he will fix the time and place for the rehearing, and direct notice thereof to be given to the parties (v) ; but a rehearing should not be granted except where the decision is such that justice has not been done, or such as reasonable men ought to have decided (w). Either party to a suit may previous to or during the inspection, hearing of a complaint apply to the Warden to inspect the property in dispute, or the Warden may of his own motion make the inspection, if he consider it proper that he should do so, or he may order a survey to be made, and the costs of such inspection or survey will be costs in the cause (x). (/) Decision and Order of the "Warden. The decision of the Warden is regarded as of such Duty of warden, moment that he is required (a) to enter a minute of it in the Warden's register, and to make an order in accordance with such decision, and write the same in the register underneath his decision, and this entry, drawn up in accordance with schedule xxvii of the Act No. 1120, is known as the " decision of the Warden." The decision of the Warden should be such as the evidence Decision of the Warden. adduced will warrant, and there is a clear distinction between the decision and the grounds of the decision (6) ; and unless the decision is recorded as above stated under section 235 it is not binding (c) ; for the decision of the Warden forms the ground-work of an appeal under section 254 (d), and if un- re versed is an adjudication of right between the parties (e). (v) Act No. 1120, sec. 236. W.W. & A'B. (E.) 103 (1868); on (w) Cooper v. Rutherford, 8 N. appeal to Privy Council, 40 L.J. S.W.L.R. (L.) 112; 3 W.N. 142; P.C. 41 ; 2A.J.R. 93; Simv.Eddy, 4 W.N. 8 (1887). 3 W.W. & A'B. (L.) 21 (1866); (x) Act No. 1120, sees. 233, 234; Early v. Barker, 1 W.W. & A'B. General Rules, No. 12. (L.) 32 (1864). (a) Act No. 1120, sec. 235. (d) Reg. v. Brewer and Walhalla (b) Kirk v. Barr, 2 W. W. & A'B. Co., 4 W.W. & A'B. (L.) 124 (1867). (L.) 44 (1865). (e) Mulcahy v. Walhalla Co., (c) Mulcahy v. Walhalla Co., 5 supra. 19 290 WARDENS OF THE GOLDFIELDS. Bk 'swiii IL "^ ie Warden nas no discretionary power to refrain from warteTtafcnmd adjudicating (/), and where he makes an order finding for to adjudicate. a CO mplainant in a proceeding to obtain possession of a claim, he is bound to put him in possession of it, otherwise the order will be quashed (g) ; and he cannot refrain from enforcing forfeiture under a by-law which provides that a claim may by a competent court be declared forfeited, if the circumstances appear to him sufficient to justify such a decision (7i) ; and if a Warden's order imposes conditions it is incomplete if it does not clearly show what the conditions are (i). "oocUnpart and Where the Warden's order is valid in part and invalid in i m part. p ar t ; the Supreme Court will quash the invalid part (j ), and such invalid part must be quashed before the com- plainant can avail himself of the valid part (&); but where an order is made against one defendant who has been served and also against one who has not been served the whole order is bad and will be quashed (I). Certiorari. _^_ Warden's order may be quashed on certiorari, not- withstanding that an appeal to the Court of Mines from the order is pending (m), and certiorari may issue for non- service on one defendant, although taken away by the Act (n). Certiorari does not deal with any rights of property ; it is merely a mode by which a superior tribunal tells an inferior one to stop (o) ; thus, an order pronounced by the Warden after he has refused to state a special case for the opinion of the Supreme Court is invalid, and so, not being made in accordance with the Act No. 1120, certiorari (/) It eg. v. Strutt, ex parte Con- Keg. v. Green, 20 L.J., M.C. 168, stable, 3 V.L.R. (L.) 186 (1877). and Reg. v. Robinson, 17 Q.B. 466. (g) Reg. v. Orme, ex parte JDros- (I) Reg. v. Belcher, ex parte rher, 3 V.L.R. (L.) 343 (1877); Act Gilbee, 4 A.J.R. 80, 110 (1873); No. 1120, sec. 237. Reg. v. Heron, ex parte Bryer, 2 (h) Lawlorv. Stiggants,2V.'L.'R. V.R, (L.)155; 2 A.J.R. 110(1871). (M.) 17 (1876). (m) Reg. v. Orme, ex parte Dros- (i) Early v. Barker, 1 W.W. & cher, 3 V'.L.R. (L.) 343 (1877). A'B. (L.) 32 (1864). (n) Act No. 1120, sec. 296 ; Reg. (j) Reg. v. Cogdon, ex parte v. Strutt, 4 A.J.R. 147 (1873). Hartmann, 3 A.J.R. 118 (1872). (o) Sims v. Demamiel, 21 V.L.R. (k) Sayers v. Jacomb, 3 V.R. (L.) 634 ; 2 A.L.R. 51 ; 17 A.L.T. 129, 132; 3 A.J.R. 66 (1872), quoting 241 (1896). PROCEDURE AND PRACTICE. 291 may issue to quash it, notwithstanding section 296 (p). Bk -^jjj- IL The Supreme Court will not, however, interfere with the decision of the Warden when he has jurisdiction to make it (g),though it will do so where he has no jurisdiction (?) Neither will the Supreme Court interfere when the Warden has heard and determined a case ; so, where the Warden heard a complaint as to some defendants, but struck it out as to others on the ground of want of jurisdiction, and determined the case in favour of the complainants as against the other defendants, on application for mandamus Mandamus. to compel him to hear the case as against the defendants who had been struck out, it was held that he had exercised his jurisdiction and heard and determined the complaint, and mandamus was refused (s). The Warden's order, if not appealed against, is conclusive warden's order is conclusive. and acts as an estoppel (t) ; and where the Warden in his decision, after the Supreme Court has given an opinion on a question reserved, does not state any finding on fact, but merely makes an order thereon, such order does not thereby lose its effect ; and on a fresh summons, the Warden having the identity of the proceedings before him, his decision in a former case is a bar to a second summons (u). The Warden is bound to give judgment in accordance opinion of Supreme Court. with the opinion of the Supreme Court given on a special case (v) ', and when the Supreme Court makes a direction, the duty of the Warden to enter up his decision in accord- ance with such direction is of a judicial nature, and man- damus will issue to compel the performance of it (w). And mandamus was allowed to issue in New South Wales (p) Sefj. v. Thomson, ex parte W.W. & A'B. (E.) 103 (1868); on Costin, 4 V.L.R. (L.)512 (1878). appeal to Privy Council, 40 L.J. (g) Recj, v. Sherard, Sp. Ct. Vic., P.C. 41 ; 2 A.J.R. 93. Dec. 9, 1867 ; Aryus, Dec. 10, 1867- (M) Summers v. Cooper (2), 5 (r) Reg. v. Clow, ex parte Oliver, V.L.R. (L.) 42; 1 A.L.T. 115 (1879). 5 W.W. &A'B. (L.) 89 (1868). (v) Reg. v. Strutt, ex parte. Con- (s) Rey. v. Gaunt, ex parte. Bahl- stable, 3 V.L.R. (L.) 186 (1877). man. 4 A.J.R, 114 (1873). (?e) Reg. v. Strutt, ex parte Laiv- (t) Mulcahy v. Valhalla Co., 5 lor, 3 V.L.R. (L.) 2 (1877). 292 WARDENS OF THE GOLDFIELDS. Bk 'sec'iii H ' a e a i nst the successor of a Warden who was functus officio, and the ex- Ward en was ordered to pay the costs (x). improperly Where the record of the Warden's decision was " case dismissed, having- been adjudicated on before," these words were held to mean that the case was entertained and dismissed, and not dismissed as not entertained ; the words " having been adjudicated on before " were improperly minuted, and were not part of the decision, and being outside the decision were not binding and conclusive on the parties (y). ^ro"ecmion There is no provision made by the Act for dismissing a suit for want of prosecution ; the Warden cannot dismiss a summons where the party taking out the summons does not proceed with the case ; lie can only strike it out (0). And under the Act No. 291 he could not give costs in such a case, though power to do so is conferred on him by the existing Discontinuance. Act (). A complainant may, however, at any stage of the proceedings serve notice in writing of his intention to dis- continue, and thereupon the defendant may proceed for his costs (b). Appeal after Under the Act Xo. 32, sec. 84, when the Warden dismissed dismissal. a complaint, there was no appeal to the Court of Mines (c) ; but otherwise where he had given his decision to the effect that no encroachment had been committed as alleged ; in such a case the Court of Mines could make and enforce an order (d). The dismissal of a complaint by the Warden as frivolous and vexatious is a decision and appealable (e), and mandamus was refused (/). (x) Ex parte Dempsey, 13 W.N. (1860) ; Power v. McDermott, 2 W. (N.S.W.) S3 (1896). & W. (L.) 241 (1863). (y) Sim v. Eddy, 3 W.W. & A'B. (d) Tatham v. McGlll, 2 W.W. (L.)21 (1866); decided under Act & A'B. (L.) 113 (1865) ; compare No. 32, sec. 76; compare Act No. Act No. 1120, sec. 254, which pro- 1120, sec. 235. vides for appeal, whether the de- (z) Reg. v. Can-, 6 W.W. '- proceedings on a trial before a judge and jury, the Act proceeding on the principle that the finding of the assessors is to be taken as a finding of a jury on the facts, the Warden directing them on the law ; and where the Warden sits with assessors there is no appeal from the finding of the assessors on the facts ; the only appeal is from the mis- direction or wrong adjudication of the Warden in matters of law ; and the only remedy for a mis-finding by the assessors is a new trial (e) ; though if the assessors cannot agree upon a verdict the Warden is required to decide the matter himself, and not to order a fresh trial before another jury of assessors ; if, however, the assessors find a verdict, the order should be made as by the Warden on the finding of the assessors (/). The remedy against error on the part of assessors is the power of the Warden to grant a re- hearing (g). (b) Inch v. Sellhcim, Brisbane appeal to Privy Council, 40 L.J. Week, Nov. 18, 1882. As to pro- P.O. 41 ; 2 A.J.R. 93. ceedings before the Warden and (d) Grace v. Eager, 2 N.Z.C.A. assessors in the other States, see 37 228 (1872). Vic. No. 13 (N.S.W.), sec. 93 ; 62 (e) Reg. v. Brewer and Walhalla Vic. No. 24 (Q.), sec. 109 ; 59 Vic. Co., 4 W. W. & A ; B. (L.) 124 (1867). No. 40 (W. A.), sec. 71; 57 Vic. But see Moore v. White, infra. No. 24 (Tas.), sees. 78, 151; 62 (/) Mulcahy v. Walhalla Co., Vic.' No. 38 (N.Z.), sec. 256. supra. (c) Mulcahy v. Walhalla Co., 5 (o) Abraham v. Ddla Ca (3), 4 W.W. & A'B. (E.) 103 (1868); on A.L.R, 204(1898). 298 WARDENS OF THE GOLDFIELDS. fr. IV. Ch. II. Sec. IV. from ing of assessors. Unintelligible verdict of An appeal lies to the Court of Mines from the decision of the Warden on the finding of assessors in the same manner as if such decision were given by the Warden acting alone, and the appeal is prosecuted by the same procedure. In the case of Reg. v. Brewer and Walhalla Co., supra, section 235 of the Act was not noticed, which states that the expression " decision of a Warden " is to be taken to include the decision of assessors (h). Where the assessors returned an unintelligible verdict, and the Warden entered up no decision, but called other assessors, who found for the complainant, it was held on mandamus to compel the Warden to enter the verdict of the first assessors, that on the first trial there had been no finding, and that the second finding should stand, but that the Warden should have decided the case by his casting vote when the assessors were equally divided, and have entered up the decision accordingly (i). Special jurisdiction. Injunction. Interim injunction. SECTION V. SPECIAL POWERS OF THE WARDEN. In addition to the jurisdiction conferred on the Warden by sections 135 and 216 of the Act No. 1120, he has certain special powers vested in him which in the administration of justice in regard to practical mining he is frequently called upon to exercise (a). The most important special power vested in the Warden is that of issuing an injunction order to restrain encroach- ment or trespass upon or interference with any claim whereby the right or title of the applicant for the injunction may be affected (6). He has also the power in cases of the pressing emergency of any particular case to make an ex parte order of injunc- (h) Moore v. White, 4 A.J.R. 17 (1873) ; see Act No. 1120, sec. 235. () Daly v. Wallace, Sp. Ct. Vic., April 9, 1868. (a) Act No. 1120, Part I, Div. 2 (6), sees. 243-253. (b) Ibid, sec. 245. SPECIAL POWERS OF THE WARDEN. 299 tion to be in force for seven days (c). These injunction Bk. iv^ ch. 11. orders, commonly known as interim injunctions, as well as injunction orders under section 245 are temporary and interlocutory, and should be limited to time, but they may be made perpetual on the final order or decree (d). Where an application is made for an injunction order Procedure, under section 245 of the Act No. 1]20, twenty-four hours' notice must be given to the parties interested in opposing the application ; and the order may be made on affidavit (e). But all persons giving notice of application for the injunc- tion must appear before the Warden in support of it, or he should dismiss it; and quaere whether he has power to amend by striking out the names of those who do not appear (/). In drawing up the injunction order it is necessary to show Form of order, on the face of it the matters necessary to give the Warden jurisdiction to make it, otherwise the order will be invalid, and disobedience of it will not be an offence under section 249 ((/). The order when made must be served personally service. on the person to be bound thereby (7i), or, if the Warden so orders, it may be served by publication in a newspaper or by affixing a copy thereof in some conspicuous place at or near the property in dispute (i). The Warden has also special power to make an order inspection, authorising a surveyor or an experienced miner to enter upon any lease or claim adjoining the claim or lease of the person applying for such order, for the purpose of inspecting the same, and to discover whether encroachment is being committed, the person so appointed to enter and inspect being required first to make a declaration that he will not divulge any information obtained on any such inspection (c) Act No. 1120, sec. 246. (M.) 15 (1877). (d) Keast v. D'Angri, 4 A.J.R. (g) Spiers v. Whiteside, 4 W.W. 61 (1873). & A'B. (L.) 91 (1867). (e) In re Clerk, 2 V.R. (M.) 11 ; (h) Act No. 1120, sec. 248. 2 A.J.R. 48 (1871). (i) Seea?!e,Bk. I, Chap. IV, Sec. (/) Grant v. Lawlor, 3 V.L.R. Ill, "INJUNCTION." 300 WARDENS OF THE GOLUFIELDS. Bk. iv. Ck. ii. beyond the fact of the encroachment (j). And it is essential that such declaration not to divulge shall be made by the person inspecting,and that, as in the case of injunction orders, the Warden's order show on the face of it jurisdiction in the Warden to make it, before disobedience of such order will become an offence under the Act (k). order to seize The Warden is also authorised at the time of making: his auriferous earth. decision to order the delivery of any auriferous earth in satisfaction or part satisfaction of a debt ordered by him by such decision to be paid, and may cause such auriferous earth to be seized and delivered accordingly (I) ; and he may Deposit of gold, a ] so order any auriferous earth or gold to be deposited in the name of the Warden, or of any other person, to abide the final decision in the matter of the complaint before him (m). (j) Act No. 1120, sec. 244. special powers of the Warden with (K) Spiers v. Whiteside, 4 W.W. respect to private land, see Act No. &A'B. (L.)91 (1867). 1514, Part II, sub. 9; and ante, (/) Act No. 1120, sec. 243. Bk. II, Ch. IV, " GOLD-MIXING ON (m) Ibid, sec. 247. As to the PRIVATE LAND." CHAPTER III. DISTRICT COURTS OF MINES. SEC. I. THE COURT OF MIXES. SEC. II. JURISDICTION OF THE COURT OF MINKS. SKC. III. PROCEDURE AND PRACTICE IN THE COURT OF MINES. SEC. IV. INTERLOCUTORY ORDERS. SEC. V. APPEAL FROM THE WARDEN. (a) Basis of Appeal. (b) Notice of Appeal. (c) Hearing of Appeal. SECTION I. -THE COURT OF MINES. THOUGH the summary proceedings before the Goldfields Bk. ir.ch.in. Commissioners or Wardens were regarded in the earlier Creation of days of the colony as sufficient to determine any dispute as Courtsof Mines - to the title or the boundaries of small claims, yet with the progress of the mining industry it was felt that some more responsible tribunal was required admitting of appeal from the Warden's decision, and for settlement of disputes relat- ing to more valuable mining properties, and involving principles of equity which a Warden or Goldfields Com- missioner could not be expected to be competent to deal with. Accordingly, Courts of Mines were first created by The Goldfields Act (a) in the year 1857. (a) Act No. 32, sec. 14. 302 DISTRICT COURTS OF MINES. Bk. IV. Ch. Ill Sec. I. Under Act No. 291. Concurrent jurisdiction with Supreme Court. A court of lav and equity. The Courts of Mines were continued by the Act No. 291, and their jurisdiction and powers considerably enlarged, and further powers were vested in the judges of these courts to make interlocutory, injunction and other orders. Besides being in itself a Court of appeal from the decision of the Warden, the Act gave litigants in the Court of Mines a right of appeal to the Full Court, and the judge had also the power to state a special case for the opinion of the Supreme Court on any question of law arising before him. This Act is consolidated in the Act No. 1120. Titles to claims and leases existed before the passing of the Act No. 291, but were put on a different footing by that Act, which created the present Court of Mines. The Supreme Court has a concurrent jurisdiction with the Courts of Mines as to these titles. It has been exercised in Mulcahy v. Walhalla Co. (b), which was confirmed on appeal to the Privy Council (c), and in various other cases. They are courts of co-ordinate jurisdiction, though of unequal dignity (d), and stand in relation to the Supreme Court on the foot- ing of inferior courts (e). The Court of Mines under the Act No. 32 was a Court of Equity pure and simple (/); the present Court of Mines is a court of both law and equity (g). " The Supreme Court " says Barry, J., " does not stand in the same relation to the Courts of Mines as the Courts at Westminster do with regard to the University Courts, and the Admiralty and Ecclesiastical Courts ; those courts are guided by peculiar laws ; they do not proceed according to the common law of England, and where they come in conflict with the common law, and where they deal with matters not within their jurisdiction, they render themselves amenable to the courts at Westminster. The Court of Mines stands in a different position ; it possesses peculiar powers conferred on it by (b) 5 W.W. & A'B. (E.) 103 (1868). (c) 40 L.J. P.C. 41 ; 2 A.J.R. 9.3. (d) Gunn v. Harvey, 1 V.L.R. (E.) Ill (1875). (e) Colonial Bank v. Willan, 5 A.J.R. 53 (1874). (/) Wilson v. Broadfoot, 1 W. & W. (L.) 214 (1862). (g) Act No. 1120, sec. 135. THE COURT OF MINES. 303 statute, and is governed by the same principles which guide Bk. iv. ch.in. the Supreme Court. The laws of evidence are the same as those of the Supreme Court ; the rules for the interpretation of law are the same ; and so long as the court acts within the jurisdiction conferred on it by the statute, the Supreme Court will not interfere with it. Of course, where the jurisdiction is exceeded the Supreme Court will interfere" (h). But the Court of Mines being a court of record (i), an order made by it will not be prohibited on the ground merely that such order does not on its face show jurisdiction (j ). A Court of Mines is established within and for each District courts of Mines. mining district, which court is the Court of Mines for that district, and has no jurisdiction beyond its limits, though the judge may sit either in court or in chambers at any place. in Victoria, and no judgment, rule, decree or order of any judge can be set aside by reason that the same was made without the territorial limits of the court (k). The State of Victoria is divided into seven mining districts, Mining districts, each having its own Court of Mines. The districts are : 1. BALLARAT, comprising the divisions of Ballarat, uaiiarat. Buninyong, Creswick, Smythe's Creek, Blackwood, and Steiglitz. 2. BEECHWORTH, comprising the divisions of Beech- Beechworth. worth, Indigo, Yackandandah, Buckland, Goulburn, and Mitta Mitta. 3. SANDHURST, comprising the divisions of Sandhurst Sandhurst. (Bendigo), Raywood, Heathcote, Waranga, and Kil- more. 4. MARYBOROUGH, comprising the divisions of Mary- Maryborough. borough, Amherst, Avoca, Dunolly, Tarnagulla, Korong, and St. Arnaud. 5. CASTLEMAINE, comprising the divisions of Castle- Castlemaine - maine, Fryer's Creek, Taradale, Tarrengower, Hep- (h) Reg. v. Cope, in re Moore, 4 (j) Coaten v. South Loch Fyne A.J.R. 113. G.M. Co. (3), 26 V.L.R. 117 (1900). () Act No. 1120, sec. 115. (k) Act No. 1120, sec. 118. 304 DISTRICT COURTS OF MINES. Bk. iv. ch. ni. burn, and St. Andrews ; and also the building known as the Law Courts, Melbourne. Ararat - 6. ARARAT, comprising the divisions of Ararat, Pleasant Creek (Stawell), Raglan, and Barkly. Gippsiand. 7. GiPPSLAXD, comprising the divisions of Stringer's Creek, Russell's Creek, Omeo, Mitchell River, Crooked River, Jericho, and Donnelly's Creek. Melbourne. The building known as the Law Courts, Melbourne, is deemed to be within the mining district of Castlemaine for certain purposes, and to be a place appointed by the Govern- or-in-Council where a Court of Mines shall be held for such district (I). Mining Boards. Each of these mining districts has also its own mining board, empowered to make by-laws for its district generally, or for any individual division of such district (m). Equivalent In New South Wales the Court of Mines is represented courts in other by the District Court sitting as a mining appeal court (n)j in South Australia, by the Local Court of Full Jurisdic- tion (o); in Queensland, by the District Court (p)', and in New Zealand, by the District Court (q), which, in addition to its appellate jurisdiction, has an original jurisdiction concurrent with the Supreme Court. There is no court either in Western Australia or in Tasmania analogous to the Court of Mines. SECTION II. JURISDICTION OF THE COURT OF MINES. original Every Court of Mines has original jurisdiction to hear and determine all suits cognizable by a court of law or by a court of equity concerning any of the matters specified in under NO. 32. section 135 of the Act No. 1120 (a). Under the Act No. 32, (I) Act No. 1514, sec. 167. Div. VII. (m) Act No. 1120, sec. 106. (q) 62 Vic. No. 38 (N.Z.), sec. 291. (n) 37 Vic. No. 13 (N.S.W.), (a) As to the jurisdiction of the Div. VIII (1). Court under the Act No. 32, see (o) 56 & 57 Vic. No. 587 (S.A.), Harvey v. Rodda, 1 W.W. & x'B. sec. 25. (L.) 21 (1864). ( p) 62 Vic. No. 24 (Q.). Part IX, JURISDICTION OF THE COURT. 305 sec. 27, the jurisdiction of the Court of Mines was expressly Bk. iv.ch.m. limited to matters cognizable by a court of equity (6), but it may under its present constitution determine all suits cognizable by a court of law as well. Where the Court of Mines has acted within its iurisdic- control of. Supreme Court. tion the Supreme Court will not interfere, although it may have acted wrongly (c); and where a judge has a statutory discretion to hear an appeal from the Warden or not, the Supreme Court will not grant mandamus directing him to exercise his jurisdiction, where he has already in exercise of his statutory discretion refused to do so, however harshly such discretion may have been exercised (d) ; and the Supreme Court, though having a concurrent jurisdiction with the Court of Mines as to titles to claims and leases, will not generally exercise concurrently such jurisdiction in matters within the jurisdiction of the latter court (e). Under both the Acts No. 32 and No. 291 the judge of the judge acting , . , . outside limits of Court ot Mines had no jurisdiction to decide, outside the his district. territorial limits of his district, a matter otherwise within such limits (/), though if the judge, with the consent or at the request of the parties, allowed them to attend him out of the jurisdiction of his court to hear his reasons and con- clusions, there was nothing to prevent him, being afterwards within his jurisdiction, from giving his formal order, formally signed, to the proper officer to be duly recorded ((/). How- ever, section 113 of the Act No. 1120 now empowers ajudge to sit in court or in chambers, and make decrees and orders, outside the territorial limits of his district. Thus, when an appeal has been heard by the judge of the Court of Mines, and a case has been stated by him, the final order on the appeal may be made by the judge while sitting outside the (6) Wilson v. Broadfoot, 1 W. & (e) Gunn v. Harvey, 1 V.L.R. W. (L.) 214 (1862); Brinkman v. (E.) Ill (1875). Holstein, 1 W. &W. (L.) 368(1862). (f) James v. Higgans, 1 W.W. (c) Reg. \~. Cope, in re Moore, 4 7//- defendants who appear sufficiently represent those who do not appear (h). Service may be effected either personally, or at the dwelling of the defendant upon any inmate of years of discretion, or at the place of business of the defen- dant upon his servant or agent there employed (i) ; and an affidavit of service must be endorsed on or written under a copy of the plaint and summons (j). Suits with written pleadings. Statement in plaint. Seal of the court. Appearance to object. In prosecuting a suit with written pleadings by leave of the judge, a practice which is seldom adopted, the mode of procedure is laid down in sections 149-161, 165 and 171 of the Act No. 1120. The plaint must set forth as briefly as shall be consistent with clearness a statement of the facts on which the plain- tiff relies, divided into paragraphs numbered consecutively, and must conclude with a prayer for relief. A plaint i objectionable which comprises land held under different titles, as being partly held under miner's right and partly under lease, or which makes co-plaintiffs persons who are not interested at all (k). Every summons and every affidavit of service must be sealed with the seal of the court, and erasures and inter- lineations in an affidavit of service must be initialled, other- wise such an omission is a good ground for dismissing the plaint, and appearance to take the objection is not a waiver (1). But section 134, requiring process to be sealed with the seal of the court, refers to a process in a suit, and applies only to something by which the suit is advanced ; and a judge's summons to show cause why plaintiff should not be placed on the register of a company was held sufficient though sealed with a wrong seal (m). A solicitor may appear under protest and take objection (h) Whiteman v. McGallan, 6 W. W. & A'B. (M.) 28 (1869) ; Act No. 1120, sec. 178. (i) General Rules, No. 2. (j) Ibid, No. 3. (k) Australasia Co. v. Wilson, 4 A.J.R. 18, 63 (1873). (I) General Rules, Nos. 22, 24 ; Mitten v. Spargo, 1 V.R. (M.) 22; 1 A.J.R. 69 (1870). (m) Murphy v. Cotter and The United Hand and Band Co. (2), 7 V.L.R. (M.) 16; 3 A.L.T. 17 (1881). PROCEDURE AND PRACTICE. 309 to the plaint (n), and such appearance will not be deemed a k. iv. ch.in. waiver of the objection taken ; where, when a case was called on, the defendant's attorney stated that he intended to dis- pute the regularity of the affidavit of service, and was told by the judge that he could not be recognised unless he appeared, and that by appearing he would waive the objec- tion to a mere irregularity, it was held that he might take the objection without waiving the irregularity. It is important in mining cases that each defendant should have an opportunity of discussing the due service of himself and others, and that the court should have assistance in calling attention to irregularities (o). It is not necessary in order to maintain a suit for forfeiture Thompson v. of a claim that the plaintiff should show that the defendant either is or claims to be in possession of the claim. "By the Act No. 291, sec. 101 (i), (No 1120, sec. 135 (i)), the juris- diction seems limited to land in which some person other than the plaintiff shall be or shall claim under miner's right to be entitled to be in occupation or possession. This does not mean that no person can be made a defendant who claims no right, &c. Plaintiffs are often at a loss to find who are the real claimants, especially where they are enforc- ing forfeiture against those who neglect to work and absent themselves from the claim, and they can only feel secure as to their title acquired by summons by serving all those who have possession or any pretence of right " (p). But a plaint is bad which joins as co-plaintiffs parties who are not interested at all (q). The judge has power on an appeal from the Warden to striking out order that an appellant's name be struck out from all proceedings in his court, and that all proceedings be set aside as to such appellant, in a case in which he was made a party without his authority or knowledge (r). (n) Taylor v. Stubbn, 6 W.W. in Thompson v. Begg, 2 V.R. (M). A'B. (M.) 19 (1869); Murphy v. 1 ; 2 A.J.R. 34 (1871). Neil, 6 W.W. & A'B. (M.) 45; (q) Australasia Co. v. Wilson, N.C. 19 (1869). supra. (o) Mitten v. Spargo, supra. (r) M'Lfod v. Whitfidd, 2 V.R. (p) Per Molesworth, Ch. Judge, (M.) 17 ; 2 A.J.R. 104 (1871). 310 DISTRICT COURTS OF MINES. Bk.iv.ch.in. If objection for want of parties be taken in a suit prosecuted with written pleadings, the judge may amend to parties; upon terms (s). The judge has also power to amend a and for plaint or answer for uncertainty, obscurity or repugnance (t) ; uncertainty; . , ~ . . or if the answer is ineffectual by reason of omission, or erroneous or incongruous statement of fact (u). He may and misjoinder. also amend in cases of misjoinder (v), and such amendment may be made at any stage of the case. Thus, where lessees and tributers sued for encroachment, and the evidence showed that the encroachment was after the letting on tribute, the judge was allowed to amend the plaint by striking out the lessees as plaintiffs, and to make a decree for the tributers (w). Generally. A general power of amendment is given by sections 168 and 169, but this refers to proceedings originated in the Court of Mines, and not to appeals ; the judge cannot amend a form of appeal (x). In New Zealand it was held that although the Warden had power to amend a summons, the District Court as a court of appeal had no power to do so (y). Before making an amendment the judge should defer the exercise of his discretion until all the facts are disclosed (z). Hearing of suit. In the case of a suit prosecuted without written pleadings the suit is heard and determined by the court in a summary cross relief. wa y> an ^ the defendant may in such a suit obtain any cross relief in connection with the matters stated by the plaint which he could have obtained had a suit been instituted by himself (a). Assessors. The court or either party may require the issues and questions of fact to be tried before the court and six assessors, who are to be summoned as before mentioned, and the verdict of a majority of them will be received (b). If, how- (s) Act No. 1120, sec. 149. (x) Burch v. Brown, 7 V.L.R. (t) Ibid, sec. 1/56. (M.) 10 ; 2 A.L.T. 149 (1881). (u) Ibid, sec. 163. (y) Sung You v. Koch, 1 N.Z. (v) Ibid, sec. 166 ; General Rules, J.R. (U.S.) M.L. 55 (1874). No. 12. (z) Osborne v. Elliott, supra. (w) Osboriie v. Elliott, 6W.W. & (a) Act No. 1120, sec. 160. A'B. (M.) 49 ; N.C. 20 (1869). (6) Ibid, sees. 172, 173. PROCEDURE AND PRACTICE. 311 ever, a majority of the assessors fail to agree on a verdict Bk.iv.ch.m. within six hours after the case is left to them they are to be discharged, and another day is to be appointed for a trial, each party bearing his own costs (c). Where issues have been settled for trial by assessors the parties should not be allowed in argument to go outside those issues (d) ; and in a case heard before the court and assessors the judge cannot disregard the finding of the assessors, even though they find against his direction (e). The procedure before the court and assessors is similar in all respects to that before a judge and jury. The judge of a Court of Mines cannot refuse to act as such ; where he is vested with authority to hear a case he is bound to exercise that authority when called on, otherwise he might refuse to try cases he did not wish to try. A judge cannot exercise discretion in such cases ; he is bound to try the cases over which he has jurisdiction (/). As soon as convenient after the decree of the court has Decr been pronounced the party in whose favour the decree is made may require the clerk of the court to draw it up, after which it is settled and signed by the judge, and there- upon becomes effective and enforceable by the process of the court (g), unless stayed or appealed against (h). The Act No. 1120 contemplates only one decree, and ^e when that is drawn up and signed by the judge it is enforce- able at once, unless appealed against (i) ; and the Act does not provide for the judge of the Court of Mines making a decree to account (_;'). After the decree is drawn up by ^" 1 e e e ment the clerk of the court any party objecting to its terms may apply to the judge to settle it, and when settled and signed (c) General Rules, No. 18. (g) Act No. 1120, sec. 181. (d) Wearne v. Froggatt, 2 V.L.R. (h) As to enforcement of decrees (M.)l (1876). and orders see Act No. 1120, Part (e) Brinkmanv. Hohtein, 1 W. & I, Div. 2 (1) (d). W. (L.) 368 (1862). (i) Reg. v. Rogers, 5 W.W. & (/) Reg. v. Dunne, ex parteBail- A'B. (L.) 206 (1868). lie, 3 V.R. (L.) 239 ; 3 A.J.R. 118 (j) AlbionCo. v.St. George United (1872). Co., 4 W.W. & A'B. (M.) 37 (1867). 312 DISTRICT COURTS OF MINES. Opinion of Supreme Court. Quashing'order varying decree. Absent defendants. Nonsuit. Hearing to be concluded before decree made. it becomes effective (k) ; and the decree should be signed by the person who was judge at its date (/). The opinion of the Supreme Court is not a decree of the Court of Mines ; the decree itself must be drawn up from the opinion and signed by the judge of the latter court (m). \Vhere a decree made by the judge of the Court of Mines was varied by the Chief Judge, and was subsequently quashed on certiorari, but the order varying it was not quashed, it was held that the judge of the Court of Mines ought not to refuse to hear the cause on the ground that the decree had not been quashed ; the decree is the foundation of subsequent proceedings and the foundation being removed, the superstructure necessarily falls with it ; thus, when the decree was quashed all the subsequent proceedings depending on it went with it, and mandamus was granted to compel the judge to proceed with the hearing (n). It seems that the powder of the judge of the Court of Mines to make a decree reserving the rights of absent defendants should be exercised only on his own doubts as to the justice of the case against them, and not on the objection of other defendants (o). A defendant who declines to call evidence, but who chooses to rest on the insufficiency of the proof of the plaintiff's title, and not on the strength of his own title, is not allowed to run the double chance of obtaining a decision m his favor on a point of law and of falling back after- wards on the merits of the case. If a person asks for a nonsuit he is not allowed afterwards to set that nonsuit aside (p). Where the judge by his decree declared that encroach- (Jc) Reg. \. Quinlan, ex parte Sampson, 10 V.L.R, (L.) 102; 6 A.L.T. 8 (1884). (1) Vallancourt v. O'Rorke (2), 2 V.R. (M.) 14 ; 2 A.J.R. 84 (1871) ; but see now Act No. 1120, sec. 182. (m) Ex parte Sea Queen Co., 5 A.J.R. 77 (1874). (n) Reg. v. Rogers, 6 W.W. & A'B. (L.) 138(1869). (o) Mitten \. Spargo, 1 \ 7 .R. (M). 22; 1 A.J.R. 69 (1870); see also Kenwood v. Hoskins, 16 N.S.W. L.R. (L.)45; 11 VV.N. 126(1895); Tangye* v. Nelson, 3 W.N. (N.S. W.) 100(1887). ( p ) Reg. v. Cope, in re Moore, 4 A.J.R. 113 (1873). PROCEDURE AND PRACTICE. 313 nient had been committed and that accounts should be W. iv. ch. in. Sec. III. taken, and on appeal the Chief Judge varied the decree, but only as to the extent of the encroachment, and remitted it to the judge below, who proceeded to take accounts, it was held on motion for prohibition that the judge is not at liberty to take accounts after having made his decree ; having made his final decree before the appeal he became functus offitio, and had no power to take any further pro- ceedings. He must conclude the hearing before making the decree, leaving nothing more to be done than what is purely ministerial, and taking accounts is not a purely ministerial proceeding ; it is quasi judicial (q). Any party to any suit in the Court of Mines, or to any FuTcourt the proceeding before the judge, may appeal to the Full Court against the decree or order (r), but no appeal will lie from An order of the judge of the Court of Mines setting aside his former decree and directing a new trial (s). The judge Speoialcase - may also reserve any question of law in the form of a special case () for the opinion of the Supreme Court, and the judge must make his decree in accordance with such opinion (u). But he may not decide a case first, and then state a special case for the opinion of the Supreme Court (v) though the hearing of the case must be completed before any such question is stated (10). The judge of the Court of Mines may also grant a rehear- Rehearing and ing or new trial of questions of fact, and may if he think fit require such questions to be tried by assessors (x). An order for a new trial, however, is not such an order as con- cludes the merits, on the principle of following out the policy adopted in the Privy Council that appeal is only allowed where the merits of the case are concluded (y). (q) Beg. v. Rogers, 5 W.W. & Act No. 32, sec. 70; compare Act A'B. (L.) 206 (1868). No. 1120, sec. 209. (r) Act No. 1120, sec. 210. (w) Reg. v. Cope, in re Moore, 4 (*) Watson v. Norwood, 3 V.R. A.J.R. 113 (1873); Ex parte Sea (M.) 1 ; 3 A.J.R. 21 (1872). Queen Co., 5 A.J.R. 77 (1874). (t) Act No. 1120, sec. 209. (a:) Act No. 1120, sec. 207. (u) Ibid, sec. 268. (y) Watson v. Morwood, 3 V.R. (v) Kirk v. Barr, 2 W.W. & A'B. (M.) 1 ; 3 A.J.R. 21 (1872). (L.) 44 (1865), decided under the 314 DISTRICT COURTS OF MINES. Bk 'sec'^ii JI1 ' ^ ie P ower ^ the Supreme Court to issue a writ of CertiorarT" ccrtiorari to bring up proceedings of an inferior court has been taken away by section 296 of the Act No. 1120, but the effect of this clause is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari in mining cases, but to control and limit its action on such writ (0), which may be issued to bring up proceedings which are invalid as not being properly taken under the Act No. 1120 (a. Review for error. But though standing on the footing of an inferior court, the Court of Mines has concurrent jurisdiction with the Supreme Court on certain subjects (6), and the decision of the Court of Mines cannot be altered or varied by the Supreme Court by way of review for error, or on further discovery of evidence, and pendency of a case in the Court of Mines will stop the jurisdiction of the Supreme Court on Mandamus. the same subject (c). But the Supreme Court will grant mandamus when satisfied that there will be a failure of justice if it be not granted (d), though the Supreme Court will not interfere with an order of the Court of Mines bj 7 prohibition where it has exercised its jurisdiction (e), even though the order may be bad (/). Prohibition may also issue in regard to part only of an order if such part is severable from the other part (g). Costs - The judge has a discretionary power to award costs, which are taxed according to the scale in the general rules (h), and he may assess and award costs in an inter- locutory application (i). The judge can give costs in his discretion as between party and party or as between solicitor (z) Colonial Bank v. Willan, 5 (d) Reg. v. Rogers, 6 W.W. & A.J.R. 53 (1874). A'B. (L.) 138 (1869). (a) Reg. v. Strutt, 4 A.J.R. 147 (e) Reg. v. Cope, in re Moore, 4 (1873) ; Reg. v. Belcher, ex parte A.J.R. 113 (1873). Oilbee, 4 A.J.R. 80, 110 (1873); (/) Reg. v. Forbes, A.R., Sept. Reg. v. Thotnson, ex parte Costin, 4 18, 1866. V.L.R. (L.) 512 (1878). (g) Coates v. South Loch Fyne G. (b) Gunn v. Harvey, 1 V.L.R. M. Co. (3), 26 V.L.R. 117(1900). (E.) Ill (1875). (h) General Rules, Nos. 29-31. (c) United Working Miners G. M. (i) Watson v. Commercial Bank, Co. v. Prince of Wales Co. (2), 6 5 V.L.R. (M.) 36(1879). W.W. & A'B. (E.)8; N.C. 71(1869). PROCEDURE AND PRACTICE. 315 and client, and he is required at the time of the hearing or Bk. iv. ch. in. of giving his decision to tax them (j). Where, however, the judge made a decree with costs, but the costs were not fixed at the hearing, but were subsequently taxed by the clerk of the court, it was held that the decree could not be quashed by certiorari, but that the proper remedy was by appeal (k). It is the duty of the judge at the hearing to tax the costs in any proceeding before him (I), and he has no jurisdiction to direct them to be fixed by the clerk of the court ; the enforcement of such an order will be prohibited as to the costs (m). The judge may in any case where a court of equity might ;^ rity for do so make an order for staying proceedings until security shall have been given for costs (n). SECTION IV. INTERLOCUTORY ORDERS. The judge of the Court of Mines is vested with power to Power vested in make interlocutory and other orders as may seem just, in addition to the jurisdiction conferred on the Court itself. He may grant injunction against encroachment and tres- injunction, pass pending suit, and until the hearing and determination, or pending appeal, or until further order of the judge or of the court (a), and generally he has the same powers in suits, appeals and proceedings in the Court of Mines of granting injunction orders as are vested in the Supreme Court or one of its judges (6); and the court may issue an injunction in a suit originating before the Warden and transferred to the Court of Mines, without the necessity of a suit being instituted in the latter court (c) ; and in any (j) Act No. 1120, sec. 280. (n) Act No. 1120, sec. 180. (k) Reg. v. Quinlan, ex parte (a) Ibid, sec. 195. Sampson, 10 V.L.R. (L.) 102; 6 (b) Ibid, sec. 196. A.L.T. 8(1884). (c) Dennis v. Vivian, 1 W.W. & (/) Act No. 1120, sec. 280. A'B. (L.) 201 (1864), decided under (m) Coates v. South Loch Fyne Act No. 32, sec. 70 ; compare Act G.M. Co. (3), supra. No. 1120, sees. 207, 209, 263. 316 DISTRICT COURTS OF MINES. Bk. iv. ch in. suit in the Court of Mines the judge may grant an injunc- tion (d) against proceeding in any other court (e). Deposit of gow. ^he judge may also on the application of any party to a suit or appeal make orders 'for the appointment of a manager, under whose direction any land or claim in dis- pute may be worked, such manager to be subject to the control of the court (/); and may order any gold obtained to be deposited with any person or at any place pending the final determination of the suit (g). Inspection. Stay of proceedings. He may also make orders for the production of docu- ments for inspection relating to any matter in issue in any suit or appeal (ft), and may in his discretion upon such terms as he shall think just make orders staying further proceedings under the decision of the Warden pending appeal (i). Orders may be made ex parte on affidavit, or, if notice of the application be given to the other side, either on affidavit or oral testimony ( j). SECTION V.- APPEAL FROM THE WARDEN. Right of appeal. Previous to the passing of the Goldfields Act (21 Vic. No. 32) no provision was made for appeal from the decision of the Goldfields Commissioner or the local court ; that Act, which instituted the office of Warden, first gave a right of appeal from his decision to the Court of Mines, and this right has been since retained, and is established by the present Act. Conditions of appeal. Any person desirous of appealing from the decision of the Warden, which includes the decision of the Warden on the (d) Act No. 1120, sec. 197. (e) See ante, Bk. I, Ch. IV, Sec. Ill, "INJUNCTION." (/) Act No. 1120, sec. 198. (g) Ibid, sec. 199. (h) Ibid, sec. 200. (t) Ibid, sec. 201. (j) Ibid, sec. 202. As to the jurisdiction of the judge of the Court of Mines to make interlocu- tory and miscellaneous orders see Act No. 1120, Part I, Div. 2(1) (e). APPEAL FROM THE WARDEN. 317 finding of assessors, may appeal to the Court of Mines for Bk. iv. ch. in. the district in which the decision was pronounced, at that sitting of such court which next after the expiration of one month (a) from the day of making such decision shall be held nearest to the place at which such decision shall have been made, provided that ten days (6) notice be given to the parties interested in supporting the decision, or such of them as shall represent all the parties interested, stating the in- tention to appeal, and the grounds of appeal, arid the time and place at which such appeal will be heard. If the parties cannot be found on whom to serve the notice, it must be served on the Warden ; a deposit of ten pounds must also be made with the clerk of the court to abide the costs of the appeal (c). Where the parties had appealed from the Warden to the Prohibition pending appeal. District Court in Queensland (d), and had also applied for prohibition to the Supreme Court, the rule nisi for pro- hibition was discharged on the ground that the parties should have exhausted the appeal before coming to the Supreme Court (e). When the date of the sitting of the Court of Mines has J^VoT'court not been fixed, it will be sufficient if the notice of appeal be not fixed - " for the next court which after the expiration of one month" shall be held, without naming a date (/) ; but it is not sufficient when an erroneous date is named in the notice for the sitting of the court (g). Under section 70 of the Act No. 32 the judge had power Rehearing of to grant only one rehearing of a hearing or an appeal (h), (a) Act No. 1120, sec. 254 ; sub- TICK." stituted for fifteen days prescribed (d) Under the Queensland Mining by Act No. 291, sec. 212. Act, 38 Vic. No. 11. (6) Act No. 1120, sec. 254; the (e) Secretary for Public Instruc- ten days will be exclusive of the tion v. Auld, Brisbane Courier, day of making the decision and in- April 7, 1886. elusive of the last day ; see Watson (/) Kilgour v. Flinn, 5 W. W. & v. Issdt, 16 V.L.R. 607 (1890). A'B. (M.) 32 (1868). (c) See Act No. 1120, Part I, (g) Ryan v. Callaghan, 6 W. W. Div. 2 (2) (c). As to appeal from & A'B. (M.) 54 ; N.C. 23 (1869). the Warden in other States, see ante (h) Denni* v. Vivian, 1 W.W. & Ch. I, "MINING COURTS OF Jus- A'B. (L.) 201 (1864). 318 DISTRICT COURTS OF MINES. Bk. iv. ch.in. but under section 207 of the Act No. 1120 the court or judge may grant a rehearing of a suit or of an appeal as often as such court or judge shall deem proper. Appeal is An appeal from the decision of the Warden to the Court rehearing! 1 of Mines is virtually a rehearing of the case before a higher tribunal, as is an appeal from the justices to the Court of General Sessions, and an appellant is therefore not confined to the case as brought before the Warden ; he may on the appeal prove another and different case before the Court of Mines, so long as he limits himself to the grounds of appeal stated in his notice (i). " Section 210 of the Act No. 1120, provid- ing for appeals from the Court of Mines, provides for the facts being collected and stated in a special case settled by the parties, or, in case of disagreement, by the judge, and this stands in the place of a transmission of evidence, but in the case of appeals from Wardens to the Court of Mines there is no such provision. Further, as to proceedings before the Warden, there is little of pleadings for the complainant showing the case made by him, and none for the defendant ; no provision for reducing the evidence to writing ; none for any record showing the grounds of the Warden's decision. It seems to me hardly possible, with such defective means of knowing matters before the Warden, to limit those con- ducting the cases of either party to the course pursued before him. If new evidence cannot be received at every step, a question might be raised whether that offered was offered before the Warden ; and so as to every legal argument, and there would often be more difficulty in deciding what was done or said before the Warden than in originally disposing of the case upon the merits " ( j ). states ther * n a ^ *ke otner States provision is made for appeal from the decision of the Warden or Commissioner, though the procedure varies in each State (k). (i) Constable v. Smith, 6 W.W. & (j) Per Molesworth, J., in Con- A'B. (M.) 59 (1869) ; Mole, v. Wil- stable v. Smith, supra. Hums, 3 V.R. (M.)7; 3 A.J.R. 21 (A) See ante, Bk. IV, Ch. I, ( ls92 )- " MINING COURTS OF JUSTICE." APPEAL FROM THE WARDEN. 319 () Basis of Appeal. Under the Act No. 32 no appeal would lie where the Bk.iv. ch.ni. Warden declined to make an order for possession and dis- lii-inissal of case missed the case (a), but by section 254 of the Act No. 1120 b> Warden - provision is made for appeal whether the decision of the Warden be a dismissal of the case or otherwise. The basis of appeal is the decision of the Warden, and Appeal based on that only, and where the Warden sits with assessors appeal warden, lies from his decision in the same manner as if such decision were given by the W T arden sitting alone (6), though there is no appeal from the finding of the assessors on questions of fact ; the only remedy for a misfmding of assessors is a new Finding of trial (c). But if the finding of the assessors is minuted as the decision of the case, the finding of the assessors and the order made in pursuance of it become the decision and order irregularity, of the Warden, and appeal will lie (d). Where the question is purely one of the administration of an Act by the Warden, and the matters alleged show at most irregularity only in the exercise of jurisdiction, and not excess of it, the remedy is by appeal and not prohibition (e). No appeal would lie compensation, from the decision of the Warden assessing compensation under section 315 of the Act 1120, relating to private property, when the claim for compensation was waived or abandoned (/); this part of the Act has, however, been repealed by the Act No. 1514. In a case where questions of fact are to be tried by judge to settle questions Of assessors on appeal (g), the judge has the same power of fact, settling such questions as he would have in his original jurisdiction under section 173 (h). (a) Power v. M'Dermott, 2 W. & (S.C.) 684 (1898). W. (L.)241 (1863). (/) Wheeldon v. Parkin, 20 V. (b) Moore v. White, 4 A.J.R. 17 L.R. 60; 15 A.L.T. 207 (1894). (1873). This section has been repealed, and (c) Reg. v. Breivtr and Walhalla compensation is now assessed on an Co., 4 W. W. & A'B. (L.) 124 (1867). ordinary complaint before the \\ ar- (d) Mulcahy v. Walhalla Co., 5 den, whose decision is appealable ; \V.W. & A'B. (E.) 103 (1868) ; on Act No. 1514, sec. 77. appeal to Privy Council, 40 L.J. (fir) Act No. 1120, sec. 262. PC 41 2 A J R. 93. W Brennan v. Watson (1), 3 W. (e) Howell v. /?<*, 16 N.Z.L.R. W. & A'B. (M.) 55 (1866). 320 DISTRICT COURTS OF MINES. Bk. IV. Ch. Ill Sec. r. what mav be The Court of Mines can hear an appeal on a question of the jurisdiction of the Warden, and may reverse the Warden's order if made without jurisdiction (i) ; and appeal will lie to the Court of Mines from the decision of the Warden under section 216 of the No. 1120 in respect of a sum under one hundred pounds claimed as accruing from a joint mining adventure between the complainant and the defendant (j ). where case Appeal will lie where a complaint has been dismissed as dismissed as not entertained. not entertained by the Warden (k) ; under the Act No. 32 unless the case were entertained and dismissed by Warden there was no appeal (I). the Eight of appeal. A right of appeal, therefore, to be given at all must be expressly given (m) ; and so, under a New Zealand Act (n) there was no appeal to the District Court from an adverse decision of the Warden on an application for a claim (o). Appeal practically i rehearing. To what court appeal had. An appeal should be practically a rehearing, as there is no provision for evidence taken before the Warden being trans- mitted to the appellate Court of Mines (p) ; it is in effect a continuation of the proceedings before the Warden (g), and the appellant is entitled to prove another and a different case to that proved before the Warden, but he should be confined to the grounds stated in his notice of appeal, subject to the relaxation of section 260 of the Act No. 1120 (r). The appeal must in the first instance be to the Court of Mines for the district within which the decision appealed from was pronounced, held nearest to the place where such decision was made, though the appeal may be heard at any (i) Pride of the East G.M. Co. v. Wimmer (2), 5 V.L.R. (M.) 9 (1879). (j) Pride of the East G.M. Co. v. Wimmer (1), 4 V.L.R. (M.) 3 (1878). (k) Act No. 1120, sec. 254. (I) Sim v. Eddy, 3 W.W. & A 'B. (m) Barker v. Phillips, A.R., June 30, 1865. (n) 30 Vic. No. 32 (N.Z.). (o) Harris v. Labes, 1 N.Z.J.R. (N.S.) M.L. 10 (1872) ; see, how- ever, 62 Vic. No. 38(N.Z.). (p ) .Vole v. Williams, 3 V.R. (M. ) 7; 3A.J.R. 21 (1872). (q) Bcurke v. Lucas, 3 N.S.W. L.R. (L.) 215 (1882). (r) Constable v. Smith, 6 W.W. & A'B. (M.) 58 ; N.C. 70 (1869). APPEAL FROM THE WARDEN. 30 1 place within the district (s); and it may be assumed that Bk. iv. ch. 111. " nearest " means as the crow flies (t). A complainant does not lose his right to proceed with an appeal by assigning his rights in the claim in dispute pend- ing the appeal (u) ; and it is sufficient if the parties to the proceedings before the Warden are before the appellate court (v). Persons who are summoned but who do not Non-appearance before Warden. appear betore the Warden may appeal (w) ; but a person who has no right to appear before the Warden as one of the parties interested has no locus standi in the appellate court (x). commitment. There is no appeal from an order of commitment under order of section 188 of the Act No. 1120, as a special remedy is provided by section 193 as a substitute for appeal; but appeal will lie from the Court of Mines to the Supreme Court from an order dismissing a summons for commitment under section 192 (y}. (ft) Notice of Appeal. The notice of appeal must be in the form given by the what must be J stated in notici Act (a) ; and it is essential that the notice state (1) the intention to appeal, (2) the grounds of appeal, and (3) the time and place at which the appeal will be heard. The appellant will be confined to the grounds stated in his notice, though not necessarily to the case proved before the Warden (6), and the appeal must be to the court held nearest to the place where the decision appealed from was pronounced, though it need not necessarily be heard at that court (c). () Vi<:ary v. Row, 3 W.VV. & ley, 2 W.W. & A'B. (L.) 47 (1865) ; A'B. (M.) 1 (1866) ; Act No. 1120, under Act No. 32, sees. 76, 84; sec. 254. compare Act No. 1120, sees. 254, (t) See Reg. v. McLacfilan, 3 W. 219. W. & A'B. (L.) 120 (1866). (y) Vallancourt v. O'Rorke (2), 2 (u) Herbert v. Millan, 6 V.L.R. V.R, (M.) 14 ; 2 A.J.R. 84 (1871). (M.) 13 ; I A.L.T. 202 (1880). (a) Act No. 1120, Schedule xxxi. (v) Early v. Barker, 1 W.W. & (b) Constable v. Smith, 6 W.W. & A'B. (L.) 32 (1864). A'B. (M.) 58 ; N.C. 70 (1869). (w) Constable v. Smith, supra. (c) Vicary v. Row, 3 W.W. & (x) Band of Hope Co. \. Critch- A'B. (M.) 1 (1866). 21 322 DISTRICT COURTS OF MINES. . iv. ch. in. Service of notice. Heading of notice. The appeal must be made at that sitting of the court held next a * ter tn6 expiration of one month from the making of the decision (d) ; if the date of the sitting of the Court of Mines is not fixed and publicly announced within the time limited for giving notice of appeal, a party omitting the actual date of the hearing of the appeal from his notice is not thereby deprived of his right to appeal (e) ; but other- wise if an erroneous date is given (/). The notice of appeal must be served on the parties interested in supporting the decision appealed from, or upon such of them as shall appear to the Court of Mines sufficient to represent all the parties interested, within ten days from the day of making the decision. If no such person can be found upon whom to serve the notice it must be served on the Warden by whom the decision was made (g). Notice of appeal must be headed in the mining district in which the decision was made (h), but if headed in the wrong division of the district such an error is mere surplusage, and not fatal to the notice, as the title of the Court of Mines appealed to will be sufficient if the district is plainly indi- cated in the notice (i), though the notice will be bad if headed in the court of a mining district which does not exist, and the judge has no power to amend (j). Where a notice of appeal from the Warden (/c) was headed " In the Supreme Court of New Zealand, Northern District," but not stating that the appellate court would sit at Auckland, and not naming any time when the appeal would be heard, it was held to be sufficient as to the description of the place of hearing and as to the time, as no special day had been fixed for the sitting of the court at the time the notice of appeal was given (I) ; and the District Court (in) should not refuse (d) Act No. 1120, sec. 254. (e) Kilgour v. Flinn, 5 W.W. & A'B. (M.) 32 (1868). (/) Ryan v. Callaghan, 6 W.W. &A'B. (M.)54; N.C. 23 (1869). (.gr) Act No. 1120, sec. 254. (h) Burch v. Brown, 1 V.L.R. (M.) 10; 2 A.L.T. 149(1881). (i) Frayne v. Garr, 5 W.W. & A'B. (M.) 12(1868). (j) Burch v. Brown, supra. (k) 54 & 55 Vic. No. 33 (N.Z.), sec. 287. (I) Cooper v. Komata G.M. Go., 14 N.Z.L.R. 66 (1895). (m) 50 Vic. No. 51 (N.Z.). APPEAL FROM THE WARDEN. 323 to hear an appeal because the notice did not comply with Bk. iv.ch.m. the form in the appendix in stating the nature of the relief sought, so long as it complied with the provisions of the Act (n). A notice of appeal (o) which does not contain a N. s. wales, statement of the decision appealed from, but only the grounds of appeal, is informal ( p ). A notice of appeal headed for trial bv assessors and Trial b - v x L J assessors. setting out the grounds of the appeal, but not specifying any material question or issue of fact which the appellant requires to be tried by the assessors, is not a sufficient notice of trial by assessors under section 261 of the Act No. 1120 (q). The date of the decision appealed from should be correctly stated in the notice to distinguish it from other decisions in the same suit, and as regulating the time of appealing and the sitting of the court to which the appeal should be made (r), and the notice should also describe the decision by both date and place; the heading of the Warden's order containing the name of the place is not sufficient (s) ; but failing to fill up the blank in the schedule form, left for the insertion of the name of the place at which the proceedings had been heard by the Warden, was held not to invalidate the notice of appeal (t). All documents on an appeal from the Warden should be headed as between appellant and respondent, and not as between complainant and defendant (u). The judge has no power, after the expiration of the time allowed for appeal, to extend the time (v), but the time for notice of appeal and deposit of money may be enlarged by verbal consent of the parties (w). (n) Ward v. Bernston, 8 N.Z.L.R. A'B. (M.) 12 (1868). 21 (1889) (0 R& s v - Carroll, 11 A.L.T. 19o (o) 37 Vic. No. 13(N.S.W.). (1890). (n) Lindsay v. Hamon (1), 19 N. (u) Mole v. William*, 3 \ .R. (M.) S.W.L.R. (L.) 348 (1898). 7 ; 3 A.J.R. 21 (1872). (q) Breiman v. Watson (1), 3 W. (r) Central Q.M. Co. v. Morgan, W. & A'B. (M.) 55 (1866). 4 A.J.R. 174 (1873). (r) Kilaour v. Flinn, 5 W.W. & (w) Conway v. Louchard, 10 V. A'B. (M.) 32 (1868). L.R. (M.) 6 ; 6 A.L.T. 120 (1884). (s) Frayne v. Carr, 5 W.W. & DISTRICT COURTS OF MINES. Bk. IV. Ch. ill. Sec.- T. Sundays and holidays must not be excluded from the computation of time for giving notice of appeal ; if the last day falls on a Sunday notice of appeal given on Monday is bad (x). Notice of appeal may be good, though not actually signed by the appellants, or - as on their behalf (y) ; it is sufficient if their names appear at the foot of the notice (2). Thus, a notice of appeal commencing " I, the undersigned," and signed "Thos. Mann, attorney for Wm. Dillon" (the appellant), was held sufficient (a). So, where the notice was signed " H. Cock, by his attorney J. R Hornby," the words being written, not by the attorney, but by his clerk (6), But the name of the appellant must appear at the foot of the notice ; a signature by an attorney " for and on behalf of the abovenamed appellants " is not sufficient (c). Service of notice of appeal cannot be effected on an unauthorised agent of the respondent (d), but if either party appear before the Warden by attorney, notice of appeal may be served on such attorney (e), though service on an attorney by leaving the notice with an inmate of hi& private house is not good service. It should be served on him personally, or on a clerk at his office (/). When service of notice on the Warden is resorted to, he must be served within the time limited by section 254 of the Act No. 1120, viz., ten days. Service on him at his- residence, or on his clerk at his office, is sufficient (g), but not on an inmate of his private residence (h). If it be shown to the Warden by affidavit that a person (x) lief/, v. Macoboy, ex parte Stevens, I V.R. (L.) 26; 1 A.J.R. 37 (1870). (y) Kilgour v. Flinn, 5 W.W. & A'B. (M.) 32 (1868); Melville v. Higgins, 1 W. & W. (L.) 306 (1862); Maconochie v. Woods, 2 W. & W. (L.) 249 (1863). (z) Frayne v. Carr, 5 W.W. & A'B. (M.) 12(1868). (a) Dillon v. Matthews, 3 V.L.R. (M.) 5(1877). (6) Cock v. Sayers, 3 A.J.R. 63 ; 3 V.R. (M.) 10(1872). (c) Ryan \. Callaghan,Q W.W. & A'B. (M.) 54; N.C. 23 (1869). (d) Murphy v. Ntil, 6 W.W. & A'B. (M.) 45; N.C. 19(1869). (e) Act No. 1120, sec. 255. (j) Laivlor v. Grant and the Pig- tail Co., 3 V.L.R, (M.) 12(1877). (g) Ward v. McGallan, 6 W.W. & A'B. (M.) 28 (1869). (h) Laictor v. Grant and the Pig- tail Co., supra. APPEAL FROM THE WARDEN. 325 named as a respondent in a notice of appeal cannot be Bk. iv. ch. in. found, and cannot by reasonable exertion be served with the notice within the time limited, the Warden may make an order for substitution of service on him (i). Under the Act No. 32, sec. 84, an order for substituted service of an appeal summons might be made by the judge at the hearing, and it was for the judge to say whether all parties should be served, or such only of them as appeared to him sufficient to represent all (j ). Respondents on appeal have the right to object to defective objections to service of notice on themselves or others, and to examine and give evidence upon controverted facts as to service (k). The question whether a person served with notice of appeal sufficiently represents all the respondents is a matter for the discretion of the judge, and service of a notice to produce a document at the hearing of the appeal is not a waiver of an objection to the service of the notice of appeal (I). (c) Hearing of Appeal. An appeal from the decision of the Warden is heard Procedure, before the Court of Mines in the same manner as a suit originating in that court, at such sitting of the court or at such other place within the mining district and at such time as the judge shall by writing under his hand direct ; and the order on the appeal is final and conclusive on the parties (a). On the hearing of an appeal, after the appellant nas ^ e j ntof stated his case, and before calling witnesses, the judge may defence - call upon the respondent to state the nature of his defence, and neither party will be permitted to depart from his opening statement without leave of the judge (b). Either party to an appeal may require any question of Assessors. fact material to the issue to be tried before the court and six assessors, and in such case the court in pronouncing its order must act on the verdict found on such trial ; or the (t) Act No. 1120, sec. 256. A'B. (M.) 45 ; N.C. 19 (1869). ( j ) In re Roqers, ex parte Shean, (1) Whitman v. McGattan, 6 W. 2 W.W. & A ; B. (L.) 84 (1865); W. & A'B. (M.) 28(1869) compare Act No. 1120, sec. 254. (a) Act No. 1120, sec. 2o7- (A) Murphy v. Neil, 6 W.W. & (b) General Rules, No. 36. 326 DISTRICT COURTS OF MINES. Bk.iv.ch.in. judge may on the hearing of the appeal direct an issue to be tried before the court and assessors, but in this case the court is not bound to act on the verdict found in pronounc- ing its order, but may direct another trial of the issue (c). The party requiring the issue to be tried before assessors must in his notice thereof state what question of fact material to the issue the assessors are required to try. The provisions as to the trial of issues and of questions of fact in original proceedings in the Court of Mines are applicable to the trial of such issues and questions of facts in the case of appeals (d). Eight to begin. I n the case of Stevens v. Webster (e) it was held that on an appeal from the Warden to the Court of Mines the appellant should have the right to begin, whether he were complainant or defendant in the court below ; but in a later case (/) this ruling was not followed, and it was held that, as an appeal was practically a rehearing (g) the complainant below should begin, though it seems the judge has an absolute discretion as to the order of hearing. The production of the Warden's decision, as required by the Act No. 291, sec. 213, was a condition precedent to the hearing of an appeal, and could not be waived ; it was not a mere right between the parties, like a notice of appeal (/i); but this section has been amended by the Act No. 1120 (i). However, before an appeal can be heard a copy of the com- plaint before the Warden, and a copy of the Warden's decision which is appealed against, must be delivered to the clerk for the use of the court, or the court must be provided with a copy (j). It need not be certified as a true copy, as the section only requires the appellant to lodge what he represents verbally or otherwise to be a copy of the com- plaint ; but the judge may receive evidence as to its correct- f. s. wies. ness (k). In New South Wales the District Court has no Production of decision appealed from (c) Act No. 1120, sec. 261 (d) Ibid, sec. 262. (e) 3 W.W. & A'B. (M.)23 (1866). (/) Mole v. Williams, 3 V.R. (M.)7; 3A.J.R. 21 (1872). (g) Constable v. Smith, 6 W.W. & A'B. (M.) 58 ; tt.C. 70 (1869). (h) Crocker v. Wigg, 5 W.W. & A'B. (M.) 20 (1868). (i) See Act No. 1120, sec. 257. (j) Ibid, sec. 256. (k) Hok John v. Yuny Hinr/, 4 APPEAL FROM THE WARDEN. 327 jurisdiction (Z) to hear an appeal from the Warden unless a Bt.iv.ch. in. certified copy of the Warden's decision is produced ; the production of the register containing an entry of the Warden's order, but not of his decision, is not sufficient (m). But where a Queensland Act (71) required a copy of the Qu* nsl nd - plaint and notice of defence and of the minutes and decision of the Warden to be produced to the court on the appeal, and the judge had before him a copy of the entry of the grounds of complaint, of the defence, and of the Warden's decision, it was held that the Act had been sufficiently com- plied with, and the judge was bound to hear the appeal (o). The court may make such order with respect to the costs costs of appeal, of an appeal and of the proceeding appealed from as it may think fit(p); but if the subject matter of appeal shall appear to the court not to exceed in value twenty pounds, no costs of the appeal will be allowed unless the court shall under special circumstances allow them (q). The judge should hear an appeal without reference to any negotiations for compromise between the parties, arrived at after the decision of the Warden is made (r) ; but an agree- ment between the parties, prior to the hearing of the com- plaint, to accept the decision of the Warden as final will bar the appeal (s). If an appeal from the decision of the Warden be dis- Duty of warden, missed, the Warden may proceed to enforce his decision as if no appeal had been brought ; and if the decision be varied on appeal, the decision so varied is deemed to be the decision of the Warden, which may be enforced as an original decision (t). A. J.R. 173. As to the jurisdiction (o) Bearup v. Barker, 3 Q.L. J. 45 of the court to hear an appeal when (1887). a copy of the complaint and decision ( p) Act No. 1 120, sec. 2o7. Ine has not been furnished, see Renwick judge cannot order costs of appeal v. Hyde, 1 A.L.T. 77 (1879). to be fixed by the clerk of the w ffl W Vic. No. 1 3( N.S.W.,, sees. .^j g&^tf" (m) Ex part* Lucas, 8 W.N. (N. (q) Ibid, sec. 259. S.W.) 33 (1891), following Crocker (r) Harrison v. S>mth,Q U.W. & v. Wigg, 5 W.W. & A 'B (M.) 20 A'B. (E.) 182 (1869) ; see on appeal ( 1868)', and Whitemanv. McGallan, to P. C., 3 A. J.R. 44. 6 W.W. & A'B. (M.) 28 (1869). (*) Act No. 1120, sec. 2o8. (n) 38 Vic. No. 11 (Q.), sec. 47. (<) Ibid, sec. 269. CHAPTER IV. THE APPELLATE MINING COURT. SEC. I. THE COURT OF THE CHIEF JUDGE OF COURTS OF MINES. SEC. II. APPEAL FROM THE COURT OF MINES. SEC. III. SPECIAL CASK. (a) Stated by the Judge of the Court of Mines. (b) Stated by the Warden. SECTION I. THE COURT OF THE CHIEF JUDGE OF COURTS OF MINES. Bk ' ',L C /' 1V ' ^ HE r i nt f appeal from the Court of Mines to the Supreme wghTafTppaj. Court was first given by The Goldfields Act (No. 32), sec. 71, which Act created the first Court of Mines. On the repeal of this Act by The Mining Statute 1865 (No. 291) a new appellate court was erected, entitled the Court of the Chief Judge of Courts of Mines, to which court appeal might be had from the Court of Mines (a) ; and by the same Act the Judge of the Court of Mines was empowered to special case. reserve any question of law in the form of a special case for the opinion of the Chief Judge (b), and a similar power was given to the Warden (c). (a) Act No. 291, sec. 82. (b) Ibid, sec. 171: (c) Ibid, sec. 194. THE COURT OF THE CHIEF JUDGE. 329 The Court of the Chief Judge was a court of record, on Bk. ir. ch. IP. the same footing as the Supreme Court, and its officers were The Court of the the officers ot the Supreme Court in its equity jurisdiction, Chief Jud(fe - who performed all such duties appertaining to the Court of the Chief Judge as were analogous to the duties performed by them as officers of the Supreme Court in its equity jurisdiction. The Court of the Chief Judge was, however, abolished by Abolished by The Judicature Act 1883 (d), and after the coming into 18 * 3 - operation of that Act (July 1, 1884), the jurisdiction there- tofore vested in the Court of the Chief Judge was transferred to the Supreme Court, and, except as to pending business, the Court of the Chief Judge ceased to exist (e). The creation of the Court of the Chief Judge did not altogether c deprive the Supreme Court of its jurisdiction, the jurisdiction of such court being concurrent with that of the Supreme Court. The Supreme Court was not justified in declining to hear a case simply because the Chief Judge of Courts of Mines had already decided the point of law involved in it ; the Legislature in creating a new court, and declaring its decision to be final as between the parties, did not deprive the Supreme Court of its jurisdiction ; and the Supreme Court was not concluded by the decision of the Chief Judge of Courts of Mines upon a point of mining law (/). SECTION II. APPEAL FROM THE COURT OF MINES. The right of appeal from any decree or order of the Court Procedure, of Mines, or from the order of any judge thereof, to the Full Court is given by the Act No. 1120, sees. 210, 265, which provide for the procedure thereon (a). The Full Court may hear the appeal and make such order therein as shall be just, and may dismiss the appeal, or reverse or vary (d) 47 Vic. No. 761. A'B. (E.) 103 (1868). (e) Ibid, sees. 4, 5, 6, 7. (a) Compare 62 Vic. No. 38 (N.Z. ), (f) McCafferty v. Cummin*, 5 sec. 292 ; 62 Vic. No. 24 (Q. ), sec. W.W. & A'B. (L.) 73 (1868) ; Mul- 150 ; 37 Vic. No. 13 (N.S.W.), sec. cahy v. Walha/la Co., 5 W.W. & 115. 330 THE APPELLATE MIXING COURT. Bk. iv. ch. ir. the decree appealed from, or may direct the case to be re-heard before the court, but not before the Court of Mines, and may give costs ; and the order of the Full Court is final (6). Appeal case. The appeal to the Full Court is by means of an appeal case in the form agreed on by both parties or their attorneys or counsel, or stated by the judge from whose order, or by the judge of the court from the decree or order of which the appeal shall be brought ; if the parties cannot agree upon the case it is settled and signed by the judge, and is transmitted to the Prothonotary and set down to be argued before the Full Court. Transmission < appeal case. Enlargement of time. Where an appeal case had not been transmitted within the time limited by section 210 of the Act No. 1120, yet was set down in the list for hearing, it was held that an objection on this ground should be made by moving to have the case struck out of the list, otherwise the appeal would be heard (c) : and where an appeal case was not transmitted within the proper time, and the only order for enlargement appearing on the case was one made by the judge of the Court of Mines after he had removed from the district, no order was made on the appeal (d). The judge of the Court of Mines may make an order for stay of proceedings pending appeal (e) ; and he has the power to rescind or vary his order enlarging the time for transmission of the appeal case, and there is no appeal from the exercise of his discretion (/). But where the time for transmitting the appeal case had expired on March 28, and the judge of the Court of Mines enlarged the time to April 21, and on April 29, the case not having then been transmitted, he, with the consent of the attorneys for the parties, further enlarged the time to May 11, it was held that, the second (1>) Act No. 1120, sec. 211. (c) Lewi* v. Pearson, 4 W.W. & A'B. (M.) 23 (1867) ; Intkip v. /- skip, 3 W.W. & A'B. (L.) 24 (1866). (d) Brennan v. Watson (2), 6 W. W. & A'B. (M.) 1 (1869) ; Odgersv. H'aldron, 1 V.R. (M.) 26; 1 A.J. R. 71 (1870). But see Act No. 1120, sec. 212, empowering a judge to act after his removal from the district. (e) Act No. 1120, sec. 214. (/) Collin* v. Hayts, 5 W.W. et seq. Oostin, 4 V.L.R. (L.) 512 (1878). (/) Faheyv. Koh-i-noor Q.M. Co., (i) Clerk v. Wricdey, 4 W.W. & 3 W.W. & A'B. (M.) 4 (1866), fol- A 'B. (M.) 74 (1867). lowed in Abraham v. Delia Ca (3), (j) United Claims Tribute Co. v. 4 A.L.R. 204 (1898); see United Taylor, 8 V.L.R. (M.) 19 ; 3 A.L.T. Claims Tribute Co. v. Taylor, 8 147 (1882). SPECIAL CASE. 341 were left open. The Privy Council has decided (k) that . iv. ch. iv. upon questions submitted by special case the case remains open for adjudication by the original court, notwithstanding my answer thereto " (I). The Supreme Court had no power to grant costs on a Costs, special case stated under the Act No. 32 (ra), but under the Act No. 1120, sec. 268, the Supreme Court may upon the argument of any special case make such order with respect to costs as it may think proper (n) ; and costs should be given to the successful party (o). Where the Warden refuses to state a case, and a rule nisi Costs again* 1 w araen. is obtained and made absolute directing him to do so, the Supreme Court on a special case will not give costs against the Warden unless they are specially asked for in the rule nisi(p). No definite form is provided of a special case from the Form of special Warden or the Court of Mines for the opinion of the Supreme Court. A case stated by the Warden may be in the following form : In the Supreme Court. In the matter of a complaint before the Warden at S. between A. B. complainant and C. D. defendant. Special case stated by the Warden at S. for the opinion of the Supreme Court. This case was commenced by summons, by which the complainant sought [copy complaint of summons}. The said summons came on for hearing before me the undersigned Warden [or Warden and assessors] at S. on the day 190 , both parties being represented by counsel, when it was proved [state concisely and clearly the evidence given before the Warden, and the points raised]. After hearing arguments I reserved for the opinion of the Supreme Court the following questions of law : [set out severally the questions reserved]. (k) S?nith v. Harrison, 6 W.W. & W. (L.) 337(1862). & A'B. (E.) 182 (1869); see judg- (n) Fattorini v. Band and Albion ment on appeal to Privy Council in Consols, (2), 9 V.L.R. (M.) 1; 4 3A.J.R. 44 P A.L.T. 121 (18S3). (1) Per Molesworth, Ch. Judge, (o) Allison v. Sharp, 17 A.L.I. in Summers v. Cooper (2), 5 V.L.R. 240; 2 A.L.R. 50 (1896). (M ) 42 (1879) (P) Grant v. Lawlor, 3 V.L.R. (m) Jenkinson v. Gumming, 1 W. (M.) 15 (1877). As to proceedings 342 THE APPELLATE MINING COURT. Bk. iv. ch. iv. A case stated by the judge of the Court of Mines may be Sec. III. ,-..- -x X ' -x > in a similar form, mutatis mutandis. Practice in The case is drawn up by the attorney of the party requir- ing the case to be stated, and if necessary is settled by counsel, after which a draft is delivered to the other side for approval ; and if the parties cannot agree as to the form of the case it is settled by the Warden. It is then engrossed and signed by the Warden after which it is entered for argument with the prothonotary, and notice of setting down is served, with a copy of the case, on the other side. Either part) A special case for the opinion of the Supreme Court may pply for * i case. k e applied for by either party, and in such case proceedings may be stayed on such terms as the Warden may think fit until the opinion shall be given (q). If the Warden refuse to state a case on such application he cannot make an order until after the expiration of ten days from the day of such refusal (r) ; and the applicant may within such ten days apply to the Supreme Court for a rule nisi calling upon the Warden to show cause why he should not state the case. on refusal by the Warden to state a (q) Act No. 1120, sec. 265. special case, see Act No. 1120, sec. (r) Ibid, sec. 266. '266. APPENDIX. NOTE. The statute law relating to mining in the other States and New Zealand is comprised in the following Acts in force in the respective States : NEW SOUTH WALES." The Mining Act 1874 " (37 Vic. No. 13), and its amendments, 43 Vic. No. 28, 46 Vic. No. 7, 48 Vic. No. 10, 48 Vic. No. 17, 53 Vic. No. 20, 57 Vic. No. 18 ; " The Mining on Private Lands Act of 1894" (57 Vic. No. 32), and the amending Act of 1896, 60 Vic. No. 40. QUEENSLAND." The Mining Act 0/1898" (62 Vic. No. 24). WESTERN AUSTRALIA." The Goldfields Act 1895 " (59 Vic. No. 40), and its amendments, 60 Vic. No. 36, 62 Vic. No. 16 ; " The Mining on Private Property Act 1898 " (62 Vic. No. 29), and an amending Act, 63 Vic. No. 31 ;" The Sluicing and Dredging for Gold Act 1899 " (63 Vic. No. 43). SOUTH AUSTRALIA." The Mining Act 1893 " (56 & 57 Vic. No. 587) ; " The Mining on Private Property Act 1888 " (51 & 52 Vic. No. 448), and an amending Act, 58 & 59 Vic. No. TASMANIA.-" The Mining Act 1893" (57 Vic. No. 24), and its amendments, 59 Vic. No. 35, 63 Vic. No. 39. NEW ZEALAND. " The Mining Act 1898" (62 Vic. No. 38), and an amending Act, 63 Vic. No. 29. Comparative references have been made throughout the Appendices to such of these Acts as are similar or analogous to the provisions of the Mines Acts of Victoria, by inserting at the end of the sections of the latter Acts, where they apply, the number and section of such of the Acts of the other States as correspond with or are analogous to the Victorian law. APPENDIX (A). THE MINES ACT 1890 (54 Vic. No. 1120). ANALYSIS OF CONTENTS. Short title, commencement, and divi- sion Repeal PART I. MINING ON CROWN LANDS. Interpretation 3 DIVISION I. MINING MANAGEMENT. (1) Miner's Right. Miner's Right to issue 4 Consolidated Miner's Right 4 Privileges conferred by miner's right 5 Limit to size of residence area ... 5 Miner's rights may be applied for in name of incorporated mining com- pany 6 Claims may be registered 7 Privileges of registered claim-holders 8 Miner's right may be assigned ... 8 Necessary number of miner's rights or a consolidated right sufficient... 9 When claim shall be deemed aban- doned 10 (2) Business Licence. Business licence 11 Occupation under business licence ... 12 Residence area 12 Business licence may be transferred 13 (3) Miner's Right and Business Licence. Miner's right and business licence may be antedated in certain cases 14 Certain lands exempted 15 Commons not to be deemed lands applied to public purposes ... 16 Other lands may be excepted ... 17 SRC. Occupation of exempted or excepted lands may be allowed 18 Claims under public roads . . , ... 19 Managers of public roads may allow sluice-boxes, tramways and cul- verts under public roads ... . . 20 Managers of public roads may make roads over mining works 21 Value of buildings held under miner's right or business licence to be arbitrated 22 Proceedings on neglect to appoint an arbitrator 23 Death of arbitrator 24 Holder of miner's right or business licence to have the value 25 Licence to enter upon conveyed land 26 (4) Residence Areas. Interpretation 27 Registration of residence area Limitation of number of residence 28 areas to be held by one person ... 29 Notification of registration to be in- dorsed on miner's right ... ... 30 Holders of residence areas registered before 31st March, 1882, entitled to certain privileges 31 Persons in undisturbed occupation for twelve months before com- mencement of Act No. 709 ... 31 Cancellation of registration if holder of residence area ceases to have miner's right or business licence or has illegally obtained registration 32 Order for cancellation of residence area if no dwelling thereon ... 33 Effect of order 34 When order may be made ... ... 34 Exclusive right of holder of residence arpa 35 346 THE MINES ACT 1890. Holders of residence areas after pos- session for two and a half years to have right of pre-emption at a valuation 36 Declaration to be made by appraiser 37 Holder of a miner's right or business licence may pay for residence area in instalments 38 Power to let 39 Power to sell or transfer 40 Sale or transfer void until registered 41 Residence unnecessary in certain cases 42 Exemption from mining under right 43 Claims under residence areas before commencement of Act not affected 43 Leases below residence areas ... 44 Provisions of lease 45 Validity of leases heretofore granted below surface of residence areas ... 46 Penalty for mining beneath residence area without a lease . . ... 47 Disputes as to rights below surface to be heard and finally determined before Warden 48 (5) Mining Leases. Leases may be granted for mining &c. 49 Meaning of "elective body cor- porate" 50 Leases to be called "Gold Mining Leases " and " Mineral Leases "... 51 Land occupied for residence or busi- ness may be leased on compensa- tion being paid 52 Leases of mines under lands granted or reserved for public purposes may in certain cases be made ... 53 Term' and rent of gold mining leases 54 Area and term of mineral lease ... 54 Governor may grant special leases to discoverers of new gold-fields ... 55 Leases may be surrendered 56 Renewal of leases 56 Rent reserved in existing leases under Act No. 291 reduced 57 Rents payable on leases heretofore granted 58 (6) Leases of Reservoirs. Leases may be made of reservoirs ... 59 Money due for water supplied may be recovered in a summary man- ner 60 Penalty for wrongfully taking water 61 Penalty for polluting water or injur- ing reservoir ... 62 (7) Licences to search for Metals and Minerals other than Gold. Licences to search for metals and minerals other than gold may be granted . 63 (8) Licences to cut Races, &c. Licences to cut and construct races, dams, &c. may be granted ... 64 Power to revoke licence on making compensation 64 (9) Miscellaneous Provisions relating to Leases and Licences Ground applied for protected ... 65 Warden may hear objections to granting of lease ... ... ... 66 Not obligatory to grant leases ... 67 Application for a lease not to affect land of the applicant held under a miner's right 68 Notice of intention to grant lease .or licence to be published in the Gazette 69 Ground applied for under gold min- ing lease protected pending appli- cation 70 Pendency of application defined ... 71 Entry on land by assignee of claim pending application for lease not a trespass 72 Repealed 73 Directors prohibited from entering into contract for working on tri- bute unless authorised ... .. 74 Ejectment may be brought in the Court of Mines 75 Gazette notice of forfeiture of mining leases to be conclusive evidence of forfeiture ... 76 Regulations of Governor-in-Council 77 Regulations to be published in the Gazette 78 Special terms and conditions ... 79 (10) Mining Districts. Creation of mining districts and divisions 80 (11) Mining Officers. Power of the Governor-in-Council to appoint mining officers ... ... 