622.007 Q V66aml|-i VICTORIA AUSTRALIA-LA'fS, STATUTES, ETC., AK' ACT TO AMEKD THE LAf RELATING TO kINING I V The person charging this material is re- sponsible for its return to the library from which it was withdrawn on or before the Latest Date stamped below. Theft, mutilation, and underlining of books are reasons for disciplinary action and may result in dismissal from the University. L161 — O-1096 Digitized by the Internet Archive in 2015 https://archive.org/details/acttoconsolidateOOvict VICTORIA. ANNO QUINQUAGESIMO QUARTO VICTORIA REGINiE, *>*******************************************#*******# An Act to consolidate the Law relating to Mines. [10th July, 1890.] BE it enacted by the Queen's Most Excellent Majesty by and with the jg^»>/"»'S*«'"'« 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. This Act may be cited as the Mines Act 1890, and shall come short tuie into operation on the first day of August One thousand eight hundred and division, 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 88. 14-26. (4) Residence Areas ss. 27-48. (5) Mining Leases ss. 49-58. Division 1. — (6) Leases of Reservoirs ss. 59-62. Mining ' (7) Licences to search for Metals Manage- Minerals other than Glold s. 63. ment. (8) Licences to cut Races &c. s. 64. (9) Miscellaneous Provisions relating Leases and Licences ss. 65-79. (10) Mining Districts s. 80. (11) Mining Officers ss. 81-83. U12) Mining Boards ss. 84-114. (a) General Provisions ss. 115-134. (6) Jurisdiction ss. 135-138. (c) Proceedings of Mines ss. 182. Part L — Mining on Crown Lands. and to Division 2. — Courts and Procedure. (1) Courts of Mines. of m Courts Courts 139- 18326.— [3s. 9d.] LIBRARY UN/VERSiry OF ,LL/NOIS AT URBANA . CHAMPAIGN 2 MINES ACT 1890. [54 Vict. Mining Statute 1865." Part I. — Mining on Crown 1 Lands. (1) Courts of Mines. Division 2.- Court s and (J Procedure (d) Enforcement of Decrees and Orders ss. 183- 194. (e) Interlocutory and Mis- cellaneous Orders ss. 195-206. (/) Re-hearing Special Cases and Appeals ss. 207- 21^ (2) Wardens ss. (a) General Provisions 215-242. (b) Special Powers and Duties ss. 243-253. (c) Appeals ss. 254-2G9. .(3) Miscellaneous Provisions ss. 270-28G. Penalties ss. 287-298. .Division 3 Part II. — Mining on Private Property ss. 299-350, Part III.— General Provisions. [Division 1. — Regulation of Mines and Mining ' chinerv ss. 351-376. /...•■ ] Division 2. — Drainage of Mines ss. 377-386. ' Division 3.— Accidents Relief Fund ss. 387-399. Ma- Eepeal. First Schedule. 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 such repeal shall not atfect 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 m.ade, or any miner's right consolidated miner's right licence debenture precept writ plaint plaint sum.mons 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 payable under the said Acts or any of them save and except where by this Act it is otherwise expressly provided before the commencement of this Act. Part I. — Mining on Crown Lands. Interpretation. 3_ jj^ 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) : — "cuim." "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 tlieir 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 : No. 1120.] MINES ACT 1890. Crown land " shall include all lands of the Crown : ■■MMn^ statute Earth " shall mclude any rock stone quartz clay sand soil and ■• crown land." mineral : " Earth." Gold " shall signify as well any gold as any earth containing " goui." gold or having gold mixed in the substance thereof or set apart for the pui'pose of extractmg gold therefrom : Mine " shall mean and include any place pit shaft drive level or " Mi^c." other excavation drift gutter lead vein lode or reef wherein or whereby any operation for or in connexion with mining purposes is or shall be carried on upon Crown land : Miner " shall mean any person engaged or interested in any " Miner." such operation : Mining purposes " shall mean the purpose of obtaining gold or " Jfining a r 1 . rr ^ purposes. any metal or mmeral 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 sift - to mine." 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 gold- " warden." fields in and for Victoria or in and for any district thereof. DIVISION I. — MINING MANAGEMENT. (1) Miner's Right. 4. It shall be lawful for the Governor in Council to cause documents f^^^^^'^ to be issued, each of which shall be called a " Miner's Right " and which /j. s. i. shall be in force for any number of years not 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 five shillings for every year for which the same is to be in force. It shall also be lawful for the Governor in Council to cause other Consolidated 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 partnership 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 elTect as a number of miners' rights granted for the same period of time equal to the number of miners' 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 payment of a sum at the rate aforesaid multiplied by the number of miners' rights which the same is to represent. 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 A 2 4 MINES ACT 1890. [54 Vict. " Mining Statxtte 1865." Second Schedule. First Part. Second Schedule. Second Part. 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. 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 miner's right shall be in the form in the Second Pait of the said Schedule. Provided that the term " mmer's right " where it occurs throughout this Part of this Act shall, unless mconsistent 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. Privileges conferred by a miner's right. lb. s. 5. Claim. 5. Any person who shall be the holder and any number of persons in conjunction who shall each be the holder of any such miner's right shall, subject to the provisions of this Part of this Act and to the by- laws to be made as hereinafter mentioned, be entitled (except as against Her Majesty) to take possession for 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 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 boundaries 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-races drains dams or reservoirs for gold mining purposes) to Eaces dams &c. cut 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 easement any unoccupied Crown lands. Every holder of a miner's right shall, during the continuance 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 Resllencc area. Cutting of timber. No. 1120.] MINES ACT 1890. 5 to strip and remove the bark from any such timber, and also to remove Mining statute . . . 1865 " 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 exempted nor excepted from occupation for mining imder any Act relating to the gold-fields nor declared under any Act relating to the Crown lands to be either temporarily or per- manently reserved from sale nor being or included in any land named in any proclamation of the Governor in Council declaring that no pcson 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 land 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. 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 aforesaid, be deemed in law to be possessed (except as against Her 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 Share or interest mentioned shall be deemed a chattel interest ; and during such con- under'm'ii^e?'^'^ tinuance as aforesaid all gold then being in and upon any such parcel 5.j.°"dence°to be shall (except as against Her Majesty) be the absolute property of the chattel interest, 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. Provided that no person shall be entitled by this Part or under any Limit to size of such by-law to occupy for the purpose of residence more than one piece y^^'^^j^JJ^^'g of land, the same not to exceed one acre in extent and to be situated Areas Act issi- with respect to any street or otherwise as shall 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. 6. Any incorporated minins; company may for the purpose of taking Miners' rights f r ■ ■ ^1- ■ ■ e ,,° may be applied or acceptmg transfer of any mmmg clann or mmmg claims, or tor the tor in name of purpose of holding any mining claim or mining claims which may have mining"*'^'^ been transferred to any such company, apply for and obtain so many ^™]^^"^^gj 29 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. 7. The person or persons or any of them who shall have taken claims may be possession or be in the occupation of any claim as aforesaid, or the '^^''j^j^y .^j^^^je executors or administrators or the assignee or assignees in insolvency or i^^* " ^• the guardian in infancy or the committee or guardian in lunacy or the purchaser under an execution of the interest 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 6 MINES ACT 1890. [54 Vict. lb. s. 7. " Mining Statute 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. regiltefed ^- -A-fter a claim shall be registered as aforesaid but no before, the claim-holders, owner or owners thereof for the time being may, subject to the said by-laws, from time to time divide the interest in such claim into such and so many shares as he or they shall think proper, and any of which may be appropriated to any person or persons ; and may assign or encumber or create any interests in such claim ; and the owner or owners for the time being of any such share may, if the same shall be registered subject as aforesaid, assign or encumber or create any interest in such share ; and in both cases (that is to say) in regard to both claims and shares, in such manner and subject to such registration as such by-laws shall direct, and until and in default of such direction either orally or by any instrument in writing. Miner's right Provided that the miner's right or miners' rights under which any may assigne . ^^g^^^ shall be held may be transferred to or to any person on behalf of the assignee or assignees of any such claim ; and the officer appointed to register claims shall upon being so required indorse the name of the transferree upon the right or rights so transferred ; and thereupon the same shall for the remaining period of its currency vest in the transferree thereof as fully as if he had been the original grantee thereof, but subject to any trusts or provisions agreed upon on the occasion of such transfer. Provided also that notwithstanding anything herein contained it shall be lawful for the owners of any two or more adjoining claims to amalgamate the same, whether the same be registered at the time of such amalgamation or not. Necessary 9. If there be held from time to time by or on behalf of the owner minMs'^r'i^ts or Or owucrs for the time being of a registered claim such number of miners' AgTt suffic^fnt rights as would have authorized the taking possession thereof when lb. s. 8. the same was taken possession of or a consolidated miner's right repre- senting such number, the same shall be sufficient, and it shall not be necessary that any other miner's right should be held by any shareholder " Owner." in such claim as such shareholder. Provided that the word " owner " in this and the two next preceding sections shall be taken to include any such guardian or committee as aforesaid. When claim 10. Any claim which shall be apparently unoccupied and upon abandoned. '"^^ which there is no plant or machmery and has been unworked for a longer ActNo.'n6s,27. period than is allowed by the by-laws for 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 occupant of such ground. (2) Business Licence. Business licence. 1 1 . It shall be lawful for the Governor to cause documents to be 'mry^'^'^'"'"'*iiia\ied, each of which shall be called a "Business Licence," and which shall be granted to any person applying for the same upon payment of No. 1120.] MINES ACT 1890. 7 the sums hereinafter mentioned (that is to say) if such person shall •• Mining statuie apply for a Hcence for six months, two pounds ten shillings ; or if for twelve months, five pounds ; and every such document shall be in the form in the Third Schedule to this Act, and shall be dated of the day Third schedule and at the place of the issuing thereof, and shall be in force for such of the said periods as shall be named therein, and shall contain the christian name and surname and the occupation and residence of the person in whose favour the same shall be issued. 12. Every business Ucence shall, subject to the provisions of this occupation Part of this Act and to such by-laws as aforesaid, entitle the holder licence. ' thereof during the continuance of such Ucence to occupy on any goldfield ^'>- «• i"- for the purpose of residence and carrying on his business so much of the ^'^''"i'^"'"' ^^"^^ . . . " The Residffice Crown lands not exceeding one acre in extent as may be prescribed by Areas Aai&&i •• the said by-laws, and for either of the purposes aforesaid to put up any *' ^ building or other erection, and at any time to remove the same ; and every such holder shall during the continuance of such business licence be deemed in law to be possessed (except as against Her Majesty) of the land which he shall occupy by virtue of such licence ; and the property in such land shall be deemed a chattel interest ; and no person shall be entitled by virtue of a business licence to occupy more than one such portion of land. 13. The holder of any such business licence or of any such business Business licence Licence as next hereinafter mentioned shall be entitled to transfer the transferred, same respectively to any other person ; and provided he shall express ig^'"'"" f^"'"'^ his desire so to do in writing under his hand indorsed on the said licence and signed by him in the presence of and attested by any warden or justice, another business licence shall be granted to the person named in such indorsement upon production and surrender of such licence and indorsement and upon payment of the sum of ten shillings ; and every such last-mentioned business licence shall be dated of the day and at the place of the issuing thereof, and shall be in force for the then unex- pired period of the licence first indorsed as aforesaid, the day when such imexpired period is to end being stated in every such indorsement, and shall contain the christian name and surname and the occupation and residence of the person in whose favour the same shall be issued ; and every such business licence together with the right and interest there- under shall on the death or insolvency of the holder thereof devolve on his personal representative or assignee in insolvency. (3) Miner's Right and Business Licence. 14. If any person who shall have been the holder of a miner's right Miner's right ... Ill If 1 "D*! business consolidated miners right or business licence shall not on or before the licence may be day of the expiration thereof have taken out a new right or licence (as certain cases. the case may be), a new right or licence, dated of the day 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 shillings for every right represented thereby and twenty-five , per centum of the sum hereinbefore madej payable in the case of a business licence in 8 MINES ACT 1890. [54 Vict. " Mining statute addition to the ordinary price of a miner's right consohdated miners' right or business Hcence ; and every new miner's right consohdated miner's right or business Hcence so issued shall be in such one of the Second and foims in the Sccoud and Third Schedules to this Act as shall be Third Schedules. ■>• , i apphcable. Certain lands 15- Notwithstanding the provisions herein contained, all Crown zrT^is*^ lands which shall have been applied to any public use or purpose, (") 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 occupation 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 payment of compensation to be ascertained and paid in the manner prescribed by any by-law made by a mining board, cease to be exempted from occupation for mining purposes. 16. Crown lands which have been or shall be proclaimed as a Commons not to i n i i tit i- t i i- be deemed lands common Shall not DC deemed to have been or to be applied to any public PMposts° ^"'''"^ use or purpose within the meaning of this Part of this Act or of the Act No. 316 s.i. " Mining Statute 1865," or of any Act repealed by that Act. 17. The Governor in Council may at any time either by a general be'excepted."*^ or particular description except from occupation for mining purposes or " Mining Statute for residence or business under any miner's right or business licence any M65 s. 14. specific portion of Crown lands or any class of Crown lands ; and no land so exempted or included in any class so excepted shall be occupied under any miner's right or business licence until such exception shall be revoked. (°) 18. No person shall cut or remove from any lands so exempted or Occupation of , , . -, i- ;■ t l^ • i exempted or excepted as atoresaid any live timber or earth, or mine or employ any excepted lands ,i , • • i j.i • j i_ r may be allowed, othcr pcrsou to mine lu or upon, or unless authorized thereto by a licence lb. s. 15. 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. Nevertheless it shall* lawful for the Governor in Council, upon " ^ly^^^^ application to him for that purpose, to authorize any one or more than one holder of a miner's right or the holders generally of 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 restrictions and regulations as the Governor in Council shall impose and make, and so far as shall not be inconsistent therewith to such (rt) fe.' Litmt Act 18»0, section 10. No. 1120.] MINES ACT 1890. 9 by-laws as aforesaid. Provided that where such lands are within. Siny " Mining statute 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 lease chUms under public roa""" lb. s. 16. under this Part of this Act to mine upon or under any street 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 pfFected without injury to adjoining property or injury or obstruction to such public xC?.rl 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 sub- ject to such restrictions as it shall think fit or forbidding such mining as the case may require. 20. It shall be lawful for the Board of Land and Works or other Managers of body having the care and management of any public road street or high- PjjJ^'^'^''0'». s. i. 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. 38. Any holder of a miner's risrht or business licence who has i^^''^'^,'' 'J , T.i .. ci-r(iT-- i 1- -1 miner s n«ht or under the provisions of this Subdivision the exclusive right to purchase business licence the land occupied by virtue of such miner's right or business licence residence area in instalments. 14 MINES ACT 1890. [54 Vict. " The Residence _ hj him shall be entitled on exercising such right of purchase to pay j.T* the amount of the purchase money in ten annual instalments of equal amount. Power to let. Areas g. 11. 39. The holder of a residence area may at any time after he has ^JasAawsr' 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 person there shall exist the same rights as between any landlord and his tenant. fraSr° "^^^^ holder of a residence area may at any time after he has lb. s. 12. 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. Sale or transfer void until registered. n. s. 13. 41. No such sale or transfer shall have any force or eitect until the fact of such transfer or sale shall be registered by the said mining registrar or other proper officer, and the area shall be 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 herein- before provided, and such person shall thenceforth be and be deemed to be the holder of such residence area. Residence unnecessary in certain cases. lb. s. 14. 