81 Officers &c. may be suspended or re- moved 82 Copies of entries to be evidence ... 83 (12) Mining Boards. Mining board constituted ... Returning officer and deputies Duration of board Resignation of members Payment of members ... General election to be held yearly . . . Members to retire by rotation Eligible for re-election Qualification of members and of 87 ANALYSIS OF CONTENTS. 347 Qualification required at mining board elections where candidates or voters claim as holders of miner's rights 90 Notice of election and nomination of candidates ... ... .. ... 91 Mode of proceeding at elections ... 92 Duty and power of returning officer and deputies 93 Appointment of scrutineers 94 The ballot box... ... 95 Voter to produce miner's right ... 96 And answer questions ... ... 97 Ballot papers to be counted and result declared 98 Proviso in case of riot at the polling 99 Briberj- and treating 100 Meeting of board 101 Chairman to be elected 102 Quorum and casting vote 103 Seat how vacated 104 Deputy chairman 105 Mining board to make by-laws ... 106 By-laws to be forwarded to Law Officers 107 Governor-in -Council may cancel by- laws 108 Board to appoint certain officers ... 109 Appeal against rates 110 Moneys to be lodged in bank ... Ill Accounts to be published ... ... 112 Accounts to be certified . . ,..113 Fees how recoverable ... 114 DIVISION 2. COURTS AND PRO- CEDURE. (1) Courts of Mine*. (a) General Provisions. Courts of Mines 115 Appointment and qualification of judges of Courts of Mines 116 Deputy judge ... ... ... ...117 Judge of Court of Mines may sit without territorial limits of court 118 One judge may act for another judge 119 Clerks of court 120 Reference to general rules of practice, &c 120 Deputy clerk 121 Clerks to issue process and keep accounts 122 Bailiffs 123 Bailiff s duties 124 Remuneration of bailiffs 125 Part of sums allowed only may be paid to bailiffs 126 Clerk and bailiff to be distinct and not to practice in the Court of Mines 127 Clerk and bailiff to give security ... 128 Defence in actions for things done under this Part 129 Amount of fees and sums to lie fixed by the Governor-in-Council ... 130 To whom and when fees and sums are to be paid 131 List of fees and sums to be exhibited 132 Time, place, and notice of holding court 133 Seal of court 134 (6) Jurisdiction of Court*. Jurisdiction of Courts of Mines ... 135 Judge, if parties so require, to act as arbitrator in which case no appeal to lie 136 Court may administer both legal and equitable remedies although both not sought in plaint ... . . 1 37 Minors and representatives may sue 138 (c) Proceedings in the Courts of Mines. Mode of commencing suits ... ..139 Form of plaint 140 Persons suing on behalf of them- selves and others 141 Map may be annexed to plaint . . . 142 Summons to be indorsed on plaint . . . 143 Summons to be signed and sealed by clerk and plaint to be left with and numbered by him 144 A copy of the plaint and summons to be served on the defendant ... 145 Misnomer &c. in plaint or summons not to vitiate 146 Defendant may pay into court the amount claimed 147 Payment into court of less than the demand 1*8 Objection for want of parties in a suit with written pleadings ... 149 Notice of objections to plaint may be served 150 Answer to be delivered 151 Several defences 151 Cross relief 151 Endorsement on notice of objection and answer 152 As many defendants as conveniently can to combine in answering ... 153 Notice to admit 15 4 Proof of admission and notice to pro- duce M* Objection for uncertainty, &c. ... 156 When suit with written pleadings to be at issue ' W When at issue as to all the defend- ants, to be entered for hearing ... 157 Notice of hearing to be served ...158 Engrossment of plaint, notices of objections and answers to be lodged with clerk by the plaintiff Mode of proceeding at the hearing where both parties appear in suits without written pleadings ... 160 348 THE MINES ACT 1890. Cross relief Mode of proceeding at the hearing where both parties appear in suits with written pleadings Objections may be taken ore tenus ... Answer may be amended How objections or omissions to answer to be dealt with Defendant may obtain cross relief . . . No suit to be dismissed for misjoinder Hearing may be proceeded with in the absence of a party Suits not to be dismissed for variance In no case informality to prejudice Power of court on adjourning a case Amendments otherwise than at hear- ing Issues and facts may be tried by assessors Course to be pursued in case of a trial by assessors Mode of obtaining assessors In default of such sufficient number bystanders to act Where assessors are not summoned by reason of notice not being given to clerk SEC. 160 Court may refer certain matters .. 176 Proceeding when plaintiff does not appear , 177 Proceeding where the defendant or a sufficient number of defendants do not appear ... 178 Dismissal for want of prosecution ... 179 Judge may stay proceedings, grant time, or adjourn .. 180 Decree to be drawn up 181 Judge or deputy judge may act after resignation &c 182 (d) Enforcement of Decrees and Order*. Execution against property 183 Certificate of decree &c. may be for- warded to clerk of another Court of Mines 183 On sale of land or share held under a miner's right &c. bailiff to give certificate 184 On disobedience of decree for pay- ment of money debtor may be summoned and examined 185 And in case of non-attendance he may be imprisoned... Examination may be had on the original hearing 187 Form of commitment 188 Imprisonment not to operate as dis- charge of debt 189 Prisoner may be discharged on pay- ment 190 Application for discharge from prison 191 On disobedience of other decrees party may be summoned and com- mitted ,. 192 Prisoner may be discharged on per- formance .. 193 Order may be ex parte .. ... 194 (e) Interlocutory and Miscellaneous Orders. Power to grant injunction ... ... 195 General powers to grant injunctions not to be restricted 196 Court to have power to issue injunc- tion to restrain proceedings at' law 197 Manager ma y be appointed 198 Gold &c. may be ordered to be de- posited 199 Production of documents may be ordered 200 Power to stay proceedings on appeal 201 Orders may be had ex parte and varied * 202 Court to have power to make order requiring warden surveyor or other officer to perform duties of his office 203 Form of order and mode of enforcing it ... 204 Power to appoint provisional guar- dian of lunatic ... ... ... 205 Minutes of proceedings to be kept and to be evidence 206 (/) Rehear ings Special Cases and Appeals. Court or judge may grant rehearings and new trials of issue 207 Appeal from order granting rehearing 208 Judge may state case for opinion of Supreme Court 209 Appeal from Court of Mines ...210 Full Court to decide the appeal ... 211 Appeal not to lapse by death removal or resignation of judge of Court of Mines 212 Opinion of Supreme Court or decision of Full Court to be transmitted to Court of Mines 213 In case of a special case or appeal an injunction &c. and stay of pro- ceedings may be had 214 (2) Wardens, (a) General Provisions. Wardens may be appointed 215 Jurisdiction of Warden ... ... '216 Limited in debt or contract to one hundred pounds and decision to be final 216 Causes of action not to be divided ... 217 No costs in court of mines where no more than one hundred pounds recovered unless &c. ... 218 ANALYSIS OF CONTENTS. 349 221 ..'. 222 Proceedings before Warden to be commenced by summons ...... Appointment of Warden's clerks Warden may order substituted ser- vice of summons Warden may amend complaint by striking out co-plaintiff ...... Warden to keep a register of com- plaints ............ Complainant to value his demand and defendant may pay to the Warden Payment to Warden of less than the demand ............ Fees to be paid ..... ... Complaints not to be dismissed for informality .. ......... Warden to make roll of assessors . . . Assessors to be summoned by Warden Fees to assessors ......... Challenges ............ Fines for non-attendance ...... Oath to be administered and Warden and assessors shall proceed to hear and assessors to decide ...... Inspection may be demanded . . . Warden may order a survey to be made ............... Warden's decision to be recorded ... Warden may grant a rehearing ... Warden may state special case ... In case of a special case an injunction &c. may be had ......... Duty of Warden and assessors when proceeding is for recovery of land &c ................ Duty of Warden and assessors when proceeding is as to right to divert water &c ............. Duty of Warden and assessors when proceedingis in respect of encroach- ment .............. Duty of Warden and assessors when proceeding in respect of money due on a contract . ....... 240 Or in respect of a partnership ...240 Constables &c. to assist ...... 241 Mode of enforcing Warden's decision in case of debt &c .......... 242 (b) Special Powers and Dutiea. Auriferous earth may be seized ... 243 Warden may authorize entry on adjacent claim ......... 244 Warden may grant injunction on notice ...... ..... 245 Warden may grant injunction for seven days without notice ...... 246 Warden may order deposit of gold &c. 247 Form of order ......... 248 On disobedience of orders other than for the payment of money party may be summoned and committed 249 Prisoner may be discharged on per- formance ... 250 237 238 239 Order may be ex parte ...... 251 Certificate of decision of Warden may be filed in Court of Mines .... 252 Mode of enforcing Warden's order where not specially provided for... 253 (c) Appeals. Service of notice of appeal ...... Warden may order substituted ser- vice of notice of appeal ...... Copy of complaint and decision of the V\ arden to be delivered on appeal Court to make order on appeal . . . Agreement to bar appeal ... No costs where appeal less than twenty pounds unless judge under special circumstances shall allow them ............... Appeal to be heard by judge alone 254 255 256 256 257 258 259 260 No ground of appeal except those stated to be entered on 260 Assessors may be required 261 Provisions as to issues in original proceedings in Courts of Mines applicable to issues on appeals ... 262 In cases of appeal an injunction &c. and stay of proceedings may be had 263 Appeals from Wardens not to lapse by death cessation or removal of Judge 264 Parties may apply to judge or War- den to reserve special case for opinion of Supreme Court.. ... 265 Proceedings on refusal to reserve special case 266 When judge or Warden refuses a case the Supreme Court may order one to be stated .. 267 Opinion of the Supreme Court to be drawn up and transmitted to Court of Mines or Warden and to be binding on all parties 268 Mode of enforcing decision after appeal 269 (3) Miscellaneous Provisions. Party imprisoned may be discharged by Supreme Court 270 Clerk may adjourn court in absence of judge 271 Fees how recoverable 272 Documents may be in writing or print 273 Jurisdiction and duties of court, judges, clerks and Wardens under other Acts preserved ... .. 274 Summons to witnesses . . ... 275 Who may take affidavits 276 Appearance in person or by attorney 277 Fees to counsel and attorneys Ac. . . . 278 Clients may procure taxation of bills and counsel's fees .., ... 279 350 THE MINES ACT 1890. Allowance and taxation of costs . . . 280 Warden or court may award costs when suit struck out for want of jurisdiction 281 Contempt of Court 282 Interpleader 283 Computation of time 284 Power to make rules of practice . . . 285 Orders in Council arid rules to be laid before Parliament 286 DIVISION 3. PENALTIES. Penalty for unauthorized occupation 287 Penalty for offences connected with elections 288 Penalty for breach of by-law ... 289 Penalty on Warden acting if inter- ested 290 Penalty for extortion... ... ... 291 Assault on Warden and other offences 292 Penalty en witness neglecting to appear 293 Penalty on clerk or bailiff holding other offices or acting as counsel &c. . Recovery of penalty not to bar civil remedy .. ... Proceedings not to be removed into Supreme Court 296 Appeal to general sessions .. ... 297 Incapacity to sue without miner's right 298 PART II. MINING ON PKIVATE PROPERTY. Repealed 299-350 PART III. GENERAL PROVISIONS. DIVISION 1. REGULATION AND IN- SPECTION OF MINES AND MINING MACHINERY. Repealed 351-376 DIVISION 2. DRAINAGE or MINES. Interpretation 377 Repealed 378 Calculation of expense of drainage . . . 379 No drainage dues to be demanded in certain cases... ... .. ... 380 Mode of calculating amount of con- tribution 381 Work done by owners 382 Form of Warden's order ' 383 Not to be set aside for want of form 383 Filing and enforcement of Warden's order in Court of Mines of district 384 Certified order to be a charge on property of mine owner .. ... 385 Warden may restrain sale of such property until moneys paid . . . 385 Remedies in this Division to be cumulative .. ... 386 DIVISION 3. ACCIDENTS RELIEF FUND. Incorporation of trustees 387 Quorum and appointment of officers 388 Moneys vested in trustees ... ... 389 " The Victorian Mining Accident Relief Fund" ,390 Investment of Fund 391 Restriction on alienation of capital moneys of Fund 392 Application of income ... ... 393 Audit of accounts 394 Statement of receipts and expendi- ture to be laid before Parliament 395 Persons named in Schedule becoming possessed of means of support ... 396 Misappropriation of moneys... ... 397 Liability of trustee or officer ... 398 Power to make rules and regulations 399 "Mining Statute 1865." An Act to consolidate the Law relating to Mines. [10th July, 1890.] T) E it enacted by the Queen's Most Excellent Majesty by and -I * with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say) : 189 ' commencement *' T and division. come into operation on the first day of August One thousand THE MINES ACT 1890. 351 Division 1. Mining Manage- ment. eight hundred and ninety, and is divided into Parts Divisions and Subdivisions as follows : ( (1) Miner's Right ss. 4-10. (2) Business Licence ss. 11-13. (3) Miner's Right and Business Licence ss. 14-26. (4) Residence Areas ss. 27-48. (5) Mining Leases ss. 49-58. (6) Leases of Reservoirs ss. 59-62. (7) Licences to search for Metals and Minerals other than Gold s. 63. (8) Licences to cut Races nS> [ Division 3. Accidents Relief Fund ss. 387-399. Repeal. 2. The Acts mentioned in the First Schedule to this Act to the Schedule. ex< - ent to w hi c h the same are thereby expressed to be repealed are hereby repealed. Provided that such repeal shall not affect any Board elected, or any district erected, or any proclamation appointment election rule regulation by-law order registration valuation nomination complaint application declaration affidavit assignment award grant or decree made, or any miner's right consolidated miner's right licence debenture precept writ plaint plaint summons or summons issued, or any warrant or injunction granted, or any notice notification certificate or security given, or any service effected, or any agreement lease contract mortgage bond recognisance conveyance transfer or deed existing in force effected entered into executed, or any compensation due or pay- able under the said Acts or any of them save and except where by this Act it is otherwise expressly provided before the commence- ment of this Act. [cf. 37 Vic. No. 13 (N.8.W.), sec. 3 ; 62 Vic. No. 24 (Q.), sec. 4 ; 57 Vic. No. 24 (Tas.), sec. 4]. PART I. MINING ON CROWN LANDS. interpretation. 3 j n t h e construction and for the purposes of this Part of this Act the following terms shall, if not inconsistent with the context or subject-matter, have the respective meanings hereby assigned to them (that is to say) : "Claim." "Claim" shall mean a parcel of Crown land which any person in accordance with any by-laws of any mining board shall have taken possession of and be entitled to occupy for the purpose of seeking gold therein or any number of such parcels lawfully amalgamated by their owners, but shall not include any land comprised in any lease granted under any Act heretofore or now or hereafter to be in force authorizing the granting of leases for mining purposes : THE MINES ACT 1890. 353 " Crown land " shall include all lands of the Crown : " Mining statute 1865." "Earth" shall include any rock stone quartz clay sand soil 11^!'"^ and mineral : "Gold" shall signify as well any gold as any earth contain- "Gold." ing gold or having gold mixed in the substance thereof or set apart for the purpose of extracting gold there- from : "Mine "shall mean and include any place pit shaft drive "Mine." level or other excavation drift gutter lead vein lode or reef wherein or whereby any operation for or in con- nexion with mining purposes is or shall be carried on upon Crown land : "Miner "shall mean any person engaged or interested in "Miner." any such operation : "Mining purposes" shall mean the purpose of obtaining gold "Mining or any metal or mineral other than gold by any mode or method and of stacking or otherwise storing any earth : "To mine " shall mean to disturb remove cart carry wash "To mine." sift smelt refine crush or otherwise to deal with any earth by any mode or method whatsoever for the purpose of obtaining therefrom gold or any metal or mineral other than gold : " Warden " shall mean one of Her Majesty's wardens of the warden." goldfields in and for Victoria or in and for any district thereof, [cf. 37 Vic. No. 13 (N.S.W.), sec. 2 ; 62 Vic. No. 24 (Q.), sec. 3 ; 56 & 57 Vic. No. 587 (S.A.), sec. 4 ; 57 Vic. No. 24 (Tas.), sec. 4 ; 59 Vic. No. 40 (W. A.), sec. 4 ; 62 Vic. No. 38 (N.Z.), sec. 5]. DIVISION 1. MINING MANAGEMENT. (1) Miner's Right. $. It shall be lawful for the Governor in Council to cause docu- Miner's right to ments to be issued, each of which shall be called a " Miner's /6 . ,. 4 . Right " and which shall be in force for any. number of years not 354 THE MINES ACT 1890. 5ee No. 1514, 8.8. "Consolidated Miner's Right." " Mining Statute exceeding fifteen ; and any such document shall be granted to any person applying for the same upon payment of a sum at the rate of two shillings and sixpence* for every year for which the same is to be in force, [cf. 59 Vic. No. 40 (W.A.), sec. 14 ; 57 Vic. No. 38 (N.Z.), sec. 63 ; 56 & 57 Vic. No. 587 (S.A.), sec. 27 ; 37 Vic. No. 13 (N.S.W.), sec. 14 ; 62 Vic. No. 24 (Q.), sees. 11, 12 ; 57 Vic. No. 24 (Tas.), sec. 23]. It shall also be lawful for the Governor in Council to cause other documents to be issued, each to be called a " Consolidated Miner's Right " and to be in force for any number of years not exceeding fifteen ; and any such last-mentioned document shall, on the application of the manager or any trustee or trustees of any company of persons who shall have agreed to work in partner- ship any claim or claims registered under the provisions hereof, be granted to such manager trustee or trustees on behalf of the persons who shall from time to time be members of such company ; and shall during its continuance be held by the manager or the trustee or trustees for the time being of such company on behalf of such last-mentioned persons ; and shall be in lieu of and represent and be of the same force and effect as a number of miner's rights granted for the same period of time equal to the number of miner's rights by virtue of which the said claim or claims shall have originally been taken possession of ; and the same shall be granted to any person aforesaid so applying on pay- ment of a sum at the rate aforesaid multiplied by the number of miner's rights which the same is to represent, [cf. 62 Vic. No. 24 (Q.), sec. 13 ; 56 & 57 Vic. No. 587 (S.A.), sec. 27 ; 57 Vic. No. 24 (Tas.), sec. 24 ; 59 Vic. No. 40 (W.A.), sec. 15 ; 62 Vic. No. 38 (N.Z.), sec. 65]. Every such document shall be dated of the day and at the place of the issuing thereof, and shall state the number of years for which it is to be in force, and contain the Christian name and surname and the residence of (in case of a miner's right) the person in whose favour the same shall be issued, and (in case of a consolidated miner's right) the manager or trustee or trustees to whom and the name of the company on whose behalf the same shall be issued. Second Schedule. First Part. Every such miner's right shall be in the form in the First Part of the Second Schedule to this Act ; and every such consolidated THE MINES ACT 1890. 355 miner's right shall be in the form in the Second Part of the said "Mining statute schedule. Second Schedule. Provided that the term " miner's right " where it occurs Second Part - throughout this Part of this Act shall, unless inconsistent with the context, be taken to mean and include a consolidated miner's right. Provided also that when any such consolidated miner's right shall be granted, the miners' rights of the persons in whose behalf the same shall be granted shall be retained by them, and such persons shall be respectively deemed holders of miners' rights within the meaning of this Part during the continuance of such consolidated right. 5. Any person who shall be the holder and any number of privileges persons in conjunction who shall each be the holder of any such m/ner's'rigin* miner's right shall, subject to the provisions of this Part of this Ib - * 5 - Act and to the by-laws to be made as hereinafter mentioned, be entitled (except as against Her Majesty) to take possession for S(V yo 1514 gold mining purposes of a parcel or of so many parcels as such ' by-laws shall permit of Crown land in such manner of such quantity and dimensions and with such boundaries as shall be directed by such by-laws, such dimensions and boundaries to be fixed at the time of the taking of such possession or partially then * S^ and partially at some subsequent time according as shall be by such by-laws directed ; and every such parcel to be from time to time subject to such adjustment as to quantity dimensions boun- daries and form as shall be prescribed by such by-laws ; and any such person or persons who shall have so taken possession of any such parcel or parcels shall, either by himself or themselves or in conjunction with the holder or holders of any share or shares to be created in such parcel or parcels as hereinafter permitted, be, during the continuance of such miner's right or miners' rights or of a consolidated miner's right granted in lieu of any miners' rights, entitled to occupy for gold mining purposes such parcel or parcels : and every holder of a miner's right and every person on whose behalf any consolidated miner's right shall be granted shall, subject as aforesaid and during such continuance, be entitled (but subject to any right which may be obtained by any person under any licence granted by the Governor or the Board of Land and Works for the cutting construction and using of races tail- 356 THE MINES ACT 1890. " Mining statute races drains dams or reservoirs for gold mining purposes) to cut Races dams &c construct and use races dams and reservoirs for mining purposes through and upon any Crown lands, and to take or divert water from any spring lake pool or stream situate or flowing through or adjoining Crown lands and to use such water for mining for gold and for his own domestic purposes, and to use by way of an ease- ment any unoccupied Crown lands, [cf. 62 Vic. No. 24 (Q.), sees. 15, 16 ; 56 & 57 Vic. No. 587 (S.A.), sees. 30, 33 ; 57 Vic. No. 24 (Tas.), sec. 28 : 37 Vic. No. 13 (N.S.W.), sec. 15 ; 59 Vic. No. 40 (W.A.), sec. 16 ; 62 Vic. No. 38 (N.Z.), sec. 64]. Residence area. Every holder of a miner's right shall, during the continuance .^27! ' thereof and subject as aforesaid, be entitled to occupy on any gold-field for the purpose of residence so much of the Crown lands as shall be prescribed by such by-laws ; and every such holder and every person on whose behalf any consolidated miner's right shall be held shall be entitled for the purposes of the privileges hereby given to them respectively to put up and at any time to remove any building or other erection, and also to cut any live or dead timber except blackwood and to remove the same and to strip and remove the bark from any such timber, and also to remove any stone or gravel for mining purposes, and (in the case of the holder of a miner's right) for building for himself any place of residence or of business or for mining purposes or for fuel or otherwise for his personal use, from any Crown lands not exemp- ted nor excepted from occupation for mining under any Act relating to the gold-fields nor declared under any Act relating to the Crown lands to be either temporarily or permanently reserved from sale nor being or included in any land named in any procla- mation of the Governor in Council declaring that no person shall cut or remove such timber bark stone or gravel from any portion of Crown land named in such proclamation nor being or included in any laud proclaimed as a reserve for the preservation and growth of timber ; and also to make tramways or other roads for the carrying out and in aid of such purposes, [cf. 57 Vic. No. 24 (Tas.), sec. 29 ; 59 Vic. No. 40 (W.A.), regs. cl. 40 ; 62 Vic. No. 38(N.Z.), sec. 117]. The person or persons by whom such parcel or parcels of land or any land occupied for residence as aforesaid shall be so occupied shall, subject as aforesaid and during such continuance as afore- Cutting of timber. See No. 1514, s. 9. Making of tramways. THE MINES ACT 1890. 357 said, be deemed in law to be possessed (except as against Her -Mining statute Majesty only) of such parcel or parcels or of such land and the "" property therein ; and every share or interest which may be created therein as hereinafter mentioned shall be deemed a share or interest in land occupied chattel interest ; and during such continuance as aforesaid all gold r "l?" 'J l j"* r 8 then being in and upon any such parcel shall (except as against SatteilSteriS Her Majesty) be the absolute property of the person or persons for the time being in the lawful occupation of such parcel ; and every such parcel or any number of such parcels amalgamated by their owners shall be called a claim, [cf. 02 Vic. No. 38 (N.Z.), sec. 139]. Provided that no person shall be entitled by this Part or under Limit to 8ize of any such by-law to occupy for the purpose of residence more than one piece of land (a), the same not to exceed one acre in extent Areat and to be situated with respect to any street or otherwise as shall see ;*>*<, gub. (4), be provided for by the said by-laws ; and the holder of any such piece of land may assign and encumber the same in such manner and subject to such regulations as to registry as such by-laws shall direct, and in default of such direction either orally or by any instrument in writing. Provided that no person shall obtain any interest under any such assignment save a person who shall be the holder of a miner's right, [cf. 59 Vic. No. 40 (W.A.), regs. cl. 40 ; 62 Vic. No. 38 (N.Z.), sec. 119]. 6. Any incorporated mining company may for the purpose of Miner's rights taking or accepting transfer of any mining claim or mining claims, f r ^ or for the purpose of holding any mining claim or mining claims "^"p which may have been transferred to any such company, apply for Art yo. 446, and obtain so many miners' rights in the name of the corporation as shall be required under the mining board by-laws in force in the district to hold the claim or claims so transferred, [cf. 59 Vic. No. 40 (W.A.), sec. 18]. 7. The person or persons or any of them who shall have taken registered. 3 possession or be in the occupation of any claim as aforesaid, or JJJj!**?"' 1 * the executors or administrators or the assignee or assignees in see No. isu, s.05. insolvency or the guardian in infancy or the committee or guard- ian in lunacy or the purchaser under an execution of the interest (a) See sec. 29, permitting an additional residence area to be held beyond a distance of ten miles from the first area. 358 THE MINES ACT 1890. "Mining statute of such person or of any of such persons, may in such manner as such by-laws shall direct register such claim by some name ; and the owner of any share as hereinafter mentioned in a registered claim may register such share in such manner as such by-laws shall prescribe. Provided that no claim shall be registered unless the miner's right or miners' rights under which such claim shall be held shall be produced to the officer required to register the same. [cf. 37 Vic. No. 13 (N.S.W.), sec. 16 ; 56 MM,*, statute 59 Vic. No. 40 (W. A.), sec. 19 (4), (8) ; 62 Vic. No. 38 (N.Z.), ** sees. 135, 140]. (3) Miner's Sight and Business Licence. 1$. If any person who shall have been the holder of a miner's ^{"u JJS* right consolidated miner's right or business licence shall not on or before the day of the expiration thereof have taken out a new Cfcrtain cases - Ib. s. 1*2. right or licence (as the case may be), a new right or licence, dated of the clay of such expiration and which shall have the same force and efficacy as if it had been issued on that day, may nevertheless within one month from such expiration be granted to such person, upon production of such expired right or licence and upon payment of the sum of five shillings in the case of a miner's right or in case of a consolidated miner's right five shill- See * 0- 1514 ' 8 ' 8- ings for every right represented thereby and twenty-five per centum of the sum hereinbefore made payable in the case of a business licence in addition to the ordinary price of a miner's right consolidated miner's right or business licence ; and every new miner's right consolidated miner's right or business licence so issued shall be in such one of the forms in the Second and ThirdSclieduies. third Schedules to this Act as shall be applicable, [cf. 37 Vic. No. 13 (N.S.W.), sec. 24 ; 59 Vic. No. 40 (W.A.), sec. 20 ; 63 Vic. No. 29 (N.Z.), sec. 2]. 15. Notwithstanding the provisions herein contained, all Crown exempted"* 18 lands which shall have been applied to any public use or purpose, ii>. *. is. (a) or which shall be lawfully and bond fide used as a yard garden cultivated field or orchard, or upon which any house outhouse shed or other building provided the same shall be in actual use and occupation or any artificial dam or reservoir shall be lawfully standing, shall be and the same are hereby exempted from occu- pation for mining purposes and for residence or business under any miner's right or business licence. Provided that any Crown lands which shall have been so lawfully and bond fide used as aforesaid or upon which any house outhouse shed or building or any artificial dam or reservoir shall be standing shall, upon pay- ment of compensation to be ascertained and paid in the manner (a) See o-t Vic. No. 1106 (Land Act 1890), section 10. 362 ( THE MINES ACT 1890. "Mining statute prescribed by any by-law made by a mining board, cease to be exempted from occupation for mining purposes, [cf. 37 Vic. No. 13 (N.S.W.), sec. 25 ; 62 Yic. No. 24 (Q.), sec. 23 56 & 57 Vic. No. 587 (S.A.), sec. 9 ; 59 Vic. No. 40 (W.A.), sec. 21 ; 62 Vic. No. 38 (N.Z.), Part III ; and see 48 Vic. No. 10 (N.S.W.), Commons not to 16. Crown lands which have been or shall be proclaimed as a be deemed lands applied to public common shall not be deemed to have been or to be applied to any Act Xo 316, *. i. public use or purpose within the meaning of this Part of this Act or of the "Mining Statute 1865," or of any Act repealed by that Act. other lands may 17. [Repealed and re-enacted by No. 1514, sec. 11] : 17. The "Mining statute Governor in Council may at any time either by a general or particular description except from occupation for mining purposes or for residence or business under any miner's right or business licence or from being leased under a mining lease any specific portion of Crown lands or any class of Crown lands : and no land so excepted or included in any class so excepted shall be occupied under any miner's right or business licence until such exception be revoked nor until revoked shall it be lawful for any person to mark out or apply for a mining lease of such land or any part thereof, and any such marking out or application shall be null and void. [cf. 37 Vic. No. 13 (N.S.W.), sec. 26 ; 62 Vic. No. 24 (Q.), sec. 47 ; 57 Vic. No. 24 (Tas.), sec. 191 ; 59 Vic. No. 40 (W.A.), sec. 22]. ^' ^ P erson sna ^ cut or remove from any lands so exempted owed or exce pted as aforesaid any live timber or earth, or mine or em- ib. s. is. ply an y other person to mine in or upon, or unless authorized thereto by a licence granted under this Part of this Act cut or construct any race or dam or any tramway through over or upon such lands, or do in or upon such lands any of the other acts or things or exercise any of the privileges hereinbefore allowed and granted to the holder of a miner's right, [cf. 37 Vic. No. 13 (N.S.W.), sec. 27 ; N.S.W. regs., 1874 ; 57 Vic. No. 24 (Tas.), sec. 37 ; 59 Vic. No. 40 (W.A.), sec. 23 ; 62 Vic. No. 38 (N.Z.), Part III1. > Sic ; insert "be." Nevertheless it shall* lawful for the Governor in Council, upon application to him for that purpose, to authorize any one or more THE MINES ACT 1S90. 363 than one holder of a miner's right or the holders generally of "MMtig statute miners' rights to occupy under the same any Crown lands which may have been so excepted as aforesaid ; and also to construct drives under any lands so exempted as aforesaid, if it shall be made to appear to the satisfaction of such Governor that such drives can be constructed without injury to or obstruction to the enjoyment of such exempted lands ; and such occupation and construction of drives shall be subject to such conditions restric- tions and regulations as the Governor in Council shall impose and make, and so far as shall not be inconsistent therewith to such by-laws as aforesaid. Provided that where such lands are within any borough, notice of such application shall, one month before the same shall be made, be given to the mayor of such borough and published in some newspaper circulating in the neighbourhood of such lands. 19. .It shall be lawful for the holder of a miner's right or of a claims under public roads. lease under this Part of this Act to mine upon or under any street llt g 16 road or highway, on obtaining from the Board of Land and Works if such Board shall have the care and management thereof or from such other body as shall have such care and management an order permitting him so to do ; and for the purpose of obtaining such order, such holder shall apply therefor by notice in writing to such Board or other body, who shall thereupon decide whether the same can be effected without injury to adjoining property or injury or obstruction to such public road street or highway as the* case may be ; and thereupon the said Board or body shall issue its order, permitting on such conditions and terms and subject to such restrictions as it shall think fit or forbidding such mining as the case may require, [cf. 37 Vic. No. 13 (N.S.W.), sec. 28 ; 5G & 57 Vic. No. 587 (S.A.), sees. 8, 36 ; 57 Vic. No. 24 (Tas.), sec. 58 ; 63 Vic. No. 29 (N.Z.), sec. 18]. 20. It shall be lawful for the Board of Land and Works or Maneof other body having the care and management of any public road * street or highway, upon application thereto by any holder of a ^Sunde* miner's right or of a lease under this Part of this Act, and upon JJ^'J the report of any engineer or surveyor that a sluice-box tramway or culvert can be laid or constructed on or under any such public road street or highway without any substantial injury to or ob- struction of the traffic thereon and that such sluice-box tramway 364 THE MINES ACT 1890. "Mining statute or culvert is necessary for the due and proper working of any mine or for the conveyance of water for mining purposes by order in writing made after inspection by some officer of such Board or body of the road street or highway mentioned in such report subject to the rights of occupiers of adjoining or contiguous lands, to allow such sluice-box tramway or culvert to be laid or con- structed by any holder of a miner's right or of a lease under this Part of this Act for the purpose of conveying any water tailings sludge or waste water or earth. Provided that such works shall be so constructed as not to substantially injure such road street or highway or obstruct the traffic thereon and if after the construction of any such sluice- box tramway or culvert under such order it shall be made to appear to such Board or body that the same doth so injure such road street or highway or obstruct the traffic thoreon, it shall be lawful for such Board or body to order that the obstruction be removed ; and if after seven days from the date of such last- mentioned order the obstruction caused by such sluice-box tram- way or culvert shall not be removed or remedied, the same shall be deemed a nuisance ; and the person who shall have obtained the said first-mentioned order or the owner or occupier shall be liable to a penalty not exceeding Twenty pounds ; and the said nuisance may be abated by an order of any justice upon proof of the said last-mentioned order and of the disobedience thereof. [cf. 37 Vic. No. 13 (N.S.W.), sec. 29 ; 57 Vic. No. 24 (Tas.), sec. 59 ; 59 Vic. No. 40 (W.A.), sec. 24 ; 62 Vic. No. 38 (N.Z.), sec. 164]. Managers of 21. It shall be lawful for the Board of Land and Works, or public roads may SUC ^ ^ O ^ y as in the last P recedin g section mentioned, to authorize any person to make or construct any roads or temporary or permanent ways or other works over across or through any part of such works made or constructed by the holder of a miner's right under the authority of this Part of this Act. Provided that before such board or body shall give such authority seven days' notice thereof shall be given to the person lawfully in- terested in such last-mentioned works, [cf. 37 \ r ic. No. 13 (N.S.W.), sec. 30]. 22 - When an J la nd bond fide and legally held for residence or right or business Business on which any such building or erection as aforesaid may THE MINES ACT 1890. 365 have been put up shall be about to be sold, such building or erection or other bond fide improvements that may be made on [Jence'tTbe such land shall, unless such land shall have been surveyed by the arbitrated - Board of Land and Works prior to the erection of such building 5* N or erection, be valued ; and for the purpose of ascertaining such value, in case the holder of the miner's right or business licence by virtue of which the land upon which shall be situate such building or erection shall have been occupied or his assigns and the Board of Land and Works shall not agree upon the value, it shall be lawful for the judge of the Court of Mines held at or nearest to the place at which such building or erection shall be situate, on the application of such holder or of the said Board, to make an order that the same shall be valued by some competent person to be appointed in such order and by two other persons, one of whom shall be appointed by the said Board and the other by such holder or his assigns ; and such three arbitrators or any two of them shall make their valuation in writing (so as the amount of such valuation shall not exceed the cost of construct- ing such building erection or other bond fide improvements) on or before the day named for that purpose in such order, or on or before such further day as the said judge shall by writing indorsed on the same order appoint. Such order shall be in the form contained in the Fourth Fourth Schedule to this Act or to the like effect, and shall be filed in the said Court ; and every such award shall be in the form contained in the Fifth Schedule to this Act or to the like effect and shall be Fifth Schedule, delivered to the said judge in order that such award may be and the same shall be transmitted to and deposited in the office of the said last-mentioned Board, [cf. 62 Vic. No. 38 (N.Z.), sec. 40]. 23. Upon any valuation under this Part of this Act, each Proceedings on J neglect to party shall appoint an arbitrator, by delivering to the judge who < shall have made the order for valuation an appointment of a person as arbitrator signed by himself or his agent, and shall serve upon the opposite party a copy of such appointment. If either of the parties shall fail so to deliver such appointment and serve such copy, the other party, if he shall not have failed to do so, may serve upon the party who has so failed a copy of the said order for valuation accompanied by a notice requiring him to deliver such appointment to the said judge and a copy thereof to 366 THE MINES ACT 1890. ib. s. 21. "Mining statute the party serving such notice ; and if within fourteen days from the service of such copy and notice the party who shall have so failed shall still fail to deliver such appointment and copy, the arbitrator appointed by the party who shall have served such notice shall be deemed to be appointed by and shall act alone on behalf of both parties ; and the valuation of any arbitrator or arbitrators appointed in pursuance of this Part shall be binding final and conclusive upon Her Majesty and the said holder of the said miner's right or business licence or his assigns to all intents and purposes whatsoever. 2$. If before the making of such valuation as aforesaid any arbitrator die or refuse or by absence from Victoria or otherwise become incapable to act, the judge or party by whom such arbi- trator shall have been appointed (as the case may be) shall appoint in like manner another in his stead ; and if either party fail so to do for the space of fourteen days after notice from the other party in that behalf, the arbitrator appointed by the party giving the notice may proceed alone ex parte ; and every arbitrator so ap- pointed shall have the same powers and authorities as were vested in the arbitrator in whose stead the appointment shall be made. 25. The value so ascertained of any such building or erection as aforesaid shall be added to the upset price of the land without such building or erection, and shall together therewith be and constitute the actual upset price of such land ; and if the said holder of the said business licence or miner's right shall bid such last-mentioned upset price or more and shall be the highest bidder for such land, the value aforesaid shall be deducted from the sum so bidden and the balance shall be the purchase money for such land ; but if any other person than such holder shall become the purchaser of such land and shall pay for the same, such holder shall be entitled to receive out of such purchase money the said value of such building or erection, [cf. 62 Vic. No. 38 (N.Z.), sec. 40]. 26. The Board of Land and Works may grant licences in respect to any stream creek race or drain or any dam or reservoir upon any conveyed land referred to in section four of the Water Act 1890 in the same manner as if the same were situated on Crown lands ; the licensee may by the authority of such licence and for the purposes therein expressed enter upon the land so value. THE MINES ACT 1890. 357 conveyed, and may cleanse and clear and keep in efficient repair "Minina statute - - - - 1865." Se'No. 1514,8.1?. such race drain* dam or reservoir, and may deposit the matter removed therefrom upon the land immediately adjoining such race drain* dam or reservoir to a distance not exceeding five feet therefrom, without making any compensation to the owner of such land. (4) Residence Areas (a). 27. For the purpose of this Subdivision unless the context is interpretation. inconsistent with such construction "The Residence Areas Act 1881," " Residence area " shall mean any Crown land on any The Heidence gold-field not exceeding one acre in extent occupied ***' for the time being (in accordance with the provisions of this Part of this Act and of the by-laws of the mining district) by the holder of any miner's right or business licence for the purpose of residence or resi- dence and carrying on business as the case may be ; and " Holder " shall mean the holder of any miner's right or business licence who is for the time being entitled to occupy any residence area. [cf. 62 Vic. No. 24 (Q.), sec. 71 ; 56 & 57 Vic. No. 587 (S.A.), sec. 69; 57 Vic. No. 24 (Tas.), Part 11 (4); 62 Vic. No. 38 (N.Z.), sec. 117]. 28. No person shall be entitled to occupy any land on any Repstration of rj residence area. gold-field as a " residence area " unless such area shall for the ..y/^ Residence time being be registered by the mining registrar or other proper . 3. * ' officer of the mining district in which such land is situate, and See sec. 5. See No. 1514, ss. unless such person shall be registered as the holder of such area 14, 17, 28. and the number of the miner's right or business licence by virtue of which he is entitled to occupy such area is also registered. [cf. 59 Vic. No. 40 (W.A.), reg. 41]. 29 Any person may be the holder at any one and the same Limitation of J f J number of time of not more than one residence area in addition to the resi- one person. (a) cf. 62 Vic. No. 38 (N.Z.), sec. 117, et stq. ; 63 Vic. No. 29 (N.Z.), Ib. . 4. sec. 5 ; 59 Vic. No. 40 (W.A.), sees. 9, 16, 27-31 ; 56 & 57 Vic. No. 587 Sn ante, sec. 5. (S.A.), sees. 33 (ii), 69; 62 Vic. No. 24 (Q.), sees. 15 (5), (6), 17 ; 37 Vic. No. 13 (N.S.W.), sec. 15 (1) ; 57 Vic. No. 24 (Tas.), sees. 28, 30. 368 THE MINES ACT 1890. " The Residence^ dence area on which he may actually reside or on which he may reside and carry on his business, but no person shall be the holder of a residence area situated within a distance of ten miles from any other residence area held by him. A separate miner's right or business licence shall be held for each residence area of which any person may be the holder. 30. A notification of the fact of the registration of any resi- dence area registered after the coming into operation of this Act shall be indorsed by the mining registrar or other officer on the miner's right or business licence by virtue of which such area is held, and a similar indorsement shall be made by the registrar upon any renewal of such right or licence. 31. Every holder of a miner's right or business licence who was entitled to occupy and did occupy either by himself or his agent any Crown lands on any gold-field for the purpose of residence or of residence and carrying on his business and who at the time of the passing of " The Residence Areas Act 1881 " was registered or before the thirty-first day of March One thousand eight hundred and eighty-two was registered as the holder of such area shall be entitled to all the rights and privileges by this Subdivision con- ferred on holders of residence areas who have resided thereon for a. period of at least twelve months. Persons in Provided that any person who has been in undisturbed occupa- undisturbed _ J r occupation for tion by himself or his agent of any residence area for twelve twelve months J J commencement montns prior to the coming into operation of the said Act shall be of Act NO. 709. deemed to be a person entitled to occupy within the meaning of this section. Notification of registration to be indorsed on miner's right. 76. s. 5. Holders of residence areas registered as such before 31st March, 1882, entitled to certain privileges. 11. s. 6. residence area registration. ib. s . 7. Sfe No. 1514, 15, 16. 32 K ^ ^ time after the re g istra ti n of a residence area it P rove d to the satisfaction of any warden that the person who is registered as the holder thereof is no longer the holder of a miner's right or business licence as the case may be or that such person has obtained such registration in contravention of any of the provisions of this Part of thia Act or of any by-laws of the . . ,. mining district in which such area is situate such warden shall in any such case make an order that the registration of such residence area be cancelled ; and such registration shall thereupon be cancelled by the mining registrar or other proper officer, and the THE MINES ACT 1890. 3^9 land so registered shall on such cancellation cease to be a residence area. [cf. 59 Vic. No. 40 (W.A.), reg. 51]. 33. If at any time after four months from the registration of a rder for cancellation of residence area it shall be proved to the satisfaction of any warden resid ence area * if no dwelling that there is no habitable dwelling thereon erected and that there thereon - has not been a habitable dwelling thereon erected for a period of ^ * N O ISH, ss at least three consecutive months, such warden shall make an 15> 16- order that the registration of such residence area be cancelled ; and such registration shall thereupon be cancelled by the mining registrar or other proper officer, and the land so registered shall on such cancellation cease to be a residence area, and no second registration shall be effected by the same person of the whole or any part of a residence area within a period of six months. 34. Every order as aforesaid and the decision of any warden Effect f order, whether he will or will not make an order as aforesaid shall be final ; and no such order or decision shall be a bar to any fresh when order may suit before any warden ; and no order shall in any case be made or refused until a suit claiming an order for the cancellation of the registration of a residence area shall have been commenced before and heard and determined by such warden in accordance with the provisions of Division two of this Part of this Act. 35. The holders of a residence area and the executors or Exclusive right administrators of any deceased holder shall have except as against residence area. Her Majesty Her heirs and successors the sole and exclusive right /6- *' 10 to occupy the surface of such residence area or to take any pro- ceedings that may be necessary to enable him to keep or recover possession of such surface in like manner so far as is consistent with this Part of this Act as if he were the owner of such area in fee simple. 36. When buildings or other improvements have been erected ^^."^^ or made upon any Crown lands occupied by the holder of a miner's right or business licence under the provision of this Subdivison { and of which land the holder has been in possession for a period ^ of at least two years and a half, if it be proved to the satisfaction of the Board of Land and Works that such buildings or other - * . . , , See No. 1514, ss. improvements have been erected or made and that the holder has 19, 20, 21. been in possession of such lands as aforesaid and that he has com- plied with the provisions of this Subdivision, and if there be no 370 THE MINES ACT 1890. "The Residence objection to the alienation of such land on the ground of its being auriferous, or other reasons of a public nature to be stated by the Board of Land and Works within three months after being requested to do so by the holder, or within three months after an application has been made to purchase as hereinafter mentioned, the -holder shall have the exclusive right of purchasing the allot- ment on which such buildings or other improvements have been erected or made at a price to be determined by an appraiser appointed by the Board of Land and Works. In the event of the Crown requiring to resume possession for public or other purposes of any residence area, the holder of such area shall be entitled to payment of compensation for the value of his interest in such residence area together with the value of any buildings or other improvements erected or made thereon. Such value shall be ascertained and determined in the same manner as the value of buildings erections and bond fide improvements made on land held for residence or business is ascertained and determined under the provisions of this Part. be madfb" tO *^' Before anv appraiser enters into the consideration of any appraiser. matters referred to him under the last preceding section, he shall *eNo 1514 i n presence of a justice make and subscribe the following declara- tion (that is to say) : I do solemnly and sincerely declare that I have no interest either directly or indirectly in the matters in question, and that I will faithfully and honestly and to the best of my skill and ability make any appraisement and valuation required of me under the provisions of the Mines Act 1890. Holder of a 38. Any holder of a miner's right or business licence who has miner's right or * under the provisions of this Subdivision the exclusive right to P urcnase the lan d occupied by virtue of such miner's right or " The Residence business licence by him shall be entitled on exercising such right Areas Act 1888," ot purchase to pay the amount of the purchase money in ten annual instalments of equal amount. Power to let. 39- The holder of a residence area may at any time after he has resided thereon for a period of at least twelve months let his interest in the occupation of the surface thereof to any person at a monthly or weekly rental, and between such holder and such THE MINES ACT 1890. 371 person there shall exist the same rights as between any landlord "Th* AV,W,- and his tenant. 40. The holder of a residence area may at any time after he Power to sell or has resided thereon for a period of at least twelve months sell or /^ ^ transfer his interest in the occupation of the surface of such area to any other holder of a miner's right or business licence. 41. No such sale or transfer shall have any force or effect sale or transfer void until until the fact of such transfer or sale shall be registered by the registered, said mining registrar or other proper officer, and the area shall be lb ' *' 1 registered in the name of the person to whom it shall be so sold or transferred, and such person's right or licence as the case may be shall be indorsed as hereinbefore provided, and such person shall thenceforth be and be deemed to be the holder of such residence area. 42. In the case of the death of the holder of a residence area Residence before he shall have resided thereon for a period of twelve months, certain cases, it shall be lawful for the executors or administrators of such Ih ' "' 14 ' deceased holder to sell transfer or let the interest in the occupa- tion of the surface of such area notwithstanding the deceased holder may not have resided for at least twelve months thereon. Provided always that every such sale or transfer shall be in accordance with the provisions of the preceding sections. 43. Every residence area shall be and the same is hereby Exertion from J J mining under exempted from occupation for mining purposes under any miner's ri *? ht - right. Nevertheless the Governor in Council may from time to ^ No ISH, time temporarily exempt from the operation of this section any 8 - 24> portion of a mining district in which there shall be a new dis- covery of gold and such temporary reservation may by the Governor in Council be revoked. And in the case of such exemption no person shall mine under any such area until he shall have deposited with the warden such reasonable sum as the warden may assess as compensation to the holder of such resi- dence area; and such sum or any part thereof shall be paid to such holder or otherwise dealt with as the warden shall direct. Nothing in this section or in section forty-seven shall affect the Claims umkr ? residence areas right of any person or company holding a claim under a miner s ^ i f i i r encement right on the first day of April One thousand eight hundred and eighty-two to mine under any residence area that may previously 372 THE MINES ACT 1890. " The Residence to such date have been taken up as a residence area on the Areas Act 1881." . . . , , surface of such claim so held under a miner s right. Leases below %% j^ shall be lawful for the Governor in the name and on residence areas. ib. s. 16. behalf of Her Majesty to grant to any person or to any elective f\- 1514> body corporate a gold mining lease or mineral lease to be effectual below the surface of a residence area at such a distance below *No 1514 s is such surface as shall be not less than one hundred* feet and as shall in the opinion of the Governor in Council not endanger the safety of the buildings erected on such area. Provided always that any such lease shall contain a covenant on the part of any such lessee to make good any subsidence caused by mining under any residence area. [cf. 62 Vic. No. 24 (Q.), sec. 46]. Provisions of $5. Every such lease shall be issued in accordance with and lease. ib. s. IT. sna ll be subject to the provisions of this Part of this Act and the regulations thereunder, and shall so far as relates to any residence area confer on the lessee only such powers or authorities as can be actually or reasonably exercised below such distance from the surface of such area as shall be specified in such lease. validity of leases 46. Every lease granted previously to the first day of April granted below One thousand eight hundred and eighty-two conferring on any residence areas, person a right to mine below the surface of any Crown land See NO 1514 occupied as a residence area by the holder of a miner's right or business licence shall be and be deemed to have been from the time of the granting thereof as valid and effectual in all respects (and as well against the holder of such miner's right or business licence as against any other person) as if such lease had been granted with the consent of the holder of such miner's right or business licence as the case may be, anything in section forty- nine of this Act to the contrary notwithstanding. minfng breath ^' ^ n ^ person not being the holder either of a lease under wfthouta^e. this Subdivision or of a lease heretofore granted and validated by /ft. *. i. " The Residence Areas Act 1881 " who shall mine or employ any other person to mine under any residence area shall be liable on conviction thereof to a penalty not exceeding Five hundred pounds. rights below ^8. All disputes between the holder of a residence area the heard and finally tenant of same the Crown grantee of same when sold limited in determined . before warden, depth* or his assigns the executor or administrator of any of them *NO. 1514, s. is. an d anv person who has a right derived from any gold mining or THE MINES ACT 1890. 373 mineral lease to mine at a fixed distance below the surface of any " The jbiiu such residence area shall be commenced heard and finally deter- ""* mined before a warden in accordance with the provisions of Division two of this Part of this Act. (5) Milling Leases (a). 49. It shall be lawful for the Governor in the name and on Leases may be i i -\f f TT Ti IT L granted for benalr or ler Majesty to grant to any person or to any elective mining &c. body corporate, subject to the provisions of this Part of this Act i&[""^-2i at * and (except where on the granting of any particular lease the j^.,5% 1514 ' term or the rent or royalty or the quantity or the form of the land or the covenants conditions reservations and exceptions to be contained in the lease shall be specially prescribed as hereinafter authorized) to the regulations to be made as hereinafter mentioned, a lease to be effectual on, or below, or both on and below, the surface of any Crown land not demised under the provisions of any Act heretofore or to be hereafter in force and not occupied by the holder of a miner's right or business licence unless with the consent of such holder, for the purpose of mining thereon or therein for gold or for any metal or mineral other than gold, or of cutting and constructing thereon races drains dams reservoirs or tramways to be used in connexion with any such mining, or of erecting thereon any buildings and machinery to be used either for washing smelting crushing or obtaining any gold metal or mineral or any earth containing any gold metal or mineral, or for pumping or raising water from any land mined or intended to be mined upon for any such gold metal or mineral, or for any or all of those purposes and also for the purposes of residence in connex- ion with any of such purposes. 50. The words " elective body corporate " in the last preceding M* of^^ section shall be deemed to mean and from the time of the coming body corporate." into operation of the "Mining Statute 1865 " to have meant any A< partnership association company or body corporate registered under the provisions of any Act now or heretofore in force relating to the limitation of the liability of mining partnerships associations or companies or of the shareholders therein. (a) Cf. 37 Vic. No. 13 (N.S.W.), sec. 33 ; 62 Vic. No. 24 (Q.), sec. 24; 56 & 57 Vic. No. 587 (S.A.), sec. 51 ; 57 Vic. No. 24 (Tas.), sec. 34 ; 59 Vic. No. 40 (W.A.), sec. 32 ; 62 Vic. No. 38 (N.Z.), Part IV. 374 THE MINES ACT 1S90. " Mining statute 51. All such leases granted for the purpose of mining for gold Lease.s*to be or ^ or anv ^ * ne purposes aforesaid connected with such mining " shall be called -"Gold Mining Leases;" and all such leases.granted for the purpose of mining for any metal or mineral other than gold or for any of the purposes aforesaid connected with such last- mentioned mining shall be called "Mineral Leases." Land occupied 52. Any such lease may be made of any land occupied for the for residence or .,..,. business may be purpose or residence by the holder or a miner s right or business compensation licence under the provisions aforesaid, if the person applying for Jtt s 9 6 the lease shall make compensation to such holder for any building erected or other improvements made by him or any person under whom he derives title on such land ; the amount of such compen- sation to be determined in the manner prescribed by the regula- tions aforesaid or such other regulations respectively as shall for the time being be in force in Victoria relating to such leases, [cf. 37 Yic. No. 13 (N.S.W.), sec. 34 ; 56 & 57 Tic. No. 587 (S.A.), sec. 51 (2)]. Leases of mines 53. [Repealed and re-enacted by No. 1514, sec. 27] : 53. The Canted or Governor in Council in the name and on behalf of Her reserved for public purposes Majesty upon application made to him for that purpose may oases )>e made, grant leases to any person of mines in under or upon lands ' granted or reserved for railways waterworks public parks places of recreation or other public purposes, subject to such regulations as may be from time to time passed by the Governor in Council for that purpose and with the consent of the Board of Land and Works or the Victorian Railways Commissioner in whom the said lands are vested, [cf. 37 Vic. No. 13 (N.S.W.), sec. 34 ; 62 Vic. No. 24 (Q.), sec. 46 ; 59 Vic. No. 40 (W.A.), sec. 33J. M - [Repealed and re-enacted by No. 1514, sec. 28] : 54. ^ ^ n tne Case ^ a &^ mining lease the term for which Action,-*. 2. the same may be granted shall not exceed fifteen years from the e. 10 tim e of granting the same, and the yearly rent to be payable in respect thereof shall be Two shillings and sixpence for every acre demised. (2) In the case of a mineral lease the extent of the area thereof shall not exceed six hundred and forty acres and the term for which the same may be granted shall not exceed fifteen years from the time of granting the same, and the yearly rent to be THE MINES ACT 1890. 375 payable in respect thereof shall be at such rate not being less Mining statute than One shilling nor more than One pound for every acre 186 demised, and so on in proportion for any less quantity, as the Minister may determine, [cf. 37 Vic. No. 13 (N.S.W.), sees. 36, 37 ; 62 Vic. No. 24 (Q.), sec. 26 56 & 57 Vic. No. 587 (S.A.), sec. 51 ; 57 Vic. No. 24 (Tas.), sec. 39 ; 59 Vic. No. 40 (W.A.), sees. 34, 35J. 55. Any holder of a miner's right, desirous to prospect for gold Governor may in any place where sinking through basalt will be necessary and Ceases to**"* , . , discoverers of to which no part of any gold workings shall be nearer than five new gold-fields, miles, may mark off at such place an area of one square mile for lb ' the purpose of such prospecting : and in case such person shall discover in any part of such area gold in quantities which the Governor in Council shall consider remunerative, it shall be lawful for the Governor in the name and on behalf of Her Majesty to grant to such person a lease not exceeding one hun- dred acres, to be selected by such person in any part of such area (whether the same or any portion thereof shall have been occupied by the holder of a miner's right or business licence or not) in one lot for such term as the Governor in Council shall determine at a nominal rent ; and every such lease shall in all other respects be subject to the provisions of this Part of this Act, and to any regulation made in pursuance thereof in regard to gold mining leases, [cf. 56 & 57 Vic. No. 587 (S.A.), Part VI ; 57 Vic. No. 24 (Tas.), sec. 21 ; 59 Vic. No. 40 (W.A.), sec. 26J. 56. Any person holding a lease under the provisions herein- before contained or under the provisions of any Act authorizing ib. x. 29. the granting of leases for mining purposes, and the executors administrators or assigns of any such person, shall be entitled at any time with the consent of the Governor in Council to surrender the same. It shall be lawful for the Governor in the name and on the behalf aforesaid to grant to such person a lease, for any term not exceeding in the case of a gold mining lease fifteen years and in the case of a mineral lease thirty years, of the whole or any part of the land demised by such surrendered lease; and any such new Renewal J leases. lease may with the like consent be renewed from time to time tor any period not exceeding fifteen or thirty years (as the case may be) at each renewal. 376 THE MINES ACT 18SO. pining statute p rov ided that such new lease shall be at the rent which shall then be chargeable by law in respect of a gold mining or mineral lease according as such new lease shall be the one or the other, and shall be subject to the covenants and conditions prescribed by the regulations which shall at the time of the granting thereof be in force and applicable to the particular lease required or such other covenants and conditions as to the Governor in Council shall seem fit. Provided further that before any such new lease shall be granted, the person intended to be the lessee shall pay such fine not exceeding ten pounds as the Governor in Council shall direct, [cf. 37 Vic. No. 13 (N.S.W.), sec. 54 ; 56 & 57 Vic. No. 587 (S.A.), sec. 101 ; 62 Vic. No. 24 (Q.), sec. 44 ; 59 Vic. No. 40 (W.A.), sec. 41]. Rent reserved in 57 j n ^ ne case o f every gold mining lease issued under the existing le under Act 291 reduced. under Act No. Mining Statute 1865" previously to the eighteenth day of "The Mining December One thousand eight hundred and eighty-five the rent reserved shall from and after the said date be deemed to be at the rate of five shillings for every acre demised ; and every such lease shall so far only as regards any rent accruing due after the said date be read as if rent at the rate of five shillings for every acre had been thereby reserved in lieu of the rent therein men- tioned. Rents payable on 58. No person holding a lease granted under the provisions of leases heretofore o so-anted. any of the Acts repealed by the " Mining Statute 1865 " authoriz- isev'^so. " "'" i n g the granting of mining leases shall after the coming into operation of the said lastmentioned Act be required, notwith- standing any covenants therein contained, to pay any greater sum by way of rent for the land thereby demised than at the rate of one pound an acre. (6) Leases of Reservoirs. madfoT^ be " Jt sha11 be lavvful for the Governor in the name and on reservoirs. behalf of Her Majesty to grant to any person, subject to the pro- visions of this Part of this Act and to the regulations hereinafter mentioned, a lease of any water reservoir constructed at the public expense. Provided also that it shall be lawful for the Governor in the name and on the behalf of Her Majesty to make such lease or grant to any elective body corporate at such rent and. for such term as the Governor in Council shall think fit. Provided further THE MINES ACT 1890. 377 that, notwithstanding any such regulation, it shall be lawful for "Mining statute the Governor in Council at the time of the granting of any such lease to fix specially the rent terms covenants and conditions upon which the same shall be granted. 60. Her Majesty or the owner of any such lease as in the last Mone >' due for preceding section mentioned may recover in a summary way before "^J^ in a justice any sum of money due in respect of any water supplied *"e" y from any such reservoir. ib. . 32. 61. Any person wrongfully taking water from any such reser- Penalty for voir or from any race supplied therefrom shall be liable for the takin water - first offence to a penalty not exceeding Five pounds or to im- prisonment for a period not exceeding one month ; and for any subsequent offence to a penalty not exceeding Twenty pounds or to imprisonment for a period not exceeding three months. 62. Any person who shall by wilfully suffering sludge or other Penalty for noxious matter to flow into, or who shall otherwise pollute the or injuring reservoir. water in any such reservoir (whether demised or not) or in any jb. . 34. race flowing into or out of the same, or shall injure the banks of any such reservoir or race or otherwise damage the same respec- tively or the works connected therewith, shall be liable for every such offence to a penalty not exceeding Five pounds ; and shall also pay to Her Majesty or the lessee of such reservoir or race such sum as shall be proved' to the satisfaction of the justice before whom such person shall be convicted to be a proper compensation for the damage sustained by such polluting injuring or damaging; and the said justice shall order the said sum to be paid accord- ingly. (7) Licences to Search for Metals and Minerals other than Gold. 63. It shall be lawful for the Governor in Council or any person Licences to search for metals authorized by him in that behalf to grant to any person, subject and minerals to the provisions of this Part of this Act and to the regulations may be granted, hereinafter mentioned, a licence to enter upon any Crown land not demised under the provisions of any Act heretofore or to be hereafter in force and not occupied by the holder of a miner's right or business licence unless with the consent of such holder for the purpose of searching for any metal or mineral other than gold. Provided that notwithstanding any such regulation it shall 378 THE MINES ACT 1890. "jfittiw;,SYatt'te be lawful for the Governor in Council at the time of the granting of any such licence to fix specially the fee rent or royalty to be paid in respect thereof and the conditions upon which the same shall be granted. (8) Licences to cut Races &c. Licences to cut 6$. It shall be lawful for the Governor in Council to grant to and construct races dams &c. any person for any term not exceeding fifteen years, subiect to may be granted. J r ib. . 36.' the provisions of this Part of this Act and to the regulations hereinafter mentioned, a licence which shall authorize such person his executors administrators and assigns (except as against Her Majesty) to cut construct and use races drains dams and reservoirs through and upon any Crown lands or any land alienated from the Crown in fee simple on or after the twenty-ninth day of December one thousand eight hundred and eighty four* whether the same shall or shall not have been demised under the provisions of this or any other Act heretofore or hereafter to be in force relating to such leases, as may be granted under this Part or shall or shall not be occupied by virtue of a miner's right or business licence, and to deepen widen clean repair or otherwise improve any race drain dam or reservoir cut or constructed through or upon any Crown lands or any land alienated from the Crown in fee simple on or after the twenty-ninth day of December one thousand *NO. 1514, s. 44. eight hundred and eighty four,* and to take or divert water from any spring lake pool or stream situated or flowing upon or through or bounded by any such Crown lands or any land alienated from the Crown in fee simple on or after the twenty-ninth day of December one thousand No. 1514, 3 . 44. eight hundred and eighty four* in such manner as shall be prescribed by such licence and regulations in order to supply water for the purposes of mining for gold or any metal or mineral other than gold THE MINES ACT 1890. 379 to such person or any other person who may be " Mining statute engaged in any such mining. It shall be lawful for the person to whom any such licence shall be granted to take or divert water ; and the right conferred by such licence and the property and interest in a;iy race dam or reservoir cut or constructed by virtue thereof shall be deemed to be a chattel interest. Provided always that if any person to whom any such licence shall be granted shall by virtue thereof enter upon any land demised under the provisions of this or any other such Act as aforesaid now or hereafter to be in force or occupied by virtue of a miner's right or business licence, he shall make compensation for any injury occasioned by such entry and by the cutting and constructing of any races dams or reservoirs upon any such land, the same to be recovered before a warden or a warden and assessors in the manner provided by any Act relating to the administration of justice in mining matters for proceedings before a warden or a warden and assessors for the recovery of a money demand. Provided also that it shall be lawful for the Governor i^en^orr^ 01 * 6 in Council at any time to revoke any licence granted under this "on^nsation. or the next preceding section, on payment of compensation to the person entitled to the benefit thereof for any outlay by such person for or in respect of any such searching for metals or minerals or of any such race dam or reservoir, and on paying to him in addition to the amount of such compensation such per- centage on such amount not exceeding fifty pounds per centum as shall seem to the Governor in Council just having regard to all the circumstances of the case ; the amount of such compensation to be determined in manner directed by the said last-mentioned regulations. Provided further that it shall be lawful for the owner of any such licence to recover in a summary way before a justice any sum of money due in respect of water supplied under the authority of this section for the purposes of such mining as aforesaid, [cf. 57 Vic. No. 24 (Tas.), Part IV ; 59 Vic. No 40. (W. A.) sec. 32 (b); 62 Vic. No. 38 (N.Z.), sec. 91, et seq. ; 63 Vic. No. 29 (N.Z.), sees. 7, 104]. (9) Miscellaneous Provisions relating to Leases and Licences. 65. Any applicant for any such lease or licence as herein- G before mentioned shall mark out the land for the lease of which lb . ,. 37. 380 THE MINES ACT 1890. "Mining Statute or licence in respect of which he shall apply in such manner as shall be prescribed by the regulations relating to the particular lease or licence required. In case any person who shall not previously have been in lawful occupation of such land shall at any time thereafter, until and unless the application for the lease or licence shall be refused or unless thereto authorized by the Governor in Council, enter upon occupy or in any way interfere with such land, such entry occupation or interference shall be deemed a case of trespass or encroachment within the jurisdiction of the wardens appointed under this Act. Such applicant may proceed therefor and for any damages in respect of such trespass or encroachment and for the recovery of any gold or other metal or mineral taken by such person out of such land or of the value thereof before any such warden or any such warden and assessors in manner in this Part of this Act provided for proceedings before wardens in cases of trespass or encroachment. Provided always that it shall be necessary for the applicant so proceeding to prove to the satisfaction of such warden or warden and assessors as the case may be that he has complied with the regulations in force and applicable for the time being to the species of lease or licence applied for, so far as such regulations shall have been at the time of such entry occupation or interference capable of being complied with. Provided further that, notwithstanding any decision of a warden, the applicant shall not be entitled to have delivered to him any such gold or other metal or mineral, or to receive payment of or to levy the amount of the value thereof or of any damages assessed and awarded to him, until it shall have been decided to grant his application for the lease or licence ; but such gold or other metal or mineral or such amount or damages shall, until the matter of such application shall be determined, be lodged with the clerk of the warden, and if determined in favour of the applicant shall be delivered or paid to him, and if otherwise to the person from whom the same shall have been recovered, [cf. 37 Vic. No. 13 (N. S.W.), sec. 40; 62 Vic. No. 24 (Q,), sec. 40]. ^' ^ ^^ ^ e P art ^ tne duties of the wardens appointed under this Act, so far as they are required by any such regulations 76. . 38. so to do, to hear receive and examine evidence in relation to the THE MINES ACT 1890. 381 application for any such lease or licence and the objections "Mining statute thereto, and in all other respects to perform the several duties prescribed for their performance by any such regulations, [cf. regs. under 37 Vic. No. 13 (N.S.W.), cl. 19]. 67. Nothing hereinbefore contained shall be construed as Not obligatory to grant leases. rendering it obligatory to grant any such lease or licence to any u , 39. person applying for the same, notwithstanding that he may have complied with the regulations in force and applicable thereto ; but in case his application shall be refused, he shall be informed of the reasons for such refusal ; and a lease may be granted not- withstanding that the person applying for the same may not in all respects have complied with such regulations, [cf. regs. under 37 Vic. No. 13 (N.S.W.), cl. 27.] 68. When any land a lease of which shall be applied for shall Application for J a lease not to be or shall comprise the whole or part of land held by the appli- affect land of the cant under a miner's right, the interest of such applicant under J^" a lniner ' s such right shall in nowise be affected by such application or by ib. . 40. the refusal or abandonment or failure in any other way thereof ; ^N - 1514 ' 8 - 46 and if such lease shall be granted the interest held under the miner's right shall merge' in the interest held under the lease, [cf. 37 Vic. No. 13 (N.S.W.), sec. 30 ; 59 Vic. No. 40 (W.A.), sec. 37 ; 62 Vic. No. 24 (Q.). sec. 38]. 69. No such lease or licence shall be granted until after the xoticeof intention to expiration of seven days* after notice of the intention to grant grant lease^or the same shall have been published in the Government Gazette published in wOttnf, and in some newspaper circulating in the district within which lb. *. 41. the land sought to be leased shall be situate. *^ytava^ s. 58. 70. Pending any application for a lease or licence under the provisions of this Part of this Act it shall not be lawful to mark ygv out as a claim or include within the boundaries of any claim the j^^,, land applied for or any part thereof, and no such marking out shall Act tfo.446,. 3. confer any right or title to the said land ; and any person who f|*- ir>14 - shall enter upon such land for the purpose of marking out the same shall be deemed to have trespassed or encroached thereon within the meaning of section sixty-five of this Act, [cf. regs. under 37 Vic. No. 13 (N.S.W.), cl. 28 ; 59 V 7 ic. No. 40 (W.A.), sec. 42]. 382 . THE MINES ACT 1890. Act NO. 446,*. 4. 71. [Repealed and re-enacted by No. 1514, sec. 50] : 71. The r eiI Hcation f pendency of an application for a lease or licence shall begin with defined. ^e marking out of the land by the applicant and shall continue until the Governor grants or refuses the same ; provided that the pendency of any application for a lease or licence shall cease if before such grant or refusal the applicant does not proceed with his application and complete the same within such time as may be provided and limited by the regulations relating to mining leases or within such further reasonable time as may upon a written application be permitted in writing by the Minister, and a copy of such permission shall be posted up and kept so posted up 011 some conspicuous part of such land during the further pendency of such application, [cf. regs. under 37 Vic. No. 13 (N.S.W.), cl. 29], Entry on land by 72. Any applicant for a lease of land consisting wholly or in assignee of claim pending appiic- p ar t o f a claim may purchase such claim and work tho same as a a trespass. claim pending the application. lb. s. 5. 73. [Repealed by No. 1514]. See No. 1514, ss. 51, 52, and Ibid., Part III, Div. 3 (1). Directors 7$. The directors of a registered company under Part II. of prohibited from entering into the Companies Act 1890 shall not make any contract for working "ributTuniess an ^ l an d on tribute as aforesaid unless they shall have been authorized. authorized at a general meeting of the shareholders of such company called for that purpose. ',/ v 75. In case any lease granted under the authority of this Part of this Act or of any Act authorizing the granting of leases for . tute mining purposes shall be or be liable to be forfeited or determined by any breach of condition or otherwise, or in case the term thereby granted shall have expired, possession of the land demised shall and may be recovered on behalf of Her Majesty in such manner as may be provided by any of the conditions of the lease or (if there be no such condition) it shall be lawful for the Attorney-General on behalf of Her Majesty to bring a suit in the Court of Mines of the district in which the land demised by such lease shall be situate to recover possession of such land ; and such suit shall be commenced and carried on as any other suit in the Court of Mines, and the proceedings therein shall be the same, and the judgment therein enforced in like manner, as in the cas THE MINES ACT 1890. 333 of any other suit in the said court, [cf. 62 Vic. No. 24 (Q ) sec "Mintogstatvu 45]. 76. Whenever by any notice inserted before the twenty-ninth G 68. 394 THE MINES ACT 1890. "Mining Statute determined by the majority of votes. Provided that the chair- man shall have no vote unless in case of an equality of votes when he shall have a casting vote ; and provided also that in case a quorum shall not assemble within one half -hour after the time appointed for any meeting or having so assembled shall disperse, the board shall stand adjourned till the next day at the same hour. [cf. 37 Vic. No 13 (N.S.W.), regs. 28, 29]. Seat how 105. If any member shall without the permission of the board vacated. 21, g 69 fail to give his attendance at four consecutive meetings of the board, or shall become insolvent within the meaning of any Act now or hereafter to be in force, or be convicted of felony perjury or any infamous offence, or become insane, his seat shall thereby become vacant, [cf. 37 Vic. No. 13 (N.S.W.), reg. 32]. Deputy 105. In case of the absence of the chairman, it shall be lawful chairman. n,. s. 70. for the members present being a quorum to appoint an acting chairman who during such absence may exercise the powers by this Part of this Act vested in the chairman, [cf. 37 Vic. No 13 (N.S.W.), reg 27]. Mining board to 106. Every mining board under this Part of this Act, notwith- ib. s. 71. standing any vacancy therein, shall have power from time to time See NO. 1514, s. (but subject to the provisions of this Part of this Act) to make by-laws for the district for which it shall have been elected, or for any one or more division or divisions or part or parts thereof, and to revoke alter and amend the same ; such by-laws not to affect any right interest liability or obligation existing at the time of the making thereof ; and such by-laws may be for any of the following purposes : (l.) For prescribing the mode in which the validity of disputed elections to such boards shall be decided : (n.) For regulating their own proceedings : (in.) For determining what are to be the dimensions and boundaries and whether to be at the time of the taking possession or otherwise completely or partially denned or not and what the quantity and form and the position with respect to any reef lead or gutter or otherwise of the land which according to the nature of the land or otherwise may be taken possession of THE MINES ACT 1890. 395 by any person or persons for a claim and the number " Mining statute of claims which any person or any two or more persons in conjunction may take possession of under a miner's right or miners' rights : (iv.) For prescribing the manner in which and with what rights and obligations any such claim or any race drain dam or reservoir cut or constructed or any water taken or diverted by virtue of a miner's right shall be taken possession of held used or enjoyed and worked, subject however to any right which may have been obtained under any licence granted under this Part of this Act to cut construct and use races drains dams and reservoirs and to take or divert water : (v.) For determining when and wjiether before or after or partly before and partly after such taking of possession and under and in reference to what circumstances such dimensions boundaries quantity form and position are to be ascertained, and whether and under and in reference to what circumstances and how the same or any of them are or is at any time or from time to time whether before or after such taking of possession to be altered : (vi. ) For determining whether and under what circumstances the holders of miners' rights who shall by virtue thereof use any water shall have amongst themselves any priority of supply of such water, and if so how or according to what system such priority is to be regu- lated, and when the events upon the order of priority of which any such priority is to depend shall be deemed to have occurred : (vn.) For determining the events on which the title to any land occupied by virtue of a business licence or to any claim race drain dam reservoir or easement enjoyed under a miner's right or to any share in such claim race drain dam reservoir or easement shall become forfeited ; and for imposing any penalty on the happening of any one or more of such events in lieu of any such forfeiture ; and for determining what 396 THE MINES ACT 1890. " Mining statute shall constitute exemptions from or suspensions of such forfeiture, and what persons shall be entitled to enforce such forfeiture or penalty, and whether there shall be any order of priority of right in any persons to enforce any such forfeiture or penalty, and if so what shall be such order : (vm.) For limiting the time within which proceedings for any such forfeiture or penalty must be taken : (ix.) For determining whether and under what circumstances any person who shall have obtained an adjudication of any such forfeiture shall, as a condition precedent to his obtaining possession of the forfeited land claim race drain dam reservoir or easement, pay to the person as against whom the same shall be adjudged forfeited any sum as compensation for any property on or labour or capital expended upon such land claim race drain dam i-eservoir or easement ; and for deter- mining the mode in which any such sum shall be ascertained : (x.) For determining what shall constitute relinquished abandoned or deserted as distinguished from forfeited claims races drains dams reservoirs easements or land or any share therein, and by what person lawfully competent thereto, and in what mode and under what circumstances it shall be ascertained whether any particular claim race drain dam reservoir easement or land or any share therein is relinquished abandoned or deserted within the meaning so determined ; and whether and under what circumstances any person shall be permitted to relinquish without being liable to any consequences as for the forfeiture of any land occupied under a business licence or any race drain dam reservoir or easement enjoyed under a miner's right or shai-e therein : (xi.) For determining the extent and form of land and the sites which may be occupied for the purpose of residence or residence and business under this Part of this Act : THE MINES ACT 1890. 397 (xn.) For determining the mode in which any land occupied "Mining statute for residence or business under this Part of this Act ^ or any claim race drain dam reservoir or easement enjoyed under a miner's right or any share or interest therein which may be transferred or encumbered under this Part may be so assigned or any lien or encumbrance thereon created and any such lien or encumbrance assigned or discharged the rights and obligations of any assignee lienee or encumbrancer of or upon any such land claim race drain dam reservoir or easement and the order of priority of any two or more such lienees or encumbrancers : (xin.) For providing for the mode of obtaining and effecting the registry of land occupied under this Part of this Act for residence or business or any claim race drain dam reservoir or easement enjoyed under a miner's right or any share or interest therein or lien or encumbrance thereon, and for the registry of the assignment of any such claim land race drain dam reservoir or easement or of any share or interest therein or lien or encumbrance thereon or of the discharge of any such lien or encum- brance, and for registries of any of such interests in' the case of the death insolvency or lunacy of the owners thereof, or of the sale of any of such interests under the decree judgment or order of any court or the decision of a warden, and for imposing on such registries such reasonable fees as may be necessary for the purpose of defraying the expenses thereof : (xiv.) For regulating the mode in which the rights and privileges of the owners of claims and of races drains dams reservoirs and easements enjoyed under a miner's right and of land occupied under this Part of this Act for residence or business may be exercised or enjoyed ; and for limiting qualifying or restricting the exercise and enjoyment of such rights and privileges ; and generally for the protection of such owners in the exercise and enjoyment of the rights privileges and interests conferred bv this Part : 398 THE MINES ACT 1890. "Mining Statute (xv.) For preventing the accumulation and for the effecting the taking away and depositing in some convenient place of the sludge tailings and other waste and refuse matter oozing or flowing from or connected with any land held or occupied under the provisions of this Part of this Act and worked by means of puddling quartz-crushing or other machines and of the water used in such claims and suffered to run to waste ; and for the making of such main and branch channels as shall be necessary for the purposes afore- said ; and for preventing the allowance of such oozing flowing and running to waste from one claim into another with or without any condition for payment of money or otherwise : (xvi.) For imposing on all such land and machines such reasonable rates periodical or otherwise as shall be necessary for the purposes aforesaid and for the remuneration of the officers which each such board is hereinafter empowered to appoint, for regulating the manner of imposing and collecting such rates, and for disbursing the same for the purposes aforesaid : (xvii.) For the protection from injury and destruction whether by design or culpable negligence and from unlawful removal of such machines and of races drains dams and reservoirs enjoyed under miners' rights, and of the water therein and of pegs posts fences and notices and of any plant or appliances used for or in connexion with mining ; and for the protection from obstruction of such races and dams and of channels drains creeks and rivers used for mining purposes : (xviu.) For regulating the mode of construction and materials and strength of embankments of dams and reservoirs enjoyed or to be constructed under miners' rights : (xix.) For the constructing and keeping in repair of suitable bridges or other crossings over races channels or drains used for mining purposes cut across roads or thorough- fares or over such races channels or drains over which roads or thoroughfares shall be carried and for making THE MINES ACT 1890. 399 proper approaches to such bridges or crossings ; and "Mining Statute for determining the width of such bridges crossings and approaches : (xx.) For the making and keeping in repair and for regulat- ing the width and formation of private ways and passages used for mining purposes over claims or races or any Crown lands used or to be used in connexion with mining or business carried on under business licences ; and for regulating and imposing conditions on the right to change the direction of any such way or passage and for the protection of the same from injury or obstruction by the leaving of felled timber or other obstructing or any waste or injurious matter thereon : (xxi.) For determining the distance and enforcing the same at which shafts and other mining workings are to be kept from public and private roads ways and passages and from private land dwellings and other buildings : (xxn.) For the prevention of nuisances in and about resi- dences or places of business held under a miner's right or business licence, and for the cleansing and keeping cleansed the same : (xxin.) For securing the baling of water from mines so as to prevent injury from such water to any mining workings : (xxiv.) For preventing the defiling or wasting of water used for domestic purposes, and for determining whether any and what waterhole spring or other depository of water shall be reserved for domestic use and the mode of such reservation : (xxv.) For determining the cases in which Crown lands lawfully and bond fide used as a yard garden cultivated field or orchard or upon which any house outhouse shed or other building or any artificial dam or reservoir shall be standing as hereinbefore mentioned shall cease to be exempted from occupation for mining purposes, and for prescribing the manner in which compensation 400 THE MINES ACT 1890. .1/1 ,1 nvj Statute By-laws to be forwarded to Law Officers. Ib. s. 72. Seventh Schedule. Governor in Council may cancel by-lav 11). 8. 73. Eighth Schedule. shall be ascertained and paid to the person or persons holding or using any such lands, [cf. 37 Vic. No. 13 (N.S.W.), sec. 66 ; 62 Vic. No. 24 (Q.), sec. 247 ; 56 & 57 Vic. No. 587 (S.A.), sec. 92 ; 57 Vic. No. 24 (Tas.), sec. 170 : 59 Vic. No. 40 (W.A.), sec. 99 ; 62 Vic. No. 38 (N.Z.), sec. 302]. 107. All by-laws made by any mining board may be in the form contained in the Seventh Schedule to this Act ; and shall be signed by the members who concur in making the same and forwarded to the Law Officers of the Crown, who shall if the same be not contrary to law certify and publish the same in the Government Gazette; and at the expiration of twenty-one days next after such publication but not before, by-laws so certified shall have the force of law throughout the district for which such board shall be elected, or throughout such part or division thereof; and every such by-law when so certified and published shall be unimpeachable in any court of justice. Provided always that nothing in this Part of this Act contained or any by-law made under the provisions hereof shall affect the rights of Her Majesty in any Crown land or the right, of voting under this Part, or shall prevent the operation of any by-law made or to be made by any municipal corporation, [cf. 56 & 57 Vic. No 587 (S.A.), sec. 93]. 108. If any person shall object to any such by-law, it shall be lawful for such person to insert twice in some newspaper published or circulating in the district of such board a notice in the form contained in the Eighth Schedule to this Act, stating therein the number and date of the by-law and the reasons for objecting to the same; and every such notice shall be dated on the day of the first insertion thereof as aforesaid; and the person objecting as aforesaid shall apply to the Law Officers in writing, specifying the title and date of the said newspapers ; and at the time of such application shall forward such newspapers to the Law Officers who, as soon as conveniently may be after the time mentioned in such notice, shall bring such by-law application and newspapers and all objections (if any) to the revocation of such by-law before the Governor in Council ; and it shall thereupon be lawful for the Governor in Council to revoke such by-law ; and every order by which any by-law shall be so THE MINES ACT 1890. 401 revoked shall be published in the Government Gazette and shall "Mining Statute take effect from the time of such publication. 109. Every such board shall have power to appoint officers for Board to appoint the inspection of sludge and water channels for the attending to /& , 74 and the carrying out of any such by laws, and for the collection of the rates and charges which may be imposed pursuant to the provisions of any such by-laws, and such officers to remove and dismiss, and to receive security from the persons so appointed for the faithful discharge of their duties. Provided that no member of any mining board shall be appointed to any such office. 110. If any person shall think himself aggrieved by the value Appeal against at which his claim land plant or machinery shall be assessed for /{, g 75 any rate to be imposed by virtue of any by-law of any mining board, it shall be lawful for him within one month after such rate is made to appeal against such assessment to the justices at the court of petty sessions holden nearest to the place where such claim land plant or machinery shall be situated ; and such justices shall have power to hear and determine the subject-matter of such appeal. Provided that the person so appealing shall give to such mining board notice in writing of his intention to appeal seven clear days before such appeal shall be heard ; and in case of any such appeal, such board shall have power to appoint such person as such board shall think proper to represent it on the hearing of such appeal. 111. All moneys received as rates or charges under or by virtue j^"^*^^ of any by-law made by any mining board shall be paid to the jb. .. 76. clerk of such board, and shall be by him forthwith lodged in such bank as may be fixed by such board ; and no moneys shall be drawn from such bank except by cheques signed by two of the members of such board, one of whom shall be the chairman or acting chairman, and by such clerk. 112. Every mining board shall cause an account to be made Accounts to he out once in every half-year showing the sums received for rates /&. g . 77. and charges and the mode in which such sums have been expended; and shall cause such account to be transmitted to the Minister for the time being having charge of the mining interests of Vic- toria ; and the said mining board shall cause the same to be 402 THE MINES ACT 1890. 'Mining Statute published in the Government Gazette and in some newspaper published in the mining district for which such board is elected. Accounts to be certified. Ib. s. 78. Fees how recoverable. 113. The chairman and the clerk of each board shall certify that such account is to the best of their belief correct and any chairman or clerk who shall falsely so certify, and also any mem- ber of such board who shall authorize or wilfully permit any sums so received to be expended except for the purposes authorized by this Part of this Act, shall be deemed guilty of a misdemeanor. 11$. All rates and charges payable under or according to any by-law of any mining board shall by the clerk of such board for the time being, and all fees payable under or according to any regulations to be made by the Governor in Council shall by such person as the Governor in Council shall appoint, be recoverable in a summary manner before any justice ; which clerk or person as the case may be is hereby authorized to sue for such rates charges or fees in his own name, and as if the same were due to himself ; such fees and rates when recovered to be paid as such board or Governor in Council as the case may be shall direct. DIVISION 2. COURTS AND PROCEDURE. Court of Mi: Ib. *. 81. See No. 1514, s. 167. (1) Courts of Mines. (a) General Provisions. 115. Within and for every mining district there shall be a court to be called the Court of Mines ; and such court shall be a court of record, and shall be holden at such intervals and at such place or places within such district as the Governor in Council shall from time to time direct before a judge qualified as herein- after directed. Provided that the Court of Mines which at the time of the commencement of this Act shall be in existence in and for such mining district existing at that time shall be and be deemed a Court of Mines constituted under this Act. [cf. 37 Vic. No. 13 (N.S.W.), sec. 106 ; 62 Vic. No. 38 (N.Z.), sec. 291]. t 116. It shall be lawful for the Governor in Council to appoint Courts of Mines. ^ or tne Court of Mines of each mining district some person who shall be a barrister-at-law of England or Ireland or advocate of Scotland or a practising barrister of the Supreme Court of Victoria Appointment lification THE MINES ACT 1890. 403 not previously called to the bar in England or Ireland or admitted "Mining statute in the Faculty of Advocates of Scotland of not less than eight years' standing to be the judge before whom shall be holden such court ; and no such judge shall during his continuance in such office practise as a barrister-at-law. Provided always that the ^ cf - v - 827 > 2 - several persons who at the time of the commencement of this Act shall hold the office of judge of a Court of Mines shall be judges of the Courts of Mines to be holden under this Act, and shall so act without any fresh commission ; and in case of the death resignation or removal of any such judge or any other judge appointed under this Act, it shall be lawful for the Governor in Council to appoint some other person qualified as aforesaid to be judge in the stead of the judge who shall have so died resigned or been removed. 117. It shall be lawful for the Governor in Council at any time Deputy judge, to appoint some other person, who shall be a judge appointed lb ' * 84< under this Act or who shall be qualified as aforesaid, to act as the deputy of any judge appointed under this Act during such period as shall be determined by the Governor in Council. Every deputy so appointed during the time for which he shall be so appointed shall have all the powers and privileges and authority to perform all the duties of the judge for whom he shall have been so appointed. In case any judge shall be unable from any cause to attend any court to be holden under this Act at any place within the district for which he shall have been appointed judge, it shall be lawful for the Governor in Council to appoint any person who shall be qualified as aforesaid to act for any period for such judge in any such court ; and every person so appointed during the time for which he shall be so appointed shall as to all suits and proceedings in such court have all the powers and privileges and perform all the duties of the judge for whom he shall have been so appointed ; and any such deputy judge may hold a court simultaneously with such judge. Provided that any person who shall at the time of the commencement of this Act hold the office of a deputy judge of a Court of Mines shall for the residue of the time for which he shall have been appointed be deemed to be a deputy judge appointed under this Act. 404 THE MINES ACT 1890. Act No. > T Clei>k and bailiff f an J COUrt sha11 g ive Security to such extent and in such manner and form as the Governor in Council shall from time to time direct, for the due performance of the duties of his office and for the due accounting for and payment of all moneys received by him in the course of his duty or which he may become liable to pay for any misbehaviour in his office. THE MINES ACT 1890. 407 129. In every action against a clerk of any such court for any- " Mining statute thing done in obedience to any warrant issued by him under this Part of this Act, it shall be a sufficient justification for such clerk to plead the decree or order of such court or of the judge thereof under this Part - or the certificate of the warden hereinafter provided for and the warrant thereupon, without alleging or setting forth the previous proceedings or that the matter whereon such decree order or cer- tificate was founded was cognizable by or accrued within the jurisdiction of such court judge or warden ; and in every action against the bailiff of any such court or any officer servant or agent of such bailiff or against the keeper of any gaol for anything done by such bailiff or by his command or authority or by such keeper in obedience to any warrant or precept issued under this Part, it shall be sufficient for such bailiff officer servant or agent or for such keeper to justify under such warrant alone, without alleging that the same was made and issued within the jurisdiction of such court and without alleging or setting forth the decree order or previous proceedings in the same manner as any sheriff can and may justify under writ issued out of the Supreme Court ; and in any of the cases aforesaid proof of the matters so alleged shall be sufficient evidence in support of such plea. 130. It shall be lawful for the Governor in Council to direct Amount of fees and sums to be what fees and sums of money shall be taken in the Courts of f,^,.^*^ Mines, and from time to time to lessen or increase the same ; and Council, in any case in which the demand shall be in the whole or in part pecuniary, such fees and sums may be regulated in the whole or in part by way of percentage on the amount of the demand ; and it shall be lawful for the Governor in Council from time to time to appoint, instead of all or any of the fees or sums which may from time to time be payable as aforesaid, other fees and sums by way of percentage or otherwise and to be payable on such proceed- ings under this Part of this Act as the Governor in Council may direct. 131. The fees and sums of money payable on every proceeding TO whom and ,, when fees and shall be paid to the clerks of the several courts, and in the first sums are to be paid. instance by the party on whose behalf such proceeding is to be Ib g 97 had on or before such proceeding ; and the fees and sums payable upon execution or commitment shall be paid into court before or at the issue of the warrant of execution or commitment. 408 THE MINES ACT 1890. "Mining statute 132. A table of such fees and sums of money shall be put up in List of fees and some conspicuous place in the court house, and also in the clerk's exhibited. 6 office at every place in which such court shall be holden, and at every place at which an assistant clerk's office shall be opened. Time place and court? In seal of court. 76. s. 100. 133. The judge of each Court of Mines holden under this Part g of this Act shall attend and hold such court at such place or places within the district as the Governor in Council shall have directed that such court shall be holden at, and at such times as such judge shall appoint for that purpose so that a court shall be holden in every such place once at least in such interval as the Governor in Council shall in each case direct ; and notice of the days on which the court will be holden shall be published in the Government Gazette, and be put up in some conspicuous place in the court house and in the office of the clerk of the court at such place ; and no other notice thereof shall be needed ; and whenever any day so appointed for holding the court shall be altered, notice of such intended alteration and of the time when it is to take effect shall be published in the manner aforesaid, and be put up in some conspicuous place in the court house and in the clerk's office at such place. 135. For every court there shall be a seal ; and a fac-simile of guc j i gea j ag gna jj k e k e pt. by the clerk of the court at each place at which such court shall be holden ; and all summonses certificates warrants and other process issued by the clerks of the said court shall be sealed or stamped with one of such seals. Courts C o fc fMin f es ib. s. 101. (b) Jurisdiction of Courts. * 35> Everv Court of Mines shall have original jurisdiction to hear and determine all suits cognizable by a court of law or by a court of equity which may arise (l.) Concerning any Crown land which any person shall be or claim to be entitled to take possession of or occupy by virtue of a miner's right or of a lease under any Act authorizing the granting of leases for mining for gold or for any metal or mineral except gold or wherein or whereon any person shall be or claim to be entitled to search for metals or minerals other than gold or to THE MINES ACT 1890. 409 cut construct or use any race drain dam or reservoir "Aiming statute for gold mining purposes by virtue of a miner's right 1M or under any Act authorizing the granting or issuing of licences therefor, and concerning such or any other race drain dam or reservoir which any person shall be or claim to be entitled to hold by virtue of a lease under any Act authorizing the granting of leases of reservoirs, and concerning any share or interest therein respectively and of or in which land race drain dam or reservoir any other person shall be and shall claim under any such miner's right lease or licence to be entitled to be in the occupation or possession or to search for such metals or minerals or to cut construct or use any such race drain dam or reservoir or which he shall be alleged to have abandoned or to have forfeited under some by-law of a mining board, and concerning the title to or possession or enjoyment or recovery thereof by reason of any such abandonment forfeiture or other- wise, and concerning any sum claimed in the nature of mesne profits thereof : (ll.) Concerning the right which any person shall have or claim to have by virtue of a miner's right or of any such licence as aforesaid to the use and enjoyment or sale of any water to which any other person shall claim to be entitled, and concerning the right which any person shall have or claim to have to any priority of water taken diverted or used or claimed to be taken diverted or used under the provisions of any such Act as against any other person claiming the same : (ill.) Concerning any encroachment or trespass upon any such land race drain dam or reservoir as aforesaid, and concerning the diversion or abstraction of any water possessed or used under a miner's right or under any such licence as aforesaid of which land race drain dam reservoir or water any person shall be and shall claim to be entitled to be in the occupation possession use or enjoyment for mining purposes, and concerning any unlawful interference therewith or injury thereto whether wilful or by negligence or wrongful omission 410 THE MINES ACT 1890. " Mining statute causing damage thereto and whereby mining shall have been hindered or delayed or any machinery on any such land damaged or the supply of water to which any person shall be lawfully entitled shall be lessened, and concerning the unlawful ouster or ex- clusion of any person from any share or interest in any such land race drain dam reservoir or water, and con- cerning the damages and compensation for any such encroachment trespass ouster diversion abstraction AetNo.u6,s.is. interference or injury. Provided that the words " mining purposes " in this sub-section shall include the occupation possession use or enjoyment of Crown land under a business licence or for the purpose of residence, and section two hundred and sixteen of this Act conferring upon a warden jurisdiction by reference to this section shall be construed accordingly, [cf. 62 Vie. No. 38 (N.Z.), sec. 5]. (iv.) Concerning or out of any contract relating to mining under a miner's right or any such lease or licence as aforesaid or respecting any such land or water as aforesaid or any share or interest therein, and con- cerning any debt or money due in respect of any such contract : (v.) Concerning any gold or metals or minerals other than gold in or to be taken out of any land occupied or held as aforesaid or out of land in which any person shall be entitled to search for any metals or minerals other than gold under any such licence as aforesaid, and concerning or out of any contract relating to such gold metals or minerals or to any money due in respect of the same or relating to any share or interest therein : (vi.) Concerning or out of any contract respecting the work- ing or using for mining purposes of any such land race drain dam reservoir or water as aforesaid or otherwise in relation to mining on Crown land under the provisions of any Act conferring a right to do so, and concerning any money due in respect of any such contract : THE MINES ACT 1890. 411 (vo.) Concerning or out of any partnership for or in relation "Mining statute to mining in any Crown land held or occupied as * aforesaid or for or in relation to the searching for any such metals or minerals, or concerning or out of any partnership in any such land water race drain dam reservoir gold metals or minerals, or concerning or out of any contract for or in connexion therewith or for dissolving in the whole or in part any such partner- ship or which may arise between tenants in common or joint tenants in and in relation to any such land or water or in any share or interest therein : (viu.) Concerning contributions to calls or to the expense of working or using any such land race drain dam reservoir or water or any share or interest therein : (ix.) Concerning or out of any mortgage or assignment by way of security of or charge upon any such land race drain dam reservoir water gold metals or minerals vested in any person whether the holder of a miner's right or not or any share or interest therein or in a partnership therein : (x.) Concerning the cancellation and delivery up of instru- ments relating to contracts respecting or to mortgages or assignments of or to charges or encumbrances upon any such land water race drain reservoir gold or metals or minerals or any share or interest therein or respect- ing the working thereof for mining purposes or other- wise in relation to mining or respecting the using any such reservoir race drain dam or water or respect- ing or in connexion with any partnership for mining or in any such land race drain dam reservoir water gold or metals or minerals or respecting the dissolving in the whole or in part of any such partnership : (XL) Concerning boundaries, for the purpose of ascertaining the same between portions of any such land in all cases where such boundaries shall be in dispute or be confused and whether there may exist or not the cir- cumstances required by a court of equity to ground 412 THE MINES ACT 1890. ute a suit for the ascertainment of boundaries ; and the court before which any such suit shall be brought shall ascertain such boundaries by such means as shall be found convenient, and shall decree what the same shall be, and shall make and give all such orders and directions as shall be necessary for the purpose of carrying out such decree : (xn.) Generally concerning all questions and disputes cog- nizable as aforesaid which may arise between miners in relation to mining on Crown lauds. And the jurisdiction hereby given to Courts of Mines shall extend not only to cases where the litigants shall be the parties originally interested in the cause of suit, but to cases where the title of any .such litigants shall be derived as assignee or otherwise from or through any of such parties ; and in the exercise of its jurisdiction every Court of Mines may make such decree in the nature of an award as may be just, and without regard to any rule of law affecting the form only of relief or to the practice of any court of law or of equity ; and may, where the same shall be proper, decree the sale of any such land water gold or metals or minerals or share or interest therein or of the property of any such partner- ship ; and for the purpose of carrying out and enforcing such jurisdiction may exercise all such powers and make all such orders as the Supreme Court could exercise or make for the purpose of carrying out and enforcing the analogous jurisdiction of that court ; and in every case where in any such suit it shall appear that any party is entitled to the possession use or enjoyment of any such land water gold or metals or minerals or share or interest therein and generally in the exercise of its jurisdiction, such court may, on the application of such party or otherwise as shall be right, direct such process by way of warrant in analogy to a writ of possession or restitution or injunction to put into possession or to any other process as used in the Supreme Court in addition to or in substitution for the process provided for by this Part of this Act as the judge in the particular case shall consider necessary to the bailiff of the court ; who shall execute the same accordingly, and who shall possess and be entitled to exercise in the execution thereof, in addition to the powers by this Part especially conferred THE MINES ACT 1890. 413 upon him, all the powers and authority of the sheriff when acting " Mining statute in execution of the process of the Supreme Court. 136. If all the parties to any suit in any Court of Mines shall, Judtre it parties by writing under their hands or under the hands of their respec- as arbitrator in tive attorneys or counsel or under the hands of the manager of or a PP eal to the officer managing the company or of so many of the parties as "'' *' 102 shall make it appear to the judge that the parties so desire, require the judge of the Court to act as arbitrator in the matter of dis- pute, such judge may so act and may make an award therein, which shall be in the nature and have the effect of and be expressed as a decree in the suit ; and such award shall not be subject to question or appeal in any court whatever. 137. If in any suit or appeal in the Court of Mines both legal court may and equitable rights are involved, the judge may adjudicate upon legal and equit- and determine in the same suit both classes of rights, although a although both not sought in decision upon one class of rights only may be sought by the plaint. i )laint - lb. s. 103. 138. It shall be lawful for any assignee executor or adminis- Minors and trator to sue and be sued in any court holden under this Part of m Ty e sue. tat " this Act or before a warden, or to take proceedings by way of n - * 104 - appeal or otherwise under this Part, in like manner as if he were a party in his own right ; and it shall be lawful for any person under the age of twenty-one years to sue or to be sued in any court holden under this Part or before a warden or to take pro- ceedings by way of appeal or otherwise under this Part in the same manner as if he were of full age ; and no privilege shall be allowed to any attorney solicitor or other person to exempt him from the provisions of this Part. (c) Proceedings in the Courts of Mines. 139. Every suit in a court of mines shall be commenced by a Mode of . commencing; plaint in writing ; and may, with the leave of the judge obtained suits. on an ex parte application after the plaint shall be sealed as here- inafter directed, be prosecuted with written pleadings, but without such leave shall be prosecuted without written pleadings ; and every such plaint shall state in which of the said modes the suit is to be prosecuted, and shall be entitled of the court in which the suit shall be brought and of the day and year on which the summons indorsed thereon as hereinafter required shall be sealed as hereinafter directed. 414 THE MINES ACT 1890. "Mining statute 140. Every plaint shall be in the form in the Ninth Schedule Fom of plaint. to tnis Act > and sha11 state the names ancl last known places of Ninth Schedule, abode of the parties so far as the same shall be known to the plaintiff, and set forth as briefly as shall be consistent with clear- ness a statement of the facts upon which the plaintiff shall rely, and (if he shall be so advised) of his answer to any anticipated defence on the part of the defendant ; such statement to be divided into paragraphs numbered consecutively, and each con- taining as nearly as may be a distinct allegation ; and every such plaint shall pray for the relief to which the plaintiff shall conceive himself entitled, and shall state the amount sought to be recovered so far as the demand shall be pecuniary. Persons suing on 141. The rules adopted in the Supreme Court permitting in behalf of . themselves and certain cases some persons to sue and be sued on benall or them- ib. s. 107. selves and others shall in the like cases in the Courts of Mines be adopted in those courts ; and in such case the form aforesaid shall be altered and adapted to that mode of suit. Map may be 142. In case the plaintiff in any such suit, shall consider that annexed to plaint. f or the purpose of making the statements in any such plaint more clear it would be useful that one or more than one map or plan should be annexed to the said plaint and referred to thereby, such plaintiff may cause the same to be so annexed and may refer thereto by such plaint, and the same shall be taken as part of the said plaint ; and in estimating the costs of the suit a reasonable sum shall be allowed for the expense of every such map or plan, unless the judge shall consider that the same was unnecessary. Summons to be 143. On every such plaint there shall be indorsed in writing a plaint. summons directed to the defendant or defendants by name or names, which summons shall state whether the plaintiff or plain- tiffs is or are proceeding in person or by attorney ; and every such summons shall in the case of a suit to be prosecuted without Tenth schedule, written pleadings be in the form in the Tenth Schedule to this Act, and shall require the defendant to appear in the Court of Mines at the place where the summons shall be sealed as herein- after directed, and 011 the day on which the court shall first sit at that place' next after the expiration of fifteen days from the day of the service of such summons, to answer the said plaint ; and every such summons shall in the case of a suit to be prose- THE MINES ACT 1890. 415 cuted with written pleadings be in the form in the Eleventh "Mining statute Schedule to this Act, and shall require the defendant within such seventh number of days after service on him of such summons as shall be Sehedule - directed by any such general rules as aforesaid to deliver an answer to the plaint of the plaintiffs. 144. Every summons so indorsed shall be signed by the clerk Summons to be signed and of the court for the place at which such suit is to be heard, and shall be sealed by him with the seal of such court and dated of the day of such sealing ; and the plaint upon which the summons hi so sealed shall have been indorsed shall be left with such clerk, who shall number the same according to the order in each year in which the summons thereon shall be sealed, and shall file the same in his office ; and if any such map or plan as aforesaid shall be annexed to such plaint, the same shall together with such plaint be left with such clerk for the inspection of any defendant in such suit who may require the same ; and every such map or plan together with all other documents in the same suit shall by the said clerk be filed and kept together with such plaint in one and the same place and marked with the name and number of the suit. 145. Upon every person whom it shall be intended to make a A copy of the J r plaint and defendant in any such suit there shall be served in the manner summons to be served on the and such service shall be proved in the mode directed by any such defendant general rules as aforesaid (unless in cases where service shall be substituted by leave of the court or the judge thereof), by the plaintiff himself or his agent or the bailiff of the court, a copy of such plaint (but not of any such map or plan) with a copy indorsed thereon of the summons indorsed on such plaint, every such last- mentioned copy to be signed and sealed as an original in like manner as the original summons is hereinbefore directed to be signed and sealed ; and no person shall, unless it shall be other- wise ordered by the court, be deemed a defendant in such suit unless and until he shall be so served. 146. No misnomer or inaccurate description of any person or JJJJ?^^ &c ' i] place in any such plaint or summons shall vitiate the same, so *V^ M ' that the person or place be therein described so as to be com- ib. *. 112. rnonly known. 416 THE WINES ACT 1890. "Mining statute 147. It. shall be lawful for the defendant, in any suit for or Defendant may which shall include a pecuniary demand, within such time as thelmounT" shall be directed by any such general rules as aforesaid, to pay into court the amount of the sum claimed in such suit as men- tioned in the summons indorsed on the plaint therein together with the costs incurred by the plaintiff in respect of that sum up to the time of such payment and of delivering the notice here- inafter mentioned. Notice of such payment shall be communi- cated by the clerk of the court or by the defendant and certified by the clerk to the plaintiff by causing the same to be delivered at his usual last-known place of abode or business ; and the said sum of money and costs shall be paid to the plaintiff; and after such payment into court no other suit shall be brought or prose- cuted in any court in respect of the demand in satisfaction of which such sum shall have been so paid. Payment into court of less than the demand. Ib. 8. 114. Objections for want of parties in suit with written pleadings. Ib. i. 115. 148. Any defendant in any suit for or which shall include a pecuniary demand may, within such time as shall be directed by the general rules aforesaid, pay into court such sum of money as he shall think a full satisfaction for such demand together with the costs incurred by the plaintiff in respect of that sum up to the time of such payment and of delivering the notice next here- inafter mentioned. Notice of such payment shall be communi- cated by the clerk of the court to the plaintiff by causing the same to be delivered at his usual or last-known place of abode or business ; and the said sum of money and costs shall be paid to the plaintiff; and if he shall elect to proceed and shall recover no further sum in the suit in respect of such pecuniary demand than shall have been so paid into court, the plaintiff shall (unless the court or judge thereof shall otherwise order) pay to such defendant the costs incurred by him in the said suit after such payment into court, and the court may decree the same accord- ingly. 149- Tf any defendant to any suit to be prosecuted with written pleadings shall consider that the same is defective by reason of the absence of some party necessary thereto either as plaintiff or defendant, he may within six days after he shall have been served with the plaint therein serve a notice in writing entitled in the suit and bearing the number thereof upon the plaintiff, requiring him to show cause on the day but two next THE MINES ACT 1890. 417 after such service before the court in which such suit shall be "Mining statute pending or the judge thereof or on such other day as such court or judge shall appoint why the person whose absence is complained of should not be made a party to such suit ; and such court or judge shall have power to direct such person to be made a party to such suit by amendment, and shall make such order respecting the same and as to the time within which any amendment which may be ordered is to be made and any amended plaint served if such service shall be ordered and within which a notice of objection as hereinafter mentioned or the answer to the plaint in such suit or both is or are to be served or delivered without reference if the judge shall so think fit to the regular time for such service or delivery and as to the costs of such application and otherwise as such court or judge shall see fit. 150. Within such number of days after a defendant in a suit Notice of to be prosecuted with written pleadings shall have been served plaint may be served. with the plaint therein as shall be directed by any such general u. g _ n 6 . rules as aforesaid, save where it shall be otherwise ordered by the court or the judge thereof, he shall be entitled, if he con- siders that he has grounds therefor, to serve a notice in writing dated of the day of such service entitled in the suit and bearing the number thereof upon the plaintiff, thereby objecting that the plaintiff by his own showing is not entitled to the relief sought for by his plaint or to some particular part thereof ; and every such notice shall set forth the grounds of objection and shall be Twelfth Schedule in the form in the Twelfth Schedule of this Act. 151. Within the same number of days, save where it shall be Answerto be otherwise ordered by the court or the judge thereof, such defend- lb ,. 117< ant may, and whether he shall have served notice of any such objection or not, deliver to the plaintiff an answer in writing to the said plaint dated of the day of such delivery entitled in the suit and bearing the number thereof ; arid when any such answer shall be delivered, the defendant shall thereby in separate para- graphs numbered consecutively fully answer the statements in such plaint denying admitting or qualifying them, but with the right to decline answering any particular statement on some ground applicable to that statement alone and not to the entire plaint ; and by such answer the defendant shall also set forth the matters of fact or grounds upon which he intends to rest his 418 THE MINES ACT 1890. " mmng statute defence ; and he may thereby insist upon several distinct defences, several an d may also thereby make a case for and claim any cross relief defences. w hich in connection with the matters stated by the plaint he Cross relief. could have obtained by a proceeding instituted by himself ; and every such answer shall be in the form in or as directed by the r eduie* h Thirteenth Schedule to tins Act. Endorsement on \%. Every such notice of objection and answer shall have ion and answer. en( j orse( j thereon a statement of the place of abode or business of the defendant or of each of the defendants whose notice or answer it shall be, and the name and place of business of his or their attorney if he or they shall act by such. AS many ^53. AS many of the defendants in any suit to be prosecuted toToinblneH'n* 11 v ^ WI> i tten pleadings as can conveniently and without prejudice answering. {. Q ^heir or anv o f their interests combine in an answer shall do so ; and in estimating the costs of a suit the judge shall consider how far the number of answers which may have been delivered therein was reasonably necessary for the due defence of the defendants or any of them ; and he shall not allow the costs of any answer beyond such as he shall deem to have been so neces- sary. Notice to admit. |g^ Either party to any suit or action depending in any " The Statute of Evidence 1864," Court of Mines may call on the other party by notice to admit !5&i6Vict. any fact or document saving all just exceptions; and every such R Pr 29, so. notice and admission respectively may be in the form contained Fourteenth in the Fourteenth and Fifteenth Schedules to this Act or to the schedule. Kjfteenth like effect ; and in case of refusal or neglect to admit, the costs of proving the fact or document shall be paid by the party so neglecting or refusing, whatever the result of the case may be, unless at the hearing trial or inquiry the judge shall certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is in the opinion of the judge of the Court of Mines a saving of expense. 1SS - An affidavit of the attorney solicitor or agent in the cause r k* s c ^ er ^ f tne due signature of any admissions made in pur- is & 16 Viet. suance of su^h notice and annexed to the affidavit shall be in all ib s 119 cases sufficient evidence of such admissions ; and an affidavit of the attorney solicitor or agent in the cause or his clerk of the THE MINES ACT 1890. 419 service of any notice to produce in respect of which notice to '/"/<, staiuu of j i it i , . /.''"/./ice 1864." admit shall have been given and of the time when it was served with a copy of such notice to produce annexed to sucli affidavit shall be sufficient evidence of the service of the original of such notice and of the time when it was served. 156. If any party to any suit shall complain that by reason of objection for . . uncertainty &c. any uncertainty obscurity or repugnance in the plaint or in any M ining statute answer in such suit he is unable to make answer to such plaint or 1865 ' *' to understand any issue tendered or intended to be tendered by such answer, or that any plaint or answer is so framed as to prejudice embarrass or delay the fair hearing of the suit, he may within four days after the service upon him of such plaint or the delivery to him of such answer serve a notice in writing entitled in the suit and bearing the number thereof upon the opposite party, requiring him to show cause on the day but two next after the service of such notice before the court in which such suit shall be pending or the judge thereof or on such other day as such court or judge shall appoint why the plaint or answer should not be amended in respect of the matter complained of ; and such court or judge shall have power to direct any such amendment to be made, and shall make such order respecting the same and as to the time within which any amendment which may be ordered is to be made and any amended plaint served if service thereof shall be ordered and Avithin which a notice of objection or the answer or any amended answer to the plaint in such suit or both such notice and answer is or are to be served or delivered with- out reference if the judge shall think fit to the regular time for such service or delivery and as to the costs of such application and otherwise as such .court or judge shall see fit ; and no party shall be permitted to appeal from any such order. 157. Upon the expiration of the time limited either as aforesaid w r \* t " * uit wkh or by any special order of the court or the judge thereof for the delivery of the answer of any of the defendants in the case of a lb. . 121. suit to be prosecuted with written pleadings, the suit shall be deemed to be at issue between the plaintiff and such defendant : and after the suit shall be at issue as to all the defendants, the plaintiff shall, in the manner to be directed by such general rules as aforesaid, enter the same to be heard on the first day of that sitting of the court which shall occur next after the expiration of 420 THE MINES ACT 1890. "Mining statute twenty-one days from the time when the suit shall be at issue as 1865." J last mentioned. Notice of 158. After any such last-mentioned suit shall have been so ' served. entered the plaintiff shall, not less than ten days before the day for which it shall be entered for hearing, serve in the manner and such service shall be proved in the mode directed by any such general rules as aforesaid (unless in cases where service shall be substituted or any shorter time limited by leave of the court) a notice upon the defendant or each of the defendants if more than one, informing him of the day and place upon and at which such hearing is to be had. Engrossment of 159. Within seven days immediately preceding the dav for plaint notices of objection and which the hearing shall be so entered, the plaintiff shall make and answers to be c^efiTb\ V the lodge with the clerk of the court an engrossment on paper book- wise of the plaint and of each notice of objection and answer which shall have been delivered (if any) with any amendments^ made in any of them and entitled in and bearing the number of the suit ; and any defendant who before the commencement of the said period of seven days shall pay to the plaintiff his demand and costs, or submit by a notice to be served on the plaintiff to a decree for all that shall be required by the plaint with costs, shall not be bound to pay the costs of such engrossment. ^0- ^ n t ' 16 case ^ a su ^ to ^ e P rosecute d without written both "Irtief 6 Fadings, tne plaintiff shall at the time and place named in that without' written Behalf in any such summons as aforesaid appear ; the defendants shall thereupon be required to appear to answer such suit ; and on answer being made in court by the defendants or by such of them as shall in the opinion of the court sufficiently represent the defendants, such court shall proceed to hear the suit in a summary way ; and upon the hearing of any such suit any defendant may Cross relief. obtain any cross relief which in connexion with the matters stated by the plaint he could have obtained by a proceeding instituted by himself. in^a e tth P e r0eeed ' 161. In the case of a suit to be prosecuted with written plead- bothparties Fe * n s tne c ^ er k f tne court shall on the day for which the hearing with written 11 * o tne suit slm11 be so entered as aforesaid have in court the said engrossment and all other documents in the said suit ; and if the plaintiff and the defendants or such of them as shall in the opinion THE MINES ACT 1890. 421 of the court sufficiently represent the defendants shall appear, the ".Mi>n, v statute court shall, if no notice of any objection to the relief sought in ** the suit shall have been served, proceed to hear such suit ; but if any such notice shall have been served, then the court shall (unless it shall otherwise think proper) proceed first to hear the objections taken by each notice so served and make its decree against any defendant whose objections shall be overruled and who shall not have delivered an answer, and then proceed to hear the suit as against the other defendants, except any as against whom the court shall be of opinion that by reason of the allowance of any objections the suit should not proceed ; but if any such objection shall be allowed and notwithstanding such allowance the court shall be of opinion that the plaintiff would be entitled to some relief legal or equitable whether asked for by the plaint or not on proof of the case made by the plaint if amended in some manner not causing such case when so amended to differ substantially from the same as originally put forward, the court shall on the application of the plaintiff, if it shall deem that no injustice would be thereby done to any of the parties, order such amendment to be made forthwith, and the defendant whose objection shall have been so allowed forthwith to answer ore tenns the plaint so amended ; and forthwith proceed to hear the suit, save as to any defendant against whom a decree shall have been made as afore- said ; but if it shall deem that such injustice would be done, the court shall adjourn the hearing to. such time and to such place within its district as it shall think tit and upon the terms herein- after in cases of adjournment provided ; but if the court shall be of opinion that by no such amendment would the plaintiff be entitled to any relief as against the defendant whose objections shall have been so allowed, then it shall dismiss the suit as against such defendant and any other defendant as against whom it ought in that case in the opinion of the court to be dismissed, and shall make such order as to costs as shall be right. Provided that it shall not be competent to any defendant who shall neither have delivered an answer nor have served any notice of objections to make a case for himself on any such hearing ; but such defendant shall only be permitted to controvert the case of the plaintiff; and the plaintiff in any such case shall, on proving his case if in the opinion of the court good in point of law, be entitled to a decree as against such defendant. 422 THE MINES ACT 1890. Mining statute 162. Any defendant whether or not notice of any such objec- may tion shall have been served by him, shall be at liberty to take at f tne hearing ore tenus any or any other objection which might be - taken by any such notice ; and the court shall proceed to hear and to deal with and in respect, of such objection as if notice thereof had been served. Provided however that any such objec- tion, ore tenus shall be taken before the hearing of the suit shall be entered upon. Provided also that in no case shall the court, whether any such objection shall be taken by notice or ore tenus or not, make a decree for a plaintiff on a plaint which or which if amended as aforesaid shall show no right to such decree ; and in all cases of objections the court shall have power to deal with the costs thereof and of the argument thereof as it shall think just. Answer may amended. 163. If it shall appear at the hearing that the case designed to be made by any answer is by reason of the omission or the erroneous uncertain or incongruous statement of some fact in- effectual and the court shall have no ground to believe that such error could not be rectified consistently with truth, such court may, if it shall deem that no injustice would be thereby done to the parties and shall see no other objection thereto, order such error to be forthwith rectified and the hearing forthwith to pro- ceed ; or if it shall deem that such injustice would be done or shall see any such other objection, may adjourn the hearing to such time and to such place within its district as it shall think fit and upon the terms hereinafter in cases of adjournment pro- vided for. How objections or omissions to answer tx> be dealt with. Ib. s. 128. 164. Whenever a defendant shall have objected to answer any particular statement in a plaint on some ground applicable to that statement alone, the question as to the validity of such objection shall be decided by the court on the examination of the defendant as a witness in reference to the matter of such state- ment ; and when a defendant shall have altogether omitted to answer a statement in a plaint without alleging any reason for such omission or shall have answered the same evasively, he shall be taken to have admitted the same, unless the court shall con- sider that such course would be unjust ; in which event the court may, if it shall think fit, deal with the case as within the next preceding section hereof. THE MINES ACT 1890. 423 165. If on the hearing of a suit prosecuted with written "Mining statute pleadings it shall appear that any defendant is entitled to any Defendant may cross relief, the court may grant the same if a case therefor shall "& ''" have been made by the answer of such defendant ; but if such case shall not have been made, the court may, if it shall deem that no injustice would be thereby done to the plaintiff, order the answer to be forthwith amended in such manner as to make such case, and may grant such relief ; but if it shall deem that any injustice would be done, it may adjourn the hearing to such time and place within its district as it shall think tit and upon the terms hereinafter in cases of adjournment provided for. 166. Misioinder of plaintiffs or of defendants shall not be NO suit to be dismissed for allowed to form a ground of objection in any such notice of misjoinder. objections as aforesaid, and no suit shall be dismissed on the ground of any such misjoinder ; but if the court at the hearing or rehearing of the suit shall deem that no injustice would be thereby done to any of the parties, it shall in the case of misjoinder of a plaintiff forthwith order all such amendments as shall be necessary to rectify such misjoinder to be made in the plaint either by striking out the name of any of the plaintiffs or (if justice shall so require) by changing any plaintiff into a defendant and by adding to the plaint such averments as shall thereupon become necessary ; and in the case of misjoinder of a defendant it shall dismiss the suit as against such defendant, or (if justice shall so require) shall order such defendant to be made a plaintiff and all averments becoming necessary thereupon to be added to the plaint by amendment thereof ; and forthwith in either case proceed to hear the suit ; but if the court shall deem that such injustice would be done, it shall adjourn the hearing to such time and to such place within its district as it shall think fit and upon the terms hereinafter in cases of adjournment provided for. 167. If at or in the course of the hearing or rehearing of any H suit it shall appear that any person interested in the subject- inthe absent matter of the suit and who ought to be a party thereto either as rb. .. 131. plaintiff or defendant is not such party or in the case of a defendant has not been duly served with the summons or notice of the hearing or does not appear (his absence not being sufficiently excused) the court may either proceed to the hearing 424 THE MINES ACT 1890. "Mining statute of the suit in the absence of such person and make a decree 1865." either binding or saving the rights of such person or adjourn the hearing in order that such person may if a defendant be served with the summons or notice of hearing or if not a party, made such party either as plaintiff or defendant as the case may be, and if made a defendant served with such summons or notice on such terms (if any) as to payment of costs by the plaintiff to any defendant who shall have appeared as such court shall think fit, or may dismiss the suit without prejudice to the right of the plaintiff to commence a fresh suit for the same cause. Provided that whenever the court shall make a decree in the absence of any such person binding the rights of such person, it shall be lawful for the judge in his discretion at the same or any subsequent court to set aside such decree or any part thereof and to grant a rehearing of the suit upon such terms (if any) as to payment of costs giving security or otherwise as such court may think fit on sufficient cause shown for that purpose. dismissed tor 6 *^8. -^ o suit in ^ court sha11 ^ dismissed without the con- sent of the plaintiff by reason only that the plaintiff shall appear at the hearing to be entitled to different relief from that which shall be sought by any plaint ; but in every such case and when- ever it shall appear at the hearing that the plaintiff is entitled to other relief than that sought by the plaint, such court shall cause the plaint to be amended and the hearing forthwith to proceed ; but in case it shall appear to such court that the defendants or some of them were in fact deceived by such plaint and that injustice would be done by proceeding at once in such suit, it shall be lawful for such court to adjourn such hearing to such time and place within its district as it shall think fit and upon the terms hereinafter in cases of adjournment provided for ; and whenever at the hearing of any such suit any variance shall appear between the proof and any statement in the plaint or in any answer which may have been delivered in any particular or particulars in the judgment of the court not material to the merits of the case, then, if the opposite party could not have been prejudiced thereby in the conduct of his suit or defence, such court may (if it shall see fit so to do) cause such plaint or answer to be forthwith amended and the hearing forthwith to proceed ; but if the opposite party may have been prejudiced b}* such variance, THE MINES ACT 1890. 425 such court shall have power to adjourn the hearing to "Mining statute such time and place within its district as it shall think fit and upon the terms hereinafter in cases of adjournment provided for; and after any amendment made in respect of any such variance the hearing shall proceed either at the time at which the said variance shall have appeared or to which the hearing shall have adjourned in the same manner in all respects both in respect to the liability of witnesses to be indicted for perjury and otherwise .as if no such variance had appeared. 169. In no case shall any mere informality in the pleadings or in no case / _ informality to proceedings, or any omission not prejudicial or embarrassing to prejudice. .any of the parties of any name or date or other such matter in the title of the pleadings or otherwise, prejudice any such suit or the defence thereto ; but the same if in the pleadings shall be amended forthwith in manner aforesaid. which the court shall think right so to do the court shall adjourn case - the hearing of a case, it shall have power to adjourn the same upon such terms as to allowing the plaint or answer or both to be amended, and (where proper) an answer or further answer to be delivered, and as to fixing the time for and manner of deliver- ing such amended plaint or answer or further answer, or as to .allowing some subsequent application to be made for liberty so to amend or deliver such answer or further answer, and as to the payment of costs and otherwise as to such court shall seem tit. And whenever any such subsequent application shall be made, the court shall have power to grant the same upon such terms as to costs and otherwise as it shall think just. 171. The plaintiff in any suit to be prosecuted with written Amendments , otherwise than pleadings shall be at liberty at any time before an answer shall at hearing. have been delivered to his plaint to amend such plaint as he shall lb - be advised, subject however to the provisions of such general rules as aforesaid ; but after any such answer shall have been delivered, no plaintiff shall amend his plaint without the leave of the court or the judge thereof, and no defendant in any such suit shall be at liberty to amend his answer without such leave ; and in each of such cases such court or judge shall have power on sucli terms as to payment of costs or otherwise as it shall think right to grant 426 THE MINES ACT 1890. "Mining statute such leave, and that whether or not the suit shall be at issue as to any or all of the defendants ; and the course to be pursued to obtain and after having obtained the same and the times within which any subsequent step in the suit is to be taken shall be that pointed out for the purpose in the said general rules. issues and fact 172. It shall be lawful for the court, if and whenever it shall may be tried by assessors. think fit so to do, to direct an issue to be tried at such tune as it shall appoint before such court and by six assessors to be sum- moned as hereinafter directed ; and either of the parties to any suit may require that any question of fact material to the issue between the parties shall be tried at the hearing by six assessors to be summoned as hereinafter mentioned ; the verdict of a majority of whom shall in both cases be received ; and whenever any question of fact shall be tried on the requisition of any of the parties the judge in pronouncing his decree in the suit shall act upon the verdict found on such trial ; but whenever an issue shall be tried on the direction of the judge, the judge in pronouncing such decree shall act or not on the verdict found on such trial as he shall think right, and shall have power before pronouncing such decree to direct any other trial or trials of such issue. Pro- vided always that no party to any suit shall be entitled so to require, unless he shall eleven clear days before the day on which the suit is to be heard give notice to the clerk of the court that he requires assessors to be summoned for such hearing and six clear days before such day serve on the opposite party or (if more than one) on such of them as the court shall consider sufficient to represent them or on his or their attorney a notice stating that he has given to the said clerk such notice. Provided also that the party so requiring shall at the time when he shall so require pay into court the sum of six pounds twelve shillings for assessors, any part whereof not required for the payment of assessors shall be returned to the plaintiff, and the residue there- of shall eventually be paid as part of the costs of the suit by such of the parties as the court shall in that behalf direct, [cf. 37 Yic. No. 13 (N.S.W.), sec. 93]. pursued'hi'case ^^' ^ n an -Y case ^ a tr ^ a * ^J assessors no pleading further aLesiorl 1 " than as aforesaid shall be necessary ; but in the case of an issue. ib. ,. is-. directed by the judge, he himself shall settle the same ; and in the case of facts to be tried on such requisition of either of the THE MINES ACT 1890. 427 parties, the parties shall, if they cannot themselves agree thereon, '.\ti,i; l i : ist<,hitr settle under the direction of the judge in the form of an issue the question respecting the fact or each of the facts so to be tried, such settlement to be made at any time before the trial of such question on an application to the judge either in court or in chamber upon notice served by the party requiring such trial upon the other party ; and upon the day appointed for such trial the parties shall appear, and the clerk of the court shall then read the issue or question to be tried and the party asserting the affirmative shall unless the court shall have otherwise directed be entitled to begin. Every such trial shall be proceeded on in the same manner as in the case of the trial of an issue directed by the Supreme Court. 174. Whenever the court shall direct that an issue or either of Mode of obtain- ing assessors. the parties to any such suit shall require that any question of jb. 138. fact shall be tried by assessors, the clerk of the court shall, in the former case on the direction of the court and in the latter case on receiving notice of such requisition, issue to the sheriff within whose bailiwick the place where such issue or question is to be tried shall be, a precept for assessors in the form as near as may be of a jury precept as directed by any Act now or hereafter to be in force relating to juries, thereby requiring the return of special jurors as assessors, [cf. 37 Vic. No. 13 (N.S.W.), sec. 95]. And thereupon the said sheriff and clerk shall do all such things for the procuring of assessors to try such issue or question as by any Act now or hereafter to be in force are or shall be directed to be done by any sheriff or the proper officer of any court in which an issue in a civil action is to be tried for the procuring of jurors to try such issue. The swearing or taking the solemn affirmation and declaration instead of being sworn of every such assessor and of every other assessor provided for by this section shall be regulated by the provisions of any Act now or hereafter to be in force in respect to the swearing and taking the solemn affirmation and declaration of jurors for the trial of civil actions. Any person summoned as such assessor who without lawful excuse shall neglect or refuse to attend or to be sworn or serve as 428 THE MINES ACT 1890. ' Mining statute such assessor shall be fined such sum of money as the judge shall think fit not exceeding Five pounds. Provided always that no person shall be summoned or compelled to serve as such assessor more than twice in one year and every person so attending as an assessor who shall be summoned to try an issue or fact shall be paid by the clerk of the court ten shillings for each day that he shall so attend and one shilling for every mile beyond three miles that he shall travel to attend such court. such e sufficient Provided further that if a sufficient number of the persons sta'nders'to act summoned to act as assessors in any court to be holden under this Act shall not attend or shall not remain after any of them shall be challenged and set aside, it shall be lawful for the clerk of such court as often as need be either to nominate and appoint any one or more of the bystanders or to summon a sufficient number of persons from the neighbourhood to act as assessor or assessors until the number of assessors required shall be obtained ; and any of the bystanders so nominated or of the persons so summoned and acting as assessor shall be entitled to receive the same sum for such attendance as if he had been originally summoned to attend, and any of the parties shall have the same right of challenge with respect to such bystanders and persons as he would have had with respect to the person originally summoned, [cf. 37 Vic. No. 13 (N.S.W.), sec. 102.] rren'ot^imf 018 ^^' ^ n tice shall be given by either of the parties that he ofn n o e t f ice y .io e t aSOn nas re q uirefi assessors to the other of such parties but by reason theTierk 611 tO t ^ at no n ti ce thereof has been given to the said clerk no assessors n. s. 139. shall have been summoned, the party to whom such notice shall have been given may, if he shall not consent that the suit shall proceed without assessors, require that any of the bystanders or persons from the neighbourhood shall be appointed or summoned by the said clerk to act as assessors ; and in such event the case shall be deemed to be a case within the provision of the latter part of the next preceding section hereof, and the said clerk shall act accordingly; and if in such case a sufficient number of assessors cannot be obtained, or if the party to whom such notice shall have been given shall not choose to require that assessors should be so appointed or summoned as aforesaid, he shall be entitled to require that the hearing of the suit be adjourned, and THE MINES ACT 1890. 429 that the said clerk shall summon assessors for such adjourned "Umiw statute hearing ; and thereupon the court shall order such adjournment and to such time and place and upon such terms as to payment of costs or otherwise as such court shall direct ; and assessors shall be summoned for such adjourned hearing ; and the provisions herein contained respecting assessors shall be applicable so far as may be to assessors summoned as last aforesaid, [cf. 37 Vic. No. 13 (N.S.W.), sec. 99]. 176. It shall be lawful' for any Court of Mines in such way as Co "rt may refer certain matters. the said court may think fit to obtain the assistance of accountants ib. . uo. engineers surveyors or other scientific persons, or to direct any surveys maps or plans to be made the better to enable such court to determine any matter at issue in any suit or appeal, and to refer any question requiring such assistance to any such person or persons, and to act to such extent as it shall think fit upon his or their certificate ; and the expense of obtaining any such assistance or of such surveys maps or plans shall be deemed to be part of the costs of the hearing. 177. If the plaintiff in any suit shall fail to appear at the time Proceeding and place at which the same is to be heard or to which the hear- does not appear, ing thereof shall have been adjourned, such suit shall (unless the ' *' 141 ' court shall otherwise order) be dismissed with costs as to any defendant who shall appear and apply for such dismissal, without prejudice however to any future suit for the same purpose ; and as to any defendant who shall not so appear and apply, the suit shall (unless the court shall otherwise order) be struck out of the list of causes for hearing and shall not be re-entered without the order of the court. 178. If the defendant or, where more than one, the defendants or a number of them not sufficient in the opinion of the court to ' represent the defendants shall fail to appear at the time and ^ place at which the same is to be heard or to which the hearing " ot r Iff. thereof shall have been adjourned, and his or their absence shall not be sufficiently excused, but the plaintiff shall so appear, the court in the case may, upon due proof of the service of the sum- mons or notice of hearing according as the suit shall be prosecuted without or with written pleadings upon the defendants or such of them as shall in the opinion of the court sufficiently represent all 430 THE MINES ACT the defendants not appear, proceed to the hearing of the suit in the absence of the defendants or such of them as shall be absent ; and the decree thereupon shall be as valid as if all the defendants had appeared. Provided always that such court may in any such case at the same or any subsequent sittings of the court set aside any decree so given in the absence of any defendant, and may grant a rehearing of the suit upon such terms (if any) as to pay- ment of costs giving security or otherwise as such court may think fit, on sufficient cause shown for that purpose. But if there shall be no such proof of service of the summons or notice of hear- ing, then the suit shall, unless the court shall think fit to act under the provision aforesaid for proceeding with the hearing in the absence of a party, be struck out of the list of causes for hear- ing and shall not be re-entered without the order of the court. Dismissal for want of prosecution. Ib. a. 143. Judge may stay proceedings grant time or adjourn. Ib. i. 144. 179. In case the plaintiff in any suit in any such court shall omit to take any step to be taken by him in such suit at the time at which the same ought to be taken, the defendant shall be entitled to apply to such court for an order that such suit be dismissed for want of prosecution ; and in case any application on notice to any such court or to any judge thereof shall not be brought on at the time at which it ought to be brought on the party against whom such application was to have been made shall be entitled to apply to such court for an order that the notice of such applica- tion be discharged with costs ; and in each of the said cases such court shall make such order therein and as to the costs thereof and of such suit or notice of application as it shall think just. 180. The judge of any Court of Mines may, in any case where a court of equity might so do, make orders for staying proceedings until security shall be given for costs, and may also make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of the suit or of any such appeal to the Court of Mines as is hereinafter provided for ; and any such judge may also from time to time adjourn any sitting of the court, or may from time to time adjourn or change the place for the hearing further hearing or rehearing of any suit or of any such appeal or the trial or new trial as hereinafter permitted of any issue or question of fact in such manner and on such terms (if any) as to payment of costs or otherwise as to such judge may seem fit. THE MINES ACT 1890. 431 181. As soon after any decree shall have been pronounced as it '-Mining statute can conveniently be done, if the person in whose favour the decree Decree to te is made shall so desire, the clerk of the court shall draw up the ( n same entitled in the suit and bearing the number thereof ; pro- vided that any of the parties objecting to the terms thereof as so drawn up may apply to the judge to settle the same ; and when the same shall have been drawn up or if settled by the judge when settled, it shall be signed by the judge of the court; and thereupon it shall become effective and enforceable by the process of the court, unless stayed by the court or unless appealed against or unless the court give time for the performance thereof ; and such decree in the case of a suit prosecuted without written plead- ings the clerk shall tile in his office, and the same shall become the record of such decree and in the case of a suit prosecuted with written pleadings the clerk shall annex the decree to the engrossment to be lodged with him as aforesaid of the proceedings in the suit in which such decree shall have been pronounced ; and such engrossment with such decree so annexed shall be tiled in his office by such clerk, and shall thereupon become the record of such suit and decree ; and a document purporting to be a copy of any such decree or engrossment or of any such engrossment with any such decree so annexed or of any part thereof, and purporting to bear the seal of the court and to be signed and certified as a true copy by the clerk of the court which shall by such document be stated to have pronounced the decree or of the court in which the suit a copy of the engrossment of the proceedings in which or of any part of which engrossment the said document shall purport to be shall by such document be stated to be or to have been pending, shall be admitted in all courts and places whatsoever as primd facie evidence that such decree was pronounced, and that an original of every plaint summons answer or notice of objection or other proceeding a copy of which is purported to be set forth in the said document was served or delivered and made use of in such suit as the same ought to have been served delivered or made use of in order to make good the said suit, and of the regularity of such decree and engrossment without any further proof. 182 It shall be lawful for a iudije of a Court of Mines within Jud^e or deputy J jultfemay six weeks after his resignation of office, and for a deputy judge ^;.^ on fc within six weeks after the determination of his appointment, to ^ c t A"o.443,.ii. 432 THE MINES ACT 1890. Act No. 446. give in to the clerk of the said court a written judgment in any action suit or other proceedings heard before the said court judge or deputy judge, and such clerk shall publicly read such written judgment at the next sitting of such court, and a judgment decree or order shall be entered or drawn up in pursuance of such judgment ; and every such judgment decree or order and every judgment decree or order which has been so heretofore entered or drawn up, shall have the same force and effect as if the judgment in pursuance whereof it shall be or has been entered or drawn up had been given by such judge or deputy judge in open court on the day before his resignation or the determination of his appoint- ment, save that all times that run from the giving of judgment shall run from the reading thereof by the clerk. This section shall be deemed to have been in force on and since the first day of March One Thousand eight hundred and seventy-two. (d) Enforcement of Decrees and Orders. Execution 183. It shall not be necessary to serve any decree or order property. made at the hearing or rehearing of any suit or of any such 1865 s ff u6. tl. 151. Eighteenth Schedule. Imprisonment not to operate as discharge of debt. Ib. s. 152 Prisoner to be discharged on payment. Ib. *. 153. 187. In any case in which any defendant in any suit in any Court of Mines shall personally appear at the hearing of the same, the court at such hearing or at any adjournment thereof, if a decree shall be made against the defendant, shall at the instance of the plaintiff have the same power and authority of examining the plaintiff and defendant and other parties touching the things hereinbefore mentioned and of making an order as such court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after decree made as hereinbefore mentioned. 188. Whenever any order for commitment shall have been made under the provisions hereinbefore contained and the money and costs named therein shall not have been paid into court in pursuance thereof, the clerk of such court shall, without any previous notice or summons to the party required to pay the same, issue a warrant in the form in the Eighteenth Schedule to this Act or to the like effect ; and the bailiff of the said court and the keeper of the gaol to whom such warrant is directed shall respec- tively execute and obey the said warrant and all constables and other peace officers shall aid and assist in the execution of such warrant. 189. No imprisonment under any such warrant shall operate as a satisfaction or discharge of the amount due under any decree or order ; but it shall be lawful for the clerk of such court from time to time to issue an execution under section one hundred and eighty -three hereof upon such decree or order. 190. Any person imprisoned under this Act by virtue of any such warrant as aforesaid, who shall have paid or satisfied the sum of money and costs remaining due at the time of the THE MINES ACT 1890. 437 issuing of such warrant together with all subsequent costs, shall "Mining statute be discharged out of custody upon the certificate of such payment or satisfaction signed by the clerk and sealed with the seal of the court in which such order of commitment shall have been made. 191. It shall be lawful for any party so committed to prison to Application for require the person to whom was due the money in respect of which prt^ the summons for the examination of such party shall have been 2b ~ issued, by notice in writing to be served on such person or at his last-known place of abode, to show cause at a time to be expressed in such notice before such court or judge why such party should not be discharged from prison ; and such court or judge shall, whether such person shall appear or not on such notice, make such order in the matter and as to the costs thereof as he shall think fit. 192. Whenever any court holden under this Part of this Act o or any judge thereof shall make any decree or order other than a summoned ^id decree for the payment of money and any person named therein ^""" and intended to be bound thereby shall disobey such decree or order, it shall be lawful for any person entitled to the benefit thereof to obtain a summons in the form in the Nineteenth Schedule to this Act from any clerk of such court, requiring the party so disobeying to appear at such time and place as shall be directed by the said summons before the same or any other Court of Mines or a judge of any such court to show cause why he should not be committed to prison for disobedience of such decree or order, and stating in what respects such decree or order has been disobeyed ; and such summons may, by order of the court or the judge who shall have made such decree or order, be made returnable at any place before the same or any other Court of Mines or before a judge of any Court of Mines at such place in Victoria as such court or judge shall appoint, but without such order such summons shall be made returnable at the place at and before the court out of which it shall be issued ; and such sum- mons shall be served personally or at such place or upon such person or in such other manner as the judge may under the special circumstances of the case direct. If the person so summoned shall appear in pursuance of such summons or shall without any sufficient excuse fail so to appear 438 THE MINES ACT 1890. "Mining Statute or to appear at any time or place to which the hearing of such summons may be adjourned, it shall be lawful for the court before which or the judge before whom such summons shall be returnable to inquire into the matters mentioned in such summons on affidavit or on the oath of one or more than one credible witness or upon oath and affidavit ; and if it shall appear to such court or judge that the person so summoned has in fact disobeyed such decree or order, it shall be lawful for such court or judge to order that such person be committed to prison ; and thereupon the clerk of the court at the place at which such last-mentioned order shall have been made or the clerk of the court in which the suit or proceeding in which the decree or order so disobeyed shall have been instituted or be depending shall, without any previous notice or summons to the person so ordered to be committed, issue a Twentieth warrant in the form in the Twentieth Schedule to this Act or to the like effect ; and the bailiff of the said court and the keeper of the gaol to whom such warrant shall be directed shall respec- tively execute and obey the said warrant, and all constables and other peace officers within their several jurisdictions shall aid and assist in the execution thereof. dUcZrgedon be 193 ' Whenever any person shall be in custody under such performance. warran t as last aforesaid it shall be lawful for the officer in whose 76. 