42. In the case of the death of the holder of a residence area before he shall have resided thereon for a period of twelve months, it shall be lawful for the executors or administrators of such deceased holder to sell transfer or let the interest in the occupation 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. mining under right. lb. s. 15. Exemption from Evcry residence area shall be and the same is hereby exempted from occupation for mining purposes under any miner's right. Never- theless the Governor in Council may from time to time temporarily exempt from the operation of this section any portion of a mining district in which there shall be a new discovery 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 residence 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 right of any person or company holding a claim under a miner's right on the first day of April One thousand eight hundred and eighty-two to mine under any residence area that may previously to such date have been taken up as a residence area on the surface of such claim so held under a miner's right. claims under residence areas before com- mencement of Act not affected Leases below residence areas. Jb. t. 16. 44. It shall be lawful for the Governor in the name and on behalf of Her Majesty to grant to any person or to any elective body corporate a gold mining lease or mineral lease to be elfectual below the surface of a residence area at such a distance below such surface as shall be not No. 1120.] MINES ACT 1890. 15 less than fifty feet and as shall in the opinion of the Governor in Council Act i^su" 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 causod by mining under any residence area. 45. Every such lease shall be issued in accordance with and shall Provisions of be subject to the provisions of this Part of this Act and the regulations j^^'l' 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. 46. Every lease granted previously to the first day of April One v.iiiditv of lease thousand eight hundred and eighty-two conferring on any person a gva-itod 'boiov/ right to mine below the surface of any Crown land occupied as a residence raJuiemc^areas. area by the holder of a miner's right or business licence shall be and »■ i^- 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 leas3 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. 47. Any person not being the holder either of a lease under this Penalty for Subdivision or of a lease heretofore granted and validated by " The ZliiilcTareJ^ Residence Areas Act 1881 " who shall mine or employ any other person J^'^ig'' to mine under any residence area shall be liable on conviction thereof to a penalty not exceeding Five hundred pounds. 48. All disputes between the holder of a residence area the tenant Disputes to of same the Crown grantee of same or his assigns the executor or surfare''to''be administrator of any of them and any person who has a right derived deTemintd'"'"^ from any gold mining or mineral lease to mine at a fixed distance •^"f"'''^ warden, below the surface of any such residence area shall be commenced heard ^^The^nesidence and finally determined before a warden in accordance with the provisions ^re^isAdism" of Division two of this Part of this Act. (5) Mining Leases. 49. It shall be lawful for the Governor in the name and on behalf Leases may be of Her Majesty to grant to any person or to any elective body corporate, mTllng'^ir subject to the provisions of this Part of this Act and (except where on " Mining statute the granting of any particular lease the term or the rent or royalty or • the quantity or the form of the land or the covenants conditions reser- vations 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 16 MINES ACT 1890. [54 Vict. - Mining Statute 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 connexion with any of such purposes. Meaning of 50. The words "elective body corporate" in the last preceding body _ section shall be deemed to mean and from the time of the coming into 'jtctNo^yz s. 2. operation of the " Mining Statute 18G5 " to have meant any 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. Leases to be 51. AH sucli leases granted for the purpose of mining for gold or called Gold ^ . ^ . . ^ Mining Leases" for any of the purposes aforesaid connected with such mining shall be Lcascs!"'""'^'' called " Gold Mining Leases " ; and all such leases granted for the 1865*""''' f^"''''*^ 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 bushier may "be pi^rpose of residence by the holder of a miner's right or business licence comir-nsation ^^der the provisious aforesaid, if the person applying for the lease shall being paid. 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 compensation to be determined in the manner prescribed by the regulations aforesaid or such other regulations respectively as shall for the time being be in force in Victoria relating to such leases. lb. a. 26. Leases of mines 53 ^hc Govcmor in Council in the name and on behalf of Her under lands granted or Maiesty upon application made to him for that purpose may grant reserved for J J L i r I r J o public purposes leases to any person of mines in under or upon lands granted or reserved cases bo made, for railways waterworks public parks places of recreation or other public so*"' 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 in whom the said lands are vested. Term and rent 54. In the case of a gold mining lease the term for which the leases! ' Same may be granted shall not exceed fifteen years from the time of 'Act'iHH'b"^"''^ S^^^^^^S ^he same, and the yearly rent to be payable in respect thereof Area and term of shall be fivc shillings for every acre demised ; and in the case of a n.incrni lease, mineral Icasc 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 thirty years from the time of granting the same. 4 No. 1120.] MINES ACT 1890. 17 55. Any holder of a miner's right, desirous to prospect for gold in •• Mining statute any place where sinking through basalt will be necessary and to which ^^^^^^.J^^j. n^^y no part of any gold workings shall be nearer than five miles, may mark srunt special off at such place an area of one square mile for the purpose of such dK-i.vcrera of 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 hundred 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. 56. Any person holding a lease under; the provisions hereinbefore Leases may be contained or under the provisions of any Act authorizing the granting ^"'^ "o"*^*^' 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 lease may with the like consent be renewed from time to time for any period not exceeding fifteen or thirty years (as the case may be) at each renewal. Provided 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. 57. In the case of every gold mining lease issued under the E«nt reserved in " Mining Statute 1865 " previously to the eighteenth day of December under°Act'No^. 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 Act'isit"^^*. 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 mentioned. 58. No person holding a lease granted under the provisions of any of Kents payable the Acts repealed by the " Mining Statute 1865 " authorizing the granting lieretofore of mining leases shall after the coming into operation of the said last- T^l^'^' g^^^^^ mentioned Act be required, notwithstanding any covenants therein ises^-Tso. " * contained, to pay any greater sum by way of rent for the land thereby demised than at the rate of one pound an acre. 1832G. n MINES ACT 1890. [54 Vict. (6) Leases of Reservoirs. 'imi'--'s' ff"'"*^ shall be lawful for the Governor in the name and on behalf leases may be Majesty to grant to any person, subject to the provisions of this made of Part of this Act and to the regulations hereinafter mentioned, a lease reservoirs. . ■ i t i of any water reservoir constructed at the pubuc 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 that, notwithstanding any such regulation, it shall be lawful for 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. Money du3 for 60. Hci Majesty or the owner of any such lease as in the last may be preceding section mentioned may recover in a summary way before a justice any sum of money due in respect of any water supplied from any such reservoir. recovered in a summary manner. /i. s. 32. Penalty for 61. Any persou wrongfully taking water from any such reservoir ukinf water. from any race supplied therefrom shall be liable for the first offence lb. s. 33. to a penalty not exceeding Five pounds or to imprisonment 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. Penalty for 63. Any person who shall by wilfully suffering sludge or other polluting water noxious matter to flow into, or who shall otherwise pollute the water reservoi-. in any such reservior (whether demised or not) or in any race flowing lb. s. 34. into or out of the same, or shall injure the banks of any such reservoir or race or otherwise dam.age the same respectively or the Avorks con- nected 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 accordingly. Licences to search for metals and minerals other tiiaii gold may be granted. lb. 8. 35. (7) Licences to Search for Metals and Minerals other than Gold. 63. It shall be lawful for the Governor in Council or any person authorized by him in that behalf to grant to any person, subject to the provisions of this Part of this Act and to the regulations 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 min'^r'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 be lawful for the Governor in Council at the time of the granting of any such licence to fix specially the f'.>c rent or royalty to be paid in respect thereof an I the conditions upon which the same shall bo granted. No. 1120.] MINES ACT 1890. 