8. 156. custody such person may be, on receiving an order for that pur- pose under the hand of the judge of the court by which or by the judge of which such order of commitment shall have been made, from time to time to bring such person before such judge ; and it shall be lawful for such judge either verbally to remand such person to his former custody, or, if it shall appear to such judge that such person has either performed the decree or order for dis- obedience of which such person was committed or has paid to the person obtaining such order of commitment or to the clerk of such court in his behalf full compensation for the breach of such part of the decree or ord^r as can no longer be performed together with all costs subsequent to the pronouncing of such decree or order including the costs of obtaining such commitment or that otherwise under the special circumstances of the case it would be proper so to do, verbally to order the person so in custody to be forthwith discharged on such conditions as to performance of so much of the order as there remains to be and is capable of being THE MINES ACT 1890. 439 performed as such judge shall direct, and such person shall be "Mining statute discharged accordingly ; or it shall be lawful for such judge on ^ being satisfied of the matters aforesaid, instead of causing the person so in custody to be brought before him, by order under his hand directed to such officer to order the immediate discharge of such person who shall be discharged accordingly. 194. Any order of commitment hereinbefore mentioned may Order may be (if the special circumstances of the case shall appear to any such 7^1*7 court or judge to warrant it) be made by such court or judge ex parte and without notice, on proof by affidavit only of any of the matters aforesaid ; and in that case such order of commitment under the hand of the judge of the court by which or of the judge by whom such order shall have been made may be filed in any court for which such judge shall have been appointed, and such person may be dealt with as if an order of commitment had been made as hereinbefore directed. (i?) Interlocutory and Miscellaneous Orders. 195. It shall be lawful for the judge of any Court of Mines, Power to grant upon the application of any person claiming to be legally or / 6 . . 15S . equitably interested either as a member of a mining partnership or otherwise in any such land water race dam or reservoir as mentioned in section one hundred and thirty-five hereof or in any share or interest therein or in any earth gold or metal or mineral other than gold in or to be taken out of such land, by order under the hand of such judge to enjoin any person named in such order from trespassing or encroaching upon or occupying working or using any such land water race dam or reservoir or any such share or interest, or from mining for winning or removing such earth gold metal or mineral or any part thereof or from selling or disposing of or otherwise interfering with any such land water race dam or reservoir earth gold metal or mineral or any such share or interest or the property of any such partnership or any part thereof, or from doing any other act whereby the right title or interest of such applicant in or to such land water-race dam or reservoir earth gold metal mineral share or property may be affected, until the hearing and determination of any suit the summons in which shall at the time of such application have been 440 THE MINES ACT 1S90. "Mining statute sealed or of any appeal then pending or until the further order of such judge or court, with power to impose such terms on the granting of such order as such judge may deem just. fc jgg. The next preceding section shall not be deemed to lessen to J be C restricted or * n an y wa y interfere with the powers to grant an injunction which may be incident to the jurisdiction of the Court of Mines as defined by section one hundred and thirty-five of this Act ; but on the contrary the said Court of Mines and every judge thereof shall have the same powers in suits appeals and proceed- ings under this Part of this Act of granting injunction orders as are vested in the Supreme Court or any j udge thereof. powerto^ue 197. In any suit in the Court of Mines in which the Supreme restrain " ' Court would in like case grant an injunction to restrain proceed- iaw? e i n g s j the judge of the Court of Mines may grant an order to enjoin any person therein named from proceeding in the Supreme Court or in any county court warden's court or court of petty sessions in any plaint complaint or matter mentioned in such order. "pp n oS! iay be 198. It shall be lawful for the judge of any court, upon the lb. s. 161. application of any party to any suit or appeal, by order under the hand of such judge to appoint some one or more fit and proper person or persons to be a manager or managers, under whose direction any such land water race dam or reservoir as is referred to in section one hundred and thirty-five of this Act may be worked or used or any such earth gold or other metal or mineral obtained thereout, and who shall receive all earth gold or other metals or minerals taken therefrom, and by such order to direct all persons interested in employed upon or in any way claiming occupation possession or use of such land water race dam or reservoir or earth gold metals or minerals to deliver up possession of the same and of all machinery and plant upon any such land or used in connexion with working the same to such manager or managers ; and every such manager shall be subject to the control of such court in the same manner and to the same extent as receivers appointed by the Supreme Court are subject to the control of that court. Gold &e. may be 199 Tt sha11 be lawful for the J ud ge of any Court of Mines, upon the application of any party to any suit or appeal in such THE MINES ACT 1890. 441 court, by order under the hand of such judge to direct any "person "Mining. -statute party to or interested in such suit or appeal to deposit within the *" time or times mentioned in such order, with any person or at any place named in such order, in the name of the clerk of such court or in the name of any other person mentioned in such order, to abide the decision of such court, any earth gold or other metals or minerals money or other chattel described in such order which may then be or which at any time before the final determination of such suit or appeal may come into the possession power or control of such person party to or interested in such suit or appeal and the right to which will in the opinion of such judge be put in issue in the course of such suit or appeal ; and the judge may (if he think fit) direct in and by such order that any such gold or money shall be invested at interest in Government securities in such manner as the judge shall think fit. 200. It shall be lawful for the judge of any such court, on the Production of . 1-1 document* may application or any person party to any suit or appeal in such be ordered, court by order under his hand, to direct any other person party n ' " to or interested in the same suit or appeal to produce, and leave with the clerk of such court or at any other place for the inspection of such applicant, any book deed letter account or other document in the possession or power or under the control of such other person and which in the opinion of such judge shall relate to any matter in issue in such suit or appeal and to the inspection of which such judge shall consider the applicant entitled. 201. It shall be lawful for any judge of any such court, in his p wertostay , proceedings on discretion upon the application of any person who shall have appeal, appealed to such court from the decision of a warden to be made /6 ' under the provisions hereinafter contained and upon such terms as such judge shall think just, by order under his hand, and although a similar order may have been refused by the warden, to direct that all further proceedings shall be stayed under such decision until the hearing of such appeal or the further order of such judge or of such court ; and such proceedings shall be stayed accordingly. Orders may be 202. Every order authorized to be made under any of the seven had ; next preceding sections may at the discretion of the judge be /&. ,. i65 . 442 THE MINES ACT 1890. "Mining statute made either ex parte or upon notice to the parties to be affected 1865." thereby or their attorney, and may also upon such notice be discharged or varied on the application of any person affected thereby. Provided always that every ex parte order shall be made on affidavit only ; but any order made upon notice as aforesaid may be made either on affidavit or oral testimony or both. Court to have 203. If any warden surveyor registrar or any other officer power to make *" order requiring appointed under or in pursuance of this Part of this Act shall warden surveyor * or other officer refuse or neglect to perform any duty which in his capacity as office* f his 8uch officer ought to be performed by him, it shall be lawful for lb. s 166. the judge of the Court of Mines, upon the application of any person interested in the due performance of such duty founded upon affidavit setting out the facts upon which the application shall be grounded, to make an. order calling upon such warden surveyor registrar or other officer to show cause at a place within the district of such court or by consent at any other place and time to be named therein why he should not perform the duty so stated to be neglected or refused to be performed ; and if the officer named in such order shall fail to show to the satisfaction of the judge that he has duly performed such duty or that he had sufficient grounds for refusing to perform the same, the judge shall (if he see fit) make an order enjoining such warden surveyor registrar or other officer to perform such duty within a time to be named in such order ; and in any case in which it shall have been at the instance of any third person claiming a right in the matter that such officer shall have refused to perform any act or duty, such judge shall (if he shall think fit) before he make any final order in the matter cause to be summoned such third person to show cause why such order should not be made, and (if necessary) direct any action or suit to be instituted or any issue of fact without an action or suit to be tried to determine the rights of such third person ; and the judge shall in every case make such order as to such action suit or issue and as to the costs thereof and of such application as in the particular circumstances of each case he shall see fit. Provided that in every case in which the judge shall upon sufficient cause being shown by the officer against whom any such order to show cause shall have been made dis- charge the same, the person upon whose application the same shall have been obtained shall (unless the judge shall otherwise order) THE MINES ACT 1890. 443 i *<;.-!'' pay to such officer the costs which such officer shall have incurred " in showing cause against such order, such costs to be taxed by the judge as between attorney and client. 204. Every order made by any judge under any of the pro- Konn of order visions contained in any of the sections from the one hundred and enforcing it. ninety-fourth to the two hundred and second hereof inclusive may *** * 167- be made at any place in Victoria where such judge shall happen to be at the time of the application to him therefor, or at any other place in Victoria to which he shall adjourn the hearing of the said application and may be in the form contained in the Twenty-first Schedule to this Act without any further recital Twenty -first than is directed by such form ; and every such order shall (except the judge shall otherwise order) be served by delivering a copy to the person to be bound thereby and at the same time showing the original order if such person shall require to see the same ; and every such order may be filed with the clerk of any court within the district for which such judge shall be appointed or of the court in which any suit or proceeding in which such order may have been made shall have been instituted or be depending, and shall be enforced and proceeded on in all respects like any decree of such court. If the judge shall see fit so to order, it shall be sufficient service of any injunction order or of any order appoint- ing a manager or receiver to lodge a copy of such order in the office of the warden of the district in which the land referred to in such order shall be situated, and to publish a copy of such order in some newspaper circulating within such district, and to affix a copy of such order in some conspicuous place upon the land referred to thereby. 205. On the application of any person to a judge of a Court of Powerjo appoint Mines stating that any owner of such land water race dam or guardian of reservoir as mentioned in section one hundred and thirty-five lb t m hereof or of any share or interest therein is a lunatic and in- capable of managing the same, such judge shall, in case lie shall be satisfied that no committee has been appointed for such owner as a lunatic, inquire into the matter upon such evidence and by such means as he shall think proper, and shall direct such notice of the application as he shall think right to be given to such of the relations or friends of the alleged lunatic as he shall think- just ; and if he shall be of opinion that such statement is true, he 444 THE MINES ACT 1890. "Mining statute shall by order under his hand appoint a guardian of such lunatic with such remuneration for the performance of his duties, to be payable out of the profits of such land water race dam or reservoir share or interest, as such judge shall think just. Such guardian shall before entering upon the duties of his office give such security for the due performance of such acts and duties, and for the fulfilment of such conditions as such lunatic should perform and fulfil for the preservation of his interests as such owner having regard to the nature of the property of which lie shall so be the owner, and for accounting for the income thereof, as such judge shall think proper; and every such guard- ian shall as to such property have the same powers and perform the same duties as are now or shall be prescribed by law in the case of committees of lunatics in respect of their estates, but only until any such committee shall be regularly appointed or until such guardian's removal from his office by an order of the said judge ; and the judge who shall have appointed such guardian shall in respect of such property have and exercise the same jurisdiction over such guardian as the Supreme Court is or shall be empowered to exercise in respect of the estates of lunatics over committees of their estates appointed according to law ; and every such lunatic shall sue and defend in any court holden under this Part of this Act or before any warden by such guardian. Provided that for the purpose of this section the word " lunatic" shall mean any person who shall in the opinion of such judge after such inquiry as aforesaid be lunatic or of unsound mind ; and every such order shall be filed with the clerk of the court whose office shall be nearest to such property ; and a copy of such order sealed with the seal of such court and signed and certified by such clerk as a true copy shall be receivable as primd facie evidence in all courts of the matters therein stated, and of the due appointment as such guardian of the person therein stated to be so appointed. Minutes of 206. The clerk of every Court of Alines shall cause a minute of proceedings to be evidence* tO a ^ P^ a " lts decrees and orders of the court and executions and lb. 1. 169. returns thereto and of all other proceedings of the said court or of the judge thereof to be entered in a register to be kept by him for the purpose, such register to be in the form prescribed by such THE MINES ACT 1890. 445 general regulations as aforesaid ; and a document purporting to "Mining statute be a copy of any such entry in the said register, and to bear the 1W seal of such court, and to be signed and certified as a true copy by the clerk who shall have the custody thereof, shall at all times be admitted in all courts and places whatsoever as evidence of such entry and of the proceedings referred to thereby, and of the regularity of such proceedings without any further proof. (/) Rehearings Special Cases and Appeals. 207. It shall be lawful for any Court of Mines or the judge Court or judge thereof, upon such terms (if any) as to payment of costs or other- J^newllriais of wise as such court or judge shall think fit, to grant as often as lssue- such court or judge shall deem proper a rehearing of any suit in or appeal to such court or a new trial before assessors of any issue or question of fact therein ; and for that purpose (if necessary) to set aside any decree or order made in such suit or appeal or on any rehearing thereof or any verdict given on the trial or any new trial of any such issue or question of fact. Provided that, within seven days after such decree or order shall have been made or the verdict on any such trial or new trial shall have been given, the party applying for such rehearing or new trial shall serve upon the opposite party a notice that the application therefor will be made at the expiration of two days from the day of the service of such notice or on the first day thereafter on which the same can be heard ; and upon the hearing of such application the court or judge shall fix the time for such rehearing or new trial if the same shall be granted and direct such notice thereof to be given and in such manner as it or he shall think right to any of the parties ; and in the case of a rehearing it shall be lawful for the court or judge to direct or for either of the parties to require that any particular question of fact material to the issue between the parties shall be tried before such court and six assessors. Pro- vided that in case of either of the parties so requiring such party shall require the same at the time at which the rehearing shall be granted, and shall also then give notice to the clerk of the court that he so requires and lodge with such clerk the sum of six pounds twelve shillings for the assessors; and the provisions hereinbefore contained as to trials of issues and questions of fact by assessors shall be applicable to new trials of issues and ques- 446 THE MINES ACT 1890. "Mining statute t i ons o f f ac t and to the case of assessors directed or required on 1865. the granting of rehearings. Appeal ifrom^ 08. Any party to any suit in any Court of Mines who shall rehearing. ^ e dissatisfied with the granting of an application for the rehear- ing of such suit may appeal from the order granting the same to the Full Court within seven days after such application shall have been granted, and the said Full Court shall have the like jurisdiction with respect to such appeal as if the same were expressly given by this Act. fp^ai^aselor 6 209. On the hearing or rehearing of any such suit or appeal or Sup n re meCourt. upon the trial or new trial of any issue in any Court of Mines it " Mining statute s h a ll foe lawful for the judge of such court (if he shall think fit) to reserve any question in the form of a special case for the opinion of the Supreme Court which opinion such Supreme Court is to give ; and in such case no decree or order shall be made in respect of any matter on which such question shall have been reserved until such opinion shall have been given ; and every such special case shall after it shall have been prepared by such judge be transmitted by the clerk of the court to the Prothonotary of the Supreme Court who shall cause the same to be set down for argument before the said Supreme Court, [cf. 62 Vic. No. 38 (N.Z.), sec. 292]. Courtof M?nes. 210. Any party to any suit in any Court of Mines or to any lb. s. 172. proceeding before the judge of any such court (except where the contrary is herein provided) who shall be dissatisfied with any decree or order of the said court or with any order of a judge thereof not being an order of commitment made by such court or judge may appeal from the same to the Full Court. Provided he shall, within ten days after such decree or order or in case an application shall have been made for the rehearing of any suit then within seven days after such application shall have been refused or if granted after the decision upon such rehearing or the abandonment by notice to the opposite party or the discharge for want of prosecution of the order therefor, give notice in writing of such appeal to the opposite party or his attorney, and also give security (to be appi-oved by the clerk of the said Court of Mines) for the costs of the appeal, or in lieu of giving such security deposit in the hands of such clerk the sum of Twenty- five pounds to answer the costs of the appeal if such appeal THE MINES ACT 1890. 447 should be dismissed ; and every such notice of appeal shall set "timing statute forth the grounds thereof ; and every such appeal shall be decided by the said Full Court on the facts as agreed on between the parties or their attorneys or counsel or stated by the judge from the order of whom or by the judge of the court from the decree or order of which such appeal shall be brought ; and such facts shall be set forth in the form of a case agreed on by both parties or their attorneys or counsel ; and if they cannot agree, the judge shall settle such case and sign it; and the appellant shall within four weeks from the day of the service of such notice or within such other time as such judge shall from time to time direct transmit such case and a copy of the said notice of appeal to the said Prothonotary, who shall cause the same to be set down to be argued before the said Full Court, [cf. 62 Vic. No. '24 (Q.), sec. 150 ; 62 Vic. No. 38 (N.Z.), sec. 291 ; 37 Vic. No. 13 (N.S.W.), sec. 115.] 211. The said Full Court shall decide the matter of such appeal Full Court to and make such order therein as shall appeal- just, and may either appeal, dismiss such appeal or reverse or vary such decree or discharge or Ib ' *' * vary such order, and may direct the cause to be reheard before the Supreme Court, but shall not in any case remit the cause for rehearing before the judge of the court from which such appeal shall have been brought, and may make such order with respect to the costs of the said appeal and of the suit or proceeding in which such decree or order shall have been made as it may think proper ; and every such order of the Full Court shall be tinal, and shall be deemed to be and shall be a final order of the Supreme Court of Victoria for the purposes and within the meaning of any Orders of Her Majestv in Council now or hereafter to be in force in relation to appeals from the Supreme Court of Victoria. 212. No appeal from any decree or order of any such Court of j Mines or judge thereof to the said Full Court shall lapse or from J^ the coming into operation hereof shall be deemed to have lapsed i" l in consequence of the death removal or resignation of such judge ^c after such decree or order shall have been made, but notwith- standing such death removal or resignation may be proceeded with heard and determined by the said Full Court; and the successor of such judge so dying or being removed or resigning shall have the like powers of settling and signing the case on 448 THE MINES ACT 1890. Act No. 446. such appeal as such judge could have exercised had he lived or continued in office. Opinion of 213. As soon as the opinion of the Supreme Court shall have or decision of been given upon any special case or the decision of the Full Court the Full Court rfttodtoOomt P ronounce d upon any appeal, the said Prothonotary shall cause of Mines. ^g same fc o b e drawn up and shall transmit the same to the clerk 1S65," s.174. of the court from the decree or order of which or from the order files'. 265 ' 261 ' of the judge of which such appeal shall have been brought ; and in the case of a special case, the judge who shall have reserved the same shall make his decree or order in accordance with the opinion given thereon : and in the case of an appeal, if the same shall have been dismissed, the decree or order appealed from shall be proceeded on as if there had been no appeal; but if such decree or order shall have been reversed or varied, the clerk of the court by which or by the judge of which such decree or order shall have been made shall enter in the register to be kept by him as aforesaid a minute of such reversal or variation with the nature of the variation, and in the case of a decree shall amend in accordance therewith the decree so as aforesaid to be filed in his office or to be annexed to such engrossment as aforesaid ; and the decree or order as reversed or varied shall be deemed to be the decree or order of such last-mentioned court or judge, and shall be proceeded on accordingly. 214. Whenever any such special case shall have been reserved or any such appeal brought or be about to be brought, it shall be lawful for the court the judge of which shall have reserved such case or from the decree or order of which or from the order of the judge whereof the appeal shall have been brought or for such judge, on the application of any of the parties interested in such case or appeal, to make such order for an injunction or receiver or payment of money into court or in the case of an appeal for stay of proceedings or otherwise and upon such terms as such court or judge shall think proper ; but without such order no .appeal shall operate as a stay of proceedings. (2) Wardens, (a) General Provisions. ap P dnted my be 215 Ii; sha11 be lawful for the Governor in Council subject to n>. . no. the provisions of the Public Service Act 1890 from time to time to In case of a special case or appeal an injunction &c. and stay of proceedings may be had.. Ib. . 175. THE MINES ACT 1890. 449 appoint in and for Victoria or any district or portion thereof "Mining statute certain judicial officers, who shall be called " Wardens of the ** Gold Fields " and who shall within the limits for which they shall have been so appointed have and exercise the jurisdiction hereinafter mentioned ; and all such wardens shall be appointed in the same manner as justices. Provided always that the several persons who at the time of the commencement of this Act shall hold the office of warden shall be the first wardens under this Act, and shall so act without any fresh appointment or commis- sion, [cf. 37 Vic. No. 13 (N.S.W.), sees. 12, 67 ; 62 Vic. No. 24 (Q.), sec. 105 ; 57 Vic. No. 24 (Tas.), sees. 8, 13 ; 59 Vic. No. 40 (W.A.), sees. 10, 49 ; 62 Vic. No. 38 (N.Z.), sec. 11.] 216. Every warden shall have jurisdiction to hear and determine jurisdiction of Warden. Ib. i. 177. all suits cognizable by a court of law which the Courts of Mines W " are by section one hundred and thirty-five of this Act empowered to hear and determine, and also the further jurisdiction following (that is to say) : To hear and determine all suits concerning any Crown land or share or interest therein which the complainant shall claim to be entitled to take possession of and occupy for residence or business under a business licence and of which the defendant is and claims to be entitled to be in possession, and concerning any trespass upon any such land of which the com- plainant is in the occupation or possession and claims to be entitled to possess under such licence, and concerning any money claimed to be due to the complainant upon any mining partner- ship account or as in any way accruing to the complainant from any mining partnership adventure or interest ; and also to hear and determine all suits which may be brought for the recovery of the amount of any contribution as ascertained according to the provisions of any by-law of a mining board towards the expenses of any appliances for raising or lifting water or of the working thereof, and also all suits which may be brought for the recovery of any sum of money which any person shall be liable to pay under the provisions of this Part of this Act or of any such by- law and for which no other mode of recovery is hereby provided ; and such jurisdiction shall extend not only to cases where the litigants shall be the parties originally interested in the causes of suit, but also to cases where the title of any of such litigants shall be derived as assignee or otherwise from or through any of such 450 THE MINES ACT 1890. "Mining statute parties. Provided always that where any sum of money shall be Limited in debt claimed to be due in respect of a debt or of a contract or upon oneTundrai partnership account or as accruing to the complainant from any dtcisfontcfbe mining partnership adventure or interest, such jurisdiction shall not extend to cases where such sum shall exceed One hundred pounds ; and in all cases of debt or contract the decision of the ' warden or assessors as hereinafter provided for shall be final, [cf. 37 Vic. No. 13 (N.S.W.), sees. 68, 69 ; 62 Vic. No. 24 (Q.), sees. 103, 104; 56 & 57 Vic. No. 587 (S.A.), sec. 18 ; 57 Vic. No. 24 (Tas.), sees. 147, 148 ; 59 Vic. No. 40 (W.A.), sees. 52, 55 ; 62 Vic. No. 38 (N.Z.), sec. 254]. Causes of action 217. It shall not be lawful for any complainant to divide any not to be divided. claim for the purpose of bringing two or more suits before a warden ; but any complainant may in any case of debt or contract abandon the excess of his claim beyond One hundred pounds, and shall on proving his case recover to an amount not exceeding that sum ; and the decision of the warden upon the complaint of such complainant shall be for that amount, and in full dischai-ge of all demands in respect of such claim, and shall be final. NO costs in 218. If on the hearing of any case in the Court of Mines in Court of Mines where no more which the demand shall be in respect of a debt or contract only than one hundred pounds ^he plaintiff shall not recover more than One hundred pounds, he recovered unless shall not, though succeeding, be entitled to receive any costs other than he would have been entitled to had he proceeded before a warden, unless the judge shall certify that the case was one which from special circumstances it was proper should be brought in such court. Proceedings 219. Every such proceeding as aforesaid before the warden before warden to J bvsummons ed s ^a\\ be commenced by a summons, which, if the proceeding be for 76. s. 180. the recovery of any land race dam or reservoir or in respect of any sch^iuie. 6001 " 1 encroachment or trespass thereon, shall be in the form in the |, ent > -third Twenty-second Schedule hereto ; and if for any other purpose, in the form of the Twenty-third Schedule hereto ; and every such summons shall be issued by the warden upon the application of any person to him therefor, and shall be filled up according to the nature of the applicant's case, and shall require the defendant to appear before the said or some other warden on a day to be named and inserted in the summons by the said warden ; and upon the THE MINES ACT 1890. 451 day named in such summons or upon any adjourned day of " Mixing statute hearing which the warden shall direct, and upon proof of such service of such summons as the warden shall think sufficient, he shall proceed to investigate the matter of such complaint ; and in the presence of all the parties interested, or of such of them as shall appear to such warden sufficiently to represent all the parties interested, or in the absence of any of the parties interested who having been duly served with such summons shall not appear, shall hear receive and examine evidence and determine such complaint is a summary way with full power to adjourn the hearing of such complaint to any other time or place and with full liberty to the warden to amend such complaint by the addition of any other persons as complainants or defendants or otherwise, [cf. 37 Vic. No 13 (N.S.W.), sees. 70, 71; 62 Vic. No. 24 (Q.), sec. 113 ; 56 & 57 Vic. No. 587 (S.A.), sec. 20; 59 Vic. No. 40 (W.A.), sees. 53, 54 ; 62 Vic. No. 38 (N.Z.), sees. 260, 278]. 220. The Governor in Council mav appoint one or more clerks Appointment of warden's clerks. for each warden, either by the name of such warden or of the ^ c e.Yo.44,*.u. districts or places or any of them in or at which such warden shall usually sit ; and any such clerk may sign in the name of ^f,'J[, s ng* yis8ue such warden and issue any such summons as in the last preceding section mentioned, and every such summons so signed and issued shall be deemed and taken to be issued by such warden within the meaning of the said section, [cf. 62 Vic. No. 24 (Q.), sec. 112 ; 62 Vic. No. 38 (N.Z.), sec. 12]. 221. Any warden may at any time either before or at the warden may order substi- hearing of any summons if satisfied by affidavit that any defend- tuted service of ' .... summons. ant named in such summons cannot after diligent inquiry be tb t 15 found, or cannot from any cause by reasonable exertion be served with such summons, order that service of such summons upon such person or in such manner as by such order shall be directed shall be deemed good service upon such defendant, and if neces- sary may postpone the hearing of such summons to allow of substituted service, and service of such summons in the manner directed by such order shall be good service to all intents and purposes, [cf. 62 Vic. No. 24 (Q.), sec. 124; 62 Vic. No. 38 . . is. shall be fined such sum of money not exceeding Five pounds as such warden shall think fit. [cf. 62 Vic. No. 24 (Q.), sec. 109 (7) ; 57 Vic. No. 24 (Tas.), sec. 152 ; 62 Vic. No. 38 (N.Z.), sec. 264 (3)]. 232. Before such warden and assessors shall proceed to hear oath to be any such complaint, such warden shall administer to each of such and warden and assessors an oath in the form in the Twenty-fifth Schedule to this proceed to hear and assessors to Act. Provided that if any of such assessors shall be unwilling from alleged conscientious motives to be sworn, it shall be lawful for the warden upon being satisfied of the sincerity of such schedule objection to permit such person instead of being sworn to make scifeduie his solemn affirmation and declaration in the words contained in the Twenty-sixth Schedule to this Act, which affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form ; and on such oath being administered or affirmation and declaration made, such warden and assessors shall proceed to hear such complaint the matter of which shall be decided by the assessors with the assistance of the warden on any point of law ; and the decision of the majority of them shall have the same force and effect as the decision of such warden if acting alone would have had ; but if after the expira- tion of two hours from the time at which the case shall have been left to the assessors they shall intimate to the warden that a majority of them cannot agree upon a verdict, then such warden shall himself decide such complaint ; and every such decision shall 456 THE MINES ACT 1890. " Mining statute be carried into effect by the same or any other warden. 1865." Inspection may be demanded. Warden may order a survey to be made. Vic. No. 13 (N.S.W.), sec. 77 ; 62 Vic 59 Vic. No. 40 (W.A.), sec. 76]. [cf. 37 No. 24 (Q.), sec. 109 (8); 233. Either of the parties shall be at liberty, previously to or during the hearing of any complaint, to apply to a warden for in- spection to be made by such warden or warden and assessors of any land claim water race drain dam or easement in dispute ; and if the party so applying shall satisfy such warden as to the propriety and reasonableness of his application, such warden, if the case be heard before him alone, shall make such inspection ; but if heard before him and assessors, shall make an order for such inspection by the assessors upon payment to the warden by the party so applying of such sum (if any) and upon such terms as to the said warden shall seem reasonable ; and thereupon the warden and assessors shall make such inspection, and any sum so paid shall be appropriated towards defraying the expenses of the assessors by reason of such inspection as such warden may direct ; or if such warden shall himself think that any such inspection would be proper, he shall if the case be heard befoi'e him alone make such inspection ; or if heard before him and assessors, may, and if required by the majority of the assessors shall, make an order therefor, and (in case of inspection by assessors) for payment of the expenses thereof by such of the parties as he shall think right ; and the money paid for such expenses shall eventu- ally be paid as part of the costs of the proceeding by such of the parties as the warden shall in that behalf direct, [cf. 62 Vic. No. 24 (Q.), sec. 118; 56 & 57 Vic. No. 587 (S.A.), sec. 23 ; 62 Vic. No. 38 (N.Z.), sec. 265]. 234. If before or during the hearing of any complaint it shall appear to the warden that it will be necessary for a survey to be made of any land or water in dispute, such warden may order either party to cause such survey and a plan thereof to be made ; and the costs thereof shall be deemed to be a part of the costs of the hearing, [cf. 62 Vic No. 24 (Q.), sec. 119]. 235. A minute of every decision of a warden or of assessors in the form contained the Twenty-seventh Schedule to this Act or to Warden's decision to be recorded. Twenty-seventh t ^ iat e ^ ect sna U on the day of the pronouncing thereof be entered by such warden in the register to be kept as hereinbefore THE MINES ACT 1890. 457 provided ; and such warden shall make an order in accordance " Mining statute with such decision, and write the same in the said register under the said decision ; and such decision with said order so underwritten shall be signed by the warden, and no formal order or other record of such decision shall be necessary ; and every such entry whether of the decision of a warden or of assessors shall be made in form as the decision of the warden ; and the expression " decision of a warden " where it occurs in this Part of this Act shall (if not inconsistent with the context or subject- matter) be taken to include the decision of assessors. A copy of such minute or order shall on demand be given to any of the parties interested therein ; and the decision of a warden shall be binding and conclusive on all parties, unless in cases where on appeal therefrom (where such appeal shall be permitted) the same shall be reversed or varied ; and a document purporting to be any such copy, signed and certified as a true copy by the warden who shall have the custody of such register describing himself as having such custody, shall at all times be admitted in all courts and places whatsoever as evidence of such decision or order and of such custody without any further proof, [cf. 37 Vic. No 13 (N.S.W.), sec. 78; 56 & 57 Vic. No. 587 (S.A.), sec. 21 ; 59 A^ic. No. 40 (W.A.), sec. 61 ; 62 Vic No. 38 (N.Z.), sec. 272]. 236. it shall be lawful for any warden, upon such terms (if . e may any) as to payment of costs or otherwise as such warden shall rehearing, think fit, to grant as often as such warden shall deem proper a rehearing of any complaint decided by him or by assessors before him ; and for that purpose (if necessary) to set aside any decision or order made on such complaint or upon any rehearing thereof. [cf. 62 Vic. No. 38 (N.Z.), sec. 279]. Provided that within seven days after such decision shall have been made, the party applying for such rehearing shall serve upon the opposite party a notice that the application therefor will be made at the expiration of two days from the day of the service of such notice or on the first day thereafter on which the same can be heard ; and upon the hearing of such application the warden shall fix the time and place for such rehearing if the same shall be granted, and direct such notice thereof to be given and in such manner as he shall think right to any of the parties. 458 THE MINES ACT 1890. Warden ma.v state special case. Mining statute It shall be lawful for the warden to direct or for either of the parties to require that such rehearing shall be heard before the warden and four assessors ; provided that in case of either of the parties so requiring, such party shall require the same at the time the rehearing shall be granted or at such other time as the warden shall permit, and shall also then lodge with the warden the sum of two pounds for the assessors, and the provisions here- inbefore contained as to hearings before wardens and assessors shall be applicable to rehearings before them. On any proceeding before a warden or warden and assessors it shall be lawful for such warden (if he shall think fit) to reserve any question in the form of a special case for the opinion of the Supreme Court ; and in such case no order shall be made in respect of any matter on which such question shall have been reserved until such opinion shall have been given ; and every such special case shall after it shall have been prepared by such warden be transmitted by him to the Prothonotary of the Supreme Court, who shall cause the same to be set down for argument before the said Supreme Court, whose opinion when given shall be drawn up and transmitted by said master to the said warden, who shall make his order in accordance with such opinion. And whenever any such special case shall have been reserved, it shall be lawful for the warden who shall have reserved the same, on the application of any of the parties interested in such case, to make such order for an injunction or receiver or payment of money into the hands of the said warden or otherwise and upon such terms as such warden shall think proper, [cf. 37 Vic. No. 13 (N.S.W.), sec. 79 ; 56 & 57 Vic. No. 587 (S.A.), sec. 128 ; 57 Vic. No. 24 (Tas.), sec. 159 ; 59 Vic. No. 40 (W.A.), sec. 62 ; 62 Vic. No. 38 (N.Z.), sec. 280]. ssessore 611 ^^' "^ n Case an ^ suc ^ P rocee ding before a warden or warden ?Icover" R and assessors sha11 be &>r the recovery and possession of any land water race drain dam or reservoir or any share therein, such warden or assessors shall determine the right to the same and fix the boundaries of any such land or the limits and quantity to be taken by either of the parties of such water, if necessary so to do for the purpose of terminating the dispute ; and if the complain- ant shall succeed, shall determine whether any and what sum in the nature of mesne profits should be paid to the complainant ; In case of a special case an injunction &c. may be had. of land &c. THE MINES ACT 1890. 459 and in the event of the complainant so succeeding, the warden - Mining statute shall order possession of such land race drain dam reservoir or ^ water or share to be delivered to the complainant and any such sum to be paid to him ; and shall, or any other warden may, cause such complainant to be put into possession of any such land race drain dam reservoir or water or share as aforesaid, and (if necessary) cause or order any defendant his servants buildings fixtures implements goods and chattels to be removed therefrom or from such of them as such share or interest shall be held in or from the using of such water, [cf. 37 Vic. No. 13 (N.S.W.), sec. 80 ; 62 Vic. No. 24 (Q.), sec. 128]. 238. In case any such proceeding before a warden or warden Duty of warden , ini- an d assessors and assessors shall be in respect of the right to divert anv water when proceeding is as to right to or to remove any reservoir race drain or dam, such warden or divert water &c. assessors shall determine such right; and if the complainant shall lb ' succeed, such warden shall declare him at liberty to divert or remove the same, and may make an order enjoining any defend- ant from preventing such diversion or removal, [cf. 37 Vic. No. 13 (N.S.W.), sec. 81 ; 62 Vic. No. 24 (Q.), sec. 129]. 239. In case any such proceeding shall be in respect of any Duty of warden encroachment or trespass upon or any unlawful interference with when proceeding J is in respect of or injury to any such land race drain dam reservoir or water, encroachment, such warden or assessors shall determine the right to the same and fix the boundaries of any such land or the limits or quantity to be taken by either of the parties of such water, if necessary so to do for the purpose of terminating the dispute ; and at the same time assess the amount to be paid to the complainant by way of damages (if any) by reason of any such encroachment trespass interference or injury found to have been committed ; and the warden shall order such damages to be paid accordingly, and that the person found to have encroached or trespassed inter- fered or injured as aforesaid do cease from such encroachment trespass interference or injury ; and it shall be lawful for the same or any other warden to cause the person so found to have encroached trespassed interfered or injured his servants imple- ments goods and chattels to be removed from the land race drain dam reservoir or water so encroached or trespassed upon inter- fered with or injured or from the using of such water, and to cause such complainant to be put into possession thereof, [cf. 37 460 THE MINES ACT 1890. "MiningStatute Vic. No. 13 (N.S.W.), sec. 82 ; 62 Vic. No. 24 (Q.), sec. 130; 62 Vic. No. 38 (N.Z.), sec. 266]. Duty of warden 240. In case any such proceeding sliall be in relation to any and assessors 8 ' ^^ or contracfc or to m oney due in respect of any such land or contract 116 " * water or an y share or interest therein, or in respect of any gold ib. s. 198. or other metals or minerals, or in relation to any such gold metals or minerals or to the amount of any contribution or other sum of money (suits for the recovery of which the warden is hereby authorized to hear and determine), the warden shall order any money or damages or gold or other metals or minerals which he or any such assessors shall find due or payable or deliverable by either of the parties to the other of them to be paid or or in respect of delivered. And in case such proceeding shall be in respect of money due or gold or other metals or minerals deliverable upon a mining partnership account or accruing to the complainant from any mining partnership adventure or interest, the warden or the assessors shall take the account of such partnership adventure or interest, so far as shall be necessary to ascertain what sum or amount of gold or other metals or minerals (if any) shall be so due or accruing ; and the warden shall order any such sum or gold to be paid or delivered, [cf. 37 Vic. No. 13 (N.SW.), sec. 83 ; 62 Vic. No. 24 (Q), sees. 131, 132 ; 57 Vic No Vic. 24 (Tas.), sec. 1501. Constables &c. 241. All constables and peace officers shall within their several to assist. .... . 11. s. 199. jurisdictions aid and assist the warden in the execution of any of the duties imposed upon him by any of the preceding sections. Mode of en- 242. Whenever in or by any decision in any of the said cases forcing warden's ofdebT&c Case Before a wai 'den or a warden and assessors any sum of money shall ib. s. 200. be awarded by way of debt damages or costs or otherwise and the same shall not be forthwith paid, such warden, or any other warden on production to such other warden of a copy of such decision signed and certified as a true copy by the warden who shall have the custody of the register (describing himself as having such custody) in which the minute of such decision shall be entered as hereinbefore directed, on the application of the person entitled to receive such sum, or of any attorney on his Sixteenth behalf, shall grant to the party so applying a warrant under his First Fart. hand in the form in the First Part of the Sixteenth Schedule THE MINES ACT 1890. 461 hereto, [cf. 37 Vic. No. 13 (N.S.W.), sec. 84; 62 Vic. No. 24 (Q.), fining statute sec. 133 ; 56 & 57 Vic. No. 587 (S.A.), sec. 19 ; 57 Vic. No. 24 (Tas.), sec. 155; 59 Vic. No. 40(W.A.), sees. 70, 80; 02 Vic. No. 38 (N.Z.), sec. 269]. Any bailiff of any Court of Mines to whom such warrant shall be delivered for execution, and all constables and other peace officers within their several jurisdictions, shall do and perform all things in respect of such warrant which such bailiff constables and peace officers are hereinbefore required to do and perform in respect of a warrant issued out of a Court of Mines in the case of the non-payment of money decreed or ordered to be paid by such court. Every such bailiff may by virtue of such warrant seize and take such property as and dispose thereof in the manner he could seize take and dispose thereof by virtue of such warrant issued out of the Court of Mines, and may and shall pay and deliver to the party to whom the warden shall have granted such warrant any money or bank notes which shall be seized thereunder or a sufficient part thereof, and shall hold any cheques bills of exchange promissory notes bonds specialties or other securities for money which shall have been so seized or taken as a security or securities for the amount directed to be levied by such warrant or so much thereof as shall not have been otherwise levied or raised for the benefit of the person to whom such warrant shall be granted, who may sue in the name of the party against whom any such warrant shall have issued or in the name of any person in whose name such party might have sued for the recovery of the sum or sums secured or made payable thereby when the time of payment shall have arrived ; and all powers vested in the person against whom such warrant shall have issued which such person might legally execute for his own benefit shall be and are hereby by virtue of such warrant vested in the said bailiff, to be by him executed for the benefit of the party suing out the warrant. Provided that the warden who shall be applied to to issue any such warrant may withhold the issuing of the same, if he shall consider it just or reasonable so to 'do, until after the expiration of three days from the day on which such decision shall have 462 THE MINES ACT 1890. 'Mining statute been made. Provided also that whenever in any of the cases aforesaid any order shall be made by a warden other than or besides an order for the payment of money, the same may be enforced under the provisions of section two hundred and forty- nine hereof, but without prejudice to any other mode by which the same may under the provisions hereof be enforced. (6) Special Powers and Duties. Auriferous earth 243. Notwithstanding any of the provisions hereinbefore coii- /T^ -loi 6126 tained, it shall be lawful for such warden, if he shall think fit, at the time of the making of any such decision by him or by anv such assessors, to order that any auriferous earth in the possession of and belonging to the party by whom payment of any sum in respect of any such debt damages or costs shall be ordered to the extent in value of such sum (such value to be fixed by such warden or assessors) shall be delivered up to the party entitled to such sum by way of satisfaction or in part satisfaction thereof ; and such warden shall forthwith cause such earth to the extent aforesaid to be seized and delivered accordingly ; and thereupon a minute of such order in the form contained in the Twenty- Twenty-se yen tii seventh Schedule to this Act or to that effect shall be entered Schedule. and signed in the register aforesaid ; and a warrant for the balance only of such sum after deducting the value of the earth seized and delivered as aforesaid shall be granted by such warden, [cf. 37 Vic. No. 13 (N.S.W.), sec. 85 ; 56 & 57 Vic. No. 587 (S.A.), sec. 22 ; 57 Vic. No. 24 (Tas.), sec. 148 ; 59 Vic. No. 40 (W.A.), sec. 63 ; 62 Vic. No. 38 (N.Z.), sec. 265]. authorize 'en u ^^' ^ shall ^ e ^ aw ^ u ^ ^ or an J warden in his discretion, upon ciaim jacent tne application of any person claiming to be legally or equitably 16. g. 202. interested in any claim or in any land comprised in any lease (granted under the provisions of any Act authorizing the grant- ing of leases for mining for gold or for metals or minerals other than gold) or in any other land adjoining any claim or land com- prised as aforesaid, by writing under the hand of such warden to authorize the applicant together with a mining surveyor or some experienced miner to enter upon any claim or land (whether at the time of such application alienated from the Crown or not if any mining operations shall be then carried on on such land) THE MINES ACT 1890. 463 adjoining such first-mentioned claim or land or other land for the '"MinfagStatute purpose of ascertaining whether the owner or occupier of the claim or land so to be entered upon is encroaching on said first- mentioned claim or land or other land. [cf. 37 Vic. No. 13 (N.S.W.), sec. 86 ; 62 Vic. No. 24 (Q.), sec. 121 ; 57 Vic. No. 24 (Tas.), sec. 194; 59 Vic. No. 40 (W.A.), sec. 64]. It shall be lawful for the persons so authorized to enter upon the claim or land described in such order, and to descend any shafts or mine, and for such purpose to use the engines and other machinery ordinarily employed for that purpose by the persons whose shaft or mine shall be descended, and to make such plans and sections of the claim or land entered upon and of any drives or other works therein as shall be necessary for the purpose afore- said, [cf. 62 Vic. No. 24 (Q.), sec. 122 ; 59 Vic. No. 40 (W.A.), .sec. 65]. Every such applicant and mining surveyor or miner shall, before entering on such claim or land, make a declaration before such warden (who is hereby authorized to take the same) that he the said applicant surveyor or miner will not (except as a witness in a court of justice) without the consent in writing of the owner or occupier of the claim or land to be entered upon divulge or cause to be divulged to any person whomsoever an}' information obtained upon or by such entry, save only as to whether such owner or occupier is encroaching on the said first-mentioned claim or land ; and every person who shall act contrary to such declara- tion shall forfeit and pay any sum not exceeding Fifty pounds. 2$5. It shall be lawful for any warden upon the application of warden may grant injunction any person claiming to be legally or equitably interested in any on notice, land claim water race drain dam reservoir or easement, such lb ' *' 203 application to be made on notice served twenty-four hours at least before the time for the making thereof on the parties interested in opposing the same or such of them as shall appear to such warden sufficiently to represent the parties so interested, in the presence of such parties or such of them as aforesaid or in the absence of any of them upon whom service of such notice shall be proved to the satisfaction of the warden, to hear receive and examine evidence. 464 THK MINES ACT 1890. " Mining statute And thereupon, if he in his discretion shall think fit, and upon such terms (if any) as he may consider just, by order under his hand to enjoin any person named in such order from encroaching upon occupying using or working such land claim water race drain dam reservoir or easement, or from seeking for washing out winning extracting or removing any earth gold or metal or mineral other than gold taken from such land, or from selling or disposing of or damaging or otherwise interfering with such land claim water race drain dam reservoir easement or earth gold metal or mineral or any share or interest therein respectively, or from doing any act whereby the right title or interest of such applicant in or to the same might be affected ; and every such order shall operate and be in force for such a period as shall be named therein unless the same shall be sooner discharged by the warden making the same or by the judge of any Court of Mines. Provided that if endeavours reasonable in the opinion of the warden to serve such of the said parties as in his opinion would be necessary to -represent the parties so interested shall be proved to the satisfaction of such warden to have failed, it shall be sufficient service of such notice if the same shall be advertised in some newspaper circulating in, or if none in, then in the newspaper or one of the newspapers circulating nearest to, the district in which the subject-matter of the application shall be situated, and which shall be published twenty-four hours at least before the time for the making of the application ; and on every such application the said warden shall make such order as to costs as to him shall seem just. [cf. 37 Tie. No. 13 (N.S.W.), sec 87; 62 Vic. No. No. 24 (Q.), sec. 123 ; 59 Vic. No. 40 (W.A.), sec. 66 ; 62 Vic. No. 38 (N.Z.), sec. 268]. den may 246. If by reason of the pressing emergency of any particular without notice Case ^ ^^ seem P r P ei> to the warden so to do, he may on the ib. t. 204. application of any such person as last aforesaid but without any notice, by order under his hand grant such injunction as last aforesaid ; but to be in force for a period of seven days only inclusive of the day upon which such order shall have been made, or until the same shall by the said warden be discharged. And no second order for an injunction shall be made for the same cause under this section ; but any person at whose instance any injunction shall have been granted under this section shall be THE MINES ACT 1890. 455 fit liberty, at any time before the expiration of the said period of <> it ; n i ng statute seven days as well as thereafter, to apply under the provisions 186 of the section next preceding for an injunction for any longer period, [cf. 37 Vic. No. 13 (N.S.W.), sec. 88 ; 62 Vic. No. 24 (Q.), sec. 125 ; 59 Vic. No. 40 (W.A.), sec. 67 ; 62 Vic. No. 38 (N.Z.), sec. 268J. 247. It shall be lawful for any warden, upon the application of Warden nmv order dei>osit of any party to any proceeding on summons before him (such *oid &c. application to be made on notice served twelve hours at least /ft ' before the time for the making thereof on the parties interested in opposing the same or such of them as shall appear to such warden sufficiently to represent the parties so interested) in the presence of such parties or such of them as aforesaid or in the absence of any of them upon whom service of such notice shall be proved to the satisfaction of such warden, by order under his hand to direct any person party to or interested in such proceeding to deposit, within the time or times mentioned in such order with any person or at any place named in such order, in the name of such warden or of any other person mentioned in such order to abide the decision of such warden or of any assessors who may be summoned in any such proceeding, any earth gold or any metal or mineral other than gold or any money or other chattel described in such order which may then be or which at any time before the final termination of such proceeding may come into the possession power or control of such person party to or interested in such proceeding, and the right to which will in the opinion of such warden be put in issue in the course of such proceeding. Pro- vided that service of the notice hereby required may be made by advertisement under the circumstances and in the manner men- tioned in the section next preceding but one as to the notice by that section required, [cf. 37 Vic. No. 13 (N.S.W.), sec. 89 ; 62 Vic. No. 24 (Q.), sec. 126 ; 62 Vic. No. 38 (N.Z.), sec. 264]. 248. Every order made by a warden under any. of the four next Form of order, preceding sections may be in the form contained in the Twent}-- lb ~ * 206 ' J J Twenty-eighth eighth Schedule to this Act or to that effect, without any further schedule. recital than is directed by such form ; and every such order shall (except the warden shall otherwise order) be served by delivering a copy to the person to be bound thereby and at the same time showing the original order if such person shall require to see the 466 THE MINES ACT 1890. "Mining statute same ; and every such order shall be entered by the warden who shall have made the same in the register to be kept by him as aforesaid. Provided that if the warden shall see fit so to order, it shall be sufficient service of any injunction order, or of any order directing gold metals or minerals or other property to be deposited, to publish a copy of such order in such newspaper and to affix a copy thereof in such conspicuous place at or near the property in dispute (if any) as the warden shall direct, [cf. 37 Vic. No. 13 (N.S.W.), sec. 90]. On disobedience of orders other than for the payment of money party may be summoned and committed. Ib. s. 207. Nineteenth Schedule. 2$9 In case any person named in any of such orders (not being an order for the payment of money) and intended to be bound thereby shall disobey the same, it shall be lawful for any person entitled to the benefit thereof to obtain a summons, in. the form in the Nineteenth Schedule to this Act, from the warden by whom such order shall have been made or any other warden, requiring the party so disobeying to appear at such time and place as shall be directed by the said summons before the same or any other warden to show cause why he should not be committed to prison for disobedience of such order, and stating in what respects the same has been disobeyed ; and such summons may by order of such warden be made returnable at any place before the same or any other warden ; but without such order such summons shall be made returnable at the place where and before the warden by whom it shall be issued ; and such summons shall be served personally or at such place or upon such person or in such other manner as the warden 'may under the special circum- stances of the case direct. If the person so summoned shall appear in pursuance of such summons or shall not attend as required by such summons and no sufficient excuse shall be shown for his not so attending, it shall be lawful for the warden before whom such summons shall be returnable to inquire into the matters mentioned in such summons on affidavit or on the oath of one or more than one credible witness, or upon both oath and affidavit ; and if it shall appear to such warden that the person so summoned has in fact knowingly disobeyed such order, it shall be lawful for such warden, if under all the circumstances of the case he shall think fit, to order that such person be com- mitted to prison ; and thereupon the said warden shall without any previous notice or summons to the person so ordered to be THE MINES ACT 1890. 467 committed issue a warrant in the form in the Twenty-ninth " J/ Map statute Schedule to this Act or to the like effect ; and the bailiff of the J^y-ninth Court of Mines of the district in which such order shall have Schedule - been made and the keeper of the gaol to whom such warrant shall be directed shall respectively execute and obey the said warrant ; and all constables and other peace officers within their several jurisdictions shall aid and assist in the execution of the same, [cf. 62 Yic. No. 38 (N.Z.), sec. 275]. 250. Whenever any person shall be in custody under any such Prisoner may be warrant as last aforesaid, it shall be lawful for the officer in whose performance, custody such person may be, on receiving an order for that lb ' purpose under the hand of the warden by whom such order of commitment shall have been made or of a judge of a Court of Mines, from time to time to bring such person before such warden or judge ; and it shall be lawful for such warden or judge either verbally to remand such person to his former custody ; or, if it shall appear to such warden or judge that such person has either performed the order for disobedience of which such person shall have been committed or has paid to the person obtaining such order of commitment or to the warden by whom such order of commitment was made or to the clerk of the court of which such judge shall be judge in behalf of such last-mentioned person full compensation for the breach of such part of the order as can no longer be performed together with all costs subsequent to the pronouncing of such order, including the costs of obtaining the commitment or that otherwise under the special circumstances of the case it would be proper so to do, verbally to order the person so in custody to be forthwith discharged on such condition as to performance of so much of the order as then remains to be and is capable of being performed as such judge or warden shall direct, and such person shall be discharged accordingly ; or it shall be lawful for such warden or judge on being satisfied of the matters aforesaid, instead of causing the person so in custody to be brought before him, by order under his hand directed to such officer to order the immediate discharge of such person, who shall be discharged accordingly, [cf. 62 Vic. No. 38 (N.Z.), sec. 275]. 251. Any such order of commitment as last aforesaid may (if Order may be the special circumstances of the case shall appear to any such lb ,. 200. warden to warrant it) be made by such warden ex parte and THE MINES ACT 1890. "MiniitffStatitt, 3865." Certificate of decision of warden mav be filed in Court of Mines. Ib. 8. 210. Thirtieth Schedule. Schedule. Part II. Mode of enforcing warden's order wliere not specially provided for. without notice, on proof by affidavit only of the wilful disobedience of the order for the disobeying of which such order of commit- ment shall be applied for ; and upon such ex parte order being made under the hand of the said warden, such warrant as afore- said may be issued, and the person ordered to be committed may be dealt with as if an order of commitment had been made as hereinbefore directed. 252. Whenever any sum of money awarded by way of debt damages or costs in or by any decision of any warden shall remain unsatisfied in the whole or in part, the warden who shall have the custody of the register in which such decision shall be registered shall, on the application of the person entitled to receive such debt damages or costs or of any attorney on his- behalf, grant to the party so applying a certificate in the form contained in the Thirtieth Schedule to this Act or to the like effect : and it shall be lawful for such person to file the said certificate with the clerk of the Court of Mines of the district in which such decision shall have been made ; and thereupon .such proceedings may be had as hereinbefore provided for in the event of any such certificate being so filed. Provided that on such application as aforesaid the warden shall grant to the person so- applying a certificate in the form in the Second Part of the Sixteenth Schedule to this Act, directed to the clerk of any Court of Mines ; and such certificate if forwarded to such clerk shall be filed by him ; and thereupon execution may issue as upon? a decree or order of the Court to the clerk of which such certificate shall be directed. Provided also that the signature to such certificate, purporting to be the signature of a warden having jurisdiction within the district with the clerk of the Court of Mines of which the certificate shall be filed, shall be sufficient warrant to such clerk to act upon such certificate. 253. Whenever any warden is empowered or required by this Part of this Act to cause any act to be performed, and the mode of performing such act is not otherwise expressly provided for, it shall be lawful for any person verbally authorized by such warden and in his presence or for any peace officer or constable authorized in writing under the hand of such warden to perform such act ; and all peace officers and constables shall if thereunto required aid and assist any warden or person authorized as afore- THE MINES ACT 1890. 469 said in the performance of his duty under this Part of this Act, "Jftnftyj [cf. 37 Vic. No. 13 (N.S.W.), sec. 92; 62 Vic. No. 24 (Q ) sec 34]. (c) Appeals. 25$. Any person who shall be desirous of appealing from the A,, pi ,ai. decision of a warden upon any hearing or rehearing of a case Ib ' *' 21 " before him or before him and assessors in cases where such decision is not hereby declared to be final, and whether the decision be a dismissal of the case or otherwise, may appeal from the same to the Court of Mines of the district within which such decision shall have been pronounced at that sitting of such court ^ c(A '-* 46 .*- 1 8- which next after the expiration of one month from the day of the making of such decision shall be held nearest to the place at which such decision shall have been made. Provided that such person shall within ten days from the day of the making of such decision deposit with the clerk of such court at the place where such sitting is to be held the sum of ten pounds to abide the costs of such appeal, and shall also within the same ten days serve upon the parties interested in supporting such decision or upon such of them as shall appear to such court to represent all the parties interested or in case no such person can be found upon the warden before whom or before whom and assessors the case in which such decision shall have been made was heard, a notice in writing in the form in the Thirty-first Schedule to this Act ShSlife?' stating the intention to appeal and the grounds of such appeal and the time and place at which such appeal will be heard, [cf. 37 Vic. No. 13 (N.S.W.), sec. 106 ; 62 Vic. No. 24 (Q.), sec. 141 ; 56 & 57 Vic. No. 587 (S.A.), sec. 25 ; 57 Vic. No. 24 (Tas.), sec. 161 ; 59 Vic. No. 40 (W.A.), sec. 86 ; 62 Vic. No. 38 (N.Z.), sees. 281, 282, 283]. 255. If either party to any proceeding in a warden's court service of notice shall appear by attorney, notice of appeal may be served upon ]b g 19 such attorney, [cf. 57 Vic. No. 24 (Tas.), sec. 162 ; 62 Vic. No. 38 (N.Z.), sec. 283]. 256. Any warden may if satisfied by affidavit that any person ^"J g; named as a respondent in any notice of appeal under the last J; l ^ preceding section but one cannot after diligent inquiry for him be /&. . 20. found, or cannot from any cause by reasonable exertion be served 470 THE MINES ACT 1890. Act No. 446. with such notice of appeal within the time by this Part of this Act limited for service thereof, order that service of such notice of appeal upon such person or in such manner as by such order shall be directed shall be deemed good service upon such respon- dent, and service of such notice of appeal in the manner directed by such oi-der within the time limited by this Part shall be good Copy of service to all intents and purposes. Before any appeal shall be dSdSSi n of*he f heard as provided for in the last but one preceding and next d7iiveredon e following sections hereof the appellant shall deliver to the clerk for the use of the court, or shall see that there be provided for the use of the court a copy of the complaint before the warden and a copy of the decision thereon which is appealed against, [cf. 62 Vic. No. 38 (N.Z.), sec. 286]. Court to make 257. Such appeal shall be heard at such sitting of such court order on appeal. "Mining statute or at such other place within the mining district and at such time as the judge of such court shall by writing under his hand direct ; and such court shall proceed to make an order reversing or vary- ing such decision or dismissing such appeal ; and all such orders shall be final and conclusive on the parties ; and the judge shall (if necessary) order payment of money or the delivery of possession of any claim land race drain dam reservoir or water gold or other metals or minerals or other property to the person who was the complainant before the warden, or restitution of any claim land or water gold or other metals or minerals or other property as the case may require ; and in and by such order the said court may Act No. 446,x. 21. make such order with respect to the costs of the appeal and of the proceeding appealed from as such court shall think fit. [cf. 62 Vic. No. 24 (Q.), sec. 142; 57 Vic. No. 24 (Tas.), sec. 165 ; 59 Vic. No. 40 (W.A.), sec. 87 ; 62 Vic. No. 38 (N.Z.), sec. 290]. Agreement to 258. Previously to the hearing of any complaint, the parties " Mining statute thereto may agree to accept the decision of the warden or assessors as the case may be as final : and a memorandum of every such agreement shall be entered by the warden in the register to be kept by him as hereinbefore provided ; and no appeal shall in such case be made from the decision of the warden or of the assessors as the case may be. [cf. 37 Vic. No. 13 (N.S.W.), sec. 107 ; 62 Vic. No. 24 (Q.), sec. 117 ; 57 Vic. No. 24 (Tas.), sec. 156]. THE MINES ACT 1890. 47 j 259. If upon the hearing of such appeal the subject-matter of the dispute shall appear to the court before which the appeal shall be heard not to exceed in valu. twenty pounds, the appellant shall fwnty not although he succeeds be entitled to receive any costs of such Kered unless appeal from the opposite party, unless the court shall be of opinion that the special circumstances of the case entitle the appellant to costs, [cf. 37 Vic. No. 13 (N.S.W.), sec. 108 ; 62 Vic. No 24 (Q.), sec. 144]. 260. Every such appeal shall (unless an issue shall be directed Appeal to be or the trial of any fact by assessors be required as hereinafter ai^ unless * mentioned) be heard and determined by the judge alone ; and no required- ground of appeal, excepting those stated in the notice of appeal, ^ ' 2 d ^ shall be entered upon, unless the judge shall allow either before or tCstXI'ta at the hearing other grounds to be added, upon such terms as to ^ entered on - adjournment costs or otherwise as he may think fit. [cf. 37 Vic. No. 13 (N.S.W.), sec. 109; 62 Vic. No. 24 (Q.), sec. 145; 62 Vic. No. 38 (N.Z.), sec. 290]. 261. Upon the hearing of any such appeal the court may (if it Assessors may be shall think fit) direct an issue to be tried at such time as it shall appoint before such court and six assessors ; and either of the parties to any such appeal may require that some question of fact material to the issue in the appeal shall be tried before such court and six assessors ; the verdict of a majority of which assessors shall in both cases be received ; and whenever any question of fact shall be tried on the requisition of any of the parties, the court in pronouncing its order on the appeal shall act on the verdict found on such trial ; but whenever an issue shall be tried 011 the direction of the court, the court in pronouncing such order shall act or not on the verdict found on such trial as it shall think right, and shall have power before pronouncing such order to direct any other trial or trials of such issue. Provided that no appellant shall be entitled so to require, unless at the time of his depositing the said sum of ten pounds with the clerk as aforesaid he shall give notice to such clerk that he does so require : and in the notice of appeal he shall inform the respondent thereof ; and no respondent shall be entitled so to require, unless ten clear days before the sitting of the court at which the appeal is to be tried he shall give notice to such clerk that he does so require, and serve a notice upon the appellant stating that he has so required. 472 THE MINES ACT 1890. "Mining Statute Provided also that the party so requiring shall at the time when he shall so require pay into court for assessors, over and above the sura of ten pounds which if appellant he is to deposit with the clerk as aforesaid, the sum of six pounds twelve shillings to be dealt with in like manner as the sum of six pounds twelve shillings to be paid for assessors in original proceedings in the Courts of Mines is hereby directed to be dealt with. [cf. 37 Vic. No. 13 (N.S.W.), sec. 110 ; 62 Vic. No. 24 (Q.), sec. 147]. Provisions as to 262. The provisions of the sections hereof in regard to the trial issues in original Courts'of'Mines ^ ^ ssues an( * f questions of fact in original proceedings in the i a ssm!sonap t0 eais Court ^ Mines, and in regard to the persons from whom assessors 76. s. 218. are to be chosen and to the summoning and other proceedings in respect of assessors, shall be applicable to the trial of such issues and questions of facts in the case of appeals to the Courts of Mines, [cf. 62 Vic. No. 24 (Q.), sec. 148]. in 6ases of 263. Whenever any such appeal shall have been brought or be appeal an injunction &c. about to be brought, it shall be lawful for the warden from whose and stay of proceedings may decision the appeal shall be or be about to be brought, on the lb. s. 219. application of any of the parties interested in such appeal, to make such order for an injunction or receiver or payment of money into the hands of the warden to abide the event of the appeal or for stay of proceedings or otherwise and upon such terms as he shall think proper ; but without such order or an order to the same effect by the judge of the court in which the appeal shall be brought, no appeal shall operate as a stay of proceedings ; and such order the said warden may at any time thereafter if he think fit discharge, [cf. 37 Vic. No. 13 (N.S.W.), sec. Ill ; 62 Vic. No. 24 (Q.), sec. 149; 57 Vic.fNo. 24 (Tas.), sec. 167]. Appeals from 264. No appeal from the decision of a warden to the Court of wardens not to _ rr tne district within which such decision shall have been judge val f pronounced shall be impeded or shall lapse or from the coming Act NO. 446, . 9. into operation hereof shall be deemed to be impeded or to have lapsed in consequence of the office of judge of the said court being- vacant by the death removal cessation or resignation of the judge thereof ; but any appeal whether the same shall or shall not have been partly heard may be commenced or prosecuted before the succeeding judge at the same place and as nearly as may be at THE MINES ACT 1890. 473 the same time as it would have been before the preceding judge Act Xo. 446. if remaining in office. 265. Upon the hearing or rehearing of any appeal from a Parties way warden or upon any proceeding before a warden or a warden and or warden^*? 6 reserve special assessors either party to any such appeal or proceeding may apply cas * for opinion to the judge or warden to reserve any question of law in the form Court - of a special case for the opinion of the Supreme Court, which opinion such Supreme Court is to give, and in such case proceed- ings may be stayed upon such terms as the judge or warden shall think fit until such opinion shall have been given ; and every such special case shall after it shall have been prepared by such judge or warden be transmitted by the clerk of the Court of Mines or the warden to the Prothonotary, who shall cause the same to be set down for argument before the said Supreme Court; and whenever any such question shall have been reserved it shall be lawful for the judge or warden who shall have reserved the same on the application of any of the parties interested to make such order for an injunction or receiver or payment of money into court or into the hands of the said warden or otherwise and upon such terms as such judge or warden shall think proper, [cf. 62 Vic. No. 24 (Q.), sec. 136]. 266. If the judge or the warden shall refuse upon any such Proceedings on refusal to reserve application to reserve any such question as aforesaid no order special case, shall be made in respect of any matter on which such special case shall have been applied for until after the expiration of ten days from the day of such refusal, and the costs of and occasioned by such delay shall be in the discretion of such judge or warden. 267. When the judge or the warden shall refuse to reserve any such question as aforesaid the applicant may within ten days after the day of such refusal apply to the Supreme Court for an order nisi calling on such judge or warden and also upon the opposite ib. t. 24. party to show cause why any such question should not be reserved for the opinion of such Supreme Court, and the said Supreme Court may make the same absolute or discharge it with or without costs as it may think proper ; and the judge or warden upon being served with any such order absolute shall reserve such question of law accordingly for the opinion of such Supreme Court. 474 THE MINES ACT 1890. Act No. 446, *. 25. 268. As soon as the opinion of the Supreme Court shall have SupremeCourt been given upon any such special case the Prothonotary shall and transmitted cause the same to be drawn up, and shall transmit the same to the or warden anT" clerk of the Court of Mines or warden ; and the judge or warden an parties. 1 "* 5 ' who shall have reserved the same shall make his order in accord- ance with the opinion given on such special case, and the Supreme Court may upon the argument of any such special case as afore- said make such order with respect to costs as it may think proper ; and no appeal upon any question of law raised by any such special case shall lie from a warden, or from a warden and assessors,. to a Court of Mines against any decision and order made in accord- ance with any such opinion of the said Supreme Court, but the same shall be binding and conclusive upon all parties. enforc?n" ^69. After any appeal against the decision of any warden or appeal" aft. s. 22.-). ceedings before a warden or warden and assessors or to the trial of any issue or question of fact or to any examination under the provisions hereinbefore contained for the examination of debtors summoned for examination may obtain at the office of the clerk THE MINES ACT 1890. 477 of the court or of the warden as the case may be summonses to "Mining statute witnesses, to be served at the option of such party either by him- ** self or his agent or by the bailiff of the court, with or without a clause requiring the production of books deeds papers and writings in their possession or under their control. 276. All affidavits to be used in any Court of Mines or before Who may take a judge thereof or in any proceeding before a warden shall and ib. . 2-20. may bo sworn before any judge of the Supreme Court, or any commissioner for taking affidavits in that court, or before the judge of any County Court or of any Court of Mines, or any warden or justice of the peace, [cf. 37 Vic. No. 13 (N.S.W.), sec. 118 ; 62 Vic. ~No. 24 (Q.), sec. 162 ; 59 Vic. No. 40 (W.A.), sec. 60; 62 Vic. No. 38 (N.Z.), sec. 295J. 277. It shall be lawful for any party to any suit or appeal or Appearance in to any proceeding before a warden or warden and assessors or to attorney^ " % the trial of any issue or question of fact in any Court of Mines or lb ' *'"' to any such examination as aforesaid, or for an attorney of the Supreme Court being an attorney acting generally in the matter for such party but not an attorney retained as an advocate by such first-mentioned attorney, or for a barrister retained by or on behalf of such party on either side, to address the court and examine and cross-examine the witnesses ; and generally in any proceeding in a Court of Mines or before a warden the parties thereto may be respectively repi-esented by any such attorney or barrister, but subject to such regulations as the judge may from time to time prescribe for the orderly transaction of the business of the court ; and in every proceeding before a warden the party who begins shall have the right to reply. 