19 (8) Licences to cut Races, cfec. 64. It shall be lawful for the Governor in Council to grant to any jg^^,^!"/"? person for any term not exceeding fifteen years, subject to the provisions Licences to cut of this Part of this Act and to the regulations hereinafter mentioned, a construct 1 • 1 T 11 1 • 1 1 • 1 • • niccs (lams Ac. licence which shall authorize such person his executors administrators may be granted, and assigns (except as agamst Her Majesty) — to cut construct and use races drains dams and reservoirs through and upon any Crown lands, 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 tut or constructed through or upon any Crown lands, 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 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 to such person or any other person who may be 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 any 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 afore- said 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 Power to revoke Governor in Council at any time to revoke any licence granted under this makfng"" or the next preceding section, on payment of compensation to the person compensation, 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 percentage on such amount not exceeding fifty pounds per centum as shall seem to the Governor in Council just having regard in all the circumstances of the case ; the amount of such com- pensation 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 aforesaidj B 2 20 MINES ACT 1890. [54 YicT. (9) Miscellaneous Provisions relating to Leases and Licences. " Mining Statute 65. Any applicant for any such, lease or licence as hereinbefore 1865 s. 3, mentioned shall mark out the land for the lease of v/hich or licence in Ground applied r t ■ i -i t ^^ i- i iiii -in for protected, respect of which he shall apply m 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 dehvered or paid to him, and if otherwise to the person from whom the same shall have been recovered. • 66. It shall be part of the duties of the wardens appointed under this Act, so far as they are required by any such regulations so to do, to hear receive and examine evidence in relation to the application for any such lease or licence and the objections thereto, and in all other respects to perform the several duties prescribed for their performance by any such regulations. Warden may hear objection to granting of lease. lb. 8. 38. NotobUgatory 67. Nothing hereinbefore contained shall be construed as rendering lb. >. 39. it obligatory to grant any such lease or licence to any 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 notwithstanding that the person applying for the same may not in all respects have complied with such regu- laticus. No. 1120.] MINES ACT 1890. 21 6?. When any land a lease of which shall be applied for shall be 'islP7 fo.'"'" or shall comprise the whole or part of land held by the applicant under Application for a miner's right, the interest of such applicant under such right shall in affect iand*o( the nowise be affected by such appHcation or by the refusal or abandonment finSer a"miner's or failure in any other way thereof ; and if such lease shall be granted "s'^*- the interest held under the miner's right shall merge in the interest held under the lease. 69. No such lease or licence shall be granted until after the expiration Notice of • r 1 ■ • 1 II 1 intention to of one month after notice of the mtention to grant the same shall nave grant lease or . • • licPncG to t)G been pubhshed in the Government Gazette and in some newspaper published in circulating in the district within which the land sought to be leased ^^^""'^^^ shall be situate. 70. Pending any application for a lease or licence under the ^™„nrter^jnj^'* provisions of this Part of this Act it shall not be lawful to mark out as mining lease a claim or include within the boundaries of any claim the land applied pending for or any part thereof, and no such marking out shall confer any right ^ or title to the said land ; and any person who 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. 7 1 . The pendency of an application shall begin with the marking Pendency ot out of the land by the applicant and continue until the applicant make denned, default in proceeding with his application in accordance with the ^'>- regulations or until the Governor grant or refuse the same. 72. Any applicant for a lease of land consisting wholly or in part by assignee of of a claim may purchase such claim and work the same as a claim appUcaUon'ftfr pending the application. trespa^s.*^ ^ lb. s, 5. 73. No contract made before the passing of Act No. 446 by any xnbute lessee under the " Mining Statute 1865 " with any person to work in or g,"^''"'^^ ^ upon or in connexion with the land demised as a tributer or upon the jb. s. e. terms of retaining or being paid a portion of the gold in lieu of wages shall be deemed a breach of any covenant or condition in any lease under the said last-mentioned Act notwithstanding the absence of any licence to assign ; and no such contract made after the passing of Act No. 446, whether under the " Mining Statute 1865," or this Part of this Act shall be deemed a breach of any such covenant or condition, notwithstanding the absence of any such licence, if the contract or a true copy thereof verified by affidavit be filed in the office of the mining registrar of the mining district wherein the land demised is situate within fourteen days after the signing or execution of any such contract by the lessee. 74. The directors of a registered company under Part II. of the Direetors^ ^ Companies Act 1890 shall not make any contract for working any land entering into on trib':'. ; . r;.-csaid unless they shall have been authorized at aworkTn * '""^ g on general meetmg of the shareholders of such company called for that auuiorized'."^"'^ purpose. lb. s. 7. 75. In case any lease granted under the authority of this Part of Ejectment^ may , . , . , "... . . , . . . be brought in this Act or of any Act authorizing the gi-anting ot leases for mining the court of purposes shall be or be liable to be forfeited or determined by any breach .. nj-,^^^ guuute of condition or otherwise, or in case the term thereby granted shall i**g5 •■ s. 42. 22 MINES ACT 1890. [54 Vict. 1865.""*'^''''"'* 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 case of any other suit in the said court. Gazette notice of 76. Whenever by any notice inserted before the twenty-ninth day forfsiturf^ of . . mining leases to of January One thousand eight hundred and seventy in the Government evidenceTf^^ Gazctte signed or purporting to be signed by the Minister having for forfeiture. time being the charge of the mining interests of Victoria, or by the ■ Secretary for Mines, any lease granted under either of the Acts numbered 32 or 148 or under the " Mining Statute 1865 " shall have been declared void or forfeited, and any person shall, as against the lessees, have, under colour of any authority from the Crown or any of the persons above mentioned, been put into or have obtained possession of the leased land for the purpose of mining thereon, such notice shall be deemed to have been from the date of such its publication conclusive evidence that such lease was and was duly declared to be forfeited at the time mentioned in such notice, and that Her Majesty forth vv^ith thereafter re-entered upon the said land in pursuance of the covenant or proviso for re-entry contained in the said lease, and the land com- prised in any lease so declared void shall be deemed to have been from the date of the pubUcation of the Gazette containing such notice vacant and unoccupied Crown land capable of being taken possession of and occupied for mining purposes within the meaning of this Part of this Act, and any person who after such insertion shall remain or be in the possession or occupation of the lands comprised in such lease or any part of them under colour of such lease shall be deemed to be in the unauthorized occupation of Crown lands and may be proceeded against accordingly. Provided always that nothing in this section contained shall affect any action suit or proceeding commenced before the second day of November One thousand eight hundred and sixty-nine, but the question involved in any such action suit or proceeding shall be decided as if this section had not been passed. Regulations of 77. It shall be lawful for the Governor in Council from time to counca'^'" time to make regulations, not being contrary to the provisions of this " Mininff suuuie Part of this Act, prescribing — 1865 " «. 43. . The term for which any lease or licence under this Part is to be held, The amount of rent or royalty of the fee to be paid whether in advance or otherwise by the grantee of any such lease or licence, The quantity and shape of the land to be demised or in respect of which the licence is to be available, The manner in which persons desirous of having leases or licences granted to them sliall mark out the land they apply for, No. 1120.] MINES ACT 1890. 