278. The fees to be allowed to barristers-at-law and attorneys Fee< to counsel and attorneys practising in any Court of Mines or before a warden for appearing &c. or acting on behalf of any other person in any suit appeal or other Ib ' '' 22 *' proceeding in such court or in any proceeding before a warden, and to accountants engineers surveyors and other scientific persons whose assistance shall be obtained in any such suit appeal or proceeding, and the expenses to be paid to witnesses, shall be fixed by some scale in the general rules to be made as hereinafter mentioned ; and such fees and expenses shall together with the court fees or fees in proceedings before a warden be deemed costs 478 THE MINES ACT 1890. "Mining statute j n fae suit appeal or other proceedings unless the court or judge or the warden shall otherwise order. Clients may 279. It shall be lawful for the judge of any Court of Mines procure taxation couns'ei'sfees P n tne application of any 'person who shall have employed any ib. s. 229. attorney or barrister in any suit appeal or other proceeding in such court or before such judge, or for a warden upon the appli- cation of any person who shall have employed any attorney or barrister in any proceeding before him or before him and assessors, to issue a summons requiring any attorney or any barrister (who in the opinion of such judge or warden shall not have been bond fide instructed by an attorney) to appear before such judge or warden at a time and place named in such summons ; and at such time and place upon the appearance of such attorney or barrister or upon proof of due service of such summons such judge or warden shall proceed to tax the charges and fees of such attorney or barrister for any such proceedings in such court or before such judge or warden ; and if in the opinion of such judge or warden the charges or fees of such attorney or barrister are unreasonable, it shall be lawful for such judge or warden, notwithstanding any contract between the parties, by order under his hand to direct such attorney or barrister to repay any part of such charges or fees ; and such order if made by a judge may be filed with the clerk of any court holden' under this Part of this Act within the district to which such judge shall belong ; and the same and also any such order made by a warden may be enforced in the same manner as any decree of the court or order of the warden for payment of money, [cf. 59 Vic. No. 40 (W.A.), sec. 81]. Allowance and 280. It shall be lawful for the judge in cases of suits and all taxation of costs. ib. s. 230. other proceedings before the court of which he shall be judge or before himself, or for the warden in all proceedings before him or him and assessors, in his discretion to give or refuse to either party the costs of the suit hearing rehearing appeal or other pro- ceeding before such court judge or warden or any part thereof ; and in case of giving them, to give them in his discretion as between party and party, or as between solicitor and client, and in order to abolish the expense and delay occasioned by the tax- ation of costs after the hearirtg, the judge shall, either at the hearing or rehearing of any such suit appeal or other pi-oceeding or at the time of pronouncing his decision or of making any order THE MINES ACT 1890. 479 under this Part of this Act, and the warden shall, at the time "Mining statute when the decision of him or of him and assessors shall be pro- ** nounced or any order made by him under this Part, tax the costs of such suit hearing rehearing appeal or proceedings to be paid by the plaintiff or defendant ; and the amount of costs to be paid by either or any of the parties shall form part of the decree or order of the court or judge or warden ; and in default of any special direction each party shall pay his own costs, [cf. 59 Vic. No. 40 (W.A.), sec. 81J. 281. Whenever any suit or other proceeding is brought before warden or court a warden or in a Court of Mines or before a judge of such court whe which such warden court or judge has no jurisdiction to try, such jurisdiction. suit or other proceeding shall be dismissed, and such warden court ^ ct - y - 446 '*- 17 - or judge shall have power to award costs in the same manner and to the same extent and such costs shall be recoverable in the same manner as if such warden court or judge had jurisdiction in the matter of such suit or other proceeding and the plaintiff had not appeared or had appeared and failed to pi'ove his case. 282. If any person shall wilfully insult the judge or any Contempt of warden or any assessor or any clerk bailiff or officer of any court "Mining statute holden under this Act during his sittings or attendance in court or before such warden, or shall wilfully interrupt the proceedings of any such court or before any warden, or being summoned or examined as a witness in any suit appeal or proceeding in any such court or before a warden shall refuse to be sworn or to answer any lawful question, or shall in the opinion of the judge of the said court or of such warden be guilty of wilful prevari- cation, or if any person shall in any way misbehave in court or before a warden during his sitting as such warden or be guilty of any contempt whatsoever of any such court, it shall be lawful for the judge or warden (if he shall think fit) to commit any such offender to prison for any time not exceeding two months, or to impose on any such offender a fine not exceeding ten pounds for every such offence, and in default of immediate payment thereof to commit the offender as aforesaid for any time not exceeding two months unless the fine be sooner paid ; and in either of the cases aforesaid a warrant in the form contained in the Thirty- Thirty-second Schedule. second Schedule to this Act shall and may be issued by such judge or warden, arid shall be good and valid in law without any 480 THE MINES ACT 1890. "Minitig statute other order summons or adjudication whatsoever ; and the bailiff and gaoler to whom the same shall be addressed shall obey the same. [cf. 37 Yic. No. 13 (N.S.W.), sec. 119 ; 62 Vic. No. 38 (N.Z.),sec. 276 ; 62 Vic. No. 24 (Q.), sec. 116 ; 56&5T Vic. No. 587 (S.A.), sec. 122]. interpleader. 283. If any claim shall be made to or in respect of any goods or chattels taken in execution under any process issued out of any Court of Mines or by a warden or in respect of the proceeds or value thereof by any person not being the party against whom such process shall have issued, it shall be lawful for the clerk of such court or for such warden upon application of the officer charged with the execution of such process as well before as after any action brought against such officer to issue a summons calling before the said court or such warden as well the party issuing such process as the party making such claim ; and there- upon any action which shall have been brought in the Supreme Court or in any County Court in respect of such claim shall be stayed ; and the court in which such action shall have been brought or any judge thereof, on proof of the issue of such sum- mons and that the goods and chattels were so taken in execution, may order the party bringing such action to pay the costs of all proceedings had upon such action after the service upon him of such summons issued out of the Court of Mines or by the warden ; and such last-mentioned court or the warden shall adjudicate upon such claim and make such order between the parties in respect thereof and of the costs of the proceedings as to it or him shall seem fit ; and such order may be enforced in like manner as any order made in any suit brought in such court or on any pro- ceedings before such warden as the case may be. [cf. 37 Vic. No. 13 (N.S.W.), sec. 120 ; 62 Vic. No. 24 (Q.), sec. 135 ; 59 Vic. No. 40 (W.A.), sec. 78]. time PUtationof 28 *- In a11 cases in which any particular number of days not 4ctA T o.446,*.28. expressed to be clear days is prescribed by this Part of this Act the computation of time shall be exclusive of the first and inclusive of the last day, unless the last day shall fall upon a Sunday or holiday in which case it shall be exclusive of that also. 285 ' Jt sha11 be lawul for the Chief Justice of the Supreme ^ ourt an( * an y two or more f the judges of the Courts of Mines from time to time, but subject to this Part of this Act, to frame THE MINES ACT 1890. 481 such general rules as to them shall seem expedient for and con- 'Wningstattite cerning and so far as not herein provided for the pleadings practice and proceedings of the courts holden under this Part either in their original or appellate jurisdiction, and the practice and proceedings in cases before the wardens, and for the execution of the process of such courts and issued by such wardens and in relation to any of the provisions of this Part which relate to the courts to be holden thereunder and to proceedings before wardens and as to which there may arise any doubts ; and also to frame forms for every matter or proceeding in the said courts or before such wardens for which they shall think it necessary that a form should be provided and not in this Part already provided for ; and for and concerning the fees to be paid to barristers-at-la\v and attorneys practising in the said courts and before wardens and the expenses to be paid to witnesses in the said courts and before wardens ; and from time to time to rescind or alter any such rule or form ; and the rules and forms so framed shall be observed and used in all the said courts or in proceedings before the wardens as the case may be ; and in any case not expressly pro- vided for herein or by the said rules the general principles of practice in the Supreme Court may be adopted and applied at the discretion of the judge of any Court of Mines to suits and pro- ceedings in his court and of the warden to proceedings before him ; and all such rules as aforesaid shall from and after the expiration of the time fixed therein for the commencement thereof be of the same force and effect as- if the same had been enacted by the Legislature, [cf. 37 Vic. No. 13 (N.S.W.), sec. 113 ; 62 ^ Yic. No. 38 (N.Z.), sec. 278 ; 62 Vic. No. 24 (Q.), sec. 113. 286. Every Order in Council made for the purposes of this Divi- orders in J Council and sioii of this Part of this Act, and all general rules framed under the rules to be laid before power hereinbefore contained, shall be published in the Government Parliament. Gazette ; and every such order and all such rules respectively shall l)e laid before both Houses of Parliament within fourteen days after the making thereof respectively if Parliament be sitting, and if Parliament be not sitting then within fourteen days after the then next meeting of Parliament, [cf. 37 Vic. No. 13 (N.S.W.), sec. 114.] DIVISION 3. PENALTIES. 287. Any person who shall cut or remove any live or dead Penalty for J ? J unauthorized timber or any earth from or who shall mine or employ any other occupation. 31 482 THE MINES ACT 1890. "Mining Statute person to mine in or shall cut or construct any race drain dam or 1865," s. 235. . ... reservoir through or upon any Crown lands applied to any public use or purpose or bond fide used or excepted as mentioned in sections fifteen and seventeen of this Act without being author- ized so to do as hereinbefore mentioned shall be liable to the penalties by law imposed for the unauthorized occupation of Crown lands. And any person not being the holder of a business licence issued under this Act or any* Act repealed by this Act who shall carry on or follow any business on any goldfield, and any holder of a business licence who shall occupy for the purpose of residence and business or either any greater extent of land than he is hereby or by any Act repealed by this Act entitled to occupy, or (except so far as authorized by any such repealed Act) any land within one quarter of a mile of any town village or hamlet or of land situated in any township and previously sold or advertised or specified as about to be offered for sale, and any holder of a miner's right or business licence who shall occupy for the purpose of residence any greater extent of land than he is entitled to occupy under this or any such repealed Act, shall be liable on conviction to forfeit and pay for the first offence a penalty not exceeding Ten pounds, and for the second offence a penalty not exceeding Twenty pounds and not less than Ten pounds, and for the third or any subsequent offence a penalty not exceeding Fifty pounds nor less than Twenty pounds. Provided that no conviction shall take place for any second or subsequent offence committed within fourteen clear days from the previous convic- .tion. [cf. 37 Vic. No. 13 (N.S.W.), sees. 123, 124 ; 56 & 57 Vic. No. 587 (S.A.), sees. 118, 119 ; 57 Vic. No. 24 (Tas.), sec. 176 ; 59 Vic. No. 40 (W.A.), sees. 90, 91 ; 62 Vic. No. 38 (N.Z.), sec. 304]. SfeSXsV ' 288> If W| y P erson tendering his vote under this Part of this eiTcti e ons d With Act slia11 knowingly and wilfully make a false answer to any of 16. . 236. the questions aforesaid or personate or attempt to personate any voter or attempt to vote more than once at the same election, or if any returning officer shall knowingly and wilfully make a false return of the number of votes for any candidate at any election under this Part, or if any returning officer or deputy returning officer shall wilfully falsify or fraudulently suppress any voting paper, such person or such returning officer or deputy returning THE MINES ACT 1890. 483 officer shall be guilty of a misdemeanor; and shall on conviction ' Mining statute thereof before any competent court be sentenced to imprisonment either with or without hard labour at the discretion of the court for some period not exceeding twelve months. 289. Any person who shall infringe any lawful by-law of any Penalty for ..,,,,, breach of by- milling board shall on conviction thereof before a competent court law - forfeit and pay for every such offence a penalty not exceeding lb Ten pounds : and every such penalty shall be recovered in a summary way before a justice being also a warden, [cf. 37 Vic. No. 13 (N.S.W.), sec. 126 ; 39 Vic. No. 40 (W.A.), sec. 99 (3)]. ' 290. If any warden appointed under this Act shall knowingly Penalty on adjudicate in any matter in which he shall have any pecuniary hite on con- interest, he shall be guilty of a misdemeanor : and shall viction before any competent court be liable to fine and imprison- ment or both in the discretion of such court, [cf. 37 Vic. No. 13 (N.S.W.), sec. 127 ; f>6 & 57 Vic. No. 587 (S.A.), sec. 124 ; 62 Vic. No. 24 (Q.), sec. 164 ; 59 Vic. No. 40 (W.A.), sec. 96]. 76. . 238. 291. Any officer appointed under this Part of this Act or penalty for extortion. Ib. *. 239. employed in putting the same or any of the powers thereof into execution, or any clerk or assistant of such officer who shall wilfully and corruptly exact take or accept any fee sum or reward whatsoever other than and except such fees or sums as are or shall be appointed and allowed respectively as aforesaid for or on account of anything done or to be done by virtue of this Part or on any account whatsoever relative to putting this Part into execution, shall on conviction thereof before any competent court forfeit and pay any sum not exceeding Fifty pounds, and shall be for ever incapable of serving or being employed under this Part in any office of profit or emolument, [cf. 37 Vic. No. 13 (N.S.W.), sec. 128 ; 62 Vic. No. 24 (Q.), sec. 165; 51) Vic. No. 40 (W.A.), sec. 97]. 292. Any person who shall assault obstruct or resist any Assault on warden and warden or any person duly authorized by any warden so to do in other offences, lawfully entering upon any claim or land or in performing any lb other act authorized hereby or any bailiff or other officer or any clerk or assistant of such bailiff or officer or any inspector or other person in the performance of his duty or in the exercise of his powers under this Part of this Act, or any person who after 484 THE MINES ACT 1890. " Mining statute being removed by any warden under the provisions of this Part from any claim or other place shall forcibly or clandestinely retake or retain or endeavour to retake or retain possession thereof or of any portion thereof or of any share therein, or who after any decision of a warden that any complainant is entitled to use for mining purposes or to divert any water (such decision not having been altered on rehearing or reversed 011 appeal) shall resist such complainant or his agents in . such use or diversion, or who upon or in consequence of the decision of any warden or assessors against him shall assault or threaten to assault any person in whose favour such decision shall have been made, shall on conviction thereof before any two justices forfeit any sum not exceeding Fifty pounds ; and in default of payment shall be liable to be imprisoned for any period not exceeding six months, [cf. 37 Vic. No. 13 (N.S.W.), sec. 129 ;. 62 Vic. No. 24 (Q.), sec. 166 ; 56 & 57 Vic. No. 587 (S.A.), sec. 122; 57 Vic. No. 24 (Tas.), sec. 179 ; 59 Vic. No. 40 (W.A.), sec. 98 ; 62 Vic. No. 38 (N.Z.), sec. 317]. Penalty on 293. Any person on whom any summons issued out of any neglecfclng to Court of Mines or by any warden requiring such person to ib. B. 241. appear as a witness in such court or before such warden shall have been served personally or in such other manner as shall be directed by the rules to be framed as aforesaid and to whom at the same time payment or tender of his expenses shall have been made on the scale hereinbefore mentioned, and who shall refuse or neglect without sufficient cause to appear according to the tenor of such summons, or who having so appeared shall refuse to be sworn or answer any lawful question, shall on conviction thereof before any two justices forfeit and pay any sum not exceeding Ten pounds; but no such conviction shall exempt such person from any action for disobeying such summons, [cf. 37 Vic. No. 13 (N.S.W.), sec. 130; 62 Vic. No. 24 (Q.), sec. 168; 59 Vic. No. 40 (W.A.), sec. 82 ; 62 Vic. No. 38 (N.Z.), sec. 264 (3)]. Pe " a 'ty on cjerk 294. Every person who being a clerk of any Court of Mines or or bailiff holding J r J actin" ^ 068 r ^ e P ar t' ner f such clerk or a person in the service or employment counsel &c. o f an y suc j, c ] er k O r of his partner shall accept the office of bailiff of such court, or who being a bailiff of such court or the partner of any such bailiff or a person in the service or employment of any such bailiff or of his partner shall accept the office of clerk in- THE MINES ACT 1890. 485 the execution of this Part of this Act, and also every officer "Mining statute of any such court who shall be by himself or his partner in any ** way directly or indirectly concerned as counsel attorney or agent for any party in any proceeding in the said court, shall for every such offence on conviction thereof before a competent court forfeit and pay the sum of One hundred pounds with full costs of suit to any person who shall sue for the same by action at law. 295. Notwithstanding the recovery of any penalty under this Recovery of Part of this Act, any person shall be entitled to enforce any civil ^" civil remedy, remedy which he may have by reason of the act or default in Ib ' *' 243 ' respect of which the penalty shall have been recovered, [cf. 37 Vic. No. 13 (N.S.W.), sec. 121]. 296. No proceedings under this Part of this Act shall be Proceeding not removed or removable into the Supreme Court, save and except into Supreme as hereinbefore provided, [cf. 37 Vic. No. 13 (N.S.W.), sec. 122]. 5T?M4. 297. Any person who shall feel himself aggrieved by any con- Appeal to . . general sessions. viction or order of any justice or justices under this Part of this n f 245 Act may appeal from any such conviction or order to the next Court of General Sessions of the Peace which shall be held near- est to the place where such conviction or order shall have been given or made ; and the execution of every such conviction or order so appealed from shall be suspended in case such person shall with two or more sufficient sureties immediately before such justice or justices enter into a bond or recognisance to Her Majesty in the sum of fifty pounds, which bond or recognisance respectively such justice or justices is and are hereby authorized and required to take ; and such bond or recognisance shall be conditioned to prosecute such appeal with effect and to be forth- coming to abide the determination of the said Court of General Sessions and to pay such costs as the said court shall award on such occasion ; and such Court of General Sessions is hereby authorized and required to hear and determine the matter of the said appeal ; and the decision of such last-mentioned court shall be final to all intents and purposes, [cf. 37 Vic. No. 13 (N.S.W.), sec. 131]. 298. Notwithstanding anything hereinbefore contained, no {"j^^'jj^" person shall be entitled to institute proceedings in any court r'^t. holden under this Part of this Act or in any other court or before 486 THE MINES ACT 1890. ^Mining Statute any warden to recover possession of any land occupied by virtue of any miner's right issued under this Part or of any share in such land, or to recover any damages for or to restrain the occupation of or encroachment upon such land or any part there- of, or to obtain any relief as tenant in common joint tenant co-partner or co-adventurer in any such land against his tenant in common joint tenant co-partner or co-adventurer, unless such person shall have been the holder of a miner's right or included in a consolidated miner's right at the time when his alleged title to recover such possession or damages or to obtain such relief first arose or accrued, [cf. 37 Yic. No. 13 (N.S.W.), sec. 19 ; 62 Vic. Xo. 24 (Q.), sec. 160 ; 59 Yic. No. 40 (AV.A.), sec. 17 ; 62 Vic. No. 38 (N.Z.), reg. 5 ; 56 & 57 Vic. No. 587 (S.A.), sec. 20 (vii)]. PART II. MIXING ON PRIVATE PROPERTY. [Sees. 299-350 inclusive are repealed by No. 1514. See No, 1514, Part II, post]. PART III. GENERAL PROVISIONS. DIVISION 1. REGULATION AND INSPECTION OF MINES AND MINING MACHINERY. [Sees. 351-376 inclusive are repealed by No. 1514. See No. 1514, Part III, Division 1, post]. DIVISION 2. DRAINAGE OF MINES (a). interpretation. 377. In the construction of this Division of this Part of this j/^s'^cnsrr " ^ ct ^ ie fN w i n g words and expressions if not repugnant to the context shall have the respective meanings hereby assigned to them (that is to say) : "Crown land." Crown land " shall include all lands of the Crown : " Machinery." Machinery " shall apply to and include all appliances in- cluding tunnels used or that may be used for the purpose of raising lifting or draining water whether worked by steam water horse or other power : (a) Cf. 62 Vic. No. 24 (Q), Part XII; 59 Vic. No. 40 (W.A.), Regs. April 15, 1896, cl. 147 ; 56 & 57 Vic. No. 587 (S.A.), Part V ; 57 Vic. No. No. 24 (Tas.), Part VII. THE MINES ACT 1890. 487 " Mine " shall apply to and include all land or ground held ' D r i.,a ; ,e -f used or occupied by any person for mining purposes : MHJ,^. "Mining purposes" shall mean the purpose of obtaining "Mining gold or any metal or mineral other than gold by any mode or method and of stacking or otherwise storing any earth : '' Owner of any machinery " shall include the mortgagee in owner of any possession, and shall also include any person or number !!'y iu " e st tule of persons association company joint-stock company or 1865> " * 3 - corporation whether engaged in mining or in mining in conjunction with drainage or for the purpose of drainage only; and "owner of any mine" shall apply only to "Owner of any , mine." any person using or occupying any land or ground tor The j) railtag ^ mining purposes and shall also include any person or "l^ Act number of persons association company joint-stock ' *' company or corporation using or occupying any land or ground, and whether Crown land or land the property of any private person, for " mining purposes " as the words " mining purposes " are defined in this section : " Warden " shall mean one of Her Majesty's wardens of the "Warden." goldfields in and for Victoria or in and for any district thereof. 378. [Repealed and re-enacted by No. 15U, sec. 157, post}. 379. The expense of the drainage effected by the owner of any Calculation or machinery shall be arrived at by calculating drainage. ' Drainage of (a) The interest on the value of machinery and plant used fj"' for drainage purposes only : (6) The wear and tear of such machinery and plant : (c} The cost of oil grease and packing : (rf) The proportionate cost of fuel expended or of horses employed in drainage operations : (f) The wages of engine-drivers and of other persons in such proportions as such persons may be deemed to be em- ployed in draining a mine ; and (f) Such other expenses as the owner can prove that have necessarily been incurred in respect of the drainage 488 THE MINES ACT 1890. "Drainage of Mines Act 1877." No drainage dues to be demanded in certain cases. Ib. 8. 5. Mode of calculating amount of contribution. Ib. s. 6. effected by any machinery. [cf. 57 (Tas.), sec. 118]. 380. No drainage dues shall be demanded for any period during suspension of drainage operations ; and in determining the cost of drainage effected by the owner of any machinery if the whole or any part of the water raised by such machinery shall be used by the owner of such machinery for mining purposes the value of such water shall be ascertained and deducted from the general cost of such drainage, [cf. 57 Vic. No. 24 (Tas.), sec. 119]. 381. In determining the mines the owners of which shall be liable to contribute towards the expense of the drainage effected by the owner of any machinery regard shall be had to the total length of reef or lode or the extent of lead or auriferous deposit affected by the drainage operations of such machinery and to the amount of the benefit derived by the owners of mines from such operations, and the share to be contributed in respect of each mine drained shall be proportioned as nearly as may be to the length of such reef or lode or the extent of such auriferous lead or deposit contained within each such mine and to the amount of benefit so derived, [cf. 57 Vic. No. 24 (Tas.), sec. 120]. 382. The owners of each mine liable so to contribute shall receive credit for the value of any work they shall perform in assisting to drain, and such value jshall be added to the general cost of drainage, [cf. 57 Vic. No. 24 (Tas.), sec. 121]. Form of 383. Any order made by a warden in exercise of the jurisdic- "The Drainage tion or powers conferred by this Division of this Part of this Act Ainei-ui Act shall be signed by the warden making the same, and may be Thirty-sixth either written or printed in the form or to the effect in the schedule. Thirty-sixth Schedule hereto, and shall be valid and effectual Not to be set _ J form forwantof without any recital or statements necessary to show jurisdiction ; and no order of a warden under this Division of this Part shall be set aside or declared invalid in any court whatsoever for want of form. [cf. 57 Vic. No. 24 (Tas.), sec. 122]. 384. Whenever any sum of money or portion of any sum of money ordered to be paid in or by any decision or order of a warden under this Division of this Part of this Act, and whether such money was ordered to be paid at one time or in periodical Work done by owners. Ib. s. 7. Filing and enforcement of warden's order in Court of Alines of district. Ib. I 4. THE MINES ACT 1890. 489 payments, shall remain unsatisfied in whole or in part, and "?*" Drainage r of Mines whether after previous executions or not, for fourteen days or for i^'^' Act a longer period, the warden who shall have made such order or any other warden to whom a certified copy of the said order shall be produced shall on the application of the owner of machinery claiming to be entitled to the moneys in such order or any attor- ney, in his behalf grant to the party so applying a certificate in the form in the Thirty-seventh Schedule to this Act or to like effect ; and it shall be lawful for the party obtaining such certificate or his attorney to file such certificate with the clerk of the Court of Mines of the district in which such order shall have been made, and thereupon execution may issue and all such pro- ceedings be had and taken to enforce payment of the moneys mentioned in such order as upon a decree or order of the court to the clerk of which such certificate shall be directed. And in the event of any such decision or order of the warden imposing upon the owner of machinery any terms with regard to the efficient working of the machinery or otherwise, such terms may be enforced in the same manner as orders by a warden other than or besides orders for the payment of money may be enforced under Part I of this Act ; and it shall be lawful for the warden to suspend the enforcement of so much of the order as directs the payment of money to the owner of machinery until the terms in such order imposed upon such owner of machinery have been carried out by him. [cf. 57 Vic. No. 24 (Tas.), sec. 122]. 385. Whenever and so soon as any order of a warden mat under this Division of this Part of this Act shall have been filed with the clerk of the Court of Mines, the moneys directed in such Jb. . 5. order to be paid shall so long as any part thereof remains unpaid and unsatisfied become and.be a charge subject to prior encum- brances upon the estate or interest of the owner of the mine in the Crown land or private lands occupied or used for mining purposes by the owner of the mine in respect of which the money mentioned in such order is directed to be paid and upon all plant .and machinery thereon and all property of the owner of the mine in such land plant and machinery ; and the warden by whom such order shall have been made or any other warden to whom a certified copy of such order shall be produced may by his order pal restrain the sale or other disposal or transfer of such interest in 490 THE MINES ACT 1890. " The Drainage the land plant machinery or property until such moneys have Amend. Act been paid ; but this provision shall not be deemed in any way to lessen the right of seizure and sale of such land plant machinery and property under any execution issued for the realization of the moneys ordered in such warden's order to be paid or con- tributed. [cf. 57 Vic. No. 24 (Tas.), sec. 123]. Remedies in this 386. The remedies provided in the three last preceding sections cumulative. shall be taken to be cumulative and ancillary to the remedies given in or by any other section in this Division of this Part of this Act and shall not be construed to in any way lessen or take away any of the jurisdiction power or remedies created or given in or by such lastmentioned sections, [cf. 57 Vic. No. 24 (Tas.), sec. 124]. DIVISION 3. -- ACCIDENTS RELIEF FUND. Preamble. Whereas a large sum of money was raised by public subscription for the grant of certain benefits pensions and allowances to divers persons who were injured by an accident which occurred in the New Australasian. Mining Company's mine at Creswick in the month of December in the year of our Lord One thousand eight hundred and eighty-two and for the grant of pensions and other allowances to the widows and orphan children of such persons as lost their lives by the said accident, and after the satisfaction of such pensions and other allowances then for the relief of sufferers from subsequent accidents in mines in Victoria : And whereas it was deemed expedient that trustees should be appointed and provision made for enforcing the conditions on which such moneys had been allotted and also for disposing of any surplus or other moneys which might be thereafter from time to time voted by Parliament or subscribed by the public and for relieving the sufferers by any accident which had occurred or might thereafter. occur in any mine in Victoria : Be it therefore enacted as follows (that is to say) : f 387> The Ministel> of M ines the Speaker of the Legislative " The Mining Assembly the Mayor of the city of Melbourne the Mayor of the city Fund Act 1884," of Ballaarat the Mayor of the city of Sandhurst and the Mayor of the town of Ballaarat East and the Mayor of the borough of Cres- wick and the President of the Miners' Association for the time being respectively shall be and shall be deemed to have been from the THE MINES ACT 1890. 491 passing of the Act No. 826 a body corporate by the name of "The "The Mining Victorian Mining Accident Relief Trustees " (hereinafter referred *'<"* A< * 1884." to as the "trustees"), and shall by that name have and be deemed to have had from the time aforesaid perpetual succession and a common seal and shall be and shall be deemed to have been from the time aforesaid capable in law of suing and of being sued, and shall subject to the provisions of the said Act and of this Division of this Part of this Act have and be deemed to have had from the time aforesaid power to purchase take and hold lands tenements and hereditaments for the purpose of any mortgage or for the purpose of providing offices for the conduct of their business and to sell and convey any such lands tenements and hereditaments. 388. Anything by this Division of this Part of this Act JJ^JJJ 1 ^,. of authorized to be done by the trustees may be done by any three offlcers - Jb. ft. 3. of such trustees at any meeting of the trustees duly convened by the Mayor of Melbourne on the requisition of any two trustees by a notice addressed to the public office of each trustee and posted four days before such meeting. The Mayor of Melbourne shall be chairman of the trustees and shall if present preside at their meetings, and if he be not present at any such meeting then such other trustee as the trustees present at such meeting shall choose shall preside thereat. The trustee presiding at any meet- ing of the trustees shall in the event of an equal division of votes at such meeting have a second or casting vote. The trustees may from time to time appoint a secretary and such other officers and employes as they think fit and may remove any persons so ap- pointed, and they may pay such secretary officers and employes such salaries and remuneration as they think lit. 389. All moneys raised by public subscription for the relief of ^^ea^ the sufferers by the accident which occurred in the New Austral- n>- * 4 - asian mine at Creswick in the month of December in the year of our Lord One thousand eight hundred and eighty-two and form- ing the Victorian Mining Accident Relief Fund, and which at the time of the passing of the Act No. 826 remained unexpended and were under the control of " The Creswick Mining Disaster Relief Fund Executive Committee," consisting of James Dodg- shun, Robert Glover Benson, Emanuel Steinfeld, William Mount- ford Kinsey Vale, Ephraim Lamen Zox, and Edmund Gerald THE MINES ACT 1890. "TheMinin:/ FitzGibbon, are hereby declared to be and to have been from the Accident Relief Fund Act 1884." passing of the said Act vested in the trustees. Mhlin ^Accident ^90. ^ moneys vested in the trustees by the Act No. 826 or Belief Fund." bv ^ Dj v i s i orl o f t hi s Part of this Act shall form subject to the provisions herein contained a permanent and indefeasible fund under the name of "The Victorian Mining Accident Relief Fund" hereinafter referred to as the "Fund." All subscriptions donations grants and bequests to the Fund and all other moneys whatsoever heretofore or from time to time hereafter received by the trustees in virtue of their office as such trustees shall be deemed from the date of their receipt to have formed and shall form respectively part of the Fund, and all such subscriptions donations grants and bequests unless specially directed by the donors thereof to be otherwise applied shall be deemed to have formed and shall form respectively part of the capital moneys of the Fund. 391. All moneys forming part of the Fund may be invested in Victorian Government Debentures Victorian Government In- scribed Stock or Victorian Government Stock or may be placed on deposit in any bank incorporated by Act of Parliament or Royal Charter or registered as a trading company in amounts not exceeding Five thousand pounds in any one bank, or may be lent on first mortgages of freehold lands tenements and hereditaments in the city of Melbourne or its suburbs. 392. In addition to such moneys as the trustees may from time to time receive and which do not under the provisions of this Division of this Part of this Act form part of the capital moneys of the fund only the interest arising from such capital moneys of the Fund shall (subject to the provisions hereinafter contained) be appropriated in making payments for the purpose of carrying out the objects of this Division of this Part of this Act. Investment of Fund. Restriction on alienation of capital moneys of Fund. Ib. s. 7. Application of income. Ib. g. 8. 393. The income derived from the investment of the fund shall be applied first in defraying all proper and reasonable costs charges and expenses of controlling and managing the fund and carrying this Division of this Part of this Act into effect, and then in making payments to the persons named in and in accord- ance with the provisions of the Schedule of Act No. 826. Any income remaining thereafter in any year and any moneys specially THE MINES ACT 1890. 493 directed by the donors thereof to be so applied shall be used by The Mining the trustees in assisting persons who may be injured by any other jSffSSsf" mining accident in Victoria and permanently disabled from sup- porting themselves or may be applied in assisting the relations of persons who may be killed or injured by any such accident. In event of the income as aforesaid not being sufficient after paying costs charges and expenses as aforesaid for making pay- ments in accordance with the provisions of the said Schedule then (but for that purpose only) the trustees may from time to time apply such portion of the capital moneys of the fund as may appear necessary to make such payment in accordance with such provisions. If after all payments authorized by this Division of this Part of this Act and directed by the trustees have been made in any year ending the thirty-first day of December, any moneys of the fund not forming part of the capital moneys thereof remain un- expended, such moneys shall be deemed to form part of such capital moneys. 394. The accounts of the trustees for the year ending on the Audit of thirty-first day of December shall in each and every year be ^TT* audited in such manner as may from time to time be directed by the Governor in Council, and the Governor in Council may appoint any person or persons to be auditors of such accounts and may remove any such person or persons. Every such person or persons shall be paid such fees for auditing such accounts as the Governor in Council directs, and such fees shall be deemed to form a portion of the costs charges and expenses of controlling and managing the fund. 395. The trustees shall in each and every year so soon as the statement of vearly audit of their accounts is complete cause to be prepared a ^'ndlture to . . be laid before statement under their common seal or moneys receiver! ana Parliament, moneys expended by them, and shall forward the same to the Ib - * Governor in Council with a request that he will cause the same to be laid before both Houses of Parliament. 396. If any person named in the Schedule to the said Act No. persons named 826 has become or becomes whilst entitled to any payment from becoming possessed of the fund possessed of any means of support from any other source, means^of the trustees shall reduce the amount of such payments or may Ib , u . 494 THE MINES ACT 1890. "The Mining cease to make any such payments to such person ; and if such Fund, Act 1884." person be a person described in the said Schedule as a widow, then the children of such widow shall be deemed to be persons who have become possessed of such means of support. The trustees may notwithstanding that they have previously reduced the amount of or ceased to make any such payments as aforesaid to any person increase the amount of such payment to the amount which would be payable under the provisions of the said Schedule or to any smaller amount, or may where any such pay- ments have been wholly discontinued by them again make such payments as may be authorized by the provisions of the said Schedule. If any person named in the said Schedule be in the receipt of relief from or become an iiTmate of any charitable institution (except on account of temporary illness or temporary bodily infirmity), such person shall cease to be entitled to receive any payments from the fund. If any person named in the said Schedule dispose of transfer or assign his or her interest in any moneys coming to him from the fund, all payments therefrom to or on behalf of such person shall thereupon cease. Misappropria- tion of moneys Ib. a. 12. Liability of trustee or officer. Ib. s. 13. 397. Every agreement made by any trustees or officers to pay any money out of the fund except as herein provided shall be null and void, and any trustee or other officer making such agreement or paying any moneys out of the fund contrary to the provisions of this Division of this Part of this Act shall be guilty of a mis- demeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding seven years. 398. No trustee or officer shall as such be under personal liability to any creditor beyond the property (if any) of the trust in his hand. Power to make rules and regulations. Ib. . 14. 399. The trustees shall have power from time to time subject to the approval of the Governor in Council to make alter and repeal rules and regulations not inconsistent with the provisions of this Division of this Part of this Act for regulating their proceedings and the conduct of their business, for regulating the duties of their officers and employes, and for taking security for the due and faithful performance of their duty by such officers and employes, for prescribing the conditions upon which relief shall THE MINES ACT 1890. 495 be given from the fund, and for regulating generally such relief, " The Mining J Accidert Relief and generally for carrying out the provisions of this Division of this Part of this Act. All such rules and regulations and all such amendments and repeals thereof shall not be of any force or effect until the same have been notified by publication in the Government Gazette. SCHEDULES. FIRST SCHEDULE. Section 2. Date of Act, Title of Act. Extent of Repeal. 29 Viet. No. 291 " Mining Statute 1865 " So much as is not already repealed. 31 Viet. No. 316 " An Act to amend the ' Mining The whole. " ' Statute 1865'" 33 Viet. No. 354 " An Act to amend the 'Mining So much as is not " ' Companies Limited Liability " ' Act 1864 ' and for other pur- already repealed. " poses " 34 Viet. No. 372 "An Act to amend the. ' Mining So much as is not " ' Companies Limited Liability already repealed. " ' Act 1864 ' and for other pur- " poses '' 36 Viet. No. 446 "An Act to amend the 'Mining So much as is not ' Statute 1865 ' " already repealed. 41 Viet. No. 596 " Drainage of Mines Act 1877 " ... The whole. 45 Viet. No. 709 " The Reyidence Areas Act 1881 " So much as is not already repealed. 47 Viet. No. 783 " The Regulation of Mines and The whole. " Mining Machinery Act 1883 " 48 Viet. No. 796 " The Mining on Private Property So much as is not " Act 1884 " already repealed. 48 Viet. No. 801 " The Residence Areas Act 1884" The whole. 48 Viet. No. 826 " The Mining Accident Relief Fund The whole except " ActlSSi" the Schedule. 49 Viet. No. 861 " The Mining Act 1885 " So much as is not already repealed. 50 Viet. No. 883 " The Regulation of Mines and The whole. " Mining Machinery Act 1886 " 50 Viet. No. 890 " An Act to amend the Law relating The whole. " to the Qualification of Persons " entitled to Vote at Elections of " Members of Mining Boards " 50 Viet. No. 908 " The Drainage of Mines Amend- The whole. "ment Act 1886 " 51 Viet. No. 924 " The Mining Rents Act 1887 " ... The whole. 51 Viet. No. 926 " The Regulation of Mines and The whole. Mining Machinery Act 1887 " 52 Viet. No. 993 " The Residence Areas Act 1888 " The whole. 52 Viet. No. 998 " The Mining on Private Property The whole. "Amendment Act 1888" 496 THE MINES ACT 1890. Sections 4 & 14. MINSK'S RIGHT. District and Place in which issued Date Name To be in force until SECOND SCHEDULE. FIRST PART. No. VICTORIA. [Insert here sum paid for the Miner's Eicjht,] District and Place in which issued Date MINER'S RIGHT. Issued to of under the pro- visions of the Mines Act 1890 No. to be in force until 18 CONSOLIDATED MINER'S RIGHT. No. District and Place in which issued Date Name of the person to whom issued To be in force until the day of SECOND PART. VICTORIA. No. [Insert here sum paid for the Miner's Right.] District and Place in which issued Date CONSOLIDATED MINER'S RIGHT. Issued to of the manager [or trustee] of the Company under the pro- visions of the Mines Act 1890 No. to be in force until the day of 18 , and to represent Miners' Rights. Se3tionsll& 14. BUSINESS LICENCE. No. 99. District in which issued Date Name To be in force until the day of 18 . THIRD SCHEDULE. VICTORIA. No. 99. [Insert HUM paid for the Business Licence.} District and Place in which issued Date [Insert here whether for six or twelve months.] BUSINESS LICENCE. Issued to of under the pro- visions of the Mines Act 1890 to be in force until the day of 18 . FOURTH SCHEDULE. In the Court of Mines in the Mining District of Upon [the application of the Board of Land and Works or] reading the business licence [or miner's right] of A. B. I do order that the building or erection occupied by [A.B. or] him under the said licence [or right] at THE MINES ACT 1890. 497 FOURTH SCHEDULE continued. in the said district shall be valued by E.F. of &o. and two other persons to be appointed according to law and their award shall be made on or before the day of Given under my hand and the seal of the said court this day of J.H. (L.S.) FIFTH SCHEDULE. We A.B. of &c. C.D. of &c. and E.F. of &c. have valued the building or erection on land occupied by A.B. under a miner's right [or business licence] and situate at in the Mining District of at the sum of In witness whereof we have hereunto set our hands the day of A.B. C.D. E.F. SIXTH SCHEDULE. Section 92. Mining District of Division of Candidates' names. A.B. C.D. &c. &c. The voter is to strike out the name or names of the candidate or candi- dates for whom he does not intend to vote by drawing a line through the same with a pen or pencil. He must be careful not to leave uncancelled the names of more than candidates otherwise his ballot-paper will be invalid. The ballot-paper so marked by or for the voter is to be dropped by him into the ballot-box. The voter is not to be permitted to take his ballot-paper out of the polling-room. SEVENTH SCHEDULE. Section 107. At a meeting of the Mining Board of the Mining District of begun and holden at in the said district on the day of it is ordained by the said board as follows (that is to say). I. Every claim &c. II. No miner &c. EIGHTH SCHEDULE. MINING BY-LAW. Notice is hereby given that I dispute the validity [or propriety] of a by-law made by the Mining Board of the Mining District of and dated the day of and numbered My reasons for disputing the validity [or propriety] of the said by-law are as follows (that is to say) -.[Here specify the objections.] I further give notice that at the expiration of twenty-one days from this date I shall apply to the Law Officers in order that such by-law may be revoked by the Governor with the advice of the Executive Council within J 32 498 THE MINES ACT 1890. EIGHTH SCHEDULE continued. which period all persons objecting to such revocation must send their objections in writing to the Law Officers at their office in Melbourne other- wise they cannot be received. Dated the day of NINTH SCHEDULE. To be prosecuted with [or without as the case may be] written pleadings. PLAINT No. In the Court of Mines of the Mining District of On the day of 18 A.B. of [if more than one plaintiff" mention them all with their places of abode so far as known as directed by the Act but if numerous some may sue on behalf of all in the cases provided for by the Act] the plaintiff by C.D. his attorney [or in person] sues E.F. of [if more than one defendant mention them all with their places of abode so far an known as directed by the Act but if numerous some maybe sued on behalf of all in the cases provided for by the Act] and says 1. That&c. 2. That &c. [Set forth the subject-matter oj the plaintiffs case in paragraphs as directed by the Act and then conclude as follows : ] The plaintiff therefore prays [setting forth the relief sought] or such other or further relief as shall be just. NOTE. The amount sought to be recovered so far as the demand is pecuniary is pounds. TENTH SCHEDULE. PLAINT No. To [names of defendants] of You (and each of you) are hereby summoned to appear at the Court of Mines at on the * day of next at ten o'clock in the forenoon of the same day precisely to answer the within plaint of the person [or persons] named in the said plaint as plaintiff [or plaintiffs]. If you neglect to appear then upon proof of the due service upon you of a copy of this summons the suit when called for hearing will be heard and such decree made against you as may appear to be just. You may pay into court the sum of in full satisfaction of the demand of the plaintiff so far as the same is pecuniary together with the costs incurred in this matter so far as relates to that sum clear days before the time at which you are hereby required to appear and by so doing you will avoid any further expense in respect thereof. You may have a summons to compel the attendance of any witness or for the production of any books or documents on applying at my office. Bring this summons with you when you come to the court or to my office. THE MINES ACT 1890. 499 TENTH SCHEDULE continued. Given under my hand and the seal of the said court this day of 18 . (L-S.) Olerk (or Assistant Clerk) of the said court at [Insert place at which the. office from which the summons issues is situated.] The plaintiff proceeds in person [or by Mr. his " attorney"]. NOTE. The blank left in this and in the next form for the time for payment into court of the sum claimed must be filled up with reference to the time fixed for such payment by the general rules. ELEVENTH SCHEDULE. Section 143. PLAINT No. To [names of the defendant*]. You (and each of you) are hereby required within days after service hereof upon you exclusive of the day of service to deliver an answer to the within plaint of the plaintiff. You may pay into court the sum of in full satisfaction of the demand of the plaintiff so far as the same is pecuniary together with the costs incurred in this matter so far as relates to that sum clear days before the time at which you are hereby required to deliver your answer and by so doing you will avoid any further expense in respect thereof. Given under my hand and the seal of the Court of Mines of the Mining District of this day of 18 . (L.S.) A.B. Clerk (or Assistant Clerk) of the said court at [Insert place at which the office from which the summons issues is situated.] The plaintiff proceeds in person [or by C.D. his " attorney "]. TWELFTH SCHEDULE. PLAINT No. In the Court of Mines of the Mining District of [Names of plaintiff* and defendants.'} The day of 18 The objection of A.B. defendant [or one of the defendants] to the plaint of the above-named plaintiff [or plaintiffs]. This defendant objects that the plaintiff [or plaintiffs] by his [or their] own showing is [or are] not entitled to the relief sought by the said plaint. For that [set forth the ground of objection commencing if more than one every subsequent one after the first with the words " and also for that " and in a separate paragraph]. A.B. the above-named defendant in person [or C.D. attorney] for A.B. the above- named defendant. 500 THE MINES ACT 1890. Section 151. THIRTEENTH SCHEDULE. PLAINT No. In the Court of Mines of the Mining District of [Names of plaintiffs and defendants.} The day of 18 . The answer of A.B. defendant [or one of the defendants] to the plaint of the above plaintiff [or plaintiffs]. This defendant for answer saith 1. He denies &c. 2. He admits &o. A.B. the above-named defendant in person [or C.D. attorney] for A.B. the above- named defendant. FOURTEENTH SCHEDULE. No. In the Between A.B. plaintiff and C.D. defendant. Take notice that the proposes to prove the several facts and documents hereunder specified and that such documents may be in- spected by the plaintiff [or defendant] his attorney [or solicitor] or agent at on Monday next between the hours of and o'clock and that the plaintiff [or defendant] is hereby required within forty- eight hours from the last-mentioned hour to admit the said several facts and that such of the said documents as are specified to be originals were respectively written signed or executed as they purport respectively to have been that such as are specified to be copies are respectively true copies and such copies as are stated to have been served sent or delivered were so served sent or delivered respectively saving all just exceptions to the admissibility of all such facts and documents as evidence in this cause. Dated this day of 18 . G.H., Attorney or Agent for &c. To Mr. the Attorney or Agent. ORIGINALS. Description of Documents. 1. An agreement signed by the plaintiff and John Doe ... 2. A letter from the defendant to the plaintiff 1st January 1860. 1st February I860. THE MINES ACT 1890. 501 FOURTEENTH SCHEDULE continued. COPIES. Description of Documents. Date. 1st January 1860. Original or Duplicate served sent or delivered when how or by whom. 1. Letter from the plaintiff to defendant. Sent by post on the same day. FACTS. 1. That the above-named John Doe was authorized by the defendant to sign the above-mentioned agreement on his behalf. 2. That John Jones died on the 1st day of March 18 intestate. 3. That John Smith was at the commencement of this suit the heir-at-law ot the said John Jones. Section 154. FIFTEENTH SCHEDULE. I hereby admit the originals numbered 1 the copies numbered 1 and the facts numbered 2. A.B., Defendant's Agent. Sections 183, 242, and 252 SIXTEENTH SCHEDULE. FIRST PART. PLAINT No. To the Bailiff of the Court of Mines of the Mining District of These are to command you to seize and take the lands tenements and hereditaments goods chattels personal money bank notes cheques bills of exchange promissory notes bonds specialties or security for money belong- ing to O.B. (except the wearing apparel and bedding of himself or his family and the implements of his trade to the value of ten pounds which are to that extent protected from such seizure) and if within the space of twenty- four hours next after such seizure the said O.B. shall not pay to you the sum of which A.T. lately in the said Court [or if the warrant be iwued by a warden "before C.D. a warden" or "C.D. a warden and assessors "1 recovered against him and also for this warrant together with the costs and charges of the said seizure and of keeping possession you must retain the said money and bank notes for the purpose of satisfying the said several sums and the said costs and charges but if the said several sums costs and charges shall not thereby be satisfied you must forthwith sell the said goods and chattels (except as aforesaid) for the purpose of levying and raising the same together with the expenses of such sale and if the said sums costs charges and expenses shall not be thereby levied and raised you must forthwith sell the lands tenements and hereditaments of the said O.B. and if the said sum costs charges and expenses shall not be thereby levied and raised you shall hold the said cheques bills of exchange promissory notes bonds specialties and securities as a security or securities for the said sums costs charges and expenses or so much thereof as shall not have been otherwise levied or raised for the benefit of the said A.T. 502 THE MINES ACT 1890. SIXTEENTH SCHEDULE continued. Given under my hand and the seal of the said court this (L.S.) JOHN DOE, day Clerk (or Assistant Clerk) of the said Court at for if issued by a warden say] Given under my hand this day of . C.D., Warden. SECOND PART. To the Clerk of the Court of Mines at I hereby certify that A.B. of was on the 18 decreed [or ordered] by the Court of Mines at " by me "] to pay to C.D. of the sum of Given under my hand this day of [if by a warden pounds. day of E.F., Clerk of the said last-mentioned Court. Section 185. SEVENTEENTH SCHEDULE. PLAINT No. In the Court of Mines of the Mining District of To A.B. of Whereas the said court [or "C.D. a warden"] did on the day of order that you should pay to C. D. the sum of and the said sum is still wholly due and unpaid [or " part of the said sum is still unsatisfied "]. These are therefore to require you to appear personally before the said court at on the day of at o'clock in the noon to be examined by the said court touching your estate and effects and as to the property and means you have of paying the said sum [or " part of the said sum"] and as to the disposal you have made of any of your property and as to your intention to leave Victoria without paying such sum [or "part "] or to depart elsewhere within Victoria with intent to evade payment thereof and the mode in which you incurred the liability and if you disobey this summons you will be committed to prison. Given under my hand and the seal of the said court this day of (L.S.) O.P., Clerk of the said Court. Section 186. EIGHTEENTH SCHEDULE. PLAINT No. To the Bailiff of the Court of Mines of the Mining District of and to the ^ Keeper of the Gaol at Whereas the said court did on the day of order that O.B. against whom A.T. has in the said court [or by order of C.D. a warden] recovered the sum of should be committed to prison unless he did forthwith [or within days next] after the making of the said order pay into the said court the said sum together with the costs in that behalf THE MINES ACT 1890. 503 EIGHTEENTH SCHEDULE continued. amounting to And whereas the said sum and costs have not been paid into the said court according to the said order. These are therefore to command you the said bailiff to take the said O.B. and convey him to the said gaol and deliver him to the said keeper thereof and you the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep until you shall receive a certificate signed by the clerk of the said court and sealed with the seal thereof that the said O.B. has paid or satisfied the said sum and costs together with all subsequent costs or until the said O.B. shall be otherwise discharged by due course of law. Given under my hand and the seal of the said court this day (L.S.) JOHN DOE, Clerk of the said Court. NINETEENTH SCHEDULE. Sections 192 and 249. PLAINT No. In the Court of Mines of the Mining District of [The title to be omitted if the summons be issued by a warden.} To A.B. Whereas the said court [or C.D. Esquire the judge of the said court or E.F. Esquire a warden] did on the day of make a decree [or order] that [state the thing decreed or ordered to be done and in what respects the decree or order has been disobeyed] and you a person named in such decree [or order] and intended to be bound thereby have disobeyed the same and the same now remains disobeyed. These are therefore to require you to appear personally before the said court [or before the Court of Mines of the Mining District of [or before G.H. Esquire Judge of the Court of Mines of the Mining District of or before the said warden or any other warden] at on the day of at ' o'clock in the noon to show cause why you should not be committed to prison for disobedience of such decree [or order.] Given under my hand and the seal of the said court this day of (L.S.) O.P., Clerk of the said Court. [or if issued by a warden] Given under my hand this day of E.F., Warden. TWENTIETH SCHEDULE. PLAINT No. To the Bailiff of the Court of Mines of the Mining District of and to the Keeper of the Gaol at These are to command you the said bailiff to take O.B. and to convey him to the said gaol and to deliver him to the said keeper thereof and you the said keeper are hereby required to receive the said O.B. into your custody in the said gaol and him there safely to keep until the Judge of the said Court of Mines shall otherwise order or until the said O. B. shall be otherwise discharged in due course of law. 504 THE MINES ACT 1890. TWENTIETH SCHEDULE continued. Given under my hand and the seal of the said court this day of 18 (L.S.) (Signed) JOHN DOE, Clerk of the said Court. Section 204. TWENTY-FIRST SCHEDULE. In the Court of Mines of the Mining District of Upon reading the affidavit of A.B. sworn the day of and upon hearing Mr. of counsel [or attorney] for C.D. of the plaintiff [or defendant or appellant or respondent] in the suit of plaintiff and defendant [or in the appeal of appellant and respondent or upon hearing C.D. of in person and [when the parties do not appear on notice] upon reading the affidavit of service of notice of this application upon E. F. [or where both parties appear] upon hearing Mr. of counsel [or attorney] for E.F. of the above-named plaintiff or defendant appellant or respondent as the case may be] I do [state ordering part as] order that the said E. F. do abstain from &c. [or order that the said E. F. do produce and leave on or before the day of with G.H. the clerk of the court at all accounts books &c. &c.] Given under my hand and the seal of the said court this day of (L.S.) J.H., Judge of the said Court. Section 219. TWENTY-SECOND SCHEDULE. To [insert names of all the defendants] of You arc hereby summoned to appear before me or some othei warden of the goldfields at on the day of next at ten o'clock in the forenoon of the same day precisely to answer the complaint of A.B. of and C.D. of [insert names of all the complainants] by which complaint they seek [here insert nature of complaint showing whether for encroachment or forfeiture or otherwise]. If you desire the same complaint to be heard before assessors you are entitled to have it so heard. You may have a summons to compel the attendance of any witness or for the production of any books or documents on applying at my office. Bring this summons with you when you come to my office. Given under my hand this day of 18 . Section 219. TWENTY-THIRD SCHEDULE. To [insert names oj all the defendants] of You are hereby summoned to appear before me or some other warden of the goldfields at on the day of next at ten o'clock in the forenoon of the same day precisely to answer the complaint of A.B. of and C.D. of [insert names of all the complainants] by which complaint they seek to recover from you the sum of pounds in respect of a certain contract entered into on the day of [or in respect of a certain share or interest in or in respect of certain gold taken from THE MINES ACT 1890. 505 TWENTY-THIRD SCHKDULE continued. or upon a certain mining partnership account or for wages or for calls or fines or state generally nature of claim]. If you desire to have the said complaint heard before assessors you are entitled to have it so heard. You may have a summons to compel the attendance of any witness or for the production of any books or documents on applying at my office. Bring this summons with you when you come to my office. Given under my hand this day of 18 Warden. TWENTY-FOURTH SCHEDULE. & J:-" II 1 ' I <3 > f ID s ? zi o a 1 No. of Complaint. Date of Complaint. Complainant. Defendant. Nature of Relief sought Amount of Demand pec u| .5 | co_w II il Date when the Name of to whom Certificate of D given. Date of Injunction or o order not in a Suit. Memorandum. Date of Notice of Appeal received by Warden. (iener.il Remarks and O tions by Wiirden. i Jz; Address. g fe I TWENTY-FIFTH SCHEDULE. I A B do swear well and truly to try and determine the matters which shall be brought before me and a true judgment to give according to the evidence without fear or favour. So help me God. TWENTY-SIXTH SCHEDULE. action 232. I A.B. do solemnly sincerely and truly affirm and declare that the taking of an oath is according to my religious belief unlawfu land .1 do also solemnly sincerely and truly affirm and declare that I will well and truly try &c. 506 THE MINES ACT 1890. Sections 235 and 243. TWENTY-SEVENTH SCHEDULE. A.B. and C.D. Complainants, E.F. and G.H. Defendants. I find [if upon the verdict of assessors insert " upon the verdict of assessors "] that [set forth the decision] and I order [state the ivarden's order in full as for instance "that possession of the land [describing it or] ' described in the schedule to this order'] be delivered to A.B. and C.D." and that the said E.F. and G.H. do pay to the said A.B. and C.D. the sum of pounds for damages and pounds for costs. I also order that certain auriferous earth in the possession of the said A.B. and which has been valued by me [or by the said assessors] at shall be delivered to the said A.B. and C.D. in satisfaction [or in part satisfaction] of such damages and costs. Dated this day of (Signed) J.K., Warden. NOTE. The statements in- this form are by ivay of example only. The form must be fitted up according to the nature of the case. TWENTY-EIGHTH SCHEDULE. Upon reading the affidavit of A.B. sworn the day of 18 [recite any other affidavits used on the application and if evidence viva voce shall be given either with or without affidavits add or say ' ' upon hearing the evidence of C.D. &c. "] and upon hearing E.F. of in person [or Mr. of counsel (or attorney) for E.F. of ] [and if the application be on notice and the other party appear then add " and upon hearing G.H. (the other party) of in person "] [or Mr. of counsel (or attorney) for the said G.H. or if the other party do not appear say " and upon service of notice of this application upon G.H. being proved to my satisfaction "] I one of Her Majesty's Wardens of the Gold-fields in and for Victoria, do hereby order that [state the matter in the words of the Act as near as may be], Given under my hand this day of One thousand eight hundred and ninety. Warden. TWENTY-NINTH SCHEDULE. To the Bailiff of the Court of Mines of the Mining District of and the Keeper of the Gaol at These are to command you the said bailiff to take and to convey him to the said gaol and to deliver him to the said keeper thereof, and you the said keeper are hereby required to receive the said into your custody in the said gaol and him there safely to keep until I the undersigned warden or a judge of a Court of Mines shall otherwise order, or until the said Given under my hand this ill be otherwise discharged in due course. day of 18 . Warden. THIRTIETH SCHEDULE. I certify that on the day of A.D. 18 a sum of pounds was ordered by me to be paid to by by way of debt [or damages or damages and costs or costs as the case may be]. Dated this day of A.D. Warden. THE MIXES ACT 1890. THIRTY-FIRST SCHEDULE. Section 254. In the Court of Mines for the District of To [here insert the names of the several persons in whose favour the decision of the Warden or assessors may have been given]. Take notice that we the undersigned being desirous of appealing from the decision of Mr. Warden [or of the assessors] made in a proceeding before him [or before Mr. Warden and the said assessors] on the day of at and in which you were complainants [or defendants as the case may be] and we the undersigned were defendants [or complainants as the case may be] and which decision was to the following effect [here insert minute of decision appealed against], intend to appeal to the Court of Mines to be holclen * . . , on the day of next against such decision and that the grounds of appeal against the said decision are as follows : [Here state the grounds of appeal, each ground to be the subject of a separate paragraph, and no general word such as "and other grounds " shall be inserted], You are therefore called upon to show cause why the said decision shall not be [here state whether total reversal sought or whether an alteration only, and if an alteration only then state exact nature of relief sought], (j'j)' j- Names of parties appealing. THIRTY-SECOND SCHEDULE. To the Bailiff of the Court of Mines of the Mining District of and to the Keeper of the Gaol at These are to command you the said bailiff to apprehend O.B. and to convey him to the said gaol and deliver him to the said keeper thereof, and you and the said keeper are hereby required to receive him into your custody in the said gaol and him there safely to keep for the term of [unless the sum of shall be sooner paid]. I the undersigned judge of the said court [or warden] having now here adjudged the said O.B. [to pay a fine of and in default of immediate payment thereof] to be imprisoned for the said term for that he the said O.B. [Here state the case as follows:] has now during my sitting in my office as such judge [or warden] wilfully insulted me the said judge [or warden] [or an assessor bailiff &c. as the case may be lawfully in attendance during my sitting or interrupted the pro- ceedings of the said court (or before me)" or having been summoned as a witness in a suit (or appeal or complaint] before me between &c. &c. refused to be sworn or being sworn as a witness before me refused to answer a certain lawful question that is to say " Whether &c." or being guilty in the opinion of me the said judge (or warden) of prevarication as such witness (or misbehaved himself towards the said court or during my sitting in my office as warden)]. Given under my hand this day of A.B., Judge of the said Court [or Warden]. 507 THIRTY-THIRD SCHEDULE. [Repealed by No. 1514]. 508 THE MINES ACT 1890. THIRTY-FOURTH SCHEDULE. [Repealed by No. 1514]. THIRTY-FIFTH SCHEDULE. [Repealed by No. 1514]. THIRTY-SIXTH SCHEDULE. In the Mining District of In the matter of Division two of Part III. of the Mines Act 1890. Owner of Machinery, and Owner of Mine at [here insert place of mine]. I [A.B.], a Warden of the Gold-fields, having proceeded under the pro- visions of the Division two of Part III. of the Mines Act 1890 to ascertain and determine what would be the fair share to be borne by the said [here name of owner of mine] of the total expense of draining or drawing the water from the mines drained by the machinery of the said [the name of owner of machinery], do hereby assess the same at [here state amount and whether in one. sum or in various sums at various periods, such periods to be stated] : And I do order the said [name of owner of mine] to pay the same moneys to the said [name of owner of machinery] in respect of the land or ground occupied or used by the said [name of owner of 'mine] at [place of mine] and known as [describe mine]. And I order that the said money be paid as follows [here state time or times of payment, and if considered desirable by warden, place of payment, as a bank or otherwise] : And I impose the following terms upon the said [name of owner of machinery] [here state the terms imposed] : And I order compliance with this order by the several parties herein named and all those claiming or deriving title through them. Dated this day of A.B., Warden. THIRTY-SEVENTH SCHEDULE. In the Mining District of To the Clerk of the Court of Mines at In the matter of the Division two of Part III. of the Mines Act 1890. I [A.B.], Warden, certify that I did on the day of A. D. 18 make an order in the following terms [here set out copy of warden's order]. Dated this day of A.D. A.B., Warden. 509 APPENDIX (B). THE MINES ACT 1897 (61 Vic. No. 1514). ANALYSIS OF CONTENTS. Short title and citation Repeal Savings ... Division of Act SEC. 1 2 2 3 PART I. MINING ON CROWN LANDS. Construction of Part . . 4 Interpretation ,. 5 Subdivision 1. Miner's Right. Miners' rights extended to all miner- als 6 I Miners' rights may operate from a future day 7 j Fee for miner's right reduced ... 8 I Power for holder of miner's right to cut and remove timber from cer- tain reserves 9 In what reserves power to be exer- cised ... 9 Amendment of Section 8 of No. 1120 10 Amalgamation of claims 10 i Amendment of Section 17 of No. 1 120 1 1 j Crown lands may be excepted ... 11: Amendment of Section 26 of No. 1 120 12 ' Duplicate of miner's right or business licence 13 Subdivision 2. Residence Areas. Index to register of residence areas 14 Where registration cancelled warden may direct applicant to be register- ed as holder... 15 j Removal of plant from cancelled residence area 16; Protection of certain residence areas 17 ! Amendment of Section 44 of No. 1 120 18 j Amendment of Section 48 of No. 1120 18 When residence area situated on surface of land comprised in gold mining or mineral lease and such surface not required for mining or public purposes holder may pur- chase 19 Objection to sale by grantee or occu- , P ier 20 YV arden to enquire into grounds of objection 21 If objection upheld reasons for same to be published in Gazette 21 Power to fix depth of residence areas sold under this Act and to excise same from lease 22 Declaration by appraiser _. ... 23 Governor in Council not to except residence areas from occupation &c. until payment of compensation ... 24 Non-registration not to prevent ap- plication of section 24 Regulations ... 24 Subdivision 3. Mining Leases. Effect of miners' rights issued since 29th December 1884 25 Power of Governor as to granting leases over pastoral allotments or grazing areas ... .. ... 2.5 Power to grant mineral leases on pastoral allotments or grazing areas 26 Amendment of Section 53 of No. 1 1 20 27 Leases of mines under lands granted or reserved for public purposes may in certain cases be made 27 Amendment of Section 54 of No. 1120 28 Term and rent of gold mining leases 28 Area and term of mineral lease ... 28 Surrender of leases and issue of con- solidated lease 29 Labour covenant . 30 510 THE MINES ACT 1897. Subdivision 4. Breach of Labour Covenants. Where breach of labour covenant of lease holder of miner's right may apply for enquiry 31 Warden to hold enquiry and report to Minister 32 Appeal from Warden to Minister ... 33 Governor in Council to determine breach of labour covenant 34 Minister may recommend lease to be void 35 New lease may be granted where lease made void ... ... ... 36 Right of new lessee after a certain time to purchase plant &c. of void lease 37 Removal of plant 38 Inquiry as to value of work done ... 39 No allowance for certain cases ... 40 Deposit before new lease issued ... 41 Notice in case of suspension of labour covenants . 42 Subdivision 5. Licence to search or cut Races. Licences to search for metals and minerals other than gold may be granted ... 43 Extension of Section 64 of the Mines Act 1890 relating to licences to con- struct water races &c. . . ... 44 Licences to cut and construct races, dams &c. may be surrendered ... 45 Subdivision 6. Miscellaneous Pro- visions relating to Leases or Licences. Section 68 of Principal Act incor- porated 46 Amendment of Section 69 of the Mine* Act 1890 47 Power of applicant for leave to trans- fer his interest subject to regula- tions 48 Not lawful for holder of a miner's right to mark out land for which renewal of lease applied for ... 49 Amendment of Section 71 Mines Act 1890 50 Pendency of application for lease denned 50 Existing tribute agreements ... 51 Future tribute agreements 51 On forfeiture of mining lease of Crown land for breach of covenants tributer or sub-tributer entitled to a lease of forfeited land 52 Ownership of tailings after lease declared void 53 Lease to be security for money ad- vanced out of consolidated revenue 54 Instruments Act 1S90 not to apply to security for money advanced out of consolidated revenue 55 Penalty for unlawfully removing or displacing posts marking mining lease 56 Conditional licence under Section 42 of Land Act 1890 57 Certificate of intention to issue mining lease or licence 58 Subdivision 7. Mining Boards. Powers and duties of mining board 59 Qualification at mining board elec- tions in respect of business licences 60 Additional provisions re nomination of candidates for mining board ... 61 Uncertificated insolvent not to be elected on mining board ... ... 62 Land Boards to include a member of mining board ... ... ... 63 Subdivision -Miscellaneous. Regulations ... ... ... ... 64 Claims and leases may include several classes of land 65 Amendment of Section 226 of No. 1120 . 66 Regulation of fees for proceedings before wardens ... 66 PART II. MINING ON PRIVATE PROPERTY. Subdivision 1. Preliminary. Interpretation 67 All gold and silver whatever and all minerals on lands not yet alienated to be and remain property of Crown 68 Subdivision 2. Grant of Leases of Private Land. Gold mining leases on private land 69 Land alienated before 29th Decem- ber, 1884 69 Land alienated licensed or leased on or after 29th December, 1884 ... 69 Mallee, Wattles, or Agricultural Col- leges land ... ... ... ... 69 Mineral leases on private lands Land alienated after 1st March, 1892 Mallee, Wattles, or Agricultural Col- leges land ... Gardens orchards or vineyards Limit of gardens, &c. , exemption . . . Half-acre city town or borough allotments . . As to leases under hospitals, churches, public buildings, ceme- teries, &c. ANALYSIS OF CONTENTS. 511 7-2 As to mining under churches Limitation on the leasing of springs, reservoirs, woolsheds, dwelling houses. &c. ... Compensation Conditions on which such leases may be granted Owners of land may inspect under- ground workings of mine there- under Certain contracts not affected Subdivision 3. Entry upon and Marking Out Private Land. Mode of obtaining possession or lease of certain land 73 Certain land not to be entered &c. without consent of owner ... 73 Compensation to be paid or agreed upon before mining 74 Subdivision 4. Purchase Money or Compensation, payable to Owner or Occupier of Private Land. Power to agree to amount of pur- chase money or compensation Measure of compensation by appli- cant for gold mining lease ... 76 Land alienated before 29th Decem- ber, 1884 76 Land alienated on or after 29th December, 1884 76 Mallee lands and Wattle lands ... 76 Agricultural College lands ... ... 7f Measure of compensation by appli- cant for a mineral lease 76 Land alienated after 1st March, 1892 .. ... 71 Compensation to be paid ... ... 7< Where no agreement warden to de- termine compensation ... ... 7 Before lease issued purchase money or compensation to be paid or owner to consent ... . ... 7 Lessee may obtain more surface area 7 Effect on covenants of determination of compensation by warden .. 8 Application for lease to be pursuant to regulations 8 Not obligatory to grant lease ... 8 Notice of intention to grant mining lease to be published in Government Gazette Leases to contain conditions re non- fulfilment of covenants ... ... 83 Term and rent of lease ... .. 84 Rent reserved in existing leases under Act No. 796 reduced ... 85 Minimum rents to be ten shillings per annum ... ... ... ... 86 revision where rents have been fixed in leases issued before passing of The Mining Rtnta Act 1887 under provisions as to minimum in Act No. 861 87 lining lease may be surrendered ... 88 Yivate land occupied as a claim subject to Act and by-laws ... 89 !opy of agreement as to purchase money or compensation to be filed with mining registrar otherwise void ... ... 90 )wner of mine entitled to purchase freehold 91 low purchase money to be paid ... 91 'ersons under disability or having limited interest enabled to sell or convey and exercise other powers 92 )wner may apply for lease 93 le-entry by owner 94 Subdivision 5. Prospecting Area on Private Land. Lease of prospecting area and re- srved area of private land ... 95 Subdivision 6. Jurisdiction. Jurisdiction ... ... ... ... 96 Subdivision ",. Reneioal of Lease and Pendency of Application. Renewal of lease . . 97 Right to renewal of transf error and transferee of portion of a mining lease .... 97 Ground applied for under gold min- ing lease protected pending applica- tion 98 Pendency of application defined ... 99 Lease to continue in operation dur- ing pendency of application for renewal 100 Subdivision 8. Breach of Labour Covenant. When breach of labour covenant of lease, holder of miner's right may apply for enquiry 101 Subdivision 9. Encroachment. Injunction may be granted to restrain encroachment without proof of special damage 102 Encroaching on highways streets &c. 103 512 THE MINES ACT 1897. SKC. Encroaching on private lands .. 104 Powers of persons authorized to enter and inspect 105 Owner occupier agent mining sur- veyor and miner to make a declara- tion 106 Warden may enjoin persons to desist from trespassing 107 Order of warden ... 108 Disobeying order 109 Penalty 110 Subdivision 10. Power of Survey. Survey officers may enter upon any private lands . . ... ...Ill Siibdivision 1 1 . Miscellaneous. Power of applicant to transfer interest 112 Private lands may be excepted from mining ... ... ... ... 113 Conditions in future leases by trus- tees 114 Easements over private land ... 115 Compensation; form &c. of lease .. 116 Power for the Governor in Council to grant licences to construct drives through land occupied for mining purposes 117 Term and form of licence 118 Not to be effectual within 400 feet of surface 119 Tributer entitled to lease 120 Future tribute agreements ,. ... 121 Owner of land or buildings in vicinity of leased land entitled to compensa- tion for loss and damage caused by mining 122 Validation of certain mineral leases 123 Penalty for removing gold and miner- als 124 Ejectment may be brought in the Court of Mines 125 Regulations 126 To be laid before Parliament &c. ... 126 PART III. GENERAL PROVISIONS. Construction of Part III 127 DIVISION 1. REGULATION AND INSPECTION OF MINES AND MINING MACHINERY. Interpretation of terms 128 In case of accident presumption against mine owner 129 Subdivision 1. Regulation of Em- Who shall not be employed in mines 130 Special circumstances 131 Persons not to be employed below ground more than eight hours in any day 132 Regulation of employment of persons in charge of machinery ... ... 133 Penalty 134 Subdivision 2. General Rules. General rules 135 Non-compliance with rules 136 Posting up general rules 137 Subdivision 3. Board of Examiners for Engine-drivers. Board of examiners for engine- drivers ... ... ... .. 138 Certificates of competency for engine- drivers 138 Subdivision 4. Mining Managers. Every company to have a registered manager 139 Appointment of manager of mine ... 139 Conditions under which proceedings may be taken 140 Subdivision 5. Engine-drivers. Battery engine drivers 141 Board of examiners for engine- drivers 142 Certificates of competency for engine- drivers ... ... 142 Penalty on unqualified person taking charge of machinery 143 Disqualification of holder of certifi- cate .. 144 Subdivision 6. Boilers. Board of examiners may grant licen- ces to engineers to inspect boilers and give certificates 145 Meaning of term " boiler " 145 Certificate of engineer may be in lieu of certificate of inspection .. 145 Licence to inspect boilers may be cancelled 145 ANALYSIS OF CONTENTS. 513 Subdivison 1. Plans of Mines. Plans to be furnished 146 Plans to be drawn to scale and to be open for inspection .. ... 147 Subdivision 8. Compensation to Employ 6* for Injury. Employer to compensate employe injured through non-observance "of this Act 148 Subdivision 9. Inspection. Inspection of mine and machinery ... 149 Subdivision 10. Inquest*. Coroner's inquests on deaths from accidents in mines ... ... 150 Subdivision 1 1 . Miscellaneous. What is an offence against this Act 151 Employes to inform employers of breaches of Act 152 Notice of accident to be given to local inspector 153 Burden of proof to lie on defendant 154 Penalty ..155 Subdivision 12. Regulations. Regulations 156 DIVISION 2. DRAINAGE OF MINES. Owners of pumping machinery may require contribution from owners of claims for the drainage thereof 157 DIVISION 3. Subdivision I. Tribute Agreements. Form of tribute agreements Requisites of tribute agreements Penalty Disputes as to title Disputes as to manner of working ... Sustenance money Per centage to be upon net value of gold &c. obtained Grantor's proportion to include gold obtained by amalgamation &e. ... Work to be continuous Exception Subdivision 2. Court of Mines in Melbourne. Law Courts Melbourne to be part of Castlemaine Mining District for certain purposes . . Melbourne part of Castlemaine Min- ing District for purpose of winding up companies Subdivision 3. Priority of Wages. Part V of No. 1074 not to apply to mining companies " ... Miners' wages and salaries to have priority of other debts Debts to*be discharged forthwith ... To be a first charge on the property of the company 15S 159 159 160 161 163 1(14 LOfi me, Ills ids An Act to amend the Law relating to Mining. [27th September, 1897.] BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say) : 1. (1) This Act may be cited as the Mines Act 1897, and shall Short title, come into operation on the first, day of November One thousand eight hundred and ninety-seven. 