23 The mode and time of making and investigating and of deter- Mining smvu mining upon applications for and objections to the granting of leases, The amoimt of deposit (if any) to be paid by the applicant and objector respectively as a security for the costs connected with such determination, The manner of dealing with cases when two or more applications are made for a lease of or licence in respect of the same land or reservoir race or dam. The form of leases and licences under this Part the covenants conditions reservations and exceptions to be inserted in such leases. The manner in which leases under the provisions of this Part shall be registered, the fees to be paid upon such registration, The duties of the persons conducting the same, the conditions upon which licences under this Part shall be issued and the privileges to be enjoyed under them. The manner in which the amount of compensation to be paid by any lessees or licensees or to any licensee under this Part shall be determined, and Generally for carrying out the provisions of this Part in respect to such leases and licences ; such regulations from time to time to alter add to or rescind. Such regulations may be applicable either to the whole of Victoria or any part thereof, or to any particular description of land or mode of mining. Provided that the regulations now subsisting and made under any Act in force in Victoria before the commencement of the " Mining Statute 186.5 " relating to the granting of leases for gold mining purposes or for mining for any metal or mineral other than gold or to the granting of licences for cutting constructing and using races dams and reservoirs or for searching for any metal or mineral other than gold shall be deemed to be regulations made under the powers hereby given, but otherwise shall continue in force and efTect as if the " Mining Statute 1865 " or this Act had not been passed ; and nothing herein contained shall in any manner prejudice or affect any right title or interest liability or obligation existing at the commencement of the " Mining Statute 1865." Provided also that no such alteration variation addition or rescission shall, unless it shall be expressly so declared, affect in any manner any right title or interest obtained or liability or obligation incurred under any regulations existing previously to such alteration addition or rescission. 78. No such regulation, nor any regulation framed under the Regulations to powers in that behalf given by this Division of this Part of this Act, the^Ga'cj^!*^ "* nor any alteration variation addition to or rescission thereof, shall have i'>- »■ any force or efficacy until twenty-one days after it shall have been published in the Government Gazette ; and every such regulation alteration variation addition or rescission shall be laid before both Houses of Parliament within fourteen days after the making thereof "respectively if Parliament be then sitting, and if Parliament be not then sitting then within fourteen days after the then next meeting of Parliament. 24 MINES ACT 1890. [54 Vict. •• Mining statute 79. It shall be lawful foi the Governor in Council, notwithstanding 1865 " 5. 45. . . ... . Special terms any such regulation but subject to the limitations aforesaid, to prescribe aad conditions, occasiou of the granting of any particular lease (whether gold mining or mineral) the term for and the rent or royalty or both at which the same shall be granted, and the quantity and form of land to be comprised therein, and the covenants conditions reservations and exceptions to be contained in the same ; but every such lease (whether under the provisions of this section or otherwise under this Part of this Act) shall contain a condition that if the lessee his executors adminis- trators and assigns fail at any time during the term to fulfil the conditions and terms therein contained or to use the land bond fide for the purposes for which it shall be demised, the lease shall for any such failure be voidable at the will of the Governor in Council. (10) Mining Districts. Creation of 80. It shall be lawful for the Governor in Council from time to rnd'dfvhioi"!*^ time to erect any portion of Victoria into a mining district, and to lb. s. 46. divide any such district into any number of divisions, and to give to such district and each of such divisions some distinguishing name, and to define the limits and boundaries of, and also again to abolish, any such district and divisions, and from time to time to alter and vary such limits and boundaries, and from time to time to determine the number of members of the mining board of each district which shall be elected within and for every such division ; and until the Governor in Council shall otherwise order, the several mining districts and divisions created under the Act No. 32 or the " Minitig Statute 18G5 " and which shall be in existence at the time of the commencement of this Act shall be and shall be deemed to be mining districts and divisions under this Act. Provided always that no more than seven such districts shall be erected under this Act, unless addresses praying for a greater number shall be presented to the Governor by the Legislative Council and Legislative Assembly. (11) Mining Officers, Power to the ^1 . It shall be lawful for the Governor in Council subject to the counciTto" provisions of the Public Service Act 1890 from time to time to appoint appoint mining g^ch and SO mauv officers and clerks and assistants to such officers officers. . •'. . ... , , 1 lb. «. 47. ^-rid for such mmmg districts and divisions and places as to such Governor in Council shall seem right for the making of inspection and surveys and registration of claims and mines and for performing such other duties in connexion with mining as the Governor in Council may think fit. And the Governor in Council shall have authority, by any general regulations or otherwise and in any individual case if it shall be so thought right, to prescribe the powers and duties of such officers clerks and assistants, and also of any substitute who shall under the powers hereby given be ap])ointed in the place of any officer clerk or assistant who shall be suspended or removed or incapacitated by illness or al)Hence, and the mode of exercising and performing such powers and duties, and the amount of remuneration of such officers clerks and assistants and of any such substitute, and the mode of raising and paying such remuneration, and the time for which the same shall be paid. No. 1120.] MINES ACT 1890. 25 and whetlier tie same shall be paid partly or in the whole out of the ■• Mining SlaliUe fees to be payable in respect of the services and duties to be by them respectively rendered and performed, and what fees shall be so payable. 82. It shall be lawful for the Governor in Council, if it shall seem OfRcers &c. may right to such Governor so to do, to suspend or remove any such officer removed"'^''^ clerk or assistant or any substitute appointed under the powers hereby «■ given in the place of any officer clerk or assistant so suspended or removed ; and in such case and also in the case of the illness or the absence either unavoidable or by permission granted by the Minister having for the time being charge of the mining interests of Victoria (and which permission such Minister is empowered when he shall think proper so to do to grant) of any such officer clerk or assistant or of any substitute appointed under the powers hereby given in the place of any officer clerk or assistant so incapacitated by illness or absence, to appoint a fit person to act in the place of any such officer clerk assistant or substitute so suspended removed or incapacitated during such suspen- sion illness or absence or otherwise as to the Governor in Council shall seem fit. 83. A copy of any registry or entry made by any such officer in copies of entries any of the books directed by any such regulations as aforesaid to be ^ ° kept by him, certified by such registrar and signed by him with his name and official character, shall in all cases be prvnd facie evidence of the fact of such entry in such book and of the truth of the matters thereby stated. (12) Mining Boards. 84. Within and for every such district as aforesaid there shall be Mining board a mining board, which shall consist of ten members to be elected as j 50. hereinafter mentioned ; and such board shall meet for the despatch of business at such place or places within the said district as the Governor in Council shall appoint. Provided that the mining board existing at the time of the commencement of this Act in and for each mining district then existing shall be deemed the mining board for that district elected under this Act, and shall continue to be such mining board until the first election under this Act of members of the mining board of such district shall take place ; and the mining board mentioned in the sixty-ninth section of " The Land Act 1862 " shall be taken to mean and include a mining board constituted under this Act. 85. Within a,nd for every such district as aforesaid there shall be Returning a returning officer, whom the Governor in Council shall appoint and deputies" from time to time may remove. And it shall be lawful for every such returning officer from time to time to appoint by writing under his hand a sufficient number of deputies for the purposes hereinafter mentioned. 83. The chairman of such board shall be elected by and from Duration of among the members thereof ; and every member of such board shall ^l^l'^'c,.^ continue in office until his successor shall be elected as hereinafter mentioned ; but notv.'ithstanding anythinjc hereinbefore contained, it ""'^isn^tir n of III,, .,. o J o ' members. shall be lawful for any member of the mining board, by writing under his hand addressed to the returning officer, to resign his seat in such board ; and the same shall thereupon become vacant from the time of the receipt of such writing by the said returning officer. 