514 THE MINES ACT 1897. Citation. No. 1120. Repeal. First Schedule. Savings. (2) This Act and the Mines Act 1890 (hereinafter called the Principal Act) and any Act amending such Acts may be cited together as the Mines Acts. 2. The Acts mentioned in the First Schedule to this Act to the extent to which the same are thereby expressed to be repealed are hereby repealed. Provided that save and except where by this Act it is otherwise expressly provided such repeal shall not affect any Board elected or any district erected or any proclamation appointment election rule regulation by-law order registration valuation nomination complaint application declaration affidavit assignment award grant or decree made or any miner's right consolidated miner's right licence debenture precept writ plaint plaint summons or summons issued or any warrant or injunction granted or any notice notification certificate or security given or any service effected or any agreement lease contract mortgage bond recognisance conveyance transfer or deed existing in force effected entered into executed or any com- pensation due or payable under the said repealed enactments or any of them before the commencement of this Act. Division of Act. 3. This Act is divided into Parts, Divisions, and Subdivisions, as follows, namely : i 1 ; (2) PART I. Mining on Crown Lands. (3) (4) (5) (6) (7) , (8) (1) (2) (3) PART II. (4) Mining (5) on (6) Private ( 7 ) Property. (8) (9) (10) (11) Miner's Right. Residence Areas. Mining Leases. Breach of Labour Covenants. Licence to search or cut Races. ' Miscellaneous Provisions relating to Leases or Licences. Mining Boards. Miscellaneous. Preliminary. Grant of Leases of Private Land. Entry upon and marking out Private Land. Purchase Money or Compensation payable to Owner or Occupier of Private Land. Prospecting Area on Private Land. Jurisdiction. Renewal of Lease and Pendency of Appli- cation. Breach of Labour Covenant. Encroachment. Power of Survey. Miscellaneous. THE MINES ACT 1897. 515 (1) Regulation of Em- ployes. (2) General Rules. (3) Boards of Examiners for Engine-drivers. (4) Mining Managers. (5) Engine-drivers. (6^ Boilers. (7) Plans of Mines. (8) Compensation to Em- ployes for Injury. (9) Inspection. (10) Inquests. (11) Miscellaneous. (12) Regulations. Division 2. Drainage of Mines. ( (1) Tribute Agreements. _) (2) Court of Mines in Mel- bourne. (3) Priority of Wages. 1 I Division 1. Regulation and inspec- tion of PART ILL General Provisions. Mines and Mining Machinery. Division 3.- In this Act unless inconsistent with the context " Part " means Part of this Act, " Division " means Division of Part, "Sub- division" means Subdivision of Division or Part, and "section" means section of this Act. Compare No. 1120, s. 377. PART I. MIXING ON CROWN LANDS. 5. This Part shall be read and construed as one with Part I Construction of Part. of the Principal Act. 5. In this Part if not inconsistent with the context or interpretation, subj ec t-matter " Applicant " includes any person to whom an interest in any application for a mining lease has been transferred pursuant to this Act ; " Lessee " includes executor or administrator of a lessee or the transferee of a lessee with the consent of the Governor in Council and includes any person to whom the interest of a lessee comes by operation of law : "Mineral" or " Minerals " means all minerals mineral ores and metals other than gold ; " Regulations " means regulations made pursuant to Part I of the Principal Act and this Part ; 516 THE MINES ACT 1897. " Sub-tributer " means any person who has with the consent of the lessee or owner of the mine made an agreement with the tributer of a mine or claim or portion of a mine or claim upon the terms of paying a portion or percentage of the gold or minerals or of the value of the gold or minerals taken from such mine or claim to such tributer for the right to mine therein or thereon and shall also mean any person who has made such an agreement with another sub-tributer ; and " Tributer " means a person who works a mine or portion of a mine under an. agreement with the lessee or owner of the mine or claim to pay such lessee or owner a portion or percentage of the gold or minerals or of the value of the gold or minerals taken from such mine or claim. Subdivision 1. Miner's Right. extended^o'aii ' Notwithstanding anything contained in the Mines Acts it is minerals. hereby declared that the rights and privileges conferred on any ' holder of a miner's right with regard to gold are hereby also conferred on such holder with regard to all minerals, and the Mines Acts shall be read and construed accordingly, and any reference in the said Acts enabling the holder of a miner's right or the holders of a consolidated miner's right to mine for gold shall subject to the by-laws be deemed to authorize such holder or holders also to mine for any mineral. Miners' rights 7. (1) Notwithstanding anything contained in the Mines Acts from a future miners' rights or business licences may be issued expressed to be See NO. 1120, s. 5. in force from a future day named therein. (2) Every miner's right or business licence shall continue in force notwithstanding the death of any person named therein. d' 8 ' -^^withstanding anything contained in section four of the Principal Act the sum payable for any miner's right issued after the commencement of this Act shall be reduced to the rate of Two shillings and sixpence for every year for which the right is to be in force. The sum charged for a " consolidated miner's right " shall be reduced at a proportionate rate. THE MINES ACT 1897. 517 9. (1) Notwithstanding anything contained in section five of Power for holder the Principal Act every holder of a miner's right and every ?o!"u and ^ person on whose behalf any consolidated miner's right is held shall Scta" for the purposes of exercising the privileges granted to them sTJTiuo, . respectively by the said section be entitled to cut any live or dead 5 ' timber, except blackwood, and to remove the same from any portion of Crown land being or included in any land proclaimed as a reserve for the preservation and growth of timber. (2) The privilege conferred by this section shall not be exercis- in what able except in such Crown land reserves as the Governor in tTbTeffiS. Council by notice published in the Government Gazette may specially proclaim for the purpose, nor shall such privilege be exercisable except in such manner and at such times as may be directed by regulations made for the purpose under the provisions of the Land Acts. 10. For the last proviso to section eight of the Principal Act Amendment of there shall be substituted the following proviso, namely : 112l) - Provided also that notwithstanding anything herein, contained Amalgamation it shall be lawful for the owners of any two or more adjoining claims to amalgamate the same in such number in such manner and under such conditions as shall be permitted by the by-laws of the mining district in which such claims are situated, [cf. 56 & 57 Vic. No. 587 (S.A.), sec. 46 ; 62 Vic. No. 38 (N.Z.), sec. 129]. 11. For section seventeen of the Principal Act there shall be ^^"""^0 substituted the following section, namely : 17. The Governor in Council may at any time either bv a Crown lands may be general or particular description except from occupation for mining i-x^pted. purposes or for residence or business under any miner's right or . u. * business licence or from being leased under a mining lease any No specific portion of Crown lands or any class of Crown lands ; and no land so excepted or included in any class so excepted shall be occupied under any miner's right or business licence until such exception be revoked nor until revoked shall it be lawful for any person to mark out or apply for a mining lease of such land or any part thereof, and any such marking out or application shall be null and void. [cf. 37 Vic. No. 13 (N.S.W.), sec. 26 ; 62 Vic. 518 THE MINES ACT 1897. No. 24 (Q.), sec. 47 ; 57 Vic. No. 24 (Tas.), sec. 191 ; 59 Vic. No. 40 (W.A.), sec. 22 ; 62 Vic. No. 38 (N.Z.), Part III]. Amendment of 12. In section twenty-six of the Principal Act after the words NO. 1120. such race " wherever occurring there shall be inserted the word " drain." Duplicate of 13. Where the holder of a miner's right or business licence has or business accidentally lost or destroyed the same before the expiry of the time for which it was issued a duplicate thereof may be issued to him for the balance of such term, at a fee of One shilling. Subdivision 2.- Residence Area (a). index to register 1$. Every book in which residence areas are registered by the of residence * areas. mining registrar or other proper officer shall be by such registrar s . as. or officer indexed alphabetically and separately with reference to the situation of the area and the name of each holder in the said book. where registration ss. 32, 33. R itmtfrom f residence area 15. Where the warden makes an order that the registration of any residence area be cancelled he may by the same or a sub- sequent order direct that the holder of a miner's right on whose application such registration has been cancelled be registered as the holder of such area by the mining registrar or other proper officer provided that no such order for registration shall be made unless the nature of the order required be described in the sum- mons issued upon the complaint of the applicant. 16. (1) In the event of the registration of a residence area being cancelled by order of a warden, the person who was regis- tered as the holder thereof may within such time after the making of the order for such cancellation as may be fixed by the warden in such order remove any buildings plant machinery engines or tools on or within the land comprised in such residence area. (2) If the said person does not remove such buildings plant machinery engines or tools within the time so fixed, the warden may upon the complaint of the person upon whose application such registration was cancelled or who is otherwise entitled to occupy such residence area call upon the said person to show (a) See No. 1120, Part I, Div. 1 (4). THE MINES ACT 1897. 519 cause within such time as the warden may allow why such build- ings plant machinery engines or tools should not be sold by auction and removed. (3) If the said person does not within such time remove such buildings plant machinery engines or tools or show sufficient cause, of which the warden shall be the sole judge, the warden may direct that such buildings plant machinery engines or tools be sold by public auction and be removed. The proceeds of the sale of such buildings plant machinery engines or tools after deducting the cost of selling or selling and removing the same shall be paid to such person or any person entitled to such build- ings plant machinery engines or tools of whose claim the warden shall prior to such sale have received notice in writing. 17. No registration of a residence area made before the com- Protection of mencement of this Act shall be deemed to be invalid or insufficient areai - by reason only (a) That a previous registration thereof had not been can- f'y ^'if"' celled provided it be proved either that the last registered see NO. 1120, miner's right or business licence as the case may be held by the person who effected such previous registration had expired or that such person had abandoned the residence area, or (b) that the number of the holder's miner's right has been insufficiently or incorrectly registered. 18. (1) In section forty-four of the Principal Act for the word Amendment of section 44 of " fifty " there shall be substituted the words " one hundred." No. 1120. See No. 1215, (2) In section forty-eight of the Principal Act after the s 7 - J Amendment of words " Crown grantee of the same " there shall be inserted the section 48 of rtO. 1120. words " when sold limited in depth." Seib. a. 8. 19. If it be proved to the satisfaction of the Minister surface of land () that buildings or other improvements have been erected comprised in or made on any land being a residence area and com- prised in any gold mining lease or mineral lease issued not required for under the provisions of the Principal Act or any enact- 1 J!*^ C h2J? r ment thereby repealed either before or after the coming See ib. s. 2. into operation of this Part, and 520 THE MINES ACT 1897. (6) that the holder of such land as a residence area has been in possession thereof for a period of at least two years and a half and that he has complied with the provisions of Subdivision (4) of Division 1 of Part I of the Principal Act, and has not signed any agreement to remove when called on by the grantee to do so, and (c) that three months' notice in writing of the intention to purchase has been given by such holder to the grantee of such gold mining or mineral lease or other the person in lawful occupation of the land leased and claiming through such grantee, and (r/) that no objection to such intended purchase has been made by the grantee or other person or if made has been made on insufficient grounds, and that the residence area or so much thereof as is included in any such gold mining lease is not auriferous or so much thereof as is included in any such mineral lease does not contain minerals in such quantity or proportion as to be of economic value or that such residence area is not required for a site for machinery or for the storage of sludge or for carrying on of any other mining operations, and that there is no other reason of a public nature why such residence area should not be sold then the holder of such land shall have the exclusive right of purchasing the surface of such land on which such buildings are or other improvements have been erected or made at a price to be determined by an appraiser appointed by the Board of Land and Works, and the same may be sold accordingly. Objection to 20. (1) Any such grantee or other person as aforesaid may or occupier. within twenty-one days after the receipt by him of the notice of NO. 1215,8. 3. intention to purchase by writing addressed to the Minister, object to such purchase, and in such writing shall state the grounds of his objection, and no objection shall be heard or entertained as hereinafter mentioned unless the grounds are stated therein un- less by permission in writing of the Minister. (2) Such grantee or other person shall at the time of forward- ing such objection to the Minister forward to the residence area holder a copy of his objection as addressed to the Minister. THE MINES ACT 1897. 521 21. (1) The Minister shall on receipt of such objection instruct > v "^en the warden of the district to hold an inquiry as to the sufficiency or otherwise of the objection. x . 1215, 8 . 4. (2) Such inquiry shall be held so far as is reasonably practicable in accordance with the regulations for the time being in force relating to mining leases and objections thereto, which shall mutatis mutandis be applicable to all inquiries under this Part, but no money shall be required to be deposited by any objector under this Part. All evidence taken before the warden on any such inquiry shall be upon oath, which such warden is hereby authorized to administer. (3) At the conclusion of the inquiry the warden shall transmit to the said Minister for his consideration all the evidence taken by him whether oral or documentary together with his opinion on the sufficiency or otherwise of the objection, and the said Minister shall decide upon the sufficiency or otherwise of the objection, and his decision shall be final. (4) If the Minister by his decision refuses to permit such land If objection v ' upheld reasons to be purchased on the ground that the same is auriferous or f j >r b ^ l uf d t ? *** that the same contains minerals in such quantity or proportion as Gazette - to be of economic value or that the same is or is likely to be No- 1281i & 2 . required as a site for machinery or for the storage of sludge or for carrying on any other mining operations or on any other ground of a public nature, such grounds shall be stated and published in the Government Gazette so soon after such refusal as is practicable. 22. When the surface of any land is sold under the provisions Power to fix J depth of of this Part the same shall be sold in fee simple together with the ^Jj^j^g earth below the same down to such depth not exceeding one ^* l ^ e ,^J hundred feet as the Governor in Council shall previously deter- NO. 1215, s. 6. mine and subject to such covenants conditions exceptions and reservations as the Governor in Council may direct ; and such land shall before being so sold be excised to such depth as afore- said from such gold mining or mineral lease by an Order in Council, which when published in the Government Gazette shall have full force and effect, and the lessee mentioned in such lease his executors administrators or transferees shall not be entitled to any abatement of rent or be relieved from the due fulfilment of any covenants of such lease. 522 THE MINES ACT 1897. Declaration by 23. Any appraiser to be appointed under this Part shall before NoTniTs 9 entering into the consideration of any matters referred to him See NO. ii9.o, ss. ma ke a declaration in the form prescribed by section thirty-seven of the Principal Act substituting for the title of the said Act therein a reference to the Mines Acts. Governor m^ 24. (1) Notwithstanding anything contained in the Land Acts except residence or fa e Mines Acts it shall not be lawful for the Governor in areas from occupation &c. ; Q ounc j[} to except from occupation for residence or business under No. 1263, s. 2. any miner s right or business licence any Crown land which on the third day of October One thousand eight hundred and ninety- two was in fact occupied as a residence area by the holder of a miner's right or business licence. until payment (2) Sub-section (1) of this section shall not apply to any land Seeyo ir>o 10 "' so ne ^ as a residence area after the holder thereof shall receive compensation for the value of his interest in such area together with the value of any buildings or other improvements erected or made thereon. Such value shall be ascertained and deter- mined in the manner provided in sections thirty-six and thirty- seven of the Principal Act with regard to ascertaining the com- pensation payable for land of which the Crown requires to resume possession for public or other purposes. Non-registration (3) Sub-section (1) of this section shall extend to any Crown not to prevent application of land purporting to be occupied as a residence area at such date if at any previous time such land has been duly registered as a residence area and the person occupying the same at such date has been registered as the holder thereof. Regulations. (4) The Governor in Council may make regulations generally No. 1263, s. s. Qr carr yi n g ou t the provisions of this section. Subdivision 3. Mining Leases. Effect of miners' 25. Subject to the provisions of this Part and to the by-laws rights issued J since 29th made as in the Mines Act provided December 1884. , ( a ) the holder o a miner's right shall by Division II (Mis- cellaneous) of Part I of the Land Act 1890 be deemed to have, and the holder of any miner's right issued since the twenty-ninth day of December One thousand THE MINES ACT 1897- 523 eight hundred and eighty-four shall be deemed to have had, the right to enter upon any land being a pastoral allotment or grazing area (as the case may be) and to search for gold and to mine thereon and to erect and occupy mining plant or machinery without making compensation to the lessee thereof for surface or other damage, and (b) the Governor in the name and on behalf of Her Majesty Powerof * Governor as to may grant, and by virtue of and pursuant to section smiting !* over pastoral forty-nine of the Principal Act shall be deemed to have power to grant, and by virtue of and pursuant to section See NO. noe, twenty-four of the Principal Act (a) shall be deemed to No . 1202, s. 2 have had from the twenty-ninth day of December One (6) thousand eight hundred and eighty-four power to grant, leases giving the holder thereof the right to enter upon any land being a pastoral allotment or grazing area (as the case may be) and to search for gold and to mine thereon and to erect and occupy mining plant or machinery without making compensation to the lessee thereof for surface or other damage. 26. (1) Pursuant to the provisions of Part I of the Principal ^^ffj^ Act the Governor in the name and on behalf of Her Majesty may auotmentsor grant mineral leases giving the holder thereof the right to enter g nng areas - upon any land being a pastoral allotment or grazing area demised either before on or after the first day of March One thousand eight hundred and ninety-two, and to search for any mineral and to mine thereon for such mineral and to erect and occupy mining plant or machinery without making compensation to the lessee thereof for surface or other damage. (2) Only one mineral lease shall under the provisions of this section be granted or in force at any one time in respect of the same land. 27. For section fifty-three of the Principal Act there shall be ^ctl substituted the following section, namely : (a) This is incorrect and misleading ; for " the Principal Act " should he read " The Mining Statute 1865" (No. 291), section 24 of which is re- enacted by section 49 of Act No. 1120 ; see Act No. 1102, sec. 2 (b) 1. Section 24 of the Principal Act (No. 1120) does not refer to leases. 524 THE MINES ACT 1897. Leases of mines 53. The Governor iii Council in the name and on behalf of Her under lands . granted or Majesty upon application made to him tor that purpose may reserved for /..-. public purposes grant leases to any person of mines in under or upon lands may in certain e cases bemade. granted or reserved for railways waterworks public parks places See No.1251, s. 7. ., . , , ,. , . , , . of recreation or other public purposes, subject to such regulations as may be from time to time passed by the Governor in Council for that purpose and with the consent of the Board of Land and Works or the Victorian Railways Commissioner in whom the said lands are vested, [cf. 37 Vic. No. 13 (N.S.W.), sec. 34 ; 62 Vic. No. 24 (Q.), sec. 46 ; 59 Vic. No. 40 (W.A.), sec. 33]. Amendment of 28. For section fifty-four of the Principal Act the following section 54 No. 1120. section shall be substituted, namely : Termandrentof 54 n\ j u ^} ie case o f a gojj ln i n i n o- lease the term for which gold mining the same may be granted shall not exceed fifteen years from the time of granting the same, and the yearly rent to be payable in respect thereof shall be Two shillings and sixpence for every acre demised. Area and term of (2) In the case of a mineral lease the extent of the area mineral lease. See ib. s. 8. thereof shall not exceed six hundred and forty ac"res and the term for which the same may be granted shall not exceed fifteen years from the time of granting the same, and the yearly rent to be payable in respect thereof shall be at such rate not being less than One shilling nor more than One pound for every acre demised, and so on in proportion for any less quantity, as the Minister may determine, [cf. 37 Vic. No. 13 (N.S.W.), sees. 36, 37; 62 Vic. No. 24 (Q.), sec. 26 ; 56 & 57 Vic. No. 587 (S.A.), sec. 51 ; 57 Vic. No. 24 (Tas.), sec. 39 ; 59 Vic. No. 40 (W.A.), sees. 34, 35]. fssue ^' ^ otw ^hstanding anything contained in any Act it shall be iease nsolidated l aw ^ u l * make application in accordance with the regulations for See s. 56, of leases, and leases may be granted comprising Crown lands reserved lands and private lands or any of them, and the holder of any mining leases of Crown lands reserved lands and private lands or . any of them shall be entitled at any time with the consent of the Governor in Council to surrender the same, and it shall be lawful for the Governor in Council to grant to such holder a consolidated lease for any term not exceeding fifteen years of the whole or any portion of the lands comprised in such surrendered leases, and any such new lease may with the like consent be renewed from time THE MINES ACT 1897. 525 to time for any period not exceeding fifteen years at each renewal. Provided that the rent payable on any such new lease shall be adjusted according to the areas of the several classes of land com- prised therein and shall be subject to the covenants and conditions prescribed by the regulations which shall at the time of the grant- ing thereof be in force and applicable to the lease required or such other covenants and conditions as to the Governor in Council shall seem fit. Provided further that before any such new lease shall be granted the proposed lessee shall pay such fine not exceed- ing Ten pounds as the Governor in Council shall direct. Provided further that if such proposed consolidated lease shall comprise private lands compensation shall be assessed in accordance with the provisions of this Act in respect of any portion of the term thereof for which compensation shall not have been already assessed, [cf. 48 Vic. No. 10 (N.S.W.), sec. 6 ; 59 Vic. No. 40 (W.A.), sec. 41 ; 62 Vic. No. 16 (W.A.), sec. 13 ; 63 Vic. No. 29 (N.Z.), sec. 9]. 30. One of the covenants of every mining lease shall be a Labour covenant. covenant by which the lessee shall be bound to provide for the employment in the construction of the works or in mining opera- tions on or under the land demised and granted unto the said lessee during the term for which the lease has been granted and during the usual hours of labour of a certain number of able and competent workmen and miners (not being Chinese) unless pre- vented by inevitable accident or during the execution of repairs, and such number shall be specified in each lease. Subdivision 4. Breach of Labour Covenants (a). 31. (1) If the lessee of a mining lease in respect of any land where breach of commits a breach of the labour covenant of such lease it shall be oM*ehgderoc lawful for any holder of a miner's right to apply to the Minister J^W 1 ' 'or in the form set out in the Second Schedule to this Act or to the second like effect. (2) If such application be made and the person so applying lodges with or forwards to the clerk of the warden the sum of Five pounds as security for costs, the Minister may if he think (a) cf. 59 Vic. No. 40 ( W. A.), sees. 45-48 ; Regulations under 37 Vic. No. 13 (N.S.W.), April 4, 1882 ; 56 k 57 Vic. No. 587 (S.A.), sec. 108 ; 57 Vic. No. '24 (Tas.), sec. 43 ; 62 Vic. No. 33 (N.Z.), sec. 85J. 526 THE MINES ACT 1897. fit refer the said application to the warden with directions to hold a public inquiry concerning the alleged breach. Warden to hold 32. (1) The warden shall give to the parties such notice to rejxirt to attend at the inquiry as he thinks necessary, and on failure of either party to attend thereat he may proceed ex parte. In case the lessee be dead or cannot be found notice in the Government Gazette shall be sufficient. (2) On such inquiry the warden shall hear and examine the parties and their witnesses on oath and shall reduce their evidence to writing and shall forward the same together with a report and recommendation thereon to the Minister, and if the warden considers that there has been a breach of the labour covenant he may recommend that the lease be declared void as to the whole or any part of the land comprised therein. (3) The warden in his discretion may allow to the lessee costs not exceeding Five pounds to be taken out of the deposit made by the person or persons so applying as aforesaid. Provided that such costs shall not be payable unless the application be refused by the Minister. Appeal from 33. (1) If either party be dissatisfied with the recommendation Minister. of the warden he may within ten days after such hearing make a written appeal to the Minister who may if he thinks fit hold a further public hearing at some place and time to be fixed by him and of which notice shall be given by him to the parties interested respectively. (2) The mode of conducting such public hearing shall be in the discretion of the Minister who is hereby empowered to hear receive and examine evidence on oath in the matter of the complaint. Governor in 34. Where no such appeal is made within the time afoi'esaid Council to determine then- arter considering the warden .s report and recommendation, breach of labour covenant, or where an appeal has been made and a public hearing held then after considering the evidence thereat, the Minister if he is of opinion that a breach of the labour covenant has been com- mitted shall submit the matter for the determination of the Governor in Council. THE MINES ACT 1897. 527 35. In submitting the matter to the Governor in Council Minister may the Minister may recommend that the lease be declared void and leasTt" be made the Governor in Council may by order published in the Govern- ment Gazette declare the lease void as to the whole or any part of the land comprised therein accordingly ; and such order shall be absolutely final and conclusive and shall be deemed valid and given effect to notwithstanding any non-compliance with any provision of the Mines Acts. 36. Where the Governor in Council so declares any lease to be New lease may be granted void as aforesaid it shall be lawful for the Governor in the name where lease made void. and on behalf of Her Majesty, but subject to section sixty-nine of the Principal Act, to grant to the person so applying a lease of the whole or any portion of the land held under the deter- mined lease for such term not exceeding fifteen years as the Governor thinks fit, or the person so applying may mark out a claim of the whole or any portion of the land with respect to which such lease lias been determined. No other person shall be or be deemed to be entitled to enter on or mark out any such land either under the by-laws or for a lease for a period of fourteen days from the date of the publication in the Govern- ment Gazette of such avoidance or pending the issue of a lease authorized by the Governor in Council to be granted. 37. (1) In the event of a lease being declared void any person Right of new (in this and the next following section called the new lessee) who certain time to purchase is granted a lease of the whole or any portion of the land held plant &c. of void under the determined lease shall be entitled within one month after the expiration of the time fixed by the Governor in Council for the removal of the plant machinery engines or tools on or within the land comprised in such determined lease, to give notice to the lessee of the determined lease (in this and the next following section called the former lessee) of intention to purchase at a valuation the whole or any portion of any plant machinery engines or tools on or within the land comprised in such new lease and not then removed. (2) Such notice shall be in writing and shall specify such of the said plant machinery engines or tools as the new lessee so desires to purchase and shall state what price he is willing to pay for the same. 528 THE MINES ACT 1897. (3) The former lessee shall be deemed to be willing to accept and shall accept from the new lessee the price offered, unless within fourteen days after receiving the said notice the former lessee in writing declines to accept the price offered, and desires the valuation to be determined by arbitration and informs the new lessee in writing of the name and description of some person whom he desires to act as his arbitrator. (4) Unless within seven days after being so informed the new lessee notifies in writing to the former lessee the name and description of some person whom he desires to act as his arbitrator, the arbitrator appointed by the former lessee shall act as a single arbitrator. (5) Unless within seven days after the appointment of both arbitrators, the two arbitrators in writing appoint an umpire, then at the request of either the former lessee or the new lessee the Minister shall in writing appoint some fit and proper person to be umpire. (6) The two arbitrators and the umpire shall sit together and hear evidence upon oath and call for the production of documents and the amount of the valuation and the time within which the same shall be paid by the new lessee shall be determined by the arbitrators on a joint equitable basis. In the event of the arbitrators not agreeing upon a determination within seven days after such hearing the umpire shall within seven days after such hearing make a determination on a like basis. Every determina- tion shall be final and conclusive and may be made a rule of the Supreme Court. Removal of 38. (1) In the event of a lease being declared void the lessee plant. of such lease or other person entitled to any plant machinery engines or tools hereinafter mentioned may within such time being not less than three months after the publication of the notice that the lease has been declared void as may be fixed by the Governor in Council remove any plant machinery engines or tools on or within the land comprised in such lease but shall not remove or destroy any timber used in and for supporting the shafts drives galleries or adits in the mine nor any plant machinery engines or tools purchased by the new lessee. THE MINES ACT 1897. 529 (2) If the said lessee does not remove any such plant machinery engines or tools within the time so fixed, the Minister may call upon the said lessee or person to show cause within such time as the Minister may allow why such portion of the plant machinery engines or tools as in the opinion of the Minister interferes with the proper and efficient working of the mine should not be sold by auction and removed. (3) If the said lessee or person does not within such time show sufficient cause, of which the Minister shall be the sole judge, the Minister may direct that such portion of the plant machinery engines or tools be sold by public auction and be removed. The proceeds of the sale of such plant machinery engines or tools after deducting the cost of selling or selling and removing the same shall be paid to such former lessee or other person entitled to such plant machinery engines or tools of whose claim the Minister shall prior to such payment by him of any such proceeds have received notice in writing. (4) The Minister shall determine whether or not any of such plant machinery engines or' tools shall be allowed to remain on the land so leased, and, if so, for what period they may so remain, and what rent the former lessee shall pay to the new lessee for the use and occupation of the ground on which the same are allowed to remain, [cf. 56 & 57 Vic. No. 587 (S.A.), sec. 110; 62 Vic. No. 38 (N.Z.), sec. 170]. 39. When pursuant to section thirty-one any application has J."^^' f ^. to k been referred to the warden the warden shall also inquire done - respecting the value to the holder or holders of a miner's right or rights making such application of any work or labour then done by or paid for by the lessee on or within or beneath the leased land and premises which in the warden's opinion is available or necessary for any future mining operations. 40. No sum shall be allowed or paid for any such work or No allowance for labour where it is proved to the satisfaction of the warden that the lessee has neglected to fulfil the covenants of the lease for a period of twelve months previous to the said application having been made by the holder or holders of a miner's right or rights. 41. In case the lease is declared void the said holder or holders of a miner's right or rights making the said application shall not 530 THE MINES ACT 1897. receive a lease of or work as a claim the land applied for until he or they shall have deposited with the Minister for payment to the former lessee the amount found by the warden as the value of the said work and labour done by or paid for by such former lessee and such amount shall be paid to the warden's clerk at such place and within such time as the Minister may direct being within three months of such finding having been made, and in the event of such amount not being paid in the time aforesaid then the said application for a lease may be declared abandoned. case of $2. (1) Where any suspension of the labour covenant of a ^ ease ^ as ^ een g ran ted wholly or in part by the Minister he shall covenants forthwith cause to be forwarded to the mining registrar and to the warden's clerk for the division of the mining district in which such lease is situated and also to the postmaster of the post office nearest to the leased land and to the lessee particulars in the Fifth Schedule. form of the Fifth Schedule hereto. (2) Such registrar clerk and postmaster shall forthwith post such particulars at their offices and keep the same posted during the period for which such suspension has been granted and any holder of a miner's right shall be at liberty without payment of any fee to inspect any such notice at all reasonable times. (3) Such lessee shall post such notice on some conspicuous place on the leased land and shall keep the same posted during the period for which such suspension has been granted. Subdivision 5. Licence to 'search or cut Races. searciTformetais ^ (1) The Governor in Council or any person authorized by other"han a goid ^^ m * n tna ^ behalf may grant to any person, subject to the pro- >e granted. v j s j ons o f t ] ie ]\ij[ nes Acts and to the regulations made thereunder, Compare No. 1120, s. 63. a licence to enter upon any pastoral allotment or grazing area or lands known as the mallee country or lands leased for the cultiva- tion of wattle trees under the provisions of the Wattles Act 1890 not occupied by the holder of a miner's right or business licence (unless with the consent of such holder) for the purpose of search- ing for gold or any mineral. (2) Notwithstanding any such regulations it shall be lawful for the Governor in Council at the time of the granting of any such THE MINES ACT 1897. 531 licence to fix specially the fee to be paid in respect thereof and the conditions upon which the same shall be granted. M. In section sixty-four of the Principal Act the expression Ext Crown lands " wherever it occurs shall be deemed and taken to Sfa 'instruct water (a) any pastoral allotment or grazing area ; or >- t'isos, s. 10. (b) any land licensed or leased on or after the twenty-ninth flf ' 1120> day of December One thousand eight hundred and * No - 1251. eighty-four under any Act relating to Crown lands with the right of acquiring the fee-simple of such land ; or (c) any mallee block or mallee allotment in respect of which a lease or perpetual lease is issued ; or ((/) any land in respect of which a lease for the cultivation of wattle trees is issued ; and the said expression wherever it so occurs shall be deemed to be followed by the words " or any land alienated from the Crown in fee simple on or after the twenty-ninth day of December One thousand eight hundred and eighty-four." 45. (1) Any person holding a licence under the provisions of '-i<'<-"ces to cut . and construct section sixty-four of the Principal Act and the executors adminis- 1 r 1 ^ t ' s ,^ anis &c - trators or assigns of any such person shall be entitled at any time slirrei " 1 ere0. Notwithstanding anything contained in section eighty-nine ^ tne Principal Act no person shall be eligible for election as a licences? member of a mining board by virtue of holding a business licence THE MINES ACT 1897. 537 unless he has held a business licence for and during the three Comp. x . 1120, months immediately preceding the last day appointed for the "" * receiving of nominations of candidates ; and no person shall be entitled to vote at any election of a member of any mining board by virtue of holding a business licence unless he has held a busi- ness licence for and during the three months immediately preced- ing the day on which the poll commences. 61. The persons nominating a candidate for election as a Additional member of a mining board when forwarding to the office of the i^Soifof returning officer in writing the Christian and surname of such >>ning board, candidate as required by section ninety-one of the Principal Act, fti N ' shall state in writing on the nomination paper the number date and place of issue of the miner's right or business licence (as the case may be) of the candidate and each of the persons nominating such candidate, and shall also produce to the return- ing officer for his inspection each of the said miners' rights and business licences and also a copy of the newspaper in which the candidate's name shall have been published pursuant to the pro- visions of the said section. 62. No person being an uncertificated insolvent shall be capable ^certificated insolvent not to of being elected a member of a mining board. min1n Ct b^ard 63. Each member of a mining board shall by virtue of his office Land Boards to include a mem- as such member and without any further or other appointment or {^f mining authority than this Act be entitled to sit and act with any persons NO. noe, s. 128. appointed by the Minister of Lands to hear and report upon applications under section one hundred and twenty-eight of the Land Act 1890 whenever such persons act within the mining division which he represents on the mining board. Provided that where more persons than one are members of the mining board for the same division only such one of the said persons shall be so entitled to sit as aforesaid as the mining board by resolution may nominate in that behalf. Provided also that the said member of the mining board shall not take any part in the proceedings or the deliberations recommendations or determination upon or with regard to any such application except so far as relates to the auriferous or mineral nature of the land applied for or the advis- ability of granting or refusing the application on grounds con- nected with mining. 538 THE MINES ACT 1897. Regulations. See No. 1120, ss. 77, 78, 79. Claims and leases may include several classes of land, &c. Amendment of section 2-26 of No. 1120. Regulation of fees for proceed- ings before wardens. Subdivision 8. Miscellaneous. 64. In addition to the purposes for which regulations may be made under the Principal Act the Governor in Council may pursuant to the provisions of sections seventy-seven seventy-eight and seventy-nine of the Principal Act make regulations for all or any of the following purposes, namely : for regulating the transfer of the. whole or any part of an interest in any application for a lease ; for prescribing the period within which the lessee shall execute any lease granted under the provisions of the Mines Acts ; and generally for carrying out and giving effect to the pro- visions of this Part. 65. Subject to the regulations and by-laws any claim may include both Crown land and private land and any claim or lease may include the private lands of several owners. 66. For section two hundred and twenty-six of the Principal Act there shall be substituted the following section namely : 226. It shall be lawful for the Governor in Council to make regulations prescribing what fees and sums of money shall be taken in proceedings before a warden and from time to time to lessen or increase the same. Such fees and sums of money shall be paid in the first instance by the person by whom or on whose behalf the act or proceeding in respect of which the same are payable is required to be done and shall in the discretion of the warden be deemed to be a part of the costs of the hearing, [cf. 62 Vic. No. 38 (N.Z.), sec. 278]. PART II. MINING ON PRIVATE PROPERTY (a). Subdivision 1. Preliminary. interpretation. 57. i n this Part if not inconsistent with the context or subject- See No. 1120, a. 299. matter (a) Cf. 57 Vic. No. 32 (N.S.W.) ; 60 Vic. No. 40 (N.S.W.) ; 62 Vic. No. 24 (Q.), Part VII, sees. 58-70 ; 51 & 52 Vic. No. 448 (S.A.) ; 58 & 59 Vic. No. 626 (S.A.) ; 62 Vic. No. 29 (W.A.); 63 Vic. No. 31 (W.A.) ; 62 Vic. No. 38 (N.Z.). THE MINES ACT 1897. 539 " Applicant " includes any person to whom an interest in " Applicant." any application for a mining lease has been transferred under the regulations. " Claim " means any private land occupied for the purpose " Claim." of seeking for gold or minerals therein by virtue of a miner's right under the by-laws of any mining district and in accordance with the provisions of this Part : " Earth " includes any rock stone quartz clay sand and soil : " Earth." " Gold " signifies as well any gold as any earth containing "Gold." gold or having gold mixed in the substance thereof or set apart for the purpose of extracting gold therefrom : " Lease " means a lease granted pursuant to this Part : "Lease." " Lessee " includes executor or administrator of a lessee or "Lessee." the transferee of a lessee with the consent of the Governor in Council and includes any person to whom an interest in a lease comes by operation of law : "Mineral" or "Minerals" means all minerals ores and "Minerals." metals other than gold : ' Mining lease " means a lease from the Governor in Council " Mining lease." for mining purposes, namely, the searching for winning working getting making merchantable carrying away or disposing of mines and gold or minerals or purposes con- nected therewith, and shall include a grant or licence for mining purposes : "Mine" or "to mine" means to disturb remove cart away "Mine." wash sift smelt refine crush or otherwise to deal with any earth by any mode or method whatsoever for the purpose of obtaining gold or minerals therefrom : " Owner " includes "Owner." any person who is the owner or proprietor of land alienated from the Crown for any estate in fee simple at law or in equity, and any person who is the licensee or lessee of land under any Act relating to Crown lands with the right of acquiring the fee-simple thereof, and 540 THE MINES ACT 1897. No. 1120, s. 299. Church lands. No. 1202,s.2(2). No. 1251, s. 5(6). Ib. s. 4. any person who is the lessee or perpetual lessee from the Crown of any land known as the Mallee lands, and any person who is the lessee of land leased for the cul- tivation of wattle trees under the provisions of the Watties Act 1890, and any person who is a trustee under the provisions of the Agricultural Colleges Act 1890, and any person Avho is a mortgagee, and all parties who being seised or possessed of and for the time being entitled to the receipt of the rents and profits of any private land or any estate or interest therein are under a disability to sell and convey the same. [cf. 51 & 52 Vic. No. 448 (S.A.), sec. 2]. " Private land " means (a) any land alienated from the Crown before the twenty-ninth day of December One thousand eight hundred and eighty-four for any estate in fee simple at law or in equity including all land which at the time of the commencement of the Act No. 391 had been granted by the Crown without receiving any purchase money or had been promised or reserved by the Crown or by the Governor in Council permanently or temporarily for church purposes or church and school purposes or dwelling-houses for the ministers of any denomination ; or (6) any land alienated from the Crown in fee simple on or after the said date or leased or licensed before on or after the said date under any- Act relating to Crown lands with the right of acquiring the fee-simple thereof ; or (c) such lands as may either before on or after the first day of March One thousand eight hun- dred and ninety-two be leased from the Crown, namely, (1) land known as the Mallee Country ; and (2) lands leased for the cultivation of THE MINES ACT 1897. -,, wattle trees under the provisions of the Wattles Act 1890; or (d) any land vested in the trustees under the pro- NO. 1251, 8 . is. visions of the Agricultural Colleges Act 1890 whether such land be or be not demised by the said trustees, [cf. 51 & 52 Vic. No. 448 (S.A.), "Regulations " means regulations made pursuant to this "Regulations" Part: " Sub-tributer " means any person who has with the "Sub-tributer." consent of the lessee or owner of the mine made an agreement with a tributer of a mine or claim or Sao " 112 ' portion of a mine or claim upon the terms of pay- ing a portion or percentage of the gold or minerals or the value of the gold or minerals taken from such mine or claim to such tributer for the right to mine therein or thereon, and shall also mean any person who has made such an agreement with another sub-tributer : " Tributer " means a person who works a mine or portion "Tributer." of a mine under an agreement with the lessee or ,, o0e ^O. 1120. owner of the mine or claim to pay such lessee or 8 - 299 - owner a portion or percentage of the gold or minerals or of the value of the gold or minerals taken from such mine or claim. " Warden " means a warden of the gold-fields in and for "Warden." Victoria or any portion thereof, [cf. 62 Vic. Ib - * 215> m - No. 29 (W.A.), sec. 3]. 68. (1) Gold and silver whether on or below the surface of all Aii^oldand land whatsoever in Victoria whether alienated or not alienated and all minerals on lands not yet from the Crown, and if alienated whensoever alienated, are and alienated to be and remain shall be and remain the property of the Crown. See No. 1251,8.3. (2) All minerals mineral ores and metals other than gold and silver whether on or below the surface of all land in Victoria, not alienated in fee simple from the Crown on or before the 1st day of March One thousand eight hundred and ninety-two under the provisions of any Act are and shall be and remain the property THE MINES ACT 1897. of the Crown, subject to the provisions of the Mines Acts, not- withstanding such land may at any time be alienated from, or leased or licensed by, the Crown. Gold mining leases on private land. See No. 1120, s. Lands alienated before 29th December, 1884. See No. 1120, s. 68. No. 1514, s. 46. Land alienated licensed or leased on or after 29th December 1884. See No. 1202, s. 2 (2). Mallee wattles or Agricultural Colleges land. See No. 1251, ss. 4 and 18. Subdivision 2. Grant of Leases of Private Land. 69. The Governor in Council may in the name and on behalf of Her Majesty subject to the provisions of this Part and to the regulations grant to any person a gold mining lease (a) so far as relates to any land alienated from the Crown before the twenty-ninth day of December .One thousand eight hundred and eighty-four for any estate in fee simple at law or in equity such lease shall be effectual on or below or both 011 and below any such land- for the purpose of mining therein or thereon for gold and for cutting and constructing thereon races drains dams reservoirs or tramways, and erecting any buildings and machinery and generally for doing all such acts and things as shall appear to be requisite for efficiently mining in or on the said land ; and (6) so far as relates to any land alienated from the Crown in fee simple on or after the said date, or licensed or leased before on or after the said date under any Act relating to Crown lands with the right of acquiring the fee-simple thereof, such lease shall give the holder thereof the right to enter upon and mine for gold and silver on or below or both on and below such land and to erect and occupy mining plant or machinery thereon in the same manner and under the same conditions and provisions as those under which persons have the right to mine for gold and silver in or on Crown lands ; and (c) so far as relates to any land held under lease or perpetual lease from the Crown being land known as the Mallee Country, or any land leased for the cultivation of wattle trees under the provisions of the Wattles Act 1890, or any land vested in trustees appointed or continuing to act as trustees under the provisions of the Agricultural Colleges Act 1890, such lease shall give the holder there- of the right to enter upon such land and. to mine on or THE MINES ACT 1897. 543 below or both on and below the same and to erect and occupy mining plant or machinery thereon or therein in - the same manner and under the same conditions and provisions as those under which persons have the right to mine for gold on or below or both on and below Crown land, and such lease shall apply to land vested in trustees under the Agricultural Colleges Act 1890 whether such land be or be not demised by such trustees ; and (rf) so far as regards any private land in the mining districts of Sandhurst Castlemaine or Ararat and on which any church or other place registered as a place of worship is situated such lease shall give the holder thereof the right to mine thereunder at a greater depth than four hundred feet from the lowest part of the surface, but no such lease shall be granted except for quartz mines. And no such lease shall give any right to mine within one hundred feet laterally of any such churcli except at a greater depth than four hundred feet from the surface. Such lease shall be freed and discharged from all liability on the part of the applicant to pay to the owners or trustees any purchase money or to obtain the consent of the owners or trustees thereto, [cf. 62 Vic. No. 29 (W.A.), sec. 5 ; 62 Vic. No. 24 (Q.), sec. 59 (3)]. 70. The Governor in Council may in the name and on behalf of Mineral kas t ^ Her Majesty subject to the provisions of this Part and to the ^xTi-'V-"'-' regulations grant to any person a mineral lease (a) so far as relates to any land alienated after the first day i-ind alienated of March One thousand eight hundred and ninety- two 1892. from the Crown in fee simple or licensed or leased either before on or after such date under any Act relating to Crown lands with the right of acquiring the fee simple thereof, such lease shall give the holder thereof the right to enter upon such land and to mine on or below or both on and below the same for any mineral and to erect and occupy mining plant or machinery thereon in such manner and under such conditions and provisions as may be prescribed in such mineral lease , and 544 THE MINES ACT 1897. Maiiee wattles (b) so far as relates to any land held under lease or perpetual Colleges lands. lease from the Crown being land known as the Mallee s*vo. 1251, Country and land leased for the cultivation of wattle trees under the provisions of the Wattles Act 1890 or any land vested in trustees appointed or continuing to act as trustees under the provisions of the Agricultural Colleges Act 1890, such lease shall give the holder thereof the right to enter upon such land and to mine on or below or both on and below the same for any minerals and to erect and occupy mining plant or machinery thereon or therein in the same manner and under the same conditions and provisions as those under which persons have the right to mine for minerals on or below or both on and below Crown la.nds, and such lease shall apply to lands vested in trustees under the Agricultural Colleges Act 1890 whether such land be or be not demised by such trustees. Gardens ^\ (1) ]Sj"o lease shall be granted of any mines under any orchards or vineyards. private land used as a garden orchard or vineyard unless either See Xo. 1120, s. 327. () the applicant has authority from the owner to enter thereon for the purpose of mining in or on the same ; or (b) such lease is limited to a greater depth than one hun- dred feet from the lowest part of the surface, [cf. 62 Vic. No. 29 (W.A.), sec. 6 ; 62 Vic. No. 24 (Q.), sec. 59 (5)]- Limit of gardens (2) No person shall be entitled to claim the benefit of the pro- &c. exemption. visions of sub-section (1) of this section for more than ten acres of any land held by him as a garden orchard or vineyard. town or borough allotments. land being of less extent in area than half-an-acre in any city See No. 1120. s. .327, and NO. town or borough unless either 1189, ss. 2 and 3. (a) the applicant has authority from the owner to enter thereon for the purpose of mining in or on the same; or (b) such lease is limited to a greater depth than four hundred feet from the lowest part of the surface, [cf. 51 & 52 Vic. No. 448 (S.A.), sec. 3. THE MINES ACT 1897. 545 (4) No lease shall be granted of any mines under any private As land on which any hospital asylum or public building is or under or within one hundred and fifty yards laterally of any cemeteries &c. cemetery or any natural reservoir or any waterworks unless f^a' U2 ' J ' either (a) the consent in writing of the owners or trustees of such land in such case has been first obtained ; or (6) such lease is limited to a greater depth than four hun- See No. lisa, dred feet from the lowest part of the surface. (o) Except in the mining districts of Sandhurst Castlemaine AS to minim: under churches. and Ararat no lease shall be granted of any mines nor shall any &.,. xo. 1120, mining operations be carried on under any private land on which "' ' any church or other place registered as a place of worship is situ- ated nor within one hundred yards laterally of any such church or registered place of worship, nor shall it be competent for any person to mark out or occupy such private land by virtue of a miner's right. This sub-section shall not however be deemed to affect any lease or claim granted or held before the commence- ment of this Act. Provided that this sub-section shall not apply to any lease granted with the consent in writing of the owners or trustees of the land on which any church or other place registered as a place of worship is situated, and also with the consent in writing of the head or authorized representative of the denomina- tion to which such church or place of worship belongs. (6) No lease shall be granted of any mines under or within one Jjj}^! hundred yards laterally of any private land on which any spring ^.' r '^ irs dam sheep-wash or woolshed in bond fide use or occupation, dwelling-house outhouse building or manufactory is situated unless () the applicant has authority from the owner to enter thereon for the purpose of mining in or on the same ; or (b) the land applied for and the whole of the land belonging to the owner of the land applied for within one hundred yards laterally of such spring dam sheep-wash or woolshed dwelling-house outhouse building or manufactory and a right of access shall have first been taken by the appli- cant which he is hereby authorized to do, and the amount 546 THE MINES ACT 1897. See No. llSi ss. 2 and 3. of the purchase money thereof ascertained in the same manner as purchase money is ascertained under the provisions of this Part ; or (c) such lease is limited to a greater depth than four hundred feet from the lowest part of the surface. (7) No lease shall be granted of any mines under any lake or artificial reservoir except with the consent of the owner or trustees of the land nor within such distance of such lake or artificial reservoir as the Minister may determine. compensation. r^ /^ w nere pursuan t to the provisions of this Part a lease is See ib. ss. 2 and 4. applied for of mines at a greater depth than one hundred feet or four hundred feet (as the case may be) without the consent of the owner or trustees the applicant shall pay to the owner or the owner and occupier or trustees such compensation as may be ascertained under the provisions of this Part ; and before any lease of such land is granted the applicant shall prove to the satisfaction of the warden Conditions on which such leases may be granted. Ib. s. 4 (1). See No. 1189, s. 4 (2). (a) that he is the owner of the land included in the applica- tion or that he possesses a claim or lease for mining purposes either adjoining the land applied for or a claim or lease with such way-leaves and other rights through intermediate lands as will enable him to mine upon the land applied for without any occupation of or interference with the overlying strata, or that such claim or lease is being worked by such shafts adits or tunnels as will enable him to mine on the land applied for without such occupation or interference, and (b) that such working can be carried on in the usual course of skilled mining without appreciable damage to the surface or the upper strata of the land applied for or any building erection or other work whether public or private existing thereon. (c) Before such proof shall be given ten clear days' notice in writing of the time and place appointed by the warden for the hearing shall be given by the applicant to the owner and occupier or trustees. If the owner or trustees THE MINES ACT 1897. 547 be dead or cannot be found notice may l)e given by advertisement or otherwise as the warden shall direct. (2) Owners occupiers and trustees of land under which mining Owners of land has been authorized by a lease shall be entitled if authorized in umVrground . . workings of writing by the warden to inspect and survey the underground * workings from time to time as in the opinion of the warden may NO. H89, a. 4. be deemed necessary. Every such owner occupier and trustee shall before entering inspecting or surveying any of the underground workings make a declaration before the warden (who is hereby authorized to take the same) that he the said owner occupier and trustee will not (except so far as may be necessary to protect or enforce his rights or except as a witness in a court of justice) without the consent in writing of the lessee divulge or cause to be divulged to any person whomsoever any information obtained upon or by such entry inspection or survey, and every such owner occupier or trustee who shall act contrary to such declaration shall forfeit and pay any sum not exceeding Fifty pounds. (3) Nothing in this or the next preceding section shall be **^ t!j not deemed to apply to vary or affect any agreement or contract affected entered into within the mining district of Sandhurst before the and s, and No. nineteenth day of December One thousand eight hundred and ninety or within the mining districts of Castlemaine or Ararat before the Twenty-third day of December One thousand eight hundred and ninety-two, [cf. 62 Vic No. 29 (W.A.), sec. 7 ; 62 Vic. No. 24 (Q.), sec. 59 (9)]. Subdivision 3. Entry Upon and Marking Out Private Land. 73. (1) (a) Any holder of a miner's right who desires to obtain pursuant to the provisions of this Part possession of as i land* a claim, or (b) any person who desires to obtain pursuant to the provi- ^ sions of this Part a lease of, any private land may at all reasonable times and doing no unnecessary damage enter upon any part of such land for the purpose of marking out any portion thereof which he may desire to take possession of by virtue of such miner's right or under the regulations, [cf. 62 Vic. No. 29 (W.A.), sec. 8 ; 62 Vic. No. 24 . within the meaning of section two hundred and nineteen of the Principal Act, and for the purposes of enabling wardens to hear determine and enforce such complaints and of enabling appeals to be made from their decisions all the provisions of Part I of the Principal Act applying to proceedings under such section shall equally apply to such complaint so far as the same may be applicable. (4) The warden shall forthwith forward to the Minister a copy *> s. 7(3). of every complaint as aforesaid by or against a holder of a miner's right or an applicant for a lease and of his decision thereupon. 552 THE MINES ACT 1897. (5) Any application for a lease or marking out for a lease or as a claim may be abandoned at any time by the applicant giving notice thereof in writing to the Minister (by leaving the same with the warden) and to the owner and occupier the applicant or claim-holder also paying to the owner and occupier such costs as the warden shall allow. Before lease 78. Before any lease of private land is issued to any person money or other than the owner of such land the Minister shall be satisfied compensation to be paid or that the following provisions have been complied with : owner to consent. No. 1202, s. 8. (a) where the amount of purchase money or compensation has been determined by the warden that such amount has been paid or tendered to the owner or owner and occupier or that such owner or owner and occupier has or have consented in writing to the issue of the lease without such payment ; (6) where the parties have agreed in writing as hereinbefore provided that the agreement has been executed in triplicate and one original part thereof forwarded to the Minister, and that any amount agreed to be paid before issue of the lease has been paid or tendered or such payment before issue has been waived in writing by the party entitled thereto, [cf. 62 Vic. No. 29 (W.A.), sec. 13 ; 62 Vic. No. 24 (Q.), sec. 60]. obta^ more ^' ^ ^ after the granting of any lease or the commence- surface area. ment of work on any claim marked out under this Part the lessee or holder of a miner's right desire to occupy any portion of the surface of the land comprised in such lease or claim in addition to the surface area which he is already entitled so to occupy and if within twenty-one days after notice in writing to the owner or owner and occupier by such lessee or holder of his desire, no agreement in writing be made as to the amount of compensation or purchase money (as the case may be) to be paid therefor, then on the complaint of any party the warden may subject to the provisions of this Part determine the amount of compensation or purchase money to be paid. (2) The provisions of sub-sections (2) and (3) and (4) of the last but one preceding section of this Act shall apply to proceed- THE MINES ACT 1897. 553 ings under this section, [cf. 62 Vic. No. 29 (W.A.), sec. 14; 62 Vic. No. 24 (Q.), sec. 59 (8)]. 80. The determination by a warden pursuant to this Act of the Effect on amount of compensation for surface damage payable to any person determination of compensation bv shall be deemed and taken to be a sufficient compliance with any warden. covenant or condition in any Crown grant lease or licence to the effect that compensation for surface damage shall be determined as provided by section one hundred and twenty-one of the Land Act 1890 or section one hundred and seventeen of The Land Act 1884 (as the case may be). 81. (1) Every application for a lease shall be in accordance AppHcatlon for with the regulations, but any lease may be granted notwith- standing that the person applying for the same may not in all See NO. 1120, respects have complied with the said regulations. Ib g 3i)0> (2) Nothing in the Mines Acts contained shall be construed rendering it obligatory to grant any lease or licence to any person See ib. s. 67. applying for the same, notwithstanding that he may have complied with the enactments and regulations in force and applicable thereto ; but if his application be refused he shall be informed of the reason for such refusal, [cf. 62 Vic. No. 29 (W.A.), sec 15J. 82. No mining lease shall be granted under this Part until Notice of intention to after the expiration of seven days from the date of notification in m-ant mining the Government Gazette of intention to grant the same and in miWished^in some newspaper the place of publication of which is near to the Gazette. land sought to be leased, [cf. 62 Vic. No. 29 (W.A.), sec. 16]. 83. Every lease granted under the authority of this Part shall Leases to contain a condition that if the lessee fail at any time during the conditions re non-fulfilment of term to fulfil the conditions and terms therein contained or to use covenants. the land bond fide for the purposes for which it is demised such J^^J^ lease shall for any such failure be voidable at the will of the Governor in Council. [62 Vic. No. 29 (W.A.), sec. 17]. 84. (1) The term for which a mining lease may be granted Teni^and rent under this Part shall be for a term not exceeding fifteen years s,ii, from the time of granting the same. 554 THE MINES ACT 1897. (2) In tne case of a mineral lease the extent of the area shall not exceed six hundred and forty acres. See No. H20, (3) The yearly rent to be payable in respect of such leases shall be at the following rates for every acre and portion of an acre demised, namely () for land alienated from the Crown before the twenty- ninth day of December One thousand eight hundred and eighty -four for any estate in fee simple at law or in equity for gold mining leases Sixpence ; (6) for land alienated from the Crown in fee simple on or after such date or licensed or leased before on or after such date under any Act relating to Crown lands with the right of acquiring the fee-simple thereof for gold mining leases Two shillings and sixpence and for mineral leases not exceeding One pound ; (c) for land either before on or after the first day of March One thousand eight hundred and ninety-two leased from the Crown, namely (1) lands known as the Mallee Country and (2) lands leased for the cultivation of wattle trees under the provisions of the Wattles Act 1890 for gold mining leases Two shillings and sixpence and for mineral leases not exceeding One pound ; and (d) for land vested in the trustees appointed or continuing to act as trustees under the provisions of the Agricultural Colleges Act 1890 for gold mining leases Two shillings and sixpence, [cf. 62 Vic. No. 29 (W.A.), sec. 18 ; 62 Vic. No. 24 (Q.), sec. 59 (3) ; 51 & 52 Vic. No. 448 (S.A.), sec. 23 (ii), (iii)]. exisiing S ieases in ^' ^ n tne case ^ evei T mining lease and lease under The 79^reduced!' Mining on Private Property Act 1884 made or issued previously ib. s. 323. to the eighteenth day of December One thousand eight hundred and eighty -five by the Governor in Council the rent reserved shall from and after the said date be deemed to be at the rate of Six- pence for every acre demised ; and every such mining lease and lease shall so far only as regards any rent accruing due after the THE MINES ACT 1897. 555 said date be read as if rent at the rate of Sixpence for every acre had been thereby reserved in lieu of the rent therein mentioned. 86. The rent reserved by or payable under any lease issued Minimum rents either before or after the commencement of this Act under Mining on Private Property Act 1884 or Part II of the Principal Act or this Part of this Act shall not be less than Ten shillings per annum except in cases in which a smaller sum was payable before the passing of The Mining Rents Act 1887, in which cases such smaller sum shall continue to be payable. 87. Where the rent reserved by or payable under any mining Provi9ion wher lease made or issued under Tlte Mining on Private Property Act S ilTi^ 1884 by the Governor in Council before the passing of The Mining Rents Act 1887 would but for the provisions of section three of The Mining Act 1885 have been less than the sum of mEum"" 10 Four pounds per annum, such mining lease shall so far as regards s *~ n ^ b 8- 3 . 25 . any rent accruing due after the passing of this Act be read as though this and the last preceding section had been in force at the time of the making or issuing of such lease. 88. Every mining lease under this Part of this Act may with Mining lease the consent of the Governor in Council be at any time surrendered, surrendered, [cf. 62 Vic. No. 29 (W.A.), sec. 19]. Ih - s ' 334 ' 89. When any land is occupied under the provisions of this Private land Part of this Act as a claim the same shall be worked in accord- claim subject to Art and by-laws. ance with the by-laws for the mining district in which the same comp. No. lisa, is situated, and shall be subject to the provisions of the Mines "' Acts and such by-laws in like manner as if the same were Crown lands held under the by-laws for such district, [cf. 62 Vic. No. 2!> (W.A.), sec. 20]. 90. The holder of a miner's right who occupies private land as Copy of a-rt-cinent as to a claim under the provisions of this Part shall if any agreement purchase money or comi>ensation has been entered into by him with the owner or the owner and to be fifed with iniuiii^ registrar ocoupier of such land for the payment of purchase money or com- othenvi ^' "'''' peusation as herein provided file a copy of such agreement with the mining registrar at the time when he makes application for the registration of such land as a claim ; and until such agreement be so filed it shall have no force or validity at law or in equity. For the filing of such agreement no fee shall be charged, [cf. 62 Vic. No. 29 (W.A.), sec. 21]. 556 THE MINES ACT 1897. Owner of mine entitled to purchase freehold. See No. 1189, s. 9. How purchase money to be paid See ib. s. 10. 91. (1) The holder of any claim or lease shall be entitled to take for mining purposes the whole of any private land belonging to one owner within the boundaries of or adjoining or abutting on such claim or lease and within any city town or borough on payment of the amount of purchase money therefor which shall be ascertained by agreement in writing or in default of agree- ment in the same manner as purchase money is to be ascertained under the provisions of this Part. (2) When such purchase money is ascertained on complaint to a warden the said holder of such claim or lease shall pay it to the warden's clerk or as the warden shall order and shall thereupon be entitled to possession of the said private land, and the owner of the same shall forthwith execute to the holder of such claim or lease all necessary conveyances transfers and assurances, and in the event of such holder failing to comply with such order execu- tion may be issued by the warden for the amount of such purchase money or compensation on the application by or on behalf of the person entitled thereto. (3) A mining lease in respect of such land may be issued to the holder of the said claim or lease upon proof of transfer to him of such land. (4) This section shall not apply to any private land on which any church is situated, [cf. 62 Vic. No. 29 (W.A.), sec. 22], 92. (1) All parties under disability to sell and convey who are or possessed of or entitled to any private land or any estate Part Parties under disability or having limited interest enable.! and e exercise nvey or interest therein may subject to the provisions of this Le^o iv>c> S s se ^ e ky agreement with any person desiring to mine therein or thereon under a miner's right or a mining lease the amount of compensation to be paid in respect of any such land estate or interest as provided in this Part. See ib. s. 316. (2) Such parties may enter into all necessary agreements for that purpose, and particularly any of the following parties so seised possessed or entitled as aforesaid may so settle with the holder of a miner's right or the applicant for a mining lease (that is to say) : All corporations tenants in tail or for life guardians committees of lunatics and idiots trustees or feoffees in trust for charitable or other purposes executors and administrators, and all THE MINES ACT 1897. parties for the time being entitled to the receipt of the rents and profits of any such land in possession or subject to any estate in dower or to any lease for life or for lives and years or for years or any less interest, and every valuation so settled as afore- said by all such parties other than lessees for life or for lives and years or for years or for any less interest shall be binding not only on themselves and their respective heirs executors adminis- trators and successors but also on every person entitled in rever- sion remainder or expectancy after them or in defeasance of the estates of such parties and as to such guardians on their wards and as to such committees on the lunatics and idiots of whom they are the committees respectively, and as to such trustees executors or administrators or their cestuique trusts whether infants issue unborn lunatics femes covertes or other persons, [cf. 62 Vic. No. 29 (W.A.), sec. 23]. 93. The owner of any private land may if a lease of such land o w er have not previously been applied for make application in accord- >, NO ance with this Part and the regulations and shall have priority in respect of such application for a lease of such land but shall not in respect of such application be subject to the provisions of this Part relating to compensation, [cf. 62 Vic. No. 29 (W.AJ, sec. 24 ; 57 Vic. No. 32 (N.S.W.), sec. 25 ; 62 Vic. No. 24 (Q.), sec. 64 ; 51 & 52 Vic. No. 448 (S.A.), sec. 22]. 94*. If mining operations have not been commenced during the Reentr owner twelve months following the issue of a lease or if after mining , , ; operations have been commenced in or upon any private land held under a lease granted under this Part or the corresponding provisions of any enactment hereby repealed the same have wholly ceased without; the consent of the Governor in Council, it shall be lawful for the Governor in Council if he shall think fit on the application of the owner of the land to authorize him to re-enter and take possession of such land notwithstanding that such lease may not have expired, [cf. 62 Vic. Nu. 2U (W.A.), sec. 25]. Subdivision 5. Prospecting Area on Private Lmnl. 95. (1) Any person being an applicant for a lease of an y private land under this Part and being desirous of testing such land may in his application apply for a prospecting area of such laml - 558 THE MINES ACT 1897. land not exceeding five acres for quartz mining purposes and ten acres for alluvial mining purposes together with a reserved area of the remainder of the private land applied for by him. (2) The Governor in Council or any person authorized by him in that behalf may subject to this Part and to the regulations grant a licence to occupy and to prospect any part of the land applied for as a prospecting area and for a time not exceeding twelve months and may renew such licence for a further period of twelve months. (3) The application for a prospecting area and reserved area shall be made and be dealt with in accordance with the regu- lations. (4) The amount of compensation for the whole area shall be ascertained as provided for in this Part with reference to mining leases so far as the provisions hereof can be made applicable, and the compensation in respect of the prospecting area and the reserved area respectively shall be separately stated. (5) No such licence shall be granted unless and until the com- pensation in respect of the prospecting area has been paid to the owner or owner and occupier of the land or he or they has or have consented in writing to the issue of the licence without such payment. (6) On the granting of such licence the reserved area shall not be occupied for mining during the currency of such licence or of a renewal thereof or during the pendency of the application for a lease of the reserved area. (7) If the applicant considers the land applied for is not sufficiently tested by the prospecting work done under such licence the prospecting area held thereunder may be surrendered by him and he may apply for a further prospecting area not exceeding ten acres of the reserved area, and the amount of com- pensation for such further prospecting area shall be ascertained as aforesaid and a licence to occupy and to prospect such further area may be granted in the manner and for the period and under the conditions hereinbefore provided, and successive areas may in like manner be applied for granted or surrendered until the land THE MINES ACT 1897. 559 is sufficiently tested or the lease applied for be granted of the reserved area or any part thereof. (8) If the holder of such licence do not comply with its con- ditions the licence may be cancelled by the Governor in Council. (9) (a) If the applicant desires to surrender his licence during the currency thereof and to obtain a lease of the reserved area he shall give notice of such desire to the Minister, or (b) If the Minister is of opinion that the land has been sufficiently tested he may require the applicant to surrender his licence and proceed with his application for a lease, and if such applicant fails or neglects to do so such licence may be cancelled by the Governor in Council and such application shall be deemed to be abandoned and be dealt with accordingly under the regulations. (10) If the Minister is satisfied that the applicant has complied sufficiently with the conditions of any licence granted to him and has as to such application otherwise complied with the provisions of this Part, a lease of the land or of any part of it may be granted to him. (11) The term of any lease granted under the provisions of this subdivision may be for any term not exceeding fifteen years from the date on which the last licence was issued or renewed in respect of such land. [cf. 62 Vic. No. 29 (W.A.), sec. 27]. Subdivision Q. Jurisdiction. 96. After the granting of any lease under the provisions of jurisdiction, this Part or the corresponding provisions of any enactment here- ^tw ' 1120> by repealed or after the occupation by a holder of a miner's right under the by-laws of any mining district of any private land the jurisdiction of the warden and of the Court of Mines and every other jurisdiction established or continued by. Part I of the Principal Act with respect to mining on Crown lands shall apply to any private land comprised in such lease or to land occupied by such holder of a miner's right as the case may be and to mining in any land in which such mining is authorized by such lease or 560 ' THE MINES ACT 1897. by virtue of a miner's right, and sections one hundred and five to one hundred and eight both inclusive of the Crimes Act 1890 shall apply to mining under this Part ; and the word " claim " in the said sections one hundred and five one hundred and six and one hundred and eight shall mean and include private land in respect of which a lease has been granted under this Part or occupied by any holder of a miner's right under the provisions of this Part as aforesaid, [cf. 62 Vic. No. 29 (W.A.), sec. 28]. Subdivision 7. Renewal of Lease and Pendency of Application. Renewal of 97. (1) The person beneficially interested and entitled under See No. 1120, any lease granted in pursuance of this Part or under the corres- ponding provisions of any enactment hereby repealed to mine in or on the land the subject of such lease shall if he make application before the expiration of such lease be entitled to and it shall be lawful for the Governor in Council to grant a renewal of his lease of the whole or of any part of the private land comprised therein for a term of fifteen years and without payment of any compensa- tion, other than compensation to the owner or owner and occupier of land comprised in section seventy-six () for depriving him of the possession of the surface of such land or any part thereof and for any injury or damage which it may reasonably be supposed will be done to the surface beyond that already done and which has not been already compensated for under any previous agree- ment or proceedings in any court of mines or before any warden or of private land as defined in section sixty-seven (b) (c) and (d) for surface damage and which has not been already compensated for under any previous agreement or proceeding before a warden ; and if the amount of such compensation be not ascertained by agreement between the owner or the owner and occupier and the person entitled to such lease before the expiration of one month after the date of such application it shall be determined in the same manner as in the case of an original lease. ^/fransfm" 6 ^ 1 ("^ Where a portion of the land included in any lease granted oTpoVtion of 66 unf * er the provisions of this Part or the corresponding provisions a mining lease. o f ail y enactment hereby repealed has been or is transferred by 8.6. ' the proprietor of such lease to any ether person or company any transferee who holds under the Transfer of Land Act 1890 a leasehold certificate of title in respect of the portion so transferred THE MINES ACT 1897. 561 shall be entitled to obtain a renewal of a lease pursuant to the provisions of this Part so far as regards the portion transferred, and the registered proprietor of a lease of the land not so trans- ferred shall be entitled to a renewal of such lease pursuant to the said provisions, [cf. 62 Vic. No. 29 (W.A.), sec. 29]. 98. (1) Pending any application for a lease or renewal of a Ground applied lease under the provisions of this Part it shall not be lawful to mark out as a claim or include within the boundaries of any . claim the land applied for or any part thereof, and no such mark- see NO. 1120, ing out shall confer any right or title to the said land ; and if any "' person who not having previously been in lawful occupation of such land shall at any time thereafter until and unless the appli- cation for the lease or the renewal of a lease shall be refused enter upon occupy or in any way interfere with such land, such entry See ib. a. 65. occupation or interference shall be deemed a case of trespass or en- croachment within the jurisdiction of the wardens appointed under Part I of the Principal Act. (2) Such applicant may proceed therefor and for any damages in respect of such trespass or encroachment and for the recovery of any gold or any minerals taken by such person out of such land or of the value thereof before a warden in manner in Part I of the Principal Act provided for proceedings before wardens in cases of trespass or encroachment. (3) Notwithstanding any decision of a warden the applicant See ib g cs shall not be entitled to have delivered to him any such gold or minerals or to receive payment of or to levy the amount of the value thereof or of any damages assessed and awarded to him until it shall have been decided to grant his application for the lease, but such gold or minerals or the value of the same or such amount of damages shall until the matter of such application shall be determined be lodged with the clerk of the warden, and if determined in favour of the applicant shall be delivered or paid to him and if otherwise to the person from whom the same shall have been recovered, [cf. 62 Vic. No. 29 (W.A.), sec. 30]. 99. (1) The pendency of an application for a lease shall begin jjjjjj* with the marking out of private land for a lease, and shall continue defined. See No. 1384, s. 4. until the Governor in Council shall grant or refuse the same. sc 562 THE MINES ACT 1897. (2) The pendency of any application for a lease shall cease if the applicant do not proceed with his application and complete his application within such time as may be fixed by the regula- tions or within such further reasonable time as may upon a written application be permitted in writing by the Minister, and a copy of such permission shall be posted and kept so posted upon some conspicuous part of such land during the further pendency of such application. (3) Tn no case shall such pendency continue beyond six months after either the posting of the notice by the mining surveyor as provided by the regulations or the fixing of compensation by the warden or the decision of the Supreme Court on any appeal on case stated in reference to the said application whichever period shall last expire. (4) During the pendency of any application as aforesaid it shall not be lawful for the owner of any such private land to enter into any agreement with the holders of miners' rights under the pro- visions of this Part. Every agreement entered into contrary to the foregoing provisions of this section shall be null and void. [cf. 62 Vic. No. 29 (W.A.), sec. 31]. continue in ^00. The pendency of any application for the renewal of a duringpendency ^ ease sna ^ begin with the receipt of such application by the for a ren 1 evrai. 0n Minister and shall continue until the Governor in Council grants or refuses the same. During the pendency of any application for the renewal of a lease of private lands under the provisions of this Act- See NO. 1384, (a) it shall not be lawful for the owner of any such private lands to enter into any agreement with the holders of miners' rights under the provisions of this Part. Every agreement entered into contrary to the foregoing pro- visions of this section shall be null and void ; and See ib. s. 3. () anv ] ease tj ie rene wal of which is the subject of the appli- cation (whether made before or after the commencement of this Act) shall notwithstanding anything to the con- trary in such lease continue in full force and effect during the pendency of such application for a renewal, [cf. 62 Vic. No. 29 (W.A.), sec. 32]. THE MINES ACT 1897. 563 Subdivision 8. Breach of Labour Covenant. 101. (1) If the lessee of any mining lease in respect of any where breach of private land commits a breach of the labour covenant of such lease ofte^hokle'r 11 it shall be lawful for any holder of a miner's right to apply to the niay apply for inquiry. Minister in the form set out in the Second Schedule to this Act second or to the like effect. See sec. S3. (2) If such application be made and the person or persons so applying lodges with or forwards to the clerk of the warden the sum of Five pounds for costs, the Minister may if he thinks tit refer the said application to the warden with directions to hold a public inquiry concerning the alleged breach. (3) All the provisions of Subdivision 4 of Part I relating to an application for a public inquiry concerning an alleged breach of the labour covenant of a mining lease of Crown lands and to the powers of the warden Minister and Governor in Council with regard thereto are hereby made and shall mutatis mutandis be equally applicable to an application for a public inquiry concerning an alleged breach of the labour covenant of a lease of private land. (4) In case such lease is forfeited and declared void on the application of the holder or holders of a miner's right or rights the persons making the application shall not receive a lease of the land or the portion of the land applied for until the amount of compensation which the owner or owner and occupier is or are entitled to receive as in this Part provided has been paid or tendered to him or them and a statutory declaration verifying such payment has been furnished to the Minister. The compen- sation payable in respect of such land or portion of such land shall be determined on the complaint of such holder or holders of a miner's right or rights in the same manner as compensation is determined where the applicant for a lease and the owner or the owner and occupier of private land are unable to agree as to the amount of compensation to be paid. [cf. 62 Vic. No. 29 (W.A.), sec. 33 ; 51 & 52 Vic. No. 448 (S.A.), sec. 30]. Subdivision 9. Encroachment.. 102. If any person not being lawfully authorized under the [", ] ^[d ' ay provisions of this Part mines or attempts to mine or encroaches encroachment .... -IT, -t.i iV without proof of in under or upon or within the prohibited distance within the spec ial damage. fee. 564 THE MINES ACT 1897. No. 1120, s. 347. meaning of section sixty-nine sub-section (d) and section seventy- one sub-section (5) from any private land the Supreme Court or the Court of Mines for the district in which the land is situate or the judge thereof or the warden may grant an injunction to- restrain such mining or encroachment at the suit of the Attorney- General the owner of the land or of any person in lawful posses- sion thereof without proof of any special or material damage. [cL 62 Yic. No. 29 (W.A.), sec. 34]. . 103. The warden may upon the application of any corporation having the care and management of any public highway street or road or upon the application of any person authorized by such corporation by writing under the hand of the warden authorize any mining surveyor or surveyors either alone or together with some experienced miner or miners to enter upon and inspect any land or mines held as a claim or comprised in any lease under this Part or under the corresponding provisions of any enactment hereby repealed and every part thereof for the purpose of ascer- taining whether the persons working such mines are encroaching on any public highway street or road and whether the mining operations carried on can be continued without causing injury or damage to such public highway street or road or to any house or building abutting thereon or adjoining thereto, [cf. 62 Vic, No. 29 (W.A.), sec. 35]. E rivate C iMidf 0n 104. ^ e warden may upon the application of the owner See ib. s. 340. trustee or occupier of any land adjoining or within the prohibited distance within the meaning of section sixty-nine sub-section (d) and section seventy-one sub-section (5) of any land held as a claim or whereof a lease has been granted under the provisions of this Part or the corresponding provisions of any enactment hereby repealed or upon the application of any person authorized by such owner trustee or occupier by writing under the hand of the warden authorize such owner trustee or occupier or any person nominated as his agent by such owner trustee or occupier any mining surveyor or surveyors or some experienced miner or miners to enter into and inspect such mines and every part thereof for the purpose of ascertaining whether the persons working such mines are encroaching upon or within the prohibited distance within the meaning of section sixty-nine sub-section (d) and section seventy-one sub-section (5) of the land of any owner THE MINES ACT 1897. 565 trustee or occupier not being land comprised in the claim or lease of such person under the provisions of this Part. 105. The person or persons authorized by an order made under Power of persons the authority of this Part may enter into and inspect and survey ^erand' l the land and mines described in such order and every. part thereof, NoTito, 8 . 3. and descend any shaft or mine, and for such purpose use the engines and other machinery ordinarily employed for that purpose by the persons whose shaft or mine is descended ; and the holder under any miner's right or the lessee of such shaft or mine or other person for whom the same is being worked shall provide all labour assistance appliances and materials necessary to facilitate such inspection and survey ; and such person or persons authorized as aforesaid may make such plans and sections of the land entered upon and of any drives or other works therein as are necessary for the purposes aforesaid. Provided that the person or persons authorized by such order pays all costs attending such inspection such costs to be fixed by the warden, [cf. 62 Vic. No. 29 (W.A.), sec. 36]. 106. Every such owner occupier agent and mining surveyor or owner occupier miner shall before entering on such land make a declaration suTveVor am? before the warden (\vho is hereby authorized to take the same) declaration! 1 that he the said owner occupier agent surveyor or miner will not Ib ' s ' 342- (except as a witness in a court of justice) without the consent in writing of the holder under any miner's right or the lessee of the land or mines to be entered upon divulge or cause to be divulged to any person whomsoever any information obtained in the case of any such entry made for the purpose of ascertaining whether the persons working such mines are or have been encroaching on any public highway street or road, and whether the mining operations carried on can be continued without causing injury or damage to such public highway street or road, or the houses or buildings abutting thereon or adjoining thereto, or in the case of any such entry made for the purpose of ascertaining whether the persons working such mines are encroaching upon the land of any owner not being land comprised in the claim or lease of such per- sons save only as to whether such persons working such mines are encroaching on such public highway street or road or upon land of any owner (not being land comprised in the claim or lease of such persons as aforesaid) as the case may be, and every person THE MINES ACT 1897. Warden mav enjoin persoi to desist fron trespassing. See No. 1120, s. 343. who acts contrary to such declaration shall forfeit and pay any sum not exceeding Fifty pounds to be recovered in a summary way before any justice, [cf. 62 Vic. No. 29 (W.A.), sec. 37]. 107. The warden may upon the application of the corporation or applicant obtaining an order under the provisions of this Part (such application to be made on notice served twenty-four hours at least before the time of the making thereof on the parties interested in opposing the same or such of them as appear to the warden sufficiently to repi'esent the parties so interested) in the presence of such parties or such of them as aforesaid, or in the absence of any of them upon whom service of such notice is proved to the satisfaction of the warden hear receive and examine evidence, and thereupon if he in his discretion think fit by order under his hand enjoin all persons named in such order and all other persons mining on the land or in the mines mentioned in the said order to desist from trespassing upon or driving in under or upon any public highway street or road or from continuing to carry on any mining operations which in the opinion of the warden will cause damage or injury to any public highway street or road or any house or building abutting thereon or adjoining thereto or from encroaching on the land of any owner not comprised in a claim or a lease granted under the provisions of this Part. [cf. 62 Vic. No. 29 (W.A.), sec. 38]. Order of warden. .108. Every order made by Ib. s. 344. Third Schedule. Disobeying order. the warden under the preceding section may be in the form contained in the Third Schedule to this Act or to that effect, and every such order shall (except the warden otherwise direct) be served by delivering a copy to the person or to any one of the persons to be bound thereby, and at the same time showing the original order if the person or persons to be bound thereby or any of them require to see the same and by affixing a copy thereof on some conspicuous place on the land mentioned in such order. If for any reason such copy cannot be delivered to the person to be bound thereby the said affixing of the copy shall be sufficient. The cost of obtaining any such order shall be in the discretion of the warden, [cf. 62 Vic. No. 29 (W.A.), sec. 39]. 109. If after a copy of the said order of injunction have been affixed on some conspicuous place as aforesaid the same be dis- obeyed, every person working in the mine in the land mentioned THE MINES ACT 1897. 557 in the said order and the person in charge of the mining operations carried on in the said mine and the occupiers of the said land shall each be considered to have disobeyed the said order, [cf. 62 Vic. No. 29 (W.A.), sec. 40]. 110. Any person who disobeys any of the said orders or Penalty, obstructs or otherwise interferes with any person authorized by f^ a 1120> the warden as aforesaid to enter upon any land for the purpose aforesaid shall be liable to a penalty not exceeding Fifty pounds to be recovered in a summary way before any court of petty sessions, and shall also be liable to be dealt with under section two hundred and forty-nine of the Principal Act, and a breach or obstruction of or interference with any of the said orders shall be deemed to be a disobedience of an order within the meaning of that section, [cf. 62 Vic. No. 29 (W.A.), sec. 41]. Subdivision 10. Power of Survey. 111. (1) Any surveyor acting under the authority of the Survey officers may enter upon Minister of Mines and any other person acting in aid or under j a a n n ^ rivate the orders of such surveyor may from time to time without Compare No. 1106, a. 116. making compensation (a) enter into and upon any land of any person or persons whomsoever for the purpose of making and carrying on a survey thereof and for the purpose of fixing any object to be used in the survey on any post stone or boundary mark whatsoever, and (6) fix and place any such object post stone or boundary mark whatsoever in the land or upon any wall tree or post in the land of any person whatsoever, and (c) dig up any ground for the purpose of fixing any such object post stone or boundary mark, and (d) cut down and remove any scrub or timber other than ornamental timber fruit trees or vines which may obstruct any survey line. (2) Such surveyor and his assistants and workmen shall do as little damage as may be in the execution of the several powers conferred on them by the said authority or orders, [cf. 62 Vic. No. 29 (W.A.), sec. 42]. 568 THE MINES ACT 1897. Subdivision 1 1 . Miscellaneous. applicant to ^2. Any applicant for a mining lease inay with the approval transfer interest. Q ^e Minister and in accordance with the regulations transfer See Transfer of Land Act, s. 40. the whole or any portion of his interest in his application to any person. And in the event of the death of an applicant for a lease such lease may be granted in the name of such applicant and be executed by his executor or administrator and shall devolve or pass in like manner as if the lease had been executed prior to the death of the applicant, [cf. 62 Vic. No. 29 (W.A.), sec. 43]. may be excepted from mining. occupation for mining purposes any specific portions of private lands, and no land so excepted shall be marked out or occupied under any provision of this Part for mining purposes until such exception be revoked by the Governor in Council, [cf. 62 Vic. No. 29 (W.A.), sec. 46]. futureHeasesbv ^^' ^ n ever ^ ^ ease ^ ^ an ^ g rante cl by the trustees pursuant trustees. to t h e Agricultural Colleges Act 1890 there shall be inserted See No. 1251, s. 20. covenants and conditions providing that the land demised is granted subject to any claim occupied under the provisions of this Part or any gold mining lease or mineral lease of such land which thereafter may be granted by the Governor in Council in accord- ance with the provisions of this Part. private "and. Ver ^^ -^ n case ^ ^ s necessary for the proper working of a mine See No. 1120, comprised in any claim held or any lease granted under this Part or under the corresponding provisions of any enactment hereby repealed or of a lease or claim held under Part I of the Principal Act that water should be conveyed therefrom or brought thereto or from or to any shaft or works thereon from any river stream or other water-course or from any lake water-hole dam reservoir or place where water is artificially stored it shall be lawful for the Governor in Council in the name and on behalf of Her Majesty to enter upon so much of any private land as may be required for the construction of a race or flume or for the laying of pipes for the bringing of such water to or from the said mine or claim and to grant to any person requiring to remove or using such water a lease of such private land as may be required for such construe- THE MINES ACT 1897. 569 tion, and the rent for the land comprised in any such lease shall be Sixpence per acre per annum, [cf. 62 Vic. No. 29 (W.A.), sec. 47]. 116. Every such lease shall be obtained and compensation for Compensation; surface damage to be done to the land comprised therein shall be lease. ascertained and paid as hereinbefore in this Part provided and ^335' 112 ' shall be as nearly as may be in the form and subject to and con- tain the terms provisions and conditions contained in leases under this Part. [cf. 62 Vic. No. 29 (W.A.), sec. 48]. 117. When a lease of any private land has been granted to any Power for the person or when such land has been occupied as a claim by the Council to grant licences to holder of a miner's right under the provisions of this Part or the construct drives through land corresponding provisions of any enactment hereby repealed and such land is severed or any part thereof is separated from the See No. 1139, other par,t or parts thereof by the private land of any other per- son over which a mining lease has been granted or which has been occupied as a claim as aforesaid and is occupied for mining pur- poses at the time of the application for the licence hereinafter mentioned, it shall be lawful for the Governor in Council to grant to such first-mentioned person or holder a licence to construct a drive or drives through such private land so severing or separating such land for the purpose of enabling the whole of such first- mentioned land to be effectually worked and mined. This section shall not apply to any private land on which any church is sit- uated. [cf. 62 Vic. No. 29 (W.A.), sec. 50 ; 62 Vic. No. 24 (Q.), sec. 62]. 118. Every such licence shall be for such term not exceeding Term and form fifteen years, and shall be in such form and subject to such reservations covenants and provisoes as the Governor in Council shall determine, [cf. 62 Vic. No. 29 (W. A.), sec. 51]. 119. No such licence shall authorize the construction of a drive Not to be at a depth of less than four hundred feet from the surface of any 400feetof surface. such private land as measured from the lowest part of the surface. [cf. 62 Vic. No. 29 (W.A.), sec. 52]. 120. If any lease of any private land be declared void or for- ">uter^ ^^ feited or determined by reason of any breach of any of the see No 1120, , , . s. 338. covenants or conditions or otherwise any lease issued or claim 570 THE MINES ACT 1897. Future tribute agreements. Owner of land or buildings in vicinity of leased land entitled to compensation for loss and damage caused by mining. See No. 1120, Validation of certain mineral leases. No. 1202, s. 3. taken possession of under or in pursuance of such forfeiture or determination shall be subject to all the rights then existing of any person mining on such land as a tributer or sub-tributer ; any tribute agreement which at the time of the forfeiture or deter- mination of the lease existed between the lessee or the tributer shall in the event of a new lease being granted be deemed to con- tinue between the new lessee and the tributer : Provided that such agreement shall not run during such period (if any) as the tributer is by reason of the forfeiture prevented from working his tribute, and the tribute agreement shall be deemed to be extended for such period beyond the time at which it would otherwise have terminated. 121. It shall not be lawful after the commencement of this Act to assign underlet or part with all or any of the land demised under any mining lease or of any premises thereupon or to let a tribute in regard thereto without the sanction in writing of the Minister. 122. If any land or buildings thereon adjoining or in the vicinity of any land occupied as a claim or held under any lease granted under this Part or the corresponding provisions of any enactment hereby repealed be injured or depreciated in value by any operations carried on by the occupier of the claim or lessee, the owner of such land or buildings shall be entitled to compensa- tion for all loss and damage thereby sustained by him, and the amount of such compensation shall be ascertained in the same manner as the amount of compensation is ascertained under the provisions of this Part. [cf. 62 No. 29 (W.A.), sec. 53 ; 57 Vic. No. 32 (N.S.W.), sec. 21]. 123. All mineral leases granted by the Governor in Council between the twenty-ninth day of December One thousand eight hundred and eighty-four and the twentieth day of December One thousand eight hundred and ninety authorizing any person to mine upon any pastoral allotment or grazing area shall from the time of such granting be deemed to have had and to have the like force and effect as if they had been granted pursuant to law. Provided however that this section shall not affect any action cause suit or matter or proceeding in any court duly begun or pending on or before such last-mentioned date. THE MINES ACT 1897. 571 12$. Any person who not being authorized so to do under a Penalty for lease or by virtue of a miner's right takes or removes (a) any gold Md m!Sf d found or being in any private land or (b) any minerals found or ? e j' Ua ' being in any private land not alienated in fee simple from the Crown on or before the first day of March One thousand eight hundred and ninety-two shall on conviction before a court of petty sessions pay for every day during which he takes removes or continues to take or remove any such gold or minerals a penalty not exceeding Five pounds and forfeit all the gold or minerals which he has so taken or removed, and shall be liable on a second conviction to be imprisoned for a period not exceeding twelve months in addition to forfeiting any gold or minerals so taken or removed, [cf. 62 Vic. No. 29 (W.A.), sec. 54]. 125. (1) In case any lease granted under the authority of this Ejectment may -r, , i ,. . . be brought in Part or the corresponding provisions of any enactment hereby the Court of repealed is or is liable to be forfeited or declared void or deter- J b . 8< 337 mined by any breach of covenant or conditions or otherwise, or in case the term thereby granted has expired, possession of the mines demised shall and may be recovered on behalf of Her Majesty in such manner as may be provided by any of the con- ditions of such lease. (2) If there be no such conditions it shall be lawful for the Attorney-General on behalf of Her Majesty to bring a suit in the Court of Mines in the district in which the land comprised in such lease is situated to recover possession of such land or the mines thereunder ; and such suit shall be commenced and carried on as any other suit in the Court of Mines and the proceedings therein shall be the same and the judgment therein enforced in like manner as in the case of any other suit in the said court. 126. (1) The Governor in Council may make regulations for Regulations, the carrying into effect all or any of the provisions of this Part. (2) All such regulations shall be laid before both Houses of To be laid before Parliament &c. Parliament within twenty-one days after the same have been made or if Parliament be not then sitting within twenty -one days after the commencement of the next ensuing session thereof ; and if an address be presented to the Governor by either House of Parlia- ment within the next subsequent twenty-one days on which the 572 THE MINES ACT 1897. said House shall have sat praying that such regulations or any portion thereof may be annulled the Governor shall thereupon by Order in Council annul such regulations or portion thereof as the case may be, and the same shall thenceforth become void and of no effect but without prejudice to the validity of any proceedings which may in the meantime have been, taken under the same. PART III. GENERAL PROVISIONS. Construction of 127. This Part shall be read and construed as one with Part Part III. See No. 1120, HI of the Principal Act. ss. 351-399. DIVISION 1. REGULATION AND INSPECTION OF MINES AND MINING MACHINERY (). interpretation of 128. In this Division of this Part if not inconsistent with the terms. ib. s. 351. context or subject matter "Machinery." " Machinery " means and includes steam and other engines boilers furnaces stampers winding and pumping gear whims whips windlasses chains trucks tramways tackle blocks ropes tools and all appliances of whatsoever kind used for the treatment of ores or for any mining purpose : "Mine." ' Mine" means and includes any claim place pit shaft drive level or other excavation drift gutter lead vein lode reef wherein or whereby is or shall be or has been carried on any operation for or in connexion with the purpose of obtaining any metal or mineral by any mode or method or of stacking or otherwise storing any substance as containing any metal or mineral or wherein operations are carried on for the treatment of the products of any mine : "Mining "Mining manager " means the pei'son having the manage- ment of the mining operations carried on in a mine : "Owner." " Owner " includes a company incorporated under any Act as a mining company. (a) Cf. 62 Vic. No. 24 (Q.), Part XIII, sec. 193 ; 59 Vic. No. 37 (W.A.), Part VII, and 63 Vic. No. 35 (W.A.) ; Regulations under 37 Vic. No. 13 (N.S.W.), July 6, 1889 ; Regulations under 56 & 57 Vic. No. 587 (S.A.), Part XI, cl. 236-248 ; 57 Vic. No. 24 (Tas.), Part VI, sec. 88 ; 62 Vic. No. 38(N.Z.), Part V, sec. 183. THE MINES ACT 1897. 573 129. Any accident occurring in a mine shall be primd facie in case of evidence that such accident occurred through some negligence on "resumption the part of the owner. Subdivision 1. Regulation of Employes. See No. 1120, 8.352. 130. Boys under the age of fourteen years and females shall Who shall not not be employed below ground in any mine ; and no boy under mines!* 1 ' the age of eighteen years shall be employed at any time as lander Ib ' or braceman at any plat or landing place either at or below the surface ; and no person shall be so employed for more than forty- eight hours in any week nor more than eight hours in any day except in oases of emergency. than eight hours 131. No person shall be deemed to be guilty of an offence Special against this Division for a contravention of so much of the next See ib 8 353 preceding or the next following section as relates to the time for which persons shall not be employed below ground if such person prove before any court of petty sessions that there were special circumstances to render such contravention necessary for the proper working of the mine, and that such contravention was not injurious to the workmen employed in the mine. 132. No person shall be employed below ground in any mine persons not to be for more than eight consecutive hours at any time nor for more Around " , n -ii than eight h than lorty-eight hours in any week except in cases or emergency, in any day. and a person shall be deemed and is hereby declared to be em- Ib ' s- 35 ployed below ground and in the service of the owner of a mine from the time that he commences to descend a mine until he is relieved of his Avork and commences to return to the surface by the authority of the owner or his agent. 133. No person in charge of machinery on which steam water R e(ru i a ti 0n of electricity or air or any two or more of them are used as a motive ^rson^'irfcha'rge power in connexion with any mine or for the treatment of the products of any mine shall be employed for more than eight con- secutive hours at any time or for more than eight hours in any twenty-four hours ; such period of eight hours shall be exclusive of any time occupied in raising steam or supplying air and in drawing h'res and exhausting steam in connexion with the machinery in the charge of such person and of any time in which 574 THE MIXES ACT 1897. such person is employed in case of breakage emergency or Pen " My " 134- Everv person in charge as aforesaid who is guilty of Xo. U2B, SL 356. negligence by which any property is destroyed or damaged shall be guilty of an offence against this Division of this Part of this Act Subdivision '2. General Rules. e?. 135. The following general rules shall so far as may be reason- ably practicable be observed in every mine : 1. An adequate amount of ventilation that is to say not leas than one hundred cubic feet of air per minute for each man and boy and one hundred and fifty cubic feet per minute for each horse employed underground in a mine excepting in cases where noxious gases exist to a dangerous degree when the quantity of air required shall be increased to five hundred cubic feet respectively shall be constantly produced in every mine to such an extent that the shafts winzes levels underground stables and working places of such mine and the travelling roads to and from such working places shall be in a fit state for working and passing therein. And all drives in quartz workings by which any two mines are connected shall if considered neces- sary by the inspector of mines be kept open for ventilation and for escape drives and upon the order of an inspector of mines authorized by the Minister companies shall construct such connecting drives where the works are not more than three hundred feet a pan for ventilation and escape at their joint expenses and where deemed necessary for the purposes of venti- lation by the inspector of mines if authorized by the Minister all levels shall be connected with winzes. But this shall not apply to alluvial mines except where in the opinion of an inspector if authorized by the Minister it is considered necessary. 2. Gunpowder or other explosive or inflammable substance shall only be used in a mine as hereunder provided (that is to say) : (a) It shall not be stored in the mine unless in such magazine and in such quantities as may in writing be approved of by the Minister. (b) Without such written authority it shall not be stored in the mine in any quantity exceeding what would be required for use during six working days for the purposes of the mine ; and if stored in the mine it shall be kept in a drive or chamber separated by a door fixed across such drive of which the mining inspector shall approve. (c) Explosives when taken from the magazine for use in the workings shall be conveyed direct down the shaft to such workings and THE MINES ACT 1897. 575 shall not be taken for use into the workings of the mine except in a securely covered case or canister containing not more than eight pounds of gunpowder or five pounds of nitro-glycerine compound. (0 All nitro-glycerine kept for use in any mine shall be kept in the custody of the manager of such mine or of some person ap- pointed for that purpose, and if such manager or person issues a greater quantity of such nitro-glycerine than is reasonably sufficient for use in such mine during the six days next follow- ing the time of such issue or negligently omits to retake possession of any quantity of nitre-glycerine not so used at the end of the week's work or which at any time appears not likely to be soon required or negligently permits any nitro- glycerine to be retained removed or disposed of by any other person, or if any person other than such manager or person retain remove or dispose of any such nitro-glycerine contrary to the provisions of this section such manager or person shall be liable to a penalty not exceeding Fifty pounds and such nitro-glycerine may be forfeited. (e) A workman shall not have in use at one time at any one place more than one of such cases or canisters. (/) No person shall enter with a naked light a powder magazine or any excavation in a mine where powder or other explosive or inflammable substance is stored. (g) No iron or steel pricker shall be used in blasting in any mine, and no iron or steel tool shall be used in charging tamping or ramming, and no iron or steel pricker or tamping bar shall be taken into any mine and where nitro-glycerine explosives are used only wooden rammers shall be used in charging. (h] No boy under the age of eighteen years shall be allowed to charge a hole with explosives or to fire any charge of explosives. (") No drill hole shall be bored in any remaining portion of a hole in which a charge of nitro-glycerine compound has been previously exploded. (j) In all cases where the fumes arising from the explosion of any nitro-glycerine compound cannot be effectively dispersed by ventilation or spray of water from the mine, such fumes shall be neutralized or rendered innocuous by the person in charge of the blasting operations by the use of a spray of solution of sulphate of iron before the miners are permitted to return to the sites of such blasting operations. (k) Mining companies or persons employing miners in blasting with nitro-glycerine compounds shall supply such miners with the 576 THE MINES ACT 1897. means of thawing such compounds and with the means of producing sulphate of iron spray. (I) A charge which has missed fire may be drawn by a copper pricker, but shall not excepting charges fired by an electric current be visited until one hour has elapsed from the time of lighting the fuse of such charge ; but in no case shall an iron or steel drill be used for the purpose of drawing or drilling out such charge. 3. Every underground plane on which persons travel which is self-acting or worked by an engine windlass or gin shall be provided (if exceeding thirty yards in length) with some proper means of signalling between the stopping places and the ends of the plane and shall be provided in every case at intervals of not more than twenty yards with sufficient man-holes for places of refuge. 4. Every road on which persons travel underground where the produce of the mine in transit exceeds ten tons in any one hour over any part thereof and where the load is drawn by a horse or other animal shall be provided at intervals of not more than one hundred yards with sufficient spaces or places of refuge, each of which shall be of sufficient length and of at least three feet in width between the waggons running on the tramroad and the side of the road. 5. Every man-hole and space for a place of refuge shall be constantly kept clear, and no person shall place anything in a man-hole or such space so as to prevent access thereto. 6. All entrances between the bottom of every working or pumping shaft and the poppet-head pulley wheels and all elevated platforms where auto- matic or safety doors are erected or self-acting catches are used shall be properly and securely fenced railed or securely covered, but this provision shall not be taken to forbid the temporary removal of any fence or cover for the purpose of repairs or other operations if proper precautions are used, and every abandoned or disused shaft or dangerous excavation shall be fenced or securely covered in by the lessee or registered owner thereof and the position of such covered shaft indicated on the surface by a post with a notice thereon affixed. 7. At all plats where hauling operations are carried on doors shall be fixed with a lever or handle attached whereby the said doors can be safely lowered into position or raised without possible danger to the person per- forming the duty. 8. When a fence or cover has been temporarily removed from an}- entrance to a shaft to admit of the performance of ordinary mining operations two strong horizontal bars shall be securely fixed across such entrance not less than two nor more than four feet from the floor of the brace chamber or drive as the case may be. THE MINES ACT 1897. 577 9. Every working or pumping shaft shall be securely cased lined or otherwise made secure. 10. When a shaft is being sunk in rock formation and blasting operations are necessary short cross-drives or man-holes shall be formed at depths of every two hundred feet for use by miners as places of refuge during the occurrence of blasts, and access to such man-holes shall be provided by the use of suitable ladders from the bottom of the shaft to the surface affording access to each man-hole. 11. Every drive and every excavation of any kind in connexion with the working of a mine shall be securely protected and made safe for persons employed therein. 12. Suitable lights effectually protected from draughts of air shall be provided for the use of miners in every working plat and in the main drives of any mine, and the upper entrance to every winze rise or jump-up while open or unfenced shall be illuminated by a fixed light. 13. Where one portion of a shaft is used for the ascent and descent of persons by ladders or a man -engine and another portion of the same shaft is used for raising material the first-mentioned portion shall be cased or otherwise securely fenced off from the last-mentioned portion and shall have a division between buckets ascending and descending where the shaft exceeds one hundred feet in depth. 14. Every working shaft in which a cage is used and every division of such shaft in which persons are raised and lowered and every shaft in which appliances worked by steam machinery are used shall be provided with guides and some proper means of communicating distinct and definite signals from the bottom of the shaft and from and between every entrance for the time being in work between the top and the bottom of the shaft to the top and thence to the engine-room and from the engine-room and top to the bottom of the shaft and to and between every entrance for the time being in work between the top and the bottom of the shaft, and such signal line shall be balanced so as to be easily worked by hand without the aid of a lever, and no verbal signals or communications shall be made up or down a shaft exceeding twenty yards in depth in which cages are used except through speaking tubes or telephones in the pump compartment of such shaft, and every person employed in a mine shall make himself acquainted with the system of signals provided hereby. A line or some other appliance shall be provided in each shaft to admit of danger signals being communicated to the engine-driver from any portion of such shaft. 15. A clear view shall be kept for the engine driver between his station and the shaft or tunnel or adit at the surface entrance and brace. 16. Any code of signals that may at any time be prescribed by order of the Governor in Council shall be that used in all mines, and no other method shall be made use of. Separate codes may be prescribed for different classes of mines. S7 578 THE MINES ACT 1897. 17. Whenever any underground work is being performed in alluvial mines at greater distances than two hundred feet from the shafts proper means shall be provided for communicating along the lower drives of such mines distinct and definite signals to and from the plats at the bottom of the shafts and to or from such places in which men may be at work. 1 8. Every shaft exceeding two hundred feet in depth where engine power is used for winding shall be provided with a cage and such cage shall have a sufficient cover overhead when used for lowering or raising persons in any working shaft ; such cage cover shall be at least six feet six inches above the floor of the cage and shall be constructed of iron not less than three- eights of an inch or of steel not less than one-quarter of an inch thick, and shall be securely hung on hinges and fitted with sloping sides so as to be readily lifted upwards by persons within the cage ; and no tools or material shall be taken up or down the shaft when men are in the cage. Except when repairing the shaft all persons working in shafts shall be protected overhead from falls of material down such shafts by means of a roof or other suitable appliance. Nothing in this rule contained shall prevent the use of buckets or skips during the sinking of shafts or winzes or for raising or lowering mining material mine products or debris. 19. A whip shall not be used for the sinking of shafts or for lowering or raising men unless two-thirds of the shaft is covered by a pent house. 20. Every brace shall have adequate protection provided for the work- men from the inclemency of the weather. 21. A proper ladder or footway shall be provided in every shaft used for men ascending or descending whether machinery be used or not. 22. When chains are employed as couplings to cages or tanks two single- linked chains of uniform size shall be used to each coupling. 23. There shall be attached to every machine worked by steam water or mechanical power erected after the passing of this Act and used for lowering or raising persons an adequate brake or other sufficient appliance in addition to that on the fiy wheel fitted to each winding drum in such a manner that it can be applied by the engine-driver without leaving the starting handle of the engine, and also a dial or indicator (in addition to any mark on the rope) to show to the person who works the machine the position of each of the cages or loads in the shaft. 24. Every cage used in a mine shall be fitted with special and suitable appliances to prevent its sudden fall down a shaft, and also a safety hook with suitable detaching appliances fixed to the poppet heads to prevent it coming into contact with the poppet heads and no safety hook shall be used that will not suspend a cage at the poppet head when detached from the ropes. 25. Automatic or self-acting doors or tumblers of a suitable kind shall be affixed to the skids or guides below the poppet heads of every shaft in which THE MINES ACT 1897. 579 a cage is used to prevent the fall of such cage down the shaft when detached from the rope or chain by overwinding, and such automatic or self-acting doors or tumblers shall be surrounded by proper platforms and hand railings, and at every plat or level where trucks are removed on or off the cage while in the shaft such shaft shall be fitted with bearers or gates securely fixed to the sole piece of the plat set with strong hinges, and loose wooden bearers shall not be used. 26. Gates shall be used in all shafts where hauling is done with cages. Such gates shall be secured to the sole plates of the plat sets, so that they can be easily placed over the shaft and raised without any trouble, and fixed to the satisfaction of the inspector of mines. 27. If more than four persons are employed in the mine below ground in one shift sufficient accommodation shall be provided above ground near the principal entrance of the mine and not in the engine-house or boiler-house for enabling the persons employed in the mine to conveniently dry and change their dresses, and in no case shall men be allowed to change their dresses upon a boiler. 28. Before any rope or chain is used in the shaft of a mine it shall be tested and proved to be equal to carrying twice the weight of the ordinary load which shall consist of the cage truck and contents and weight of rope from bottom of shaft to pit-head pulley, and the working load shall not be more than one-eighth of the breaking strain of rope, and in mines where men are lowered or raised in shafts the ropes and chains used for such pur- poses shall be tested at such intervals as an inspector of mines may require to carry twice the weight of the ordinary load. Before any ropes are used for winding in a mine including capstan ropes the manager or owner shall obtain a certificate from the manufacturer showing their breaking strain, such certificates to be available at the mine for the perusal of the inspector. 29. There shall be on the drum of every machine used for lowering or raising persons such flanges or horns and also if the drum is conical such other appliances as may be sufficient to prevent the rope from slipping. 30. No person under the age of twenty-one years shall be placed in charge of or have the control of any winding engine, and no person under the age of eighteen years shall be placed in charge of or have the control of any other steam engine or boiler used in connexion with the working of any mine. No person in charge of steam machinery in connexion with the working of any mine shall under any pretext whatever unless relieved by a competent person for that purpose absent himself or cease to have con- tinual supervision of such machinery during the time it is used in working the mine, and every winding-engine shall be in charge of an engine-driver during the time miners are employed underground in the mine unless in any case the inspector of mines certifies in writing that the underground workings are so shallow that the services of an engine-driver are not necessary. THE MINES ACT 1897. 31. All machinery in which steam water or air or any two or more of them are used as motive power shall be subject to the provisions of the Mines Acts so far as the same shall reasonably apply, and no such machinery erected or fitted up after the passing of this Act shall be employed until it has been examined by an inspector appointed for that purpose and certified by him to be in proper and fit working condition. 32. All boilers compressors engines gearing and all other parts of machinery when used for any mining purpose or for the treatment of ores or for the treatment of the products of any mine shall be kept in a fit state and condition. 33. Ever}' fly wheel and all exposed or dangerous parts of the machinery and every tramway constructed on an elevated platform shall be and be kept securely and safely fenced. 34. Every steam boiler coming into use after the commencement of this- Act shall be provided with a proper steam gauge and two water gauges to show respectively the pressure of steam and the height of water in the boiler, and with two proper safety valves, one to be locked ; and at least once in every six months every boiler shall be thoroughly cleansed, and once in twelve months every such boiler shall be subjected to an examina- tion and hydraulic test, the test of working boilers shall be half as much more than the pressure at which the safety valve blows off and that of new boilers double the intended working pressure. Air receivers shall be tested once in three years to one-third over the allowed working pressure. Steam gauges shall be tested and adjusted once in twelve months, and no' gauge shall be passed which varies more than five pounds from the standard gauge. The date and full description of every such cleansing and test under this rule shall be entered in a book to be kept on the mine by the engineer in charge or by the mining manager where no such engineer is employed on the mine or by an engine-driver or braceman, and the entries in such book shall on demand be open to the inspection and perusal of any inspector under this Act. No boiler shall be placed in position or built in before ar> inspector has examined and passed it. 35. No person shall wilfully damage or without proper authority remove or render useless any fencing casing lining guide means of signalling signal cover chain flange horn brake indicator ladder platform steam gauge water gauge safety valve or other appliance or thing provided in any mine in compliance with the Mines Acts, and no person shall after any shaft has become disused for mining purposes wilfully damage or render useless such shaft by the removal of any fencing covering casing lining ladder platform or other appliance provided in such shaft without the consent of the Minister. 36. In every working in a mine approaching a place likely to contain a dangerous accumulation of water or fire damp boring rods shall be kept and used for the purpose of perforating the ground twenty feet in advance in .alluvial mines and ten feet in quartz mines of or near or at any angle from THE MINES ACT 1897. 581 such working, and no drive gallery or other excavation shall be made within a dangerous distance of such accumulation of water or fire damp, and safety lamps shall be provided for the use of the miners whilst working in such 37. In every alluvial mine which in the opinion of an inspector is liable to any inundation or inburst of water such additional rises chambers drives and other workings or any of -them shall be constructed as may seem necessary and as may be ordered by the Governor in Council for the escape of workmen from the lower workings or to ensure their safety in every such mine during the period of any inundation or inburst of water in such mine. 38. When men are being lowered or raised in any shaft by means of machinery the rate of speed for the descent or ascent of such men shall not exceed within one hundred feet of the surface of a mine two hundred feet in each minute of time, and shall not in any other part of a shaft exceed five hundred feet in each minute of time. 39. Before any safety cage be first used it shall be tested in the presence of the local inspector of mines to show that it is supplied with proper appliances, and no such cage shall be used unless and until such inspector gives a cer- tificate to the effect that such cage is in fit working order and condition, the mining manager or engineer in charge shall test the cages at least once in every two months aud enter the result in his record book all cages to be tested from the drums. 40. In any shaft exceeding twenty feet in depth in which cages are not used no person shall decend or ascend by the aid of machinery unless in addition to the use of the loop cross bar or other appliance he be securely stayed to the rope employed for lowering or raising in such shaft by a strap or other fastening passing round the body under the arms, and such method of staying shall be used by every person who finds it necessary in the execution of his duty to descend or ascend a shaft on top of the cage 41. A ladder permanently used for the ascent or descent of persons in the mine shall not be fixed in a vertical or overhanging position unless in shafts used exclusively for pumping, and shall be 1 inclined at the most con- venient angle which the space in which the ladder is fixed allows, and every such ladder inclusive of ladders fixed in pump shafts shall have substantial platforms at intervals of not more than thirty feet and a suitable fixture for a hand grip shall be placed above such ladder for the use of persons ascending or descending such ladder. 42. Ladders and when necessary convenient platforms connected there- with shall be provided in each rise jump-up or passage giving access to working at a higher level in a mine, and a notice shall be posted at the foot of each such rise jump-up or passage stating the height of such rise jump-up or passage to the chamber or drive above. 582 THE MINES ACT 1897. 43. The mining manager of every mine or other competent person or persons appointed for such purpose shall once at least in every twenty-four hours examine the state of all safety appliances or gear connected with the cages or shafts of the mine, and shall once in each week carefully examine the buildings machinery shafts levels planes and all places used in the working of such mine, and shall record in writing in a book to be kept on the mine for that purpose his opinion as to their condition and safety and any repairs and as to any alterations required to insure greater safety to the persons employed in the working of such mine, and such book shall on demand be open to perusal by any inspector under the Mines Acts ; and every such safety appliance or gear if condemned by any inspector of mines or machinery shall be forthwith removed or made fit. Non-compliance 136. Any person who contravenes or does not comply with any of the general rules and any mining manager or engineer in charge or person in charge of or giving orders or directions relating to the carrying on of any mining operations in a mine who contravenes or does not comply with any of the general rules shall be guilty of an offence against this Division of this Part of tins Act unless he proves that he had taken all reasonable means to prevent such contravention or non-compliance. Posting up of 137. A printed copy of the general rules shall be posted in the general rules. __ . . . office and on a building or board in some conspicuous place in connexion with every mine. Subdivision 3. Board of Examiners fur Engine-drivers. ^mln^rs for 138- ( 1 ) There slla11 be a board of examiners for engine- engine-drivers, drivers as hereinafter provided. See Vo. 1120, ' ' (2) The said board shall be empowered to hold examinations engine^river" 1 an( * to exam i ne persons who may be desirous of qualifying them- Seesec. 142. selves as engine-drivers subject to such regulations as may from time to time be approved by the Governor in Council and to grant first and second class certificates of competency to such persons as successfully pass the prescribed examinations. Subdivision 4. Mining Managers. Every company 139. (1) Every mine shall be under a manager who shall be to have a tegistered deemed the mining manager of such mine under this Division of manager. Appointment of ^^ **** ^ this -^- cfc an d who shall be responsible for the control mfneT* management and direction of the mine, and the owner of every THE MINES ACT 1897. 583 such mine shall nominate himself or some other person to be the f*e so & si Viet, manager of such mine and shall send to the inspector of mines of comjie^No. the district written notice of the manager's name and address. (2) At the expiration of six months from the commencement of this Act if any mine in which more than twelve men are employed is worked for more than fourteen days without there being such a manager for the mine as is required by this section, the owner of the mine shall be liable to a penalty not exceeding Twenty pounds, and for a second offence to a penalty not exceed- ing Fifty pounds, and to a further fine not exceeding Five pounds for every day during which the mine is so worked. Provided that the owner of the mine shall not be liable to any such penalty if he proves that he bad taken all reasonable means by the enforcement of this section to prevent the mine being worked in contravention of this section, 140. Everv action to recover damages against any owner or Conditions under which emplover in respect of any injury sustained by reason of an proceedings may accident in a mine shall subject to the provisions of any law for the time being in force as to the venue of County Court actions be brought in any County Court whatever be the amount claimed and except as hereinafter mentioned such action shall not be brought in the Supreme Court. Provided always that if it appear to any Judge of the Supreme Court on application of either party that such action ought more properly to be brought in the Supreme Court such Judge may order that such action be brought in the Supreme Court or if it be already commenced be transferred to the Supreme Court. Provided further that there shall be the same right of appeal from the County Court to the Supreme Court as in other cases of actions brought in the County Court. Subdivision 5 . Engine-dri vers. 141. (1) The Governor in Council may from time to time Battery engine- v / drivers. appoint remove and re-appoint fit persons to act as a board to consider applications made by persons desirous of obtaining temporary permits to drive battejry engines. Such board shall be composed of one certificated engine-driver and one mining manager. 584 THE MINES ACT 1897. (2) The section shall apply only to applications made by persons desirous of driving battery engines in places declared by the Governor in Council to be difficult of access. Board of examiners for engine-drivers. See No. 1120, s. 358. See sec. 13S. Certificate of competency for engine-drivers. Penalty on unqualified person taking charge of machinery. See No. 1120, s. 3G1. Disqualfication of holder of certificate. See ib. s. 362. 142. (1) The Governor in Council may from time to time appoint remove and re-appoint fit persons to act as a board of examiners of engine-drivers under this Division, and the said board hereinafter referred to as the " Board of Examiners " shall be empowered to hold examinations and to examine persons who may be desirous of qualifying themselves as engine-drivers subject to such regulations as may from time to time be approved by the Governor in. Council and to grant certificates of competency to such persons as successfully pass the prescribed examinations. (2) The persons holding oftice at the time of the commencement of this Act as a board of examiners pursuant to section three hundred and fifty-eight of the Principal Act shall be the first board of examiners of engine-drivers under this Act. 143. After the coming into operation of this Act any person who is not the holder of a certificate of competency as an engine- driver under this Act or the holder of a certificate of competency or of service as an engine-driver under the Principal Act or who is wholly or partially deaf or whose sight is defective or who is subject to fits giddiness or any other infirmity likely to interfere with the efficient discharge of his duties, and who takes charge of machinery in which steam water electricity or air or any two or more of them are used as motive power except water power used for pumping and every other person who employs any such person as aforesaid shall be guilty of an offence against this Division of this Part of this Act. Air winches sinking pumps and boring machines or puddling engines when fixed on an elevated puddling brace shall not be deemed to be " machinery " within the meaning of this section. 144. (1) Any person holding a certificate of competency or of service under this or the Principal Act or under The Regulation of Mines and Mining Machinery Act 1883 as an engine-driver and who is charged with any offence or misconduct likely to be detrimental to the proper or efficient discharge of his duties may be called upon by the board of examiners for engine-drivers to THE MINES ACT 1897. 535 show cause why he should not be disqualified as a certificated engine-driver. (2) If such person fails to satisfy such board why he should not be disqualified the Governor in Council by order published in the Government Gazette may disqualify such person for any specified period from acting as an engine-driver or may alter suspend or cancel such certificate. (3) Any such person shall after such order deliver into the charge of the said board his certificate of competency or of service, which shall be retained by the said board during the period of his disqualification, and no such person shall during the period of such disqualification take charge of any machinery in which steam water electricity or air or any two or more of them are used as motive power. Subdivision 6. Boilers. 145. (1) On the recommendation of the board of examiners for Board of engine-drivers the Minister may grant to any inspecting and con- suiting engineer a licence authorizing the holder thereof to test ana give and examine any boiler used or to be used in any mine and to <--erticates. give a certificate that he has inspected and examined such boiler and that the same is in good and sufficient condition and fit for use. (2) The term " boiler" shall mean any boiler or closed vessel in Meaning of term which or by means of which water is heated to generate steam for working machinery in any mine. (3) When a certificate has been given for any boiler as herein- certificate of before provided it shall not be necessary for an inspector pursuant in lieu of to the general rules in Subdivision two of this Part of this Act inspector. to examine and certify as fit for use any such boiler before the same is employed in a mine. (4) On the recommendation of the board of examiners for ij,.,.,,,. e lo engine-drivers the Minister may cancel any such licence if it be ]S3r*i h " proved to his satisfaction that the person to whom the same has been granted is incompetent or has supplied a false certificate as to the fitness for use of any boiler. 586 THE MIXES ACT 1897. Plans to be furnished. See No. 1120, s. 363. Plans to be drawn to scale and to be open for inspection. See ib. s. 364. Subdivision 7. Plans of Mines. 146. If any mine wherein operations are carried on for the working of any metalliferous or mineral lodes or veins or of any metalliferous or mineral deposits is considered by the Minister to be likely at any time to contain dangerous accumulations of water, the Minister ma}' by a notice in writing addressed to the manager of such mine order that an accurate plan and sections of the shafts drives levels and all other underground workings of such mine shall be made and deposited in the office of the mine, and within three months from the date of such order such plan and sections shall be so deposited in the office of the mine aforesaid, and all additions of any kind to the underground workings of such mine made after the date of such order shall be correctly delineated upon such plan and sections at intervals of not more than one month and such plan and sections shall contain complete information of all the underground workings up to the date of the abandonment of such mine. On such abandonment of any mine the plans or certified copies thereof shall be lodged with the mining registrar of the division in which such mine is situated for future reference if required. 147. Such plan and sections shall be drawn to a scale of not less than two chains to one inch or to such other scale as the plan then used in the mine has been constructed ; and any person with the sanction in writing of the Minister shall be allowed to inspect such plan and sections lodged at the office of the mine and an inspector under this Division shall be permitted at any time when in the performance of his duty to examine the plan and sections of the underground workings of any mine ; and any owner of a mine or any other person in charge of such plan and sections who fails to produce them for inspection when called upon to do so by an inspector shall be guilty of an offence against this Division. Subdivision 8. Compensation to Employes for Injury. conf^n'sate ^^' ^ If any person employed in or about any mine suffer non uretl an in J ul T in P erson or be killed owing to the non-observance in. such mine of any of the provisions of this Division, such non- observance not being solely due to the negligence of the person this "el" * THE MINES ACT 1897. 537 so injured or killed, or owing in any way to the negligence of the &-NO. 1120, owner of such mine his agents or servants, the person so injured "' ' or his personal representatives or the personal representatives of the person so killed may recover from the owner compensation by way of damages as for a tort committed by such owner ; and the amount of such compensation with the costs of recovering the same when determined shall constitute a charge on the mine and mining plant in or about which such person was so employed and all charges arising under the provisions of this section shall as between themselves be paid rateably. (2) Any warden or warden and assessors if required either by the warden the plaintiff or the defendant shall have jurisdiction to hear and determine all claims for compensation not exceeding the sum of Two hundred and fifty pounds made under the pro- visions of this section. (3) Suits for every such claim may be commenced and all pro- ceedings therein had and taken in like manner as suits may be commenced before a warden, and all proceedings therein may be had and taken under the provisions of Part I of the Principal Act and any Act amending the same, all of which provisions shall be and the same are hereby declared to be applicable to suits to enforce claims for compensation hereunder. (4) Nothing in this section contained shall take away from any person any right to take proceedings in respect of a claim for compensation in any court of competent jurisdiction. Subdivision 9. Inspection. 149. (1) Subject to the provisions of the Public Service Acts Jj-^^ n ' machinery. See ib. s. 367. any competent person may be appointed an inspector of mines ma under this Division, and any such inspector or any person authorized in writing by the Minister or by a warden in that behalf may with such assistants as he thinks fit have access to and inspect any mine or machinery at any time for the purpose of ascertaining whether the provisions of this Division are being complied with. (2) The owner of such mine or machinery shall provide all labour and assistance necessary for that purpose. 588 THE MINES ACT 1897. (3) If any person fails neglects or refuses to comply with or offer any impediment or obstruction to the carrying out of the provisions of this section, he shall be guilty of an offence against this Division. (4) Immediately upon any miner working in the mine making a complaint under this Division to any inspector, it shall be the duty of such inspector to make inquiry into the matter of such complaint and to take such other steps as he may deem necessary to investigate the matter, and the name of the informant shall not be divulged by the inspector. (5) No inspector under this Division shall be allowed to hold any interest whatever in any mine in Victoria. (6) All inspectors appointed under section three hundred and sixty-seven of the Principal Act and holding office at the time of the commencement of this Act shall be deemed to have been appointed under this section. Coroners' inquests on deaths from accidents in mines. See No. U'20, s. 373. Subdivision 1 0. Inquests. 150. (1) With respect to coroners' inquests on the bodies of any persons whose death may have been caused by accidents in mines the following provisions shall have effect (that is to say) : (2) Any person having a personal interest in or employed in or in the management of the mine in which the accident occurred shall not be qualified to sez-ve on the jury empannelled on the inquest ; and it shall be the duty of the constable or other officer not to summon any person disqualified under this provision, and it shall be the duty of the coroner not to allow any such person to be sworn or sit on the jury, nevertheless whenever it is practicable one-half of the jurymen shall be working miners. (3) The inspector of mines of the district or any other person appointed for the purpose shall be present at inquests and may examine witnesses and elicit evidence relative to the cause of death and to the issue whether the accident was attributable to negligence or any omission to comply with the provisions of this Act. (4) The next of kin or the executor of the person whose death may have occurred may authorize any person in writing to be THE MINES ACT 1897. 539 present at the inquest and who may either personally or through the coroner or the inspector of mines put questions to any witness as to the cause of the accident. Subdivision 11. Miscellaneous. 151. Every person who contravenes or does not comply with what is an any of the provisions of this Division of this Part of this Act or thu Act - who is guilty of negligence by which any person is or might he fire. ' Ua "' injured or killed either by himself his agent or servant shall be guilty of an offence against this Division of this Part of this Act. 152. (1) Every person employed in or about any mine shall Employes to satisfy himself of the safety of any tubs chains tackle windlass employers of breaches of Act. ropes or other appliances he may use before commencing and ib. . m whilst at work, and in case of an}- defect or insecurity he shall cease to use anything unsafe. (2) Every such person who witnesses in or about any such mine any circumstance matter or thing which may be likely to produce therein danger of any kind, and every person who may be notified by any such person of any such circumstance matter or thing, shall notify the same to the person (if any) under whose immediate directions or control lie may be. (3) Every such person in sub-charge of and employed in mining operations in any part of a mine shall on changing his shift inform the person appointed to relieve him of the state of the workings in the part of the mine in which he has been employed. 153. The mining manager of every mine shall forthwith after JjjJJKf tobt the occurrence of any accident attended with serious injury to j^^^,! 0081 any person give notice thereof to the local inspector of mines, Set ib. s. 370. and any mining manager who omits to give such notice shall be guilty of an offence against this Division. Any portion of a mine where an accident occurs shall not be interfered with until inspected by the inspector or coroner's jury unless with a view of saving life or preventing further injury and if deemed necessary a public inquiry shall be held to ascertain the cause of the accident. 154. For the purpose of any proceeding taken under the pro- Burden^ proof visions of this Division against any mining manager or engineer defendant. ,. ,. Steeib. s.371. in charge or person in charge of or giving orders or directions 590 Penalty. See No. 1120, Regulations. THE MINES ACT 1897. relating to the carrying on of any mining operations in a mine the burden shall lie on the defendant of proving he is not such manager or person. 155. Every person who is guilty of an offence against this Division shall be liable to a penalty not exceeding if he is the owner mining manager or person in charge of or giving orders or directions relating to the carrying on of any mining operations in any mine Fifty pounds and if he is any other person Ten pounds for each offence, to be recovered in a summary manner before a court of petty sessions ; and the whole or any part of such penalty may be awarded by such court to any person injured or to the personal representative of any person killed in consequence there- of, and such award shall be in addition to any right of action such person or personal representative may have under this Division or otherwise. Subdivision 1 2. Regulations. 156. The Governor in Council may pursuazit to the provisions of sections seventy-seven and seventy-eight of the Principal Act make regulations for (a) the alteration of any dates fixed in any section whatever of this or the Principal Act or of the time within which anything may or may not be done or executed ; and (b) generally carrying out all or any of the provisions of this Division of this Act. DIVISION 2. DRAINAGE OF MINES. ^umTi^ ^^' ^ Or sect i n three hundred and seventy-eight of the reqin'recontrihu- P r i nc ip a l -Act there shall be substituted the following section, tion from owners -numplv of claims for the name1 } drainage 378. (1) The owner of any machinery whether erected before or after the commencement of this Act upon or near to any quartz reef or other mineral lode or any lead or other deposit of auriferous drift may require the owner of any mine the workings of which have reached the natural water-level drained by such machinery to contribute a fair share of the total expense of draining or drawing the water from the mines drained by such machinery. THE MINES ACT 1897. D91 (2) The owner of any machinery actually in use for raising head-water whether erected before or after the commencement of this Act upon or near to any lead may require the owner of any mine on the same lead or any branch thereof and within a dis- tance of two miles, the workings of which mine have not reached the natural water-level, and which mine is not being worked or in which mine head-water is not being raised, to contribute a fail- share of the total expense of raising head-water by such machinery. In this section " head-water " means water derived from or accumulated in or between two or more sheets of volcanic rock overlying any lead and above the natural water-level of such lead. (3) In default of payment of any contribution as in this section provided or in case of disagreement respecting the amount of such share the owner of such machinery may summon the owner of any such mine before a warden, who may make an order on such owner to pay such sum or sums periodically or otherwise to the owner of such machinery as the warden shall think just and reasonable. (4) The warden may upon making such order impose on the owner of such machinery such terms with regard to the efficient working thereof for the benefit of all parties as to such warden shall seem just and order the same to be performed, or may make such other order concerning the premises as the justice and equity of the case may demand and such orders from time to time may annul vary or alter. Provided that if either party shall desire to have the subject-matter of complaint heard before a warden and assessors the same shall be heard and determined before a warden and four assessors who are to be chosen from the warden's roll as being practical working miners and an order made accordingly, and such assessors shall be summoned chosen and sworn in the manner prescribed by Part I of this Act. (5) The warden shall have all the powers and authorities in relation to summoning parties and the witnesses the taking of evidence and making and enforcing all such orders as aforesaid as he now has in any case which he has jurisdiction to hear and determine under or by virtue of the said Part I and either party may apply to the warden to reserve any question of law in the 592 THE MINES ACT 1S97. form of a special case for the opinion of the Supreme Court which opinion such Supreme Court is to give and in such case proceed- ings may be stayed upon such terms as the warden shall think fit until such opinion shall have been given and all the provisions of the said Part I relating to the reserving by wardens of questions of law in the form of special cases for the opinion of the said Supreme Court and to the proceedings therein or thereon shall apply to all questions of law reserved or which parties may apply to have reserved in the form of special cases under this section and to all proceedings therein or thereon, and all the forms and proceedings to be instituted under this Division of this Part of this Act shall be as near as may be to those required under the said Part I as the different circumstances will admit, [cf. 56 & 57 Vic. No. 587 (S.A.), Part V]. DIVISION 3. Subdivision 1. Tribute Agreements. Form of tribute -J58. Every agreement for the working of a mine whether agreements. J Fourth Crown lands or private lands or any part thereof on tribute may be in the form or to the effect of the Fourth Schedule to this Act. Schedule. Requisites of tribute agreements. See sees. 51, f>2. 159. (1) Every agreement under which a mine or any part thereof is intended to be so let on tribute shall by metes and bounds describe the land to be so let, and shall specify the minimum number of men to be kept employed by the tributers. (2) Excepting in the case of a company under Part II of the Companies Act 1890 every such agreement shall be in writing and be signed in triplicate and within fourteen days from the first execution of such agreement (a) one copy shall be retained by the owner of the mine ; and (6) one copy shall be given by such owner to the tributer ; and (c) one copy shall be filed by the owner of the mine with the warden of the district for which no fee shall be charged. (3) When the owner of a mine is a company under Part II of the Companies Act 1890 (a) an entry of the tribute agreement shall be made in the minute-book or in a book to be kept for that purpose ; THE MINES ACT 1897. 593 (6) a copy of such entry certified as a correct copy by the legal manager or any one director of the company shall be given to the tributer ; and (c) a copy of such entry so certified shall be filed in the office of the warden of the district ; compliance with the provisions of this sub-section shall be a suffi- cient compliance with the provisions of sub-section (2) of this section, and any such certified copy shall be evidence of the agreement. (4) Any owner of a mine who fails to comply with the require- Penalty. ments of this subdivision shall be liable to a penalty not exceeding Twenty pounds, which may be recovered in a summary manner on complaint of the tributer or any one of the tributers if more than one in any court of petty sessions. 160. (1) In the event of disputes arising between the owner Disputes as to and the tributer in respect of the ground held under tribute or to the gold or minerals the proceeds thereof or the payment of sustenance money such disputes shall be decided by the warden without assessors on complaint by either party. (2) Every such complaint shall be deemed to be a proceeding within the meaning of section two hundred and nineteen of the Principal Act, and for the purpose of enabling wardens to hear determine and enforce such complaints all the provisions of Part I of the Principal Act applying to proceedings under such section shall equally apply to such complaints so far as the same may be applicable. 161. (1) All disagreements as to the manner in which the Disputes as to ground held under tribute is to be worked shall be referred in working the first instance by either party to the inspector of mines for the district unless the parties shall otherwise (2) If the decision of such inspector of mines after full inquiry by him is not accepted by both parties to the tribute agreement the question at issue shall be determined by the warden whose decision shall be final and conclusive and without appeal. 594 THE MINES ACT 1897. Sustenance money. 162. It shall be the duty of the owner to include and there shall be deemed to be included in every tribute agreement a pro- vision for the payment of sustenance money out of the proceeds of any gold or minerals obtained under such agreement to each tributer not being a registered corporation upon such a scale as may be mutually agreed upon, but being not less than one-half of the usual rate of wages paid to miners in the district within which the ground to be held under tribute is situated, and such sustenance money shall after payment of the cost of crushing be a first charge in favour of the tributers upon any gold or minerals obtained under such agreement. Percentage to be upon net value of gold &c. obtained. 163. (1) The percentage or proportion to which the owner and the tributer are respectively entitled under such agreement shall be calculated upon the net value of the gold or minerals obtained under such agreement. (2) Such net value shall be ascertained by deducting the cost of obtaining such gold or minerals including the amount of susten- ance money accruing to the tributer under such agreement during the time when such gold or minerals were obtained from the total value of such gold or minerals so obtained. Grantor's proportion to include gold obtained by amalgamation &c. 16$. Where the tribute agreement provides that the crushing or treating of the auriferous material shall be done by the owner the proportion of the gold to which the tributer is entitled under such agreement shall include gold obtained by amalgamation or from copper plates or from concentrates obtained by any method of ore dressing or obtained by any process of treatment according to arrangement mutually agreed upon as set forth in tribute agreement. Work to be continuous. 165. (1) If work is not continuously carried on by the tributers the owner may cancel the tribute and if the tributers shall be dissatisfied they may within seven days after cancellation complain to the warden who shall hear and determine such complaint and decide whether or not such tribute shall be cancelled by reason of the tributer failing to continuously carry out the work, pro- vided that the agreement shall not be ordered to be cancelled in any case where the tributers have been prevented from working THE MINES ACT 1897. 595 by causes over which they had not any control and of which notice had been given by them to the owner. (2) Every such complaint shall be deemed to be a proceeding & NO. 1202, within the meaning of section two hundred and nineteen of the *" ' Principal Act, and for the purposes of enabling wardens to hear determine and enforce such complaints and of enabling appeals to be made from their decisions all the provisions of Part I of the Principal Act applying to proceedings under such section shall equally apply to such complaint so far as the same may be applicable. 166. Except where expressly mentioned the foregoing pro- Exception, visions of this Division shall not apply to or affect any tribute granted to a company registered under Part II of the Companies Act 1890 before the coming into operation of this Part. Subdivision 2. Court of Mines in Melbourne. 167. (1) For the purposes only of enabling Judges of Courts of Law courts Mines to sit in Court or in Chambers and there transact business part of ('.istk'inaine as effectually as if such Judge sat in Court or in Chambers within * lini|1 ^ i>i*. District of Castlemaine and to be a place appointed by the Governor in Council where a Court of Mines shall be holden for the said district. (2) For the purpose only of enabling pi-oceedings to be taken for winding up any mining company of which the last registered office is or was situate in the city of Melbourne the said city shall certain 8 " P be deemed and taken to be part of the Castlemaine Mining r District. Subdivision 3. Priority of Wages. 168. (1) Part V of the Companies Act 1890 as amended by the i^rt v of X 1074 not to Companies Act 1896 shall not apply to any mining company under apply to Part I of the said first-mentioned Act or any company under companies. Part II of the said Act. 596 THE MINES ACT Miner's wages and salaries to priority of other debts. Compare No. 1074, ss. 386-; (2) In the distribution of the assets of any mining company under Part I of the Companies Act 1890 or company under Part II of the said Act which is being wound up, or in the distri- bution of assets on the cessation of work of a no-liability company registered under Part II of the said Act, there shall be paid in priorit}- to all other debts of whatsoever kind secured or unsecured all wages or salary not exceeding Fifty pounds of any clerk mining manager under manager handicraftsman miner labourer workman or servant whether over or under the age of twenty-one years who either before or after the commencement of this Act has entered into any contract in respect of services rendered to the company during two months before the commencement of the winding up or the cessation of work. The foregoing debts shall rank equally among themselves and shall be paid in full, unless the assets of the company are insufficient to meet them, in which case they shall abate in equal proportion between them- selves. Debts to be dis- charged forth- with. (3) Subject to the retention of such sums as may be necessary for the costs of administration or otherwise the liquidator or official liquidator shall discharge the foregoing debts forthwith so far as the assets of the company are and will be sufficient to meet them as and when such assets come into the hands of such liquidator or official liquidator. To be a first charge on the property of tin company. Ib. s. 389. (4) All such wages or salary as aforesaid shall be a first charge upon all the property of the company of whatsoever description notwithstanding such property be mortgaged or charged to secure the payment of any moneys or that there be any lien upon the same. Provided that nothing in this subdivision of this Act con- tained shall be taken to affect the rights and priority of persons with respect to any property over which they held a mortgage charge or lien at the time of the passing of The Companies Wages Act 1885. [cf. 62 Yic. No. 24 (Q.), sec. 159]. (5) Such first charge shall include all costs awarded against any such company in any proceedings before a court to recover such wages or salary and any costs charges or expenses properly incuiTed in enforcing such order. THE MINES ACT 1897. SCHEDULES. 597 FIRST SCHEDULE. Number of Act. No. 1120 No. 1189 No. 1202 No. 1215 No. 1251 No. 1263 No. 1281 No. 1384 Title or Short Title Mines Act 1890 Mines Act Amendment Act 1890 Mines Act 1890 (No. 2) .. Mines Act 1891 Mines Act 1891 (No. 2)... Mines Act 1892 An Act to amend the Mines Act Amendment Act 1893 and the Mines Act 1S91 Mines Act 1895 Extent of Repeal. Sections seventy - three, two hundred and ninety- nine to three hundred and seventy-six both inclusive Thirty - third Schedule, Thirty-fourth Schedule, and Thirty-fifth Sche- dule. The whole. The whole. The whole. The whole. The whole. The whole. The whole. SECOND SCHEDULE. Sections 31 and To the Honorable l"l- The Minister of Mines. day of 189 Sir, I [or \Ve] the [holder or holders of a miner's right or rights give number and date] beg to inform you that the holder [or holders] of a lease [describe it] has [or have] committed a breach of the covenants of the said lease by [state how] and I [or we] apply for an inquiry. In the event of the said lease being declared void I [or we] apply for a lease of the land held under the said lease. [If part of the land is only required, the part should be described.] I [or We] have lodged with the clerk of the warden [or as the. case may be], whose receipt* is hereunder, the sum of Five pounds sterling as costs of the inquiry, if granted. [Signature and postal addreu.] *Received from the sum of Five pounds sterling as costs of the inquiry herein, if granted. Clerk of the Warden. THIRD SCHEDULE. Mines Act 1897. FORM OF WARDEN'S INJUNCTION-. (Form of Order obtained by a Corporation.) Upon reading the affidavit of A.B. sworn the day of 18 [state any other affidavits'], and on hearing the other evidence pro- duced [if any] before me, I find that A.B. and C.D. [name the persons to be enjoined] are persons working in a mine mentioned in a mining lease made between Her Majesty of the first part and [names of lessees] of the other Section 108. 598 THE MINES ACT 1897. THIRD SCHEDULE continued. part, and bearing date the day of , 18 , and that the *said persons are encroaching on the public highway [or street or road] known as [or from the asterisk above} continuing of mining operations by such person in the said mine or in that part thereof [describe the part by a plan or otherwise} will cause damage or injury to the public highway [or street or road] known as [or to a house or building] belonging to C. D. abutting on a highway [or street or road] known as ; and I hereby enjoin the said persons working the said mine and each of them, their and his servants and agents from [doing the thing which the warden has found to be done}. Given under my hand this day of 18 . E.F. Warden. [For the Form of Order of Injunction obtained by an owner of land following the previous form down to the asterisk, and then proceed as follows : ] said pel-sons are encroaching on land of [name of the owner}, the owner of the land. A.B. and C.D. have no authority under a mining lease on the said last-mentioned land ; and I hereby enjoin the said persons and each of them their and his servants and agents from continuing the said encroachment. Given &c. FOURTH SCHEDULE. Mines Act 1897. TRIBUTE AGREEMENT. Memorandum of agreement made and entered into the 189 , between styled the said company, on the one part, and A.B. of , miner, hereinafter styled the said A.B., of the other part. Whereas the said company agrees to let to the said A.B. and the said A.B. agrees to take from the said company for a term of years, the exclusive right to work all that block of ground in the said company's mine between Nos. and levels, commencing at a point and thence (Here insert conditions) The said A.B. shall work the block in a continuously systematic and workmanlike manner, according to the practice of (gold, mineral, or coal) mining, and shall use all diligence and care in protecting the said company's mine and property in his charge and possession. And the' said A.B. hereby agrees to hold the said company harmless against any loss, costs, or damage which may accrue to himself or any of the workmen employed by him while engaged in working the ground referred to in this agreement. In witness whereof the parties hereto have set their hands and seals the day and year first hereinbefore written. The common seal of the company. The seal of A.B. Witness to the signature of A.B. day of hereinafter FIFTH SCHEDULE. Mining District. | ] Locality of Lease. Name of Lessee. Number of Men to be employed. Period for which suspension granted. "5,2 l! Go II III INDEX. ABANDONED CLAIM : what is, under the Act, 114. relinquished claims, 119. ABANDONMENT : adjudication necessary in cases of constructive abandonment, 7, 41. absolutely abandoned ground can be taken without adjudication, 8. failing to renew miner's right evidence of abandonment, 21. See MINER'S RIGHT. taking assignment is abandonment of previous title, 40. principle of Critchley v. Graham applied, 41. See CRITCHLEY v. GRAHAM. in depriving person in possession of too much ground, 41. on amalgamation old titles are abandoned, 49. See AMALGAMATION*. abandoned claim (N.Z.) on land afterwards exempted is not available, 52. obtaining lease of claim is abandonment of miner's right title, 56. See CLAIM. portion of claim excluded from lease is deemed abandoned, 146. marking out claim actually abandoned, 62. See MARKING Our. re-tnarking is abandonment of previous marking out, 64, 68. when abandonment of title obtained from the Warden, 67. without registration is not abandonment, 79. re-registration is abandonment of previous title, 68, 79, 116. jurisdiction of Warden in constructive abandonment, 72. See JURIS- DICTION OF THE WARDEN*. actual or intentional abandonment, 111. land is open to first legal claimant, 111. Critchley v. Graham does not apply to cases of, 112. no express renunciation necessary, 112. adjudication not necessary in de facto abandonment, 112. where abandoned claim taken without pegging, 113. land left unoccupied for two years (N.S.W.), 113. 600 INDEX. ABANDONMENT-confinued. sluicing claim abandoned may be taken up, 113. Set SLUICING AND DREDGING. but not when work merely suspended, 114. by-laws may be made defining abandoned ground, 114. See BY-LAWS. what is abandoned ground under the Act, 114. cancelling registration on abandonment, 114. constructive abandonment, 114. See CONSTRUCTIVE ABANDONMENT. Critchley v. Graham applies to cases of, 115. courts lea,n against view of actual abandonment, 115. any act negativing intention of abandonment sufficient, 115. resumption of work on abandoned claim, 115. negativing presumption of abandonment, 116. possession of part is possession of the whole, 116. taking up afresh is abandonment of former taking up, 116. taking block claim within frontage claim, 116. See CLAIM. taking up second claim not abandonment of first claim, 116. acquiescence in collusive recovery is abandonment of claim, 117. See COLLUSIVE RECOVERY. and of former title, 125. pumping water by adjoining mine does not protect from abandonment, 117. nor burning quartz from another mine, 117. unavoidable delay in work pending survey is not, 117. shareholder allowing his share to lie dormant, 117, 217. resigning his share, 117. See SHARE. person taking too much ground may abandon excess, 117. may be put in possession of correct area, 1 17. payment of drainage dues to save abandonment, 118. means of enforcing, 118. inference of, left to the discretion of the court, 118. Warden may entertain though not named in by-law, 118. relinquished claims, 119. by-laws may be made prescribing events causing, 119. exceptions in by-laws need not be negatived, 119. Warden's order enures only to party in whose favour he decides, 119. must decide whether claim abandoned or not, 119. not a ground for special case, 119. tailings not treated or removed within twelve months are abandoned, 155. See TAILINGS. applicant for lease may abandon his application, 168. or lease of private land, 198. partner sleeping on his rights, 217. See PARTNER. may take up claim abandoned by the partnership, 219. of water right, 221. See WATER RIGHT. jurisdiction of Warden in abandonment of sluicing claim, 272. See JURISDICTION OF THE WARDEN. INDEX. 601 ABSENT DEFENDANT : every defendant must be served, 281. Warden cannot decide that several defendants represent unserved defendant, 281. unserved person cannot be made a defendant against his will, 281. may be added as a co-defendant and receive notice of adjourn- ment, 282. order of Warden will be quashed for non-service on one defendant, 282. against unserved defendant is altogether bad. 282. unserved defendant not bound by appearance of others, 282. procedure in absence of defendant (N.S.W.), 282. decree may be made reserving rights of, 312. See UNSERVED DEFENDANT. ACCIDENT : means of prevention taken is a question of fact, 228. owing to negligence of fellow servant, 229. See NEGLIGENCE. notice of to be given to Inspector, 232. effect of injuries occurring in a mine, 230. compensation for recoverable before Warden, 231. See REGULATION AND INSPECTION OF MINES. ACCOUNT : when title in dispute gold retained until rights ascertained, 47. damage to works by encroachment not a matter of, 103. injunction preferable to account of dealings, 107. liability of partners as to adjusting accounts, 215. See PARTNER. decree to account cannot be made, 311. taking accounts is a quati- judicial proceeding, 313. ACQUIESCENCE : delay is not acquiescence in encroachment, 97. quiescence may not be acquiescence, 98. in collusive recovery is abandonment of claim, 117. See COLLUSIVE RECOVERY. and of former title, 125. in pollution of stream, 239. See NUISANCE. ACT OF PARLIAMENT : first Mining Act of Victoria, 2. second Mining Act, 2. Goldfdds Act 1858 (No. 32), 3. The Mining Statute 1865 (No. 291), 4. interpretation of mining law in other States, 5. The Mining on Private Property Act 1884 (No. 796), 10. Acts of other States based on The Mining Statute, 10. by-laws construed as Acts of Parliament, 39. clashing with Statute the latter prevails, 40. See BY-LAWS. conditions in Land Act as to mining on private land, 199. 602 INDEX. ACT OF PARLIAMENT continued. Acts of other States as to private land, 202. adoption of Victorian Act in Western Australia, 209. The Drainage of Mines Act, 233. The Residence Areas Act 1881, 243. amendment of, 243. consolidation, 243. consolidation of Mining Acts, 262. construction of, 288. See CONSTRUCTION. ACTION : will not lie against Warden for refusing to issue execution, 267. including two causes, illegal occupation and forfeiture, 278. See SUIT. . ACTUAL ABANDONMENT : See ABANDONMENT. ADDITION : Warden may add parties, 279. not an unserved defendant against his will, 279. order made will be bad, 279. amendment by Warden by adding parties, 284. See AMENDMENT. See PARTIES. ADJOURNMENT : on application to be put in possession pending application for lease, 57. of summons before Warden, 288. See PROCEDURE AND PRACTICE. ADJUDICATION: against illegally registered holder ineffectual against legal holder, 79. necessary in constructive abandonment, 114. See CONSTRUCTIVE ABANDONMENT. principle of Critchley v. Graham applies, 114. ADMINISTRATOR : may sue and be sued, 280. ADVERTISING : notice of application for lease, 161. See APPLICATION FOR LEASE. AFFIDAVIT : of service of Warden's summons, 283. See SERVICE. of plaint summons in Court of Mines, 308. supplementary affidavit not allowed on appeal, 323. See APPEAL. nor on special case, 335. See SPECIAL CASE. AGENT : cannot mark out claim (N.S.W.), 62, 65. INDEX. 603 AGENT continued. occupation of residence area by is sufficient (Q.), 247. otherwise in New South Wales, 247. See. RESIDENCE AREA. not entitled to costs if not a barrister or solicitor (N.S.W.), 295. AGREEMENT : as to compensation for mining on private land, 197. See PRIVATE LAND. as to payment of drainage dues, 234. Warden is not bound by agreement between persons not parties, 287. to accept decision of Warden will bar appeal, 327. See ESTOPPEL. AMALGAMATION : contemplated and authorised by the Act, 47. of bad titles will not cure forfeiture, 48. nor subsequent working of claim liable to forfeiture, 48. effectual for all purposes of working and for all liabilities, 48. separate claims marked out cannot be registered as one amalgamated claim, 48, 65. several men's ground taken as one can be amalgamated, 48. old titles are abandoned on, 49. See TITLE. trespass on one amalgamated claim is not trespass on all, 49, 88. it must be shown on which trespass committed, 88. See TRESPASS. part of claim preserved from forfeiture by working other part, 49. claims become one on, 49. does not constitute partnership in respect of claims, 49. enables holders to work together and mingle their produce, 49. See PARTNERSHIP. marking out amalgamated claims, 65. See MARKING OUT. may be done by pegging the entire block, 65. cannot be done by agent (N.S.W.), 65. re-registration is abandonment of separate titles, 79. registration of excess area in amalgamated claim, 79. partnership not created by (N.S.W.), 213. so in New Zealand, 213. striking out statement of, where none proved, 283. AMENDMENT : of variances by the Warden, 283. power of the Warden to amend summons, 283. statement of amalgamation where none proved, 283. where summons does not show under what by-law forfeiture incurred, 284. altering complaint for possession rx) trespass, 284. where summons does not follow form in the Act, 284. erroneous statement in summons as to time of hearing, 284. by addition of parties, 284. striking out one or more complainants, 284. vagueness in summons, 284. 604 INDEX. AMENDMENT continued. objection to title may be inserted, 284. definition of portion of claim sought, 284. part of summons showing excess of jurisdiction should be struck out, 284. summons under a repealed by-law, 284. by four cannot be amended to summons by one, 285. may be made at any stage of hearing, 285. cannot be made to change object of suit, 285. by the judge of the Court of Mines, 310. as to parties, 310. for uncertainty, obscurity or repugnance, 310. omission or erroneous statement of fact, 310. misjoinder, 310. may be made at any stage of hearing, 310. form of appeal cannot be amended, 310. nor a summons by, as a Court of Appeal (N.Z. ), 310. not to be made until all facts are disclosed, 310. APPEAL : against rate made under by-law, 40. right of, first given by Act No. 32, 328. Act No. 291, 328. on application by holder of miner's right to avoid lease, 179. procedure in New South AVales, 263. Queensland, 263. Western Australia, 263. South Australia, 263. Tasmania, 263. New Zealand, 263. FROM THE COURT OF MINES formerly to the Chief Judge, 261. to the Full Court, 262, 313. no appeal from order setting aside former decree, 313. procedure on, 329. power of Full Court to hear, dismiss or vary, 329. or grant rehearing, 330. to give costs, 330. appeal case, form and statement of, 330. where parties cannot agree, 330. transmission of within time limited, 330. objection to how taken, 330. time enlarged after removal of judge, 330. judge may act after removal, 330 (d). may rescind or vary order enlarging time, 330. no appeal thereform, 330. not after expiration of time allowed, 330. INDEX. 605 APPEAL continued. FROM THE COURT OF MINES continued. consent of attorney not binding, 331. to be stated fully, 332. Full Court will act on evidence stated, 332. may order rehearing, 332. what is necessary to be stated in (N.S.W.), 332. may be sent back for amendment, 33*2. judge's notes, 332. where judge refuses to introduce evidence into, 332. supplementary affidavit not allowed, 333. case not to be re-opened (N.S.W.), 333. stay of proceedings pending, 330. time for runs from pronouncement of decree, 331. notice of, and service, 331. objections to, dealt with by Full Court, 331. not taken below cannot be taken before Full Court, 331. is a rehearing on evidence stated in case, 331. appellate court may increase damages, 102, 331. no appeal from order of judge granting new trial, 333. decision of District Court (Q.) as to costs of ' m appeal from the Warden, 333. application of the rule of law adopted by judge (Q.), 333. Full Court may make order for costs, 333. where no jurisdiction to hear appeal, 333. in discretion of the Court (N.Z.), 334. order of Full Court on is final, 334. deemed a final order of the Supreme Court, 334. does not lapse by death &c. of judge, 334. FROM THE WARDEN effect of injunction pending, 109. pendency of does not affect proceedings by third'party, 136. right of appeal to Court of Mines, 316. conditions of, 316. judge cannot extend time for after expiration of prescribed time, 323. parties may consent to enlargement, 323. where appeal made, 317, 320. service of notice of, 3 1 7. prohibition refused pending appeal, 317. when date of sitting of Court of Mines not fixed, 317. erroneous date invalidates notice, 317. rehearing of may be granted, 318. is practically a rehearing of case, 313, 320. a continuation of proceedings before the Warden, 320. appellant may prove another and different case, 318, 320. is limited to grounds of appeal stated, 318, 320. 606 INDEX. APPEAL continued. FROM THE WARDEN continued. may be had after dismissal, 292. in the other States, 318. basis of appeal, 319. is the decision of the Warden, 319. where Warden sits with assessors, 319. appeal from rinding of assessors on fact, 319. remedy is new trial, 319. will lie if recorded as Warden's decision, 319. irregularity in exercise of jurisdiction without excess of it, 319. no remedy by prohibition, 319. assessing compensation for mining on private land, 319. judge may settle questions of facts to be tried by assessors, 319. jurisdiction of the Warden is a ground of appeal, 320. Warden's order may be reversed, 320. appeal will lie in suit concerning joint adventure, 320. where complaint dismissed as not entertained, 320. right of appeal must be expressly given, 320. no appeal from decision on application for claim (N.Z. ), 320. appeal must be to the nearest court, 320. nearest is as the crow flies, 321. assignment of rights does not stop appeal, 321. sufficient if parties before the Warden are before the appellate court, 321. person summoned but not appearing before the Warden may appeal, 321. but not person who has no locus standi before the Warden, 321. no appeal from order of commitment under sec. 188, 321. appeal from order dismissing summons for commitment, 321. notice of appeal, 321. form of, 321. what must be stated in, 321. appellant confined to grounds stated in, 321. must show that appeal is to nearest court, 321. at sitting next after one month from decision, 321. where no date fixed for Court of Mines, 322. where wrong date given in notice, 322. service of, 322, 324. on Warden if parties cannot be found, 322. judge cannot extend time after expiration of time limited, 323. parties may agree to enlargement, 323. must be within time limited, 324. on inmate of his private residence bad, 324. on attorney, 324. INDEX. 607 APPEAL continued. FROM THE WARDEN continued. bad if left with inmate of private residence, 324. Warden may order substituted service, ."--Jr.. respondent may object to service as defective, 325. evidence of may be given, 325. notice to produce not a waiver of objection, 325. heading of, 322. in wrong division of a district is surplusage, 322. bad if headed in non-existent district, 322. where place of sitting of court not named (N.Z.), 322. all documents headed as between appellant and respon- dent, 323. not complying with form in the Act (N.Z.), 323. informal if not stating decision appealed from (N.S.W.), 323. date and place of decision to be given in, 323. omitting to fill blank in printed form, 323. Sundays and holidays included in computation of time, 324. if last day falls on Sunday notice on Monday is bad, 324. need not be actually signed by appellant, 324. name must appear at foot of notice, 324. by attorney "on behalf of appellant " insufficient, 324. hearing of appeal, 325. procedure same as in suit originating in Court of Mines, 325. when and where appeal heard, 325. order on is final and conclusive, 325. parties may be asked to state case and defence, 325. may require appeal to be heard before assessors, 325. must state questions to be tried by assessors, 326. court must act on their verdict, 325. judge may require issue to be tried by assessors, 325. court not bound to act on their verdict, 326. may direct a new trial, 326. procedure as in original proceedings before assessors, 326. complainant below should begin, 326. production of decision appealed from, 326. copy must be delivered for the court, 326. need not be a certified copy, 326. judge may receive evidence as to its correctness, 326. procedure in New South Wales, 327. in Queensland, 327. court may make order for costs, 327. where subject matter does not exceed 20, 327. judge cannot order costs to be fixed by clerk, 327. agreement to accept decision of Warden bars appeal, 327. enforcing decision of Warden where appeal dismissed, 327. where decision varied, 327. 608 INDEX. APPEAL continued. FROM THE WARDEN continued. objections to hearing of are subject of special case, 338. to District Court sitting as Court of Appeal (N.S.W.), 263. further appeal to Supreme Court, 263. APPEAL CASE : See APPEAL. APPEARANCE : will waive any irregularity, 282. APPLICANT : for lease may maintain trespass, 92. See TRESPASS. but not unless regulations complied with, 89. must be a person or a corporation, 167. not a contemplated company, 167. lease can only be granted to applicant, 167. or his transferee on assignment, 168. may withdraw or abandon his application, 168. transfer his interest, 168. provision in case of death, 168. applicant being out of the State, 168. may act by attorney, 168. death of before execution of lease, 169. representatives have no legal or equitable interest, 169. APPLICATION : for protection registration, 82. See PROTECTION REGISTRATION. by holder of miner's right to avoid lease, 178. See BREACH OF LABOUR COVENANT. for rehearing, procedure on, 288. See REHEARING, for special case to the Court of Mines, 337. to the Warden, 293. See SPECIAL CASE. APPLICATION FOR CLAIM : to be made to mining registrar, 74. notice of, 74. should give description of locality, 74. should be signed by all applicants, 74. effect of mistake as to time of, 74. cannot be taken advantage of l>y applicant for lease, 74. but may by applicant for claim, 74. mistake in area, 75. larger area shown by survey may be taken, 73. verbal application effectual, 75. APPLICATION FOR LEASE : does not protect claim from forfeiture, 68. INDEX. 609 APPLICATION FOR LEASE contimted. marking for claim previous to is good, 70. though claim registered subsequent to application,. 70. may include various classes of land, 142, 160. consent of persons interested to be obtained, 146. not of persons only equitably interested, 146. marking land subject of is trespass, 147. See TRESPASS. or pending application for renewal, 147. prior to expiry of lease confers no title, 147. lease may be put in evidence, 147. of road, municipality to receive notice, 149. applicant in New South Wales must hold miner's right, 149. and in New Zealand, 149. not required in the other States, 149. procedure on, 159. regulations to be complied with, 159. requirements preliminary to, 160. to be complied with within ten days, 160. marking out, manner of, 160. See MARKING OUT. what is insufficient, 160. time from which marking dates, 160. land not marked out not to be included in application, 161. application without marking gives no title, 161. penalty for removing posts, 161. advertising notice of, 161. See ADVERTISING. in what manner done, 161. effect of omission, 162. posting notice of, 162. See NOTICE. not posting at Warden's office is a default, 162. post office or police court which appears to be nearest, 162. notice not invalidated by immaterial error (Tas.), 162. or slight misdescription, 163. notice of to occupiers, 163. See OCCUPIER. to whom notice must be given, 163. meaning of " to the knowledge of the applicant," 163. to municipal council when road included, 163. not stating occupier is a default, 163. service of on a company, 163. onus of proof of service, 163. occupier of road under permit to be served, 164. omission to serve is a default, 164. all persons named as occupiers must be served, 164. deposit of fees with clerk of Warden, 164. additional fee to cover cost of survey, 164. non-payment of survey fee is a default, 164. consent of occupiers to te obtained if possible, 164. See CONSKNT. any occupier may object to application, 165. 610 INDEX. APPLICATION FOR LEASE continued. not necessary to object, 165. forwarded with the application to the Minister, 165. lease can only be granted by consent of applicant, 165. trustee for a company may give consent, 165. to be lodged within ten days after marking out, 166. See APPLICANT. requirements of, 166. duty of Warden on, 166. no court of enquiry if no objection, 166. See OBJECTION. unless directed by Minister, 166. procedure at enquiry, 166. objections to, 167. may be withdrawn or abandoned, 168. interest in may be transferred, 168. provision in case of death of applicant, 168. applicant being out of the State, 168. marking out for a claim pending, 171. See TRESPASS. effect of under sec. 65, 171. under Act No. 446, 172. applicant proceeding against trespasser to prove compliance with regulations, 89, 172. when pendency of begins and ceases, 173. See PENDENCY. claimholder may work his claim pending his application for lease of it, 173. is a provisional title, 175. proceedings for forfeiture pending, 175. on refusal of lease Warden may order possession, 175. See WARDEN. costs of may be paid out of deposit, 296. of reserved lands, 180. where no objection, 181. where objection lodged, 181. See OBJECTION. Warden to hold enquiry, 181. discretion of Governor to grant lease, 181. of private lands, 190, 195. See PRIVATE LAND. APPOINTMENT : of Warden in same manner as police magistrate, 264. Warden is presumed to be properly appointed, 264. See WARDEN. APPROPRIATION : miner's right need not be appropriated to specific ground, 23, 77. See MINER'S RIGHT. AREA: of claim regulated by assumed depth of lead, 36. excess area taken, 79, 117, 118. See EXCESS. residence area, 245. See RESIDENCE AREA. of business licence, 255. INDEX. AREA continued. machinery area, 58. See MACHINERY AREA. tailings area, 154. See TAILINGS. ASSENT : of partner necessary to render him liable on contract, 215. See CONSENT. ASSESSMENT : of compensation for mining on private land. 197. jurisdiction of Warden to assess, 201. See COMPENSATION. of mines for rating purposes, 235. See RATES. ASSESSORS : when compensation for private land assessed by (N.Z.), 210. may be summoned by Warden (N.S.W.), 263. roll of chosen and sworn by Warden, 296. mandamus against Warden refusing to swear (Q.), 296. procedure before, 297. See PROCEDURE. verdict of must be followed by judgment of Warden, 297. decide questions of law (N.Z.), 297. remedy for misfinding of, 297. Warden's power to grant rehearing, 297. failing to agree, Warden to decide matter, 297. order made by Warden on finding of assessors, 297. See ORDER. appeal against, 298. decision of Warden includes decision of assessors, 298. where verdict unintelligible, 298. if votes equal Warden has casting vote, 298. either party in suit in Court of Mines may require, 31 1. See PROCEDURE. verdict of majority received, 311. failing to agree, new trial had, 311. each party to bear his own costs, 311. parties not to go outside settled issues, 311. judge must regard finding of, 311. although finding against his direction, 311. appeal where Warden sits with, 319. judge may settle questions to be tried, 325. parties may require appeal to be tried before assessors, 325. must state questions to be tried, 325. judge may require appeal to be heard before assessors, 325. procedure as in orginal proceedings, 326. See APPEAL. ASSIGNEE IN INSOLVENCY: need not hold miner's right to sue, 25. claim passes to on insolvency, 93. may sue and be sued, 280. See INSOLVENT. 611 612 INDEX. ASSIGNMENT : where claim assigned to company not holding miner's right,- 28. claim may be assigned, 32. taking assignment of title avoids former title, 40. share or interest may be assigned if miner's right assigned, 45. several claims may be assigned to a purchaser from several partners, 46. claim cannot be assigned until registered, 75. of interest after injunction granted, effect of, 1C9. forfeiture is notaii assigment by operation of law, 121. applicant for lease may assign his interest, 168. so in respect of private land, 198. lease may be assigned, 168. consent of Minister to assignment of tribute agreement, 201L of water-right, 221. See WATER-RIGHT. notice of to be given to Minister, 226. of residence area, 246, 253. See RESIDENCE AREA. must be registered, 250. of business licence, 256. See BUSINESS LICENCE. of claim pending suit, 281. of rights does not stop appeal, 321. See APPEAL. ATTORNEY : applicant for lease out of State may act by, 168. service of Warden's summons on, 283. notice of appeal, 324. on inmate of private house bad, 324. notice of appeal signed by, 324. See SOLICITOR, POWKR OF ATTORNEY. BAILIFF : may give possession of claim (Q.), 32. See EXECUTION. BANK SLUICING CLAIM : what is a, 60. BASIS OF APPEAL : from decision of Warden, 319. See APPEAI, FROM THE WARDEN. BATTERY : is a necessary adjunct to a mine, 236. See RATES. BLACKSMITH'S SHOP : is not exempted from rates, 236. See RATES. BLOCK CLAIM : what is a, 36. comprises all claims except frontage claims, 36. INDEX. 613 BLOCK CLAIM continued. dimensions and form of regulated by by-laws, 36. marking out and registering, 36. See MARKING GOT, REGISTRATION. what claims are included as block claims, 38. taking block claim within frontage claim is abandonment of frontage title, 116. See FRONTAGE CLAIM. BOILER : licence to engineer to inspect, 232. BOUNDARIES : of claims fixed by by-laws, 17. See BY-LAWS. by-laws to specify how boundary lines to be drawn, 38. trespass where boundaries are not properly marked, 93. mode of specifying, 98. by-law omitting to state is void for uncertainty, 98. jurisdiction of Warden in trespass outside boundaries, 274. BREACH OF INJUNCTION : excuse for, 109. finishing work to protect mine, 109. transfer of interest after injunction granted, 109. defect in plaintiffs title no answer to, 1 10. commitment on, 110. See COMMITMENT. on what terms prisoner discharged, 110. See INJUNCTION. BREACH OF LABOUR COVENANT : acceptance of rent may avoid forfeiture for, 150. application by holder of miner's right to avoid lease, 178. mode of procedure, 178. duty of Warden, 179. either party may appeal from, 179. applicant not required to mark out, 179. Warden cannot put applicant in possession, 179. granting of lease in discretion of the Governor, 179. right of removal of plant by former lessee, 179. right of new lessee if not removed, 180. Warden to take evidence of work done, 180. value to be paid to former lessee, 180. no compensation if breach has continued for twelve months, 180. Warden cannot make order that covenant not complied with, 187. power ot to declare lease forfeited for, 187. cannot be enforced until lease legally forfeited, 187. in leases of private land, 199. application to avoid lease, 199. See LABOUR COVENANT, PRIVATE LAND. 614 INDEX. BUILDINGS : holder of residence area losing possession may remove, 249, 251. time of fixed by order of cancellation, 252. Warden cannot deprive holder of business licence of, 257. valuation of, when land sold by the Crown, 257. holder of business licence to have the value, 257. jurisdiction of the Warden as to, 273. See RESIDENCE AREA, BUSINESS LICENCE. BUSINESS LICENCE : effect of exemption on (N.S.W.), 51. interpretation of, similar to residence area, 255. law as to residence areas applies to, 255. powers conferred by, 255. area not to exceed one acre, 255. is a chattel interest, 256. business of a mining agent not a mining business (N.Z.), 256. dealings with, 256. devolution on death or insolvency, 256. holder of has no right to mine on it, 256. occupation may be determined by exemption of land, 256. holder is entitled to demand of possession, 257. and to compensation, 257. revocable at will of grantor (N.S. W.), 257. rights continue if licence renewed after exemption (N. S.W.), 257. Warden has jurisdiction to put in possession, 257. but not to deprive complainant of buildings, 257. valuation of buildings when land sold by the Crown, 257. holder of licence to have the value, 257. registration necessary to validity of title of, 257. effected by endorsement on licence, 257. title on equal footing with that of residence area, 258. See RESIDENCE AREA, BUILDINGS. BY-LAWS : local Court regulations, 3, 260. by-laws take the place of, 38, 261. may be made by mining boards, 5, 38. for district or division ot district, 38. should be uniform, 6. authorising cure of forfeiture by resumption of work, 9, 124. taking up multiplied claims, 17. '. holder of one miner's right may take several claims, 21. boundaries and dimensions of claims to be fixed by, 17. dimensions and form of block claim, 36, 39. marking out and registering, 36. regulations in other States in lieu of, 38. must specify how boundary lines are to be drawn, 38. or will be void for uncertainty, 98. INDEX. 615 BY-LAWS continued. how validity of tested, 39. to be approved of by law officer of the Crown, 39. date of coming into operation, 39. cannot be made to operate retrospectively, 39. existing interest preserved when repealed, 39. divisional by-laws, 39. construction of, 40, 62, 120. right under can only be enforced by remedy given, 4Q. when by-law clashes with statute, the latter prevails, 40. for what purposes by-laws may be made, 40. appeal against rate made by, 40. must be complied with in taking up claim, 43, 62. and in occupying and working, 43. road need not be registered under, 53. See ROAD. providing for marking out after adjudication, 73. mode of registration denned by, 75. compliance with by antecedent owner ineffectual against subsequent non-compliance, 80. protection registration created by, 32. See PROTECTION REGISTRATION. is held under by-law under which it is taken, 82. existing rights as to, 82. possession under by-law ultra vires good against wrongdoer, 87. claimholder under invalid by-law cannot maintain encroachment, 101. except against wrongdoer without title, 101. may be made denning abandoned ground, 114. prescribing events causing abandonment, 119. Warden has jurisdiction though not named in, US. exceptions in need not be negatived, 119. determine events on which forfeiture accrues, 120. compliance with strictly enforced, 120. must expressly declare that forfeiture to be worked, 120. forfeiture declared under by-law under which claim held, 120. effect of repeal of by-law, 121. obligation in to advance main drive, 127. sites for tailings registered under, 153. by-laws for depositing tailings, 155. claims on private land to be worked under, 201. water-right acquired under, 221. See WATER-RIGHT. regulating drainage of mines, 233. See DRAINAGE OF MIXES. for preventing accumulation of sludge and debris, 241. for imposing rates for the purpose, 241. as to assignment of residence area, 254. infraction of, jurisdiction of the Warden, 270. summons not showing under what by-law forfeiture incurred, 284. under repealed by-law, 284. See AMENDMENT. 616 INDEX. CANCELLATION : of tribute agreement for non-working, 158. tributer may complain to Warden if dissatisfied, 158. of water-right obtained by misrepresentation, 226. of residence area, 249. See RESIDENCE AREA. CASE: Set SPECIAL CASE. CERTIFICATE : of registration of claim, 76. See REGISTRATION. of protection registration when not posted on claim, 84. second certificate will not cure forfeiture under prior certificate, 84. CERTIORARI : applicant for need not hold miner's right, 24. not granted when Warden has jurisdiction, 268. will be granted where he has no jurisdiction, 268. jurisdiction only questioned after adjudication, 268. order of Warden may be quashed notwithstanding appeal, 290. does not deal with rights of property, 290. may be had to bring up invalid proceedings, 314. CESTUI QUE TRUST : claim may be taken by trustee for, 1 7. may sue his trustee though not holding miner's right, 19. See TRUSTEE. CHAMPERTY : proceedings are bad if tainted with, 137. holding any interest will support alleged champertous agreement, 138. advancing money for purposes of suit, 138. binding contract not necessary, 138. remunerating attorney not a ground of, 138. where solicitor paid expenses of suit, 138. where complainants have a legal right, 139. shareholder paying expenses of suit by another shareholder, 139. CHATTEL INTEREST : land occupied under miner's right is a, 15. business licence is a, 256. CHIEF JUDGE : court of established, 4, 261. See COURT. CLAIM : title to, 5. See TITLE. in what cases adjudication necessary, 7. See CRITCHLEY v. GRAHAM. resumption of work on will not cure forfeiture, 9. unless authorized by by-law, 9. INDEX. 617 CLAIM continued. by-laws may authorise multiplied claims, 17. separate fee payable for each claim, 17. boundaries and dimensions of fixed by by-law, 17. See BY-LAW. what is not authorised to be taken as, 17. See MINER'S RIGHT. land legally held under miner's right or lease, 17, 188. during pendency of application for lease, 17. or for renewal of lease, 17. See LEASE. public road without consent of municipality, 17. taken as trustee for person not holding miner's right, 17. holder of is entitled to claim and all gold in it, 18. married woman may hold a, 19. onus on holder to prove miner's right in force, 25. what is a, 30. does not include land comprised in lease, '30. mining lease is not a claim, 30. may include subsoil of road or residence area, 30. need not include the whole of ground held by person sought to be dispossessed, 31. complainant may be put in possession of part, 31. See FOR- FEITURE. difference between claim and mine, 31. subsists over entire surface of ground, 31. proclamation of road over, does not over-ride title, 32. dealings with, 32. may be divided, transferred or encumbered, 32. contract for sale of, 32. . by infant could not be enforced, 32. delay in asserting right, 32. may be taken in execution, 32. bailiff may give possession (Q.), 32. claim of infant must be registered by guardian, 32. frontage claims, 32. See FRONTAGE CLAIM. block claims, 36. See BLOCK CLAIM. area regulated by assumed depth of lead , 36. depth must be assumed, 36. when holder may go beyond boundaries of, 36. reward claims, 37. See REWARD CLAIM. special claims, 37, 60. See SPECIAL CLAIM. right to occupy, 40. See OCCUPATION. right to, must be limited to one title, 40. See TITLE. what land may be taken, 42. cannot be taken pending special case, 66, 139. privileges of bolder of, 42. by-laws must be complied with in taking up, 43. and in occupying and working, 43. title to is a permanent estate as regards the public, 44. 6 1 8 INDEX. CLAIM. continued. interest in may be assigned if miner's right assigned, 45. person holding share in, cannot be excluded, 45. may enforce title to his share, 46. several claims may be transferred to purchaser from several partners, 46. amalgamation of claims, 47. See AMALGAMATION. reserves for public purposes, 50. See RESERVE. exempted land, 51. See EXEMPTED LAND. roads may be mined on, 52. See ROAD. claimholder may apply for lease of his claim, 56. lease is abandonment of miner's right title, 56. claim subject to forfeiture until lease granted, 56. miner's right title then merges in leasehold title, 56. only claimholder has right to apply for lease, 56. title to is good against any other applicant for lease, 56. holder of is not bound to resist granting of lease, 56. See CLAIMHOLDER. may defend his title against lease, if granted, 56. ground subject of application for lease cannot be marked out, 56, 66. quartz claim may be taken pending application (N.S.W.), 69. alluvial claim may be taken (W.A.), 69. Warden cannot put person in possession of, 57. nor during application for renewal of lease, 57, 66. nor declare claim forfeited during application, 57. unless default shown in application, 57. may adjourn until application disposed of, 57. can adjudicate if lease refused, 57. lease not effectual against claimholder in lawful possession, 57. subsidiary claims, 57. See MACHINERY AREA, DAM SITE. extended claims, 58. prospecting claims, 58. creek claims, 58. how boundaries of stream defined, 59. sluicing claims, 59. See SLUICING AND DREDGING. bank sluicing claims, 60. tunnelling claims, 60. application for, 74. See APPLICATION FOR CLAIM. registration of, 75. See REGISTRATION. trespass on, 86. See TRESPASS. held by uncertificated insolvent, 93. See INSOLVENT. encroachment on, 97. See ENCROACHMENT. abandonment of, 111. See ABANDONMENT. possession given of correct area when too much ground taken, 117. is held under by-law under which it is taken up, 121. effect of repeal of by-law, 121. forfeiture of, 122. See FORFEITURE OF CLAIM. applicant for lease may purchase claim and work it pending his appli- cation, 173. INDEX. 619 CLAIM continued. land under lease protected against occupation as a claim, 187. on private land, 201. See PRIVATE LAND. by-lawa must be complied with, 201. compensation how determined, 201. in case of agreement, 201. to be filed with mining registrar, 201. jurisdiction of Warden to assess, 201. as to encroachment, 202. not to be taken on land applied for on lease, 202. or pending application for renewal of lease, 202. nor agreement to be made with owner, 202. claimholder may apply for lease of his claim, 202. owner may agree with miner to occupy (N.S.W.), 205. residence area cannot be taken as a, 254. See RESIDENCE AREA. cannot be taken up on legally occupied claim, 254. CLAIMHOLDER : has right to apply for lease, 56, 146. and on private land, 202. title is good against any other applicant, 56. not bound to oppose granting of lease, 56, 145. may defend his title if lease granted, 56, 145. not objecting to lease will not invalidate his title, 145. may be ordered to apply for lease if payable gold found (S. A.), 146. has no right to reside on his claim, 254. is liable for occupying in an unauthorized way, 254. See AMALGAMATION. COLLUSIVE RECOVERY : will not give a valid title, 73. even where large expenditure on claim, 73. will not give right to sue for trespass, 94. acquiescence is an abandonment, 117. See ABANDONMENT. COMMISSIONER : See GOLDFIELDS COMMISSIONER. COMMITMENT : on breach of injunction, 110. on what terms prisoner discharged, 110. restraining flow of sludge, 238. on warden's order other than for payment of money, 294. how order made, 294. prisoner may be discharged on performance, 294. costs of, 296. no appeal from order under sec. 188, 321. 620 INDEX. COMMON : land proclaimed as, not exempted from mining, 50. COMPANY : consolidated miner's right in name of manager sufficient, 19. See CONSOLIDATED MINER'S RIGHT. must hold sufficient miner's rights, 20. may obtain miner's right in corporate name, 26. See MINER'S RIGHT. not necessary for each shareholder to have one, 26. shareholders may have miners' rights and not company, 26. one miner's right in name of manager not sufficient, 26. can sue for trespass if holding miners' rights at time of trespass, 27. miners' rights held by trustees and not by company insufficient, 27. may hold consolidated miner's right in name of manager, 27. but not where company holds no land except by trustees, 28. effect of, 28. must be sufficient to enable company to sue, 28. where claim assigned to company not holding consolidated miner's right, 28. trespass by no-liability company where five per cent, of capital not paid up, 94. not representing shareholders cannot maintain encroachment, 101. injunction against no-liability company, 106. sequestration of estate for breach of injunction, 110. shareholder or director may proceed for forfeiture of claim, 137. what is an elective body corporate, 142. See ELECTIVE BODY COR- PORATE. service of notice of application for lease on, 162. trustee for may give consent to lease, 165. contemplated company cannot be applicant for lease, 167. how application dealt with, 167. partners registering themselves as a, 215. See PARTNER. rights of excluded partner, 216. partner who holds as trustee for must transfer lease, 216. cannot hold a residence area, 247. See RESIDENCE AREA. residence area lapses on transfer to trustee for company, 247. Warden's summons against a, 275. how service of effected, 281. COMPENSATION : for mining on private land, 196. See PRIVATE LAND. by applicant for lease, 196. may be agreed on, 196. agreement must be in writing, ] 96. and signed in triplicate, 196. to whom payable, 196. measure of, how denned, 196. INDEX. 62 1 COMPENSATION continued. to be determined by Warden where no agreement, 197. procedure, 197. jurisdiction of Warden, 197, 271. basis of assessment, 197. Warden cannot consider title to purchase money, 197. allowance to be made for money already paid to owner, 197. non-appearance of either party, 197. no right to enter until compensation paid, 198. or agreement signed, 198. payment in case owner is dead, 198. jurisdiction of Warden under Land Act, 199. damage to land in vicinity of lease or claim, 201. appeal against Warden's assessment, 319. by applicant for a claim, 201. how determined, 201. in case of agreement with owner, 201. agreement to be filed, 201. jurisdiction of Warden to assess, 201. in New South Wales, 204. See NEW SOUTH WALES. in Queensland, 207. See QUEENSLAND. in New Zealand, 210, 211. See NEW ZEALAND. on exemption of land from residence or business, 256. See RESIDENCE AREA. COMPLAINT : variance between plan and complaint may be amended, 36. See SUMMONS. COMPULSORY LEASE : mining on private land by means of (S.A.), 207. claimholder ordered to apply for lease of claim if payable gold found (S.A.), 146. CONCEALMENT : See ENCROACHMENT. CONDITION PRECEDENT : miner's right as a condition precedent to sue, 23, 94. See HIKER'S RIGHT. registration a condition precedent to acquiring a claim, 7-">. miner's right not a condition precedent to suit by riparian proprietor, CONDITIONS : order imposing conditions must show what they are, 290. See ORDER. of appeal from Warden, 316. See APPEAL. 622 INDEX. CONFUSION : doctrine of per confusionem, 88. See TRESPASS. CONSENT : to lease must be obtained from persons interested, 146. not of persons only equitably interested, 146. to application for lease, 164. See APPLICATION FOB LEASE. of owner to mine on excepted private land, 194. of occupier of residence area to occupation of surface, 247. person made a party without consent may be struck out, 309. to enlargement of time for notice of appeal, 323. See APPEAL. for transmission of appeal case, 331. CONSOLIDATED MINER'S RIGHT : term of, 27. by whom obtainable, 27. does not include privilege of residence, 29. may be held by manager for a company, 19, 27. but not where company holds land only by trustees, 28. when insufficient, 26. effect of, 28. must be sufficient to enable company to sue, 28. where claims assigned to company not holding, 28. original miners' rights do not lapse, 29. so in Queensland, Western Australia and New Zealand, 29. See MINER'S RIGHT. CONSTRUCTION : of by-laws as Acts of Parliament, 40, 62, 120. See BY-LA\VS. of order of injunction, 108. not to be interpreted retrospectively, 108. where order admits of two constructions, 108. See INJUNCTION. general words limited to scope and object of Act, 288. repealed statute n0. or if registration obtained illegally, 2r.o. or if no habitable dwelling erected. -J5". dwelling must be placed on the land, 2.1C. person seeking cancellation may be put in possession, i'o. 686 INDEX. RESIDENCE AREA continued. no jurisdiction to cancel on ground that land exempted, 253. holder of has no right to mine on it, 249. nor to permit others to mine, 249. losing possession may remove dwellings, 249, 251. within time to be fixed by order of cancellation, 252. if not removed may be sold, 252. valuation for improvements to be made by Warden (Q. ), 252. not delegated to arbitrators, 252. uncertificated insolvent may sue for trespass on, 250. registration is part of title to, 250. effect of exemption of land from occupation for residence, 252. demand of possession necessary, 252. previous conviction is sufficient demand, 252. compensation must be first paid, 252. municipal council occupying reserved land for supply of gravel, 253. may maintain trespass against holder of residence area, 253. privilege of holder of is exclusive except as against the Queen, 253. to let, sell, or encumber, 253. sale &c. must be registered, 253. must be in accordance with the Act, 253. licence to cart wood over is not an assignment, 253.. procedure regulated by the by-laws, 254. of holder of miner's homestead lease (Q.), 254. holder of has no right to tailings on the land, 254. claimholder has no right to reside on his claim, 254. right to occupy is defence against unauthorised occupation, 254. but not against occupying in unauthorised way, 254. cannot be taken on claim legally occupied by another, 254. holder of has right to purchase land, 255. where situated on surface of a lease, 255. RESUMPTION : of work without obtaining fresh title will not cure forfeiture, 9. unless authorised by by-law, 9. of private land by the Crown (N.S.W.), 205. purchase on, 206. in New Zealand, 209. REVERSION : reversioner cannot sue for trespass, 147, 157. may claim for damage to his reversionary interest, 147. reversionary lease cannot be granted, 151, 178. reversioner may protect himself against nuisance, 240. rights of, on erection of sludge flume over land, 240. ' not a case for interlocutory injunction, 240. future damage will not be considered, 240. INDEX. REWARD CLAIM : Set. SPECIAL LEASE. under the Goldfields Act of 1874 (Q.), 37. reward for discoveries m South Australia, 37. RIGHT TO F.EGIN : on appeal from Warden, 326. Ste APPEAL. on special case from Court of Mines, 339. from the Warden, 340. See SPECIAL CASK. RIPARIAN PROPRIETOR : erection of dam unlawful if it affects, 221. damage to riparian rights, 222. right to soil ad medium filum aqua, 239. loses rights when not in contact with the stream, 239. common law right of applies to Australia, 239. See WATER-RIGHT. RIVER : a watercourse is not a, 222. See RIPARIAN PROPRIETOR. ROAD: claim including subsoil of, 31. proclamation of over claim does not over-ride title, 32. marking out claim by fixing pegs in, 36, 64. may be mined on under certain conditions, 52. permit from municipality is not in itself title, 52. miner's right must be held to mine on, 52. cannot be taken as a claim, 53. Warden cannot adjudge forfeiture respecting, 53. may grant injunction against encroachment, 53. jurisdiction of Court of Mines as to injunction, 53. need not be registered under the by-laws, 53. municipal council must decide on application to mine on, 54. has no control over subsoil, 54. liability of in case of subsidence, 54. reservation of is not reservation of the subsoil, 54. surface of is under control of municipality, 54. the soil of is vested in the Crown, 54, 148. what is evidence of dedication of, 54. permissive user not sufficient, 55. surface of must not be disturbed without permission, 55, 149. no question of title can arise as to, 55, 149. property in soil of is not in grantee of abutting land, 55, 100, 148. trespass on land intersected by a, 92. as between two parties mining on road without permission, 96. encroachment on, 100, 199, 205. inspection of mines under, 105, 199. 688 INDEX. ROAD contimie-d. injunction against mining under, 106. earliest occupier entitled, 106. municipality to receive notice of application for lease of, 149, 163. jurisdiction of the Warden in trespass on, 273. forfeiture, 273. cannot grant permit to mine on, 273. ROYALTY : charged on gross value of gold (S.A. ), 207. payable in Queensland, 208. mode of enforcing payment of, 208. RULES : See REGULATIONS. general rules for proceedings before Wardens, 274. in Courts of Mines, 307. SALE: See CONTRACT, ASSIGNMENT. SEAL: of Court of Mines, summons to be sealed with, 308. affidavit of service, 308. effect of sealing with wrong seal, 308. See PROCEDURE. SECURITY FOR COSTS : order for in Court of Mines, 315. SERVANT : See MASTER AND SERVANT. SERVICE : of notice of application for lease on occupiers, 163. of objection to lease, 167. of Warden's summons, 281. mode of, 281. Warden may extend time for, 281. but may not shorten it, 281. on company, how effected, 281. every defendant must be served, 281. unserved defendant cannot appear, 280. nor have right of appeal, 280. order against is bad, 282. See UNSERVED DEFENDANT. not bound by appearance of other defendants, 282. Warden cannot decide that served defendants represent un- served defendant, 281. unserved person cannot be made a defendant against his will, 281. . may be added and receive notice of adjournment, 282. INDEX. 689 SERVICE continued. order t will be quashed for non-service of one of a number of defendants, 282. appearance will waive irregularity as to, 282. Warden may hear evidence as to sufficiency of, 282. and make order accordingly, 282. substituted service, 282. See SUBSTITUTED SERVICE. Wardeii may make order for, 282. to be applied for when summons returnable, 283. case to be adjourned if order made, 283. affidavit of, 283. on attorney, 283. of notice of appeal from the Warden, 322. on Warden if parties cannot be found, 322. must be within time limited, 324. on inmate of private residence insufficient, 324. on attorney, 324. bad if left with inmate of private residence, 324. of notice of appeal from Court of Mines, 331. of summons in Court of Mines, 307. how effected, 308. time of, 307. affidavit of to be endorsed on plaint, 308. SHAFT : using for a well will not save forfeiture, 127- SHAFT SIGNAL : what held to be sufficient, 231. See REGULATION AND INSPECTION OF MINES. SHARE : See SHAREHOLDER. in claim may be assigned, 45. person holding cannot be excluded, 45. title to share may be enforced, 46. undivided share in, meaning of, 214. jurisdiction of the Warden, 273, 274. SHAREHOLDER : miners' rights sufficient if held by, and not by company, 26. allowing his share to lie dormant, 117. abandoning his share, 117. in company, may proceed for forfeiture of company's claim, 13 paying expenses of suit by another shareholder is not champerty, 13 in co-operative company cannot be sued for calls, 213. in claim cannot sue for shares in company if excluded, 216. may sue for appropriation of his property, 216. where shareholder refuses to work his share, 218. 690 INDEX. SHERIFF : purchaser ot lease at sheriff's sale, 152. SITE : See MACHINERY AREA, DAM SITE. SLUDGE: St.e NUISANCE. injury by running sludge into a stream, 224. sluice may be made if stream not polluted, 224. flow of on private land will be restrained, 238. commitment if no precaution taken, 238. throwing sludge on land of another, 238. right of holder of puddling site to throw sludge on land, 239. pollution of stream by sludge restrained, 240. See, POLLUTION. diversion of for the purpose of extracting water, 240. may not afterwards be thrown on adjoining land, 241. escape of from flume, 241. flume must he made to prevent, 241. by-laws for preventing accumulation of, 241. for imposing rates for the purpose, 241. jurisdiction of the Warden, 272. SLUICING AND DREDGING : holder of sluicing claim not to pollute stream, 59. one of a number of miners may be liable, 59. measure of damages, 59. has no common law right to lateral support, 59. leases for in Western Australia, 59, 209. land held under, deemed private land, 209. abandoned sluicing claim may be taken as abandoned ground, 113. but not when work merely suspended, 114. in connection with dredging claim, 221. SMITHY : is not a necessary adjunct to a mine, 236. See RATES. SOLICITOR : remunerating solicitor is not champerty, 138. paying expenses of suit is champerty, 138. costs of may be taxed, 295. as between party and party or solicitor and client, 314. may appear to object, 309. See CHAMPERTY. SOUTH AUSTRALIA : mining courts in, 10. multiplied miner's rights permitted, 16. reward for discovery of new goldfields, 37. applicant for lease must hold miner's right, 143. INDEX. 691 SOUTH AUSTRALIA continued. claimholder must take lease if payable gold found, 146. gold-mining on private land in, 206. how right to mine acquired, 206. resumption of land by the Crown, 206. purchase on resumption, 206. proclamation of land as an alluvial gold-field, 206. land subject to jurisdiction of the Warden, 206. compulsory mining lease, 207. royalty on gross value of gold, 207. rent for surface area, 207. procedure on appeal, 263. SPECIAL CASE : effect of injunction when case reserved, 109. refusal by Warden to decide as to abandonment is not ground for, 119. claim cannot be taken up pending opinion on, 139. object of, to determine questions of law, 334. not to embrace questions of fact, 334. decision of Warden not to be given before case reserved, 334. authorised in all the other States, 334. what must be set out in, 334. definite question or questions must be asked, 335. all evidence must be taken before case reserved, 335. appellate court cannot vary case, 335. will not hear objection not raised below, 335. or receive supplementary affidavits, 335. or admit evidence that case not properly stated, 335. can only be stated on question raised at original hearing, 335. not on conversation between bench and counsel, 336. answer to, when not intended to bind judge below, 336. where parties did not appear, 336. re-hearing refused or non-appearance, 336. case struck out (N.S.W.), 336. appellate court will not draw inference of facts on, 287. may remit case to have point settled, 287. stated by the judge of the Court of Mines, 261, 337. formerly to the Chief Judge, 261. may be stated to the Supreme Court, 313. hearing must be completed before case stated, 313. no appeal to Supreme Court on a special case, 33 judge may reserve, 337. grant stay of proceedings until heard, 337. it must appear that the parties cannot agree, 337- application for may be made at any stage of hearing, 387. where judge interrupted while delivering judgment, 33 opinion of Supreme Court is not a decree, 337. 692 . INDEX. SPECIAL CASE continued. stated by the judge of the Court of Mines continued. decree to be made in pursuance of, 337. duty of judge ministerial, 337. to be stated clearly and concisely, 337. to show that property is of appreciable value (N.S.W.), 337. when case will be sent back to be re-stated, 338. objection to hearing of appeal may be subject of, 338. but not questions of fact, 338. nor proceedings to strike out, 338. nor point of law not raised at the trial, 338. when case reserved before evidence called by defendant, 338. second case may be stated, 338. judge for the time being should state, 339. by whom signed (N.S.W.), 339. right to begin, 339. judge may enlarge time for transmission of, 339. stated by the Warden, 273, 339. may be stated after Warden has orally declared judgment, 273. as to admissibility of evidence, 288, 340. decision to be in accordance with opinion, 291, 340. no appeal will lie from, 340. application for after decision, is too late, 293. opinion of Supreme Court is not a decision of the Warden, 336. decision to be made in accordance with, 291, 340. further adjudication after opinion given, 336. Warden may state, 336. may be sent back for further information, 339. not to be stated as to preponderance of evidence, 340. as to application for lease of private land, 340. right to begin, 340. order after refusal to state case is ultra vires, 340. Warden may take further evidence it case remitted, 340. case remains open for adjudication after opinion given, 341. costs of, in the discretion of the court, 341. should be given to successful party, 341. against Warden refusing to state case, 341. form of, 341. practice in stating, 342. proceedings may be stayed until opinion given, 342. Warden refusing to state case cannot make order for ten days, 34i application may be made for mandamus, 342. SPECIAL CLAIM (N.Z.), 60. applied for on land held on perpetual lease, 60. provisionally granted, 60. rent in respect of, 60. INDEX. SPECIAL LEASE : to discoverer of new goldfielcl, 37. SPECIAL POWERS OF THE WARDEN : to grant injunction against trespass or interference, 298. interim injunction for seven days, 298. injunction on notice, 299. should be limited to time, 299. procedure on application for, 299. all persons giving notice must appear, 299. order for must show jurisdiction, 299. otherwise disobedience is no offence, 299. must be served personally, 299. or by substituted service, 299. to make order for inspection by surveyor, 299. Sen INSPECTION. declaration to be made against divulging information, 299. is a condition precedent to making of order, 300. must show jurisdiction on the face of it, 300. to make order to seize auriferous earth, 300. for deposit of gold pending decision, 300. SPECIFIC PERFORMANCE : miner's right not required by person seeking, 19, 25. STATUTE OF FRAUDS : agreement to admit partner in land, 214. dealings between partners within, 215. enforcing contract where Statute not complied with, 271. STAY OF PROCEEDINGS : See PROCEDURE. judge of Court of Mines may order, 316. until hearing of special case, 337. until opinion given, 342. pending appeal from Court of Mines, 330. STREET : See ROAD. STRIKING OUT : amendment by striking out one or more complainants, 284. part of summons showing excess of jurisdiction, 284. person made a party without authority, 309. special case where no appearance (N.S.W.), 336. STORE : on a mine not exempted from rates, 236. See RATES. SUBSIDENCE : caused by water-race, 223. See LIABILITY. INDEX. SUBSIDIARY CLAIMS, 57. SUBSTITUTED SERVICE : See SERVICE. Warden may make order for, 282. when applied for, 283. case adjourned if order made, 283. of notice of appeal, 325. SUBSOIL : claim may include subsoil of road, 31. of Crown land applied to public purposes, 51. municipal council has no control over subsoil of road, 54. SUB-TENANT : of residence area must hold miner's right, 246. must be registered, 246. SUMMONS : in the Court of Mines, 307. to be endorsed 011 plaint, 307. See PLAINT. to be sealed, 308. service of, 307. See SERVICE. before the Warden, 274. proceedings commenced by, 274. what should be stated in, 140, 274. must show that complainant has some title, 275. venue, 275. against corporation or company, 275. by whom signed, 275. cannot be signed by clerk in his own name, 275. objection to, good if taken before hearing, 275. must describe address of complainant, 276. title of proceedings, 276. vagueness in, 276. See VAGUENESS. not alleging what provision of Act contravened, 276. objection to title in illegal occupation, 277. inaccurate description of land, 278. may be amended, 276. no matter pertinent to issue should be omitted, 276. not stating what complainant requires, 277. proceedings for penalty commenced by information (N.Z.), 277. description of land subject of complaint, 277. by number in books of mining registrar, 278. Warden may order survey and plan, 278. including two causes of action, forfeiture and illegal occupation, 278. for possession of part of claim should define what part, 278. may be amended by inserting accurate description, 278. INDEX. 695 SU M MONS continued. before the Warden continued. objection to, when to be taken, 278. See OBJECTION. service of, 281. See SERVICE. summons by four cannot be amended to summons by one, IN:,. amendment of, 283. See AMENDMENT. altering summons for possession to trespass, 284. not following the form in the Act, 284. erroneous statement in, as to time of hearing, 284. for damages for accident to show which provision contravened, 231. not stating the nature of the case, 275. SUIT : trespass, 92. See TRESPASS. encroachment, 101. See ENCROACHMENT. for injunction by municipality, parties to, 108. not determined by order of injunction, 108. change of interests during suit does not affect, 280. Warden cannot make amendment to change object of, 285. See JURISDICTION. SUNDAY : working on, to keep water down, 235. included in computation of time for notice of appeal, 323. See APPEAL. SUPREME COURT : jurisdiction of Chief Judge vested in, 66. may increase damages in trespass on appeal, 91. may grant injunction in respect of private land, 200. assessment of compensation by judge of (N.Z.), 210. riparian proprietor may sue for damages in, 225. special case stated to, 262. interference by, with Warden regulating practice, 266. to compel Warden to perform his duty, 266. with judge of Court of Mines acting within his jurisdiction, 305. Court of Mines is an inferior court to, 302. opinion of is not a decree, 312. nor decision of the Warden, 336. no appeal therefrom, 336. has no jurisdiction pending suit in Court of Mines, 314. decision of Court of Mines not to be reviewed for error, 314. SURVEY : of claim not necessary, 76. unless required by by-laws, 76. Supreme Court will compel surveyor to make, 77. by antecedent owner insufficient for subsequent taking up, 80. INDEX. SURVEY continued. unavoidable delay pending survey is not abandonment, 117. fee for on application for lease to be paid, 164. Warden may order, 278, 289. SURVEYOR : mandamus to, to make survey, 77. may enter on private land to make survey, 195. costs of fixed by the Warden, 295. SURRENDER : lease of private laud may be surrendered, 198. partner refusing to accept surrender of lease, 217. of water-right licence, 226. See LEASE. SUSPENSION : of labour covenant, 180. See LABOUR COVENANT. SUSPICION : of encroachment, order of inspection on, 97. SUSTENANCE MONEY : settlement of disputes as to, 156. is first charge on gold, 157. See TRIBUTE AGREEMENT. TAILINGS : ownership of, 153. site for registered under the by-laws, 153. area for in Queensland, 154. auriferous sands claim (Q.), 154. jurisdiction of Warden to cancel for non-user, 154. licence to treat may be obtained, 154. lease may be granted subject to right of licensee, 154. abandoned tailings may be subject of trover, 154. chattels of person who severed them from the land, 154. on surrendered or avoided lease, 155. if not removed or treated are deemed abandoned, 155. by-laws for depositing, 155. not within section 114 of the Land Act, 155. occupier of residence area has no title to, 254. jurisdiction of the Warden, 273. TASMANIA : Mining Courts in, 10. multiplied miners' rights not permitted in, 16. holder of permit to mine on a lease has a limited title, 143. on death of applicant for lease partner has preference, 153. INDEX. 697 TASMANIA continued. lease not to be granted against the decision of Commissioner, l(i<). no authority to mine on private land in, 203. procedure on appeal, 263. TAXATION : of costs by Warden in a lump sum, 295. must be taxed at time of hearing, 295. clients may procure taxation of costs, 295. of costs in Court of Mines, 314. as between party and party or solicitor and client, 315. to be taxed at time of hearing, 315. by the judge, not by his clerk, 315. remedy for by appeal, 315. cannot be fixed by clerk, 315. TENANT : permission given by to miner to throw sludge on land, 240. to erect flume, 240. reversioner may protect himself, 240. TERM : of miner's right, 13, 27. of lease not to exceed fifteen years, 143. of private laud, 196. TIME : effect of mistake as to time of making application for claim, 74. when work to be commenced after protection registration, 1 _'.">. within which lease must be executed, 152. lost owing to forfeiture of lease, added to tribute agreement, ].~>x. for compliance with leasing regulations, 160. from which marking out lease dates, 161. for lodging application for lease, 166. when lease deemed to be granted, 168. prescribed time for execution of lease, 188. death of lessee before execution within, 188. of employing miners underground, 231. when allowed half an hour for refreshment, 231. going to and returning from work, 231. warrant of execution may be withheld for three days, 293. at which notice of appeal to be given, .'>_-?. judge cannot extend after expiration of, 323. enlargement of, for transmission of appeal case, 330. for making application for special case, 337. for appeal runs from pronouncement of decree, 331. 698 INDEX. TITLE : to residence area lapses on assignment to a company, 247. to business licence on same footing with that of residence area, 258. . See RESIDENCE AREA. TITLE TO CLAIM : under miner's right paramount to any other title, 15, 20. occupier must hold miner's right, 20. and occupy in conformity with the by-laws, 20. where certificate of registration not in prescribed form, 20. not affected by application for lease, 21. possession is not a reservation under Transfer of Land Act, 21. when holder of miner's right may take up several claims, 21. voidable on omission to renew miner's right, 21. forfeiture restored by fresh miner's right before proceedings, 22. may be made by attorney in anticipation of miner's right, 23. is a permanent estate as against the public, 23, 44. holder of frontage claim has title to the whole ground, 34. right to claim must be limited to one title, 40. taking assignment of loses protection of former title, 40. how determinable, 44. grant of lease has no effect on, 44. possession under by-laws gives, 44. and to all gold in the claim, 44. holder has no title until claim legally acquired, 44. miner's right is the title to a claim, 45. within the limits prescribed by the Act, 45. unregistered title cannot be set up, 45. holder of a claim is the registered holder, 45. registration alone will not give, 45. when title is a recent transfer, prior title must be shown, 45. may be determined by exemption of land from occupation, 45. ejectment not maintainable in Supreme Court, 45. to share in a claim may be enforced, 46. where occupation not regular, person in possession lias, 46. possession not to be disturbed without adjudication, 47. restoration by renewal of miner's right before proceedings, 47. defeated by registration during period of omission, 47. not absolutely invalidated, 47. when in dispute, gold retained until rights ascertained, 47. old titles are abandoned on amalgamation, 49. mining on roads, 52. See ROAD. permit of municipality is not in itself title, 52. does not confer title, 53. claimholder obtaining lease abandons title to claim, 56. title merges in leasehold, 56. good against any other applicant, 56. IXDKX. TITLE TO CLAIM continued. holder of machinery area has no title to gold, ~>8. onus of proof of rests with person defending title, 66, 130. order of Warden not sufficient to give, 72. clears away old titles and authorises possession, 72. collusive recovery will not give, 73, 95. omission to register within prescribed time does not avoid, 77. except by prior registration, 77. trespass when title in dispute, 89. See TRESPASS. suit for, as test of title, 91. onus on defendant to show flaw in plaintiff's' title, 95. possession is primd facie, evidence of, 96. is good title against wrongdoer, 96. need not be shown, 101. where neither party has, court will not interfere, 10i'. forfeiture of itself does not invalidate, 121. voidable by proceedings for possession, 121. person taking possession under forfeiture forms new title, 121. person defeated cannot acquire title by marking out, 134. obtained in contravention of section 70 is bad, 175. TITLE TO LEASE : obtained only by application, 143. See APPLICATION KOR LKASI;. no title acquired until lease granted, 144. applicant not entitled to mine, 144. but may prevent trespass, 144. acceptance of rent after expiration of term does not confer new title, 150. application without marking gives no title, 161. application for lease is a provisional title, 175. TRANSMISSION : of special case, 339. judge may extend time for, 339. TRANSFER : lease may be transferred, 168. or interest in application for, 168. See ASSK;NMKNT. TRESPASS : jurisdiction of justices under Act of 1853, 3. possession alone good against trespasser without title, 43, 87. or by person holding under invalid by-law, 87. on one amalgamated claim is not a trespass on all, 49, 88. must be shown on which claim trespass committed, 88 registration not necessary to complete title against trespasser, 75. definition of, 86. 700 INDEX. TRESPASS continued. by servants, 87. See. MASTER AND SERVANT. judgment against servant not estoppel against master, 87. when unintentional, 88. See ENCROACHMENT. trespasser entitled to cost of working, 88. wilful trespasser not entitled to expenses of working, 88. or trespasser misapprehending the law, 88. doctrine of per confuniontm, 88. mixing quartz when title in dispute, 89. trespasser liable for whole proceeds of gold, 89. pending application for lease, 89, 1 48. renewal of lease, 89. applicant for lease not complying with regulations cannot maintain. 90. entry after expiry of lease is not, 90. defendant may put lease in evidence, 90. , jus tertii cannot be set up by trespasser without title, 90. marking out for lease land held under miner's right is not, 91. suit for, as a test of title, 91. for recovery of damages, 91. where no actual damage done, 91. measure of damages, 91. highest value taken against wilful trespasser, 91. appellate court may increase damages, 91. who can sue for, 92. actual possession not necessary, 92. legality of possession de facto not questionable, 92. land intersected by a road, 92. on private land, 92. abutting on a street, 92. applicant for lease may maintain, 92. holder of permit under regulations (N.S.W.) may maintain, 93. where boundary marks not properly defined, 93. expenses incurred in defending suit for, 93. lessee may maintain, 93, 147. Warden has jurisdiction to hear complaint, 93. against lessee entering after expiry of lease, 93. uncertificated insolvent may maintain, 93. miner's right a condition precedent to sue for, 94. need not be held when trespass began, 94. person in illegal occupation cannot maintain against legal owner, 94. collusive recovery gives no right to sue for, 94. jurisdiction in suits for, 95. against official acting unlawfully on behalf of the Crown, 269. to surface of lease by erecting fence, 270. on leased ground after lease granted, 145, 2~0. may be maintained in any court, 95. complainant not estopped from suing in Supreme Court, 95. INDEX. TRESPASS continued. title of complainant must be shown, 95. onus on defendant to show flaw in title, 95. where all complainants have not miners' rights, 9b'. apportionment of damages, 96. as between two parties mining on road without permit, 96. trespasser not entitled to gold, 96. applicant for lease may prevent trespass, 144. entry on leased land is, 145. lessee who has let mine on tribute cannot maintain, 147, I.". may claim for damage to reversionary interest, li>7. marking pending application for lease, 148. trespass maintainable under section 65, 148. by person obtaining adjudication after application for lease, 148. applicant for lease suing for, must prove compliance with regulations, 172. trespass maintainable if default not shown, 174. marking out for claim on land applied for on lease, without occupation, 174. entry alone is a trespass under section, 70, 175. but not proceeding for possession before the Warden, 174. so on private land, 198. interference with water-right, '2'25. See WATER-RIGHT. on residence area, 244. See RESIDENCE AREA. may be maintained in County Court, 306. TRIBUTE AGREEMENT : what is a tribute, 155. not a partnership, 155. requisites of agreement, 156. where agreement made to repair damage to machinery, 1 .">(!. sustenance money to be paid, 156. See SCSTEXAXCE MONEY. provision for payment of to be included in agreement, 156. payable to each individual tributer, 156. does not apply to companies, 156. tributer may contract himself out of the Act, 156. is first charge on the gold, 157. settlement of disputes, as to gold, ground, or sustenance money, l.">ti. as to working, 156. as to title, 156. gives exclusive right to mine, 157. per centage to be reckoned on net value of gold, 1">7. does not confer interest in land, 157- leaseholder letting mine on tribute cannot sue for trespass, I. 17. cancellation of for non-working, 157. tributer may complain to Warden if dissatisfied, 158. sanction of Minister to must be obtained, 158. 701 (02 INDEX. TRIBUTE AGREEMENT continued. general permission is sufficient for twelve months, 158. continued if lease declared void, 158. also as regards private land, 158, 200. new lease is subject to rights of tributer, 200. time lost owing to forfeiture of lease added to, 158. jurisdiction of the Warden, 274. TRIBUTER : See TRIBUTE AGREEMENT. trespass after expiration of lease, 94. is entitled to sustenance money, 156. settlement of disputes, 156. property in gold does not pass to, 157. any one tributer may be convicted of larceny, 157. provisions of the Act are for the benefit of, 158. he may contrast himself out of the Act, 158. is not a person employed in a mine.(N.Z.), 231. TRUSTEE : holding miner's right may take up claim for person not holding one, 17, 43. may be sued by cestui que trust not holding miner's right, 19. holding miner's right for a company, 27. lease held by, 151. if not transferred may be declared a trustee, 151. applies also to assignees, 151. for company may consent to application for lease, 165. co-owners of a claim are not ipso facto co-trustees, 213. partner who holds as trustee must transfer lease, 216. may sue without making cestui que trust a party, 280. for company need not be joined in suit for forfeiture, 280. TUNNELLING CLAIM : what is a, 60. UNAUTHORISED OCCUPATION : See ILLEGAL OCCUPATION, CLAIM. UNCERTIFICATED INSOLVENT : See INSOLVENT. UNINTENTIONAL TRESPASS : See TRESPASS, ENCROACHMENT. UNREGISTERED CLAIM : when obligation of working begins to run, 76. defendant cannot set up title not duly registered, 76. nor obtain protection registration, 76. See REGISTRATION. INDEX. UNSERVED DEFENDANT : Warden cannot add without consent, 279. order made will be bad, 279. cannot appear to summons, 280. nor have right of appeal, 280. Warden cannot decide that served defendants represent, 281. order against will be quashed, 290. See PARTIES, SERVICE, ABSENT DEFENDANT. USER : permissive user of a road is not dedication, 55. Warden may forfeit M-ater-right for non-user, 139. and tailings area, 154. VAGUENESS : in summons before Warden, 276, 284. not alleging provision of Act contravened, 276, 284. objection to title in allegal occupation, 277, 284. inaccurate description of land, 278. may be amended, 276. See AMENDMENT, PROCEDURE. VALIDITY : of by-laws, how tested, 39. See BY-LAWS. of lease cannot be tested by complaint before the Warden, 188. VARIANCE : between plan and complaint, 36. may be amended by Warden, 283. See AMENDMENT. VENDOR AND PURCHASER : miner's right not required by purchaser, as against vendor (N.8.W.), 25. contract for sale of claim, 32. delay in enforcing rights, 32. purchaser of lease at sheriff 's sale, 152. VENUE : in suits before the Warden, 275. in the Court of Mines, 307. See PROCEDURE. WAGES : See TRIBUTE AGREEMENT. WANT OF PROSECUTION : no provision for dismissal for by Warden, 292. Warden can only strike out summons, 292. See PROCEDURE. 704 INDEX. WARDEN : appointment of, 3, 261. in same manner as justices of the peace, 264. jurisdiction of under the Act of 1858, 3, 261. adjudication of necessary in forfeiture and constructive abandonment, 71. must put successful complainant in possession, 72, 133. declaration of forfeiture enures only to complainant, 78. so of abandonment, 119. registration of claims by (Q.), 79. must decide whether claim abandoned or not, 119. question is not a ground for special case, 119. duty of in cases of forfeiture, 133. to settle disputes as to tribute agreements, 156. as to gold, ground, and sustenance money, 1 56. as to title, 157. See TRIBUTE AGREEMENT. office of, under leasing regulations, 162. duty of on application for lease, 166. See APPLICATION FOR LEASE. at enquiry into application, 167. on breach of labour covenant, 179, 181. either party may appeal, 179. is required to determine whether partnership exists, 214. has jurisdiction within the limits of his district, 264. when exercising duty is presumed to be properly appointed, 264. office of analogous to that of police magistrate, 265. no distinction as to reviewing decisions, 265. tribunal of is not a court, 265. is on a level with courts of petty sessions, 266. how complaints should be entituled, 265. can adjudicate anywhere within his district, 265. court need not be proclaimed (Q. ), 265. is required to have an office, 265. where he issues summonses, not where he sits as judge, 265. to decide all disputes between mining people, 266. to regulate the practice before him, 266. Supreme Court will not interfere, 266. duties of are judicial rather than ministerial, 266. except under Act 1120, sec. 203, 266. Supreme Court will compel Warden to perform, 266. not where lie obeys order of a superior officer, 267. nor on refusal to give possession under erroneous decree, 267. where duty judicial, remedy is by mundamun, 266. not his duty to register greater area than allowed (Q.), 257. action will not lie against for refusing to issue execution, 267. may be compelled to record application for lease (Q. ), 267. and to inspect register of leases (Q.), 267. general jurisdiction of, 267. See JURISDICTION OF THE WARDK INDEX. WARDEN continued. general jurisdiction of continued. under the Mines Acts, 267. the Land Act, 268. with regard to mining on private land, 268. when limited to parties residing in his district, 268. is not exclusive, 269. Supreme Court will not interfere when jurisdiction exercised, 268. but will where Warden has no jurisdiction, 268. will only be questioned after adjudication, 268. procedure and practice before, 274. See PROCEDURE. decision of, 289. See DECISION AND ORDER. is bound to adjudicate, 290. and put successful claimant in possession, 290. otherwise order will be quashed, 290. to enforce forfeiture if justified, 290. special powers of, 298. See SPECIAL POWERS OF THE WARDEN. WARDEN'S OFFICE : warden to have office, 265. See OFFICE, WARDEN. WARDEN'S REGISTER : decision to be entered in, 289. unless recorded is not binding, 289. WARRANT : See EXECUTION. WATER-COURSE : See WATER-RIGHT. is not a river, 221. WATER-RACE : See RACE, WATER-RIGHT. WATER-RIGHT : may be forfeited for non-user, 139. leaseholder m*y mine under surface of area (Q.), 142, 223. privileges of conferred by miner's right, 220. is analogous to an easement, 220. is a gold mining purpose (sec. 5), 220. acquired under the by-laws, 221. forfeiture, abandonment, and assignment of, 221. licence to cut and construct races &c., 221. See RACK. in connection with dredging claim, 221. See SLCICING AND DREDGING. jurisdiction of the Warden, 221. watercourse is not a river, 221. 706 INDEX. WATER-RIGHT continued. erection of dam, 221. See DAM. damage to riparian rights, 222. See RIPARIAN PROPRIETOR. construction of race to prevent overflow, 223. when subsidence occurs, 223. volume of water in stream not to be diminished, 223. . must be exercised so as not to injure others, 224. running sludge into a stream, 224. See NUISANCE. sluice may be made if stream not polluted, 224. See POLLUTION*. jurisdiction of justices with regard to, 225. jurisdiction of the Warden, 221. interference with water-right, 225. whether wilful or by negligence, 225. for abstraction and diversion of water, 225. as to question of prospective injury, 226. injury to surface of land, 226. trespass to land occupied as a race, 226. forfeiture of water-right, 226. at suit of holder of miner's right, 226. delay in construction does not entail forfeiture, 226- work done for other than mining purposes, 226. cancellation of licence obtained by misrepresentation, 226. although several times renewed, 226. assignment of licence under the regulations, 226. on notice to the Minister, 226. procedure on, 226. may be encumbered without registration of lien (W.A.), 226. surrendered or renewed, 226. law of forfeiture and abandonment applies to, 227. leases of public reservoirs, 227. See RESERVOIR. WATERWORKS : gold mining leases of may be granted, 148. See RESERVED LANDS. WESTERN AUSTRALIA : mining courts in, 10. miners' rights do not lapse when consolidated, 29. leases for sluicing and dredging, 59. alluvial claim may be taken on leased ground, 69, 173. gold mining on private land in, 209. adoption of statute law of Victoria, 209. amending Act, 209. leases for sluicing and dredging, 209. land held under is deemed private land, 209. water-right may be encumbered without registration of lien, 226. procedure on appeal, 263. INDEX. ?07 WIFE : See HUSBAND AND WIFE. WITNESS : See EVIDENCE. WORDS : " holder " of claim, 76. " to the knowledge of the applicant," 163. " owner of mine," 229. "mine," 229. "drive, "230. " platform," 230. " level," 229. " mines," for rating purposes, 236. "works," 237. " holder " of residence area, 246. " nearest," 321. WORKING : resuming work will not cure forfeiture, 9. unless authorised by by-law, 9. See FORFKITDKK. claim must be worked in accordance with by-la wa, 43. amalgamation effectual for all purposes of, 48. when obligation to work claim begins to run, 76. after protection registration, 125. after forfeiture will not avoid the forfeiture, 123. from adjoining land may save forfeiture, 125. lands must be the property of the same owner, 125. the labour covenant in leases, 178. See LABOUR COVENANT. working on terms will not constitute partnership, 214. See PARTNER- SHIP. where partner refuses to work his share, 218. work done on water-right for other than mining purposes ineffectual, 226. damages for injury sustained while, 231. Ste REGULATION AND INSPEC- TION OF MINES. on Sunday to keep down water, 235. WORKS : mining property rated as, 237. is taken to mean only rateable property, '237. See RATES. WRIT: of injunction abolished by Judicature Act, 110. WRITING : application for claim need not be in, 75. 708 INDEX. WRITING continued. when written application necessary for protection registration, 81. effect of verbal application, 127. agreement to admit partner in land must be in, 214. WRONGDOER : possession alone is evidence of title against, 44, 87. encroachment against by claimholder under invalid by-law, 101. See TBESPASS, ENCROACHMENT. HARSTON, PARTRIDGE AM) CO., PRINTERS, MELBOURNE. ^ uIFORNIA AT LOS ANGELES LIBRARY TR 251 A73t Armstrong - A treatise on the law of 1901 ^old-mining in -Australia and New This book is DUE on the last date stamped below Zealand, DEMCO 2MN 251 A73t 1901 5m-6,'41(3644) Charles P. Maxwell (G. Partridge & Co.), Law Publishers, VICTORIAN LAW REPORTS, IMPORTANT NOTICE TO THE LEGAL PROFESSION. WYATT and WEBB'S REPORTS, 2 Vols., 1861-63. WYATT, WEBB, & a'BECKETT'S REPORTS, 6 Vols., 1864-69. VICTORIAN REPORTS, 3 Vols., 1870-72. VICTORIAN LAW REPORTS, 1 to 13 inclusive, 1875 to 1888. In all 24 Volume* bound in Half -Calf. N.B. 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FOR CAS.H WITH ORDER. VICTORIAN CRIMINAL DIGEST. A complete Collection of every Reported Criminal Case decided in the Colony. With Appeals therefrom to the Privy Council. BY J. G. EAGLESON, B.A., LL.B.. W. A. SANDERSON, M.A., LL.M., and M. A. BRE.VXAX, B.A., LL.M., Esquires, Barristers-at-Law.