26 MINES ACT 1890. [54 Vict. '• Minimj svttute 87. There shall be paid annually out of the consolidated revenue Payment of cvcry mining board the sum of five hundred pounds by two equal members. instalments, to be paid respectively at the expiration of six and twelve months after each general election under this Part of this Act ; and such sum shall be apportioned amongst the members of such board according to some scale to be from time to time adopted by the said board and approved by the Treasurer of Victoria for the time being. Provided always that no person shall be entitled to receive any part of any such instalment, who shall have resigned his seat as a member of the said board, or whose seat at such board shall become vacant under any of the provisions hereof before such instalment shall have become payable. to be'heid^''''''' ''^^^ ^^^^ Saturday in the month of February next after the yeiriy. Commencement of this Act, and on the corresponding Saturday in every lb. s. 54. subsequent year four members shall be elected to serve on such board in lieu of the members retiring by rotation : and within each division there shall be elected the number of members determined as aforesaid ; and when- ever any seat in any board shall become vacant in the interval between two elections, a member shall be elected to fill such vacancy within and for the division for which the member whose seat is vacant shall have been elected. The persons appointed or elected to be members of the Members to mining board shall retire annually therefrom in rotation. On the last retire by ^ . rotation. Saturday in every year four members of the mining board shall retire therefrom. The member or members who shall have been the longest period in such mining board without having been re-elected shall retire ; and in case there shall be an equality of votes between any two members one of whom must retire according to the provisions as aforesaid, or in case such members were elected without a poll being taken, it shall be decided by lot who shall rem-ain and who retire. Provided that any Eligible for member of the mining board retiring as aforesaid shall, if otherwise qualified, be eligible to be re-elected as a member of such mining board. rc-eleclion. Qiuiification of 89. Evcry male person of the full age of twenty-one years members and of . •' ^ . ° . voters. holding a mmer s right or business licence and being a -natural born lb. s. 55. Qj. naturalized subject of the Queen and resident within any such division as last aforesaid shall be, except as is or may be otherwise expressly provided by any law now or hereafter in force, eligible for election as a member of such board, and be entitled to vote at every election for as many members as are then to be returned for such division. QuUiioations 90. No pcrsou sliall be eligible for election as a member of a nil' IViIk board mining board by virtue of holding a miner's right unless he have held lamiidater'or'^'^ a miner's right for and during the three months immediately preceding hoiders'^of''" ^ ^^^^ appointed for the receiving of nominations of candidates ; miners' rights, and uo pcrson shall be entitled to vote at any election of a member of Ant No. 890 1. g^j^y fining board by virtue of holding a minor's right unless he have held a minor's right for and during the three months immediately pre- ceding the day on which the poll commences. (a) See Chinese Act 1890, section 16. No. 1120.] MINES ACT 1890. 27 91. One month before any election under this Part of this Act, the '■ Mimnj sMute returning officer shall give pubhc notice of such election, requiring the ^^^-^^^ names of all candidates and their proposers to be forwarded to him election and ... ,. , , . -, . !• ... nomination of withm such tmie not less than sixteen days from the time oi giving candidates, such notice as shall be named in such notice ; and any persons desirous of nominatmg a candidate for any such division shall within the time named in such notice forward to such returning officer in writing the christian and surname of such candidate and th,e division for which he is proposed ; and such nomination shall be signed by not less than ten persons duly qualified to vote at such election ; and no person shall be capable of being elected at any such election unless he shall have been proposed in the manner above mentioned and his name as a candidate shall have been published twenty-one days before such election in some newspaper circulating in such district. 92. If the number of candidates nominated as aforesaid for any Mode of division shall not exceed the number of members to be elected for such eiec^ions"^ '^^ division, the returning officer shall declare such candidates to be duly i>>. s. 57. elected and they shall be deemed to be duly elected accordingly ; but if the number of such candidates shall exceed the number of menflbers to be elected for such d.ivision, the returning officer shall cause voting papers to be printed with the christian and surnames of all the candi- dates in full in the form in the Sixth Schedule to this Act, and shall si'^th schedule, give public notice that a poll will be taken for the election of members on the day appointed for that purpose ; and on that day a poll shall be taken at such places within such division as the Governor in Council shall from time to time direct ; and every poll shall commence at nine o'clock in the forenoon and close at five o'clock in the afternoon, and shall be taken in such buildmgs as the returning officer shall select. 93. The returning officer of every such district as aforesaid or 0 ne Duty and powef of rGT'Urniii^ of his deputies shall preside at each polling place for taking the poll officer and within such district or division thereof as the case may be. And every /^''^'ss such returning officer and deputy shall have power and authority to maintain and enforce order and keep the peace at any election held by him ; and without any other warrant than this Part of this Act to cause to be arrested and taken before a justice any person reasonably suspected of knowingly and wilfully making a false answer to any of the questions hereinafter set forth, or of personating or attempting to personate any voter, or of attempting to vote more than once at the same election, or who shall cause a disturbance at any election. 94, Each candidate shall be entitled to appoint in writing one Appointment of scrutineer to be present in each polling room ; and such scrutineers and s. 59. ' the returning officer or deputy and any electors not exceeding six in number shall alone be permitted at any one time to enter or remain in the polling room without the consent of the returning officer or deputy ; and every returning officer or deputy shall have power to cause any person to be removed who shall obstruct the approaches to any polling room or shall conduct himself in a disorderly manner ; and all con- stables and peace officers shall aid and assist such returning officer or deputy in the performance of his duty. 28 MINES ACT 1890. [54 Vict. •' Mining statute 95. The returning officer or deputy in each district shall provide 1865 " 5 60 . . . . The Kiiiot box Pencils or pens and ink in every polling room for the use of the electors, and also a locked box with a cleft or opening therein capable of receiving the ballot papers ; and such box shall stand on a table opposite the returning officer, who shall keep the key of such box. Voter to produce 96. Every elector before voting shall produc3 his miner's right /ft'Tei"^' ' business licence to the returning officer or deputy, who shall stamp or otherwise mark the same and shall deliver to such elector a ballot paper with such stamp or mark ; and every such elector shall without leaving the room strike out the names of every candidate for whom he shall not desire to vote ; and in case any elector shall be unable to read or write, the returning officer or deputy if required shall in view of such one of the scrutineers as such elector may desire strike out the names of such candidates as such elector may designate ; and after such names shall have been so struck out the voting paper shall be deposited in the said box. And answer It shall be lawful for any returning officer or deputy or for any j^^^*"g2^' one cafflidate or scrutineer to put to any person tendering his vote the questions following — ^T.) Are you of the age of twenty-one years ? (ii.) Are you residing in this division ? (ill.) Are you a natural born or naturalized subject of the Queen ? (iv.) Are you the person named in this miner's right ? [or business licence ?] (v.) Have you already voted at this election ? And no other question shall be put to any person tendering his vote ; and no person who shall refuse to answer any such question, or who shall not answer the same to the satisfaction of the returning officer or deputy, or whose miner's right or business licence (as the case may be) shall have thereon when first produced as aforesaid a stamp or mark as aforesaid appearing to have been made or affixed at the same election, shall be permitted to vote. B illot papers to 93. Immediately upon the close of the poll the returning officer or rcsuit'decured. deputy at each poUing place shall proceed, in the presence of the scru- ib. t. 63. tineers of the candidates, to ascertain the number of votes for each candidate ; and every deputy shall immediately afterwards forward the voting papers sealed up together with a list of the total votes for each candidate to the returning officer ; and such returning officer shall as soon as conveniently can be after the day of the poll give pubhc notice of the number of votes given to each candidate, and shall declare the candidates who have received the greatest number of votes in each division not exceeding the number to be elected for the same to be duly elected ; and if two or more candidates shall have received an equal number of votes, the returning officer shall have the casting vote. Proviso in 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 : (xxii.) For the prevention of nuisances in and about residences or places of business held under a miner's right or business licence, and for the cleansing and keeping cleansed the same : (xxiii.) 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 shall be ascertained and paid to the person or persons holding or using any such lands. 107. All by-laws made by any mining board may be in the form By'-w^ be . •/ ^ o J forwarded, to contamed in the Seventh Schedule to this Act ; and shall be signed by Law Officers, 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 schedule, 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 1822 i. c 343 MINES ACT 1890. [54 Vict- •• Mining statuu 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. 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 news- papers ; and at the time of such application shall forward such news- papers 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-laAV shall be so revoked shall be published in the Government Gazette and shall take effect from the time of such publication; Board to 109. Everv such board shall have power to appoint officers for appoint certain . . . . i i r i officers. the nispection of sludge and water channels tor the attendmg to and lb. s. 74. carrying out of any such by-laws, and for the collection of the rates and charges which may be imposed pursu.ant 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. Appeal ag,unst 110. If any pcrsou shall think himself aggrieved by the value at ib.s.75. which his claim land plant or machinery shall be assessed for 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 holdeu 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. Monfiy.s to be^ 111. All moncys received as rates or charges under or by virtue lb. 1. 7p. of any by-law made by any mining board shall be paid to the 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 suqh clerk Governor in Council may cancel by-laws. lb. s. 73. Eiahth Schedule. No. 1120.] MINES ACT 1890. 35 112. Every mining board shall cause an account to be made out jgAfmn? 6" f'^i; pleadings shall consider that the same is defective by reason of the in a suit with absence of some party necessary thereto either as plaintiff or defendant, piaaiijgs. he may within six days after he shall have been served with the ib. s. lu. 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 after such service 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 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 miay be ordered is to be m.ade 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 with pufut u"ay*be the plaint therein as shall be directed by any such general rales as served, aforesaid, save where it shall be otherwise ordered by the court or ^^"^ the judge thereof, he shall be entitled, if he considers 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 46 MINES ACT 1890. [54 Vict. Twelfth Schedule. Answer to be delivered. lb. s. 117. " Mining Statute 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 in the form in the Twelfth Schedule of this Act. 151. Within the same number of days, save where it shall be otherwise ordered by the court or the judge thereof, such defendant 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 ; and when any such answer shall be delivered, the defendant shall thereby in separate paragraphs numbered consecu- tively fully answer the statements in such plaint denying admitting or qualifying them, but with the right to decline answering any par- ticular statement on some ground aj/plicable to that statemont 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 defence ; and he may thereby insist upon several distinct defences, and may also thereby make a case for and claim any cross relief which in connexion with the matters stated by the plaint he could have obtained by a proceeding instituted b)^ himself ; and every such answer shall be in the form in or as directed by the Thirteenth Schedule to this Act. 152. Every such notice of objection and answer shall have endorsed 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. Tm 153. As many of the defendants in any suit to be prosecuted with written pleadings as can conveniently and without prejudice to their or any of their interests combine in an answer shall do so ; and in esti- mating 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 necessary. 154. Either party to any suit or action dependmg in any Court of Mines may call on the other party by notice to admit any fact or document saving all just exceptions ; and every such notice and admis- sion respectively may be in the form contained in the Fourteenth and Fifteenth Schedules to this Act or to the 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. Several defences. Cross relief. Tnirteenth Schedule. Endorsement on notice of objection and answer. lb. s. 118. As mauy defendants as conveniently can to combine in answering. lb. s. 119. Notice to adiuit. '■ The Statvle of Evidence 1804 " s. 12. 15 & 16 Vict, c. 65 s. 117. R. Pr. 29, 30. Fourteenth Schedule. Fifteenth Sciiedule. 155. An affidavit of the attorney solicitor or agent in the cause or his clerk of the due signature of any admissions made in pursuance of such notice and annexed to the affidavit shall be in all cases sufficient Proof of admission and notice to produce. lb. e. 13. 16 Vict, evidence of such admissions: and an affidavit of the attorney solicitor c. 76 83. 117, 118. . i- iifi • t • 1 lb. 8. 119. or agent m the cause or his clerk of the service of any notice to produce No. 1120.] MINES ACT 1890. 47 respect of wliich notice to admit shall have been given and of tha •• The statute time when it was served with a copy of such notice to produce annexed " " to such 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 any objection for . . , , • li I ■ J. • ■ uncertainty *c uncertamty obscurity or repugnance m the plamt or ni any answer m ■. jmninj siatiue such suit he is unable to make answer to such plaint or 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 wiiting entitled in the suit and bearing the number thereof upon the opposite party, requiring him to shoAv causa 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 the amendment which may be ordered is to be m.ade and any amended plaint served if service thereof shall be ordered and within 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 without reference if the judge shall think fit to the regular tim.e 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 when suit witii or by any special order of the court or the judge thereof for the delivery pi'ijings to be of the answer of any of the defendants in the case of a suit to be '^^ issue tlio 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 defendants, to be directed by such general rules as aforesaid, enter the same to be ucvring. " heard on the first day of that sitting of the court which shall occiu- next after the expiration of twenty-one days from the time when the suit shall be at issue as last mentioned. 158. After any such last-mentioned suit shall have been so entered Noti-e of the plaintiff shall, not less than ten days before the day for which it 'ZtvI± shall be entered for hearing, serve in the manner and such service shall f!>- «• 122. 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. 159. Within seven days immediately preceding the day for which Engrossment of the hearing shall be so entered, the plaintiff shall make and lodge with objiction and the clerk of the court an engrossm.ent on paper bookwise of the plaint fo"ji^^"Vith'"' and of each notice of objection and answer which shall have been '"l"':'^,^,^' denvered (11 any) with any amendments made m any of them and i;,. s. vii. entitled in and bearing the number of the suit ; and any defendant who MINES ACT 1890. [54 Vict. ■■ Mininj Statute 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 boimd to pay the costs of such engrossment. ^oceedinc at 160. lu the case of a suit to be prosecuted without written plead- the hearing iugs, the plaintiff sliall at the time and place named in that behalf in where both ° ittt iiii parties appear any such summous as aforesaid appear ; the defendants shall thereupon without written be required to appear to answer such suit ; and on answer being made ^ib '^T^u 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 Cross relief. suit any defendant may obtain any cross relief which in connexion with the matters stated by the plaint he could have obtained by a proceeding instituted by himself. Mode of proceed- 161. In the case of a suit to be prosecuted with written pleadings heiriug where the clerk of the court shall on the day for which the hearing of the a-rli'krH s-iits suit shall be SO entered as aforesaid have in court the said engrossment pleading*''^" and all other documents in the said suit ; and if the plaintiff and the lb. s. 125. defendants or such of them as shall in the opinion of the court sufficiently represent the defendants shall appear, the 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 d ffer 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 tenus 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 aforesaid ; 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 fit and upon the terms hereinafter 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 i)ermitted No. 1120.] MINES ACT 1890. 49 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. 162. Any defendant, whether or not notice of any such objection objections may shall have been served by him, shall be at liberty to take at the hearing tenm. '"^ ore tenus any or any other objection which might be taken by any such ^f^- «• i26. 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 objection 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. 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 /j. 127. uncertain or incongruous statement of some fact ineffectual 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 proceed ; 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 provided for. 164. Whenever a defendant shall have objected to answer any par- ^"q'^"^*"^*^'^''^ ticular statement in a plaint on some ground applicable to that statement answer to be 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 statement ; and when a defendant shall have alto- gether 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. 165. If on the hearing of a suit prosecuted with written pleadings ^^''j^"^*"* ^''^ it shall appear that any defendant is entitled to any cross relief, the relief, 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 fit and upon the terms hereinafter in cases of adjournment provided for. 166. Misjoinder of plaintiffs or of defendants shall not be allowed ^1° ^l"' '^o,^« J i.. . ... . dismissed for to form a ground of objection in any such notice of objections as afore- naisjoinder. said, and no suit shall be dismissed on the ground of any such misjoinder ; 18326. D 50 MINES ACT 1890. [54 Vict " Mininij Statute 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 tlimk fit and upon the terms hereinafter in cases of adjournment provided for.- Hearing may be 1 67. If at or in the course of the hearine or rehearing of any suit proc6G(iG(i with o •/ in tiie absence it shall appear that any person interested in the subject-matter of the °ib^^7zil s^i^ ^i^d. who ought to be a party thereto either as 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 sufHciently excused) the court may either proceed to the hearing of the suit in the absence of such person and make a decree 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 plaiutiff 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 p3.rt 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. Suits not to be 168. No suit in any court shall be dismissed without the consent variance^ of the plaintiff by reason only that the plaintiff shall appear at the lb. s. 132. hearing to be entitled to different reUef from that which shall be sought by any plaint ; but in every such case and whenever it shall appear at the hearing that the plaintiff is entitled to other reUef 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 statemeivt in the plaint or in any answer which may have been delivered in any particular or particulars in the judgment of the No. 1120.] MINES ACT 1890J 51 court not material to the merits of the case, then, if the opposite party •' Mining siuiuie 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 by such variance, such court shall have power to adjourn the hearing to such time and place within its district as it shall think fit and upon the terms herein- after 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 other- wise as if no such variance had appeared. 169. In no case shall any mere informality in the pleadings or in no case .. •'j - i . informality to proceedmgs, or any omission not prejudicial or embarrassing to any of prejudice, the parties of any name or date or other such matter in the title of the i''- «• i^s. 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. 170. Whenever in any of the cases aforesaid or in any case in Power ot court which the court shall think right so to do the court shall adjourn the a case, hearing of a case, it shall have power to adjourn the same upon such ^'^^ i^*- 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 delivering such amended plaint or answer or further answer, or as to allowing some subsequent application to be made for liberty so as to amend or deliver such answer or further answer, and as to the payment of costs and otherwise as to such court shall seem fit. 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 IT 1 11 1 11 -If otherwise tliau pleadings shall be at liberty at any time before an answer shall have at iieariug. been delivered to his plaint to amend such plaint as he shall 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 leaA^e 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 such terms as to payment of costs or other- wise as it shall think right to grant 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. 17?. It shall be lawful for the court, if and whenever it shall issues and fact think fit 60 to do, to direct an issue to be tried at such time as it shall "isLwrs.'"^*^ appoint before such court and by six assessors to be summoned as here- if>- «• ise. inafter 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 52 MINES ACT 1890. [54 Vict. " Mining Statut! 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 requi- sition 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 pro- nouncing 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. Provided 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 sum- moned 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 thereof shall eventually pe paid as part of the costs of the suit by such of the parties as the court shall in that behalf direct. 173. In any case of a trial by assessors no pleading further than as aforesaid shall be necessary ; but in the case of an issue 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 parties, the parties shall, if they cannot themselves agree thereon, 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 the parties to any such suit shall require that any question of 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 re(|uiring the return of special jurors as assessors. 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 iBSue. Course to be pursued in case of a trial by assessors. lb. s. 137. Mode of obtaining assessors. lb. t. 138. No. 1120.] MINES ACT 1890. 53 The swearing or taking the solemn affirmation and dec\a.vation " Mining staiute 1865 " instead of being sworn of every such assessor and of every other assessor provided for by this section shall be regulated by the pro- visions of any Act now or hereinafter 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 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. Provided further that if a sufficient number of the persons sum- in default of moned to act as assessors in any court to be holden under this Act shall number by- 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. 175. If notice shall be given by either of the parties that he has where assessors required assessors to the other of such parties but by reason that no moned* byKa- notice thereof has been given to the said clerk no assessors shall have being*gwen 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 neigh- bourhood 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 that the said clerk shall summon assessors for such adjourned 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. 54 MINES ACT 1890. [54 Vict. " Mining statute 176. It shall be lawful for any Court of Mines in such way as the Court may refer Said court may think fit to obtain the assistance of accountants certain matters, engineers suTveyors 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. Proceeding when plaintiff does not appear lb. t. 141. Proceeding where the defendant or a sufficient number of defendants do not appear. lb. 8. 142. Dismissal for want of prosecution. lb. s. 143. 177. If the plaintiff in any suit shall fail to appear at the time and place at which the same is to be heard or to which the hearing thereof shall have been adjourned, such suit shall (unless the 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 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 summons 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 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 payment 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 hearing, then the suit shall, unless the court shall think fit to act under the provision afore- said for proceeding with the hearing in the absence of a party, be struck out of the list of causes for hearing and shall not be re-entered without the order of the court. 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 ajiplication was to have been made shall be entitled to apply to such court for an order that the notice of such application be discharged with costs ; and No. 1120.] MINES ACT 1890. 55 in each of the said cases such court shall make such order therein, and '^^Mininrj suuute as to the costs thereof and of such suit or notice of appHcation as it shall think just. 180. The judge of any Court of Mines may, in any case where a Judge may stay court of equity might so do, make orders for staying proceedings until grant timu or 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 per- mitted of any issue or question of fa^t in such manner and on such terms (if any) as to payment of costs or otherwise as to such judge may seem fit. 181. As soon after any decree shall have been pronounced as it Decree to be can conveniently be done, if the persons in whose favour the decree is made shall so desire, the clerk of the court shall draw up the same entitled in the suit and bearing the number thereof ; provided 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 perform- ance thereof ; and such decree in the case of a suit prosecuted without written pleadings the clerk shall file 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 engross- ment 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 filed 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 pur- port 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 prima facie evidence that such decree was pronounced, and that an original of every plaint summons an-swer 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 judge of a Court of Mines within six Judge or deputy judge lu&y weeks after his resignation of office, and for a deputy judge within six act after weeks after the determination of his appointment, to give in to the ^ciT^. 4464*11. 56 MINES ACT 1890. [54 Vict. Act No. 446. clerk of the said court a v/ritten 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 aU 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 made property. at the hearing or rehearing of any suit or of any such appeal to a ''Jl{i'^ing statute Court of Miucs as hereinafter provided for : but whenever such court 1865 " «. 146. p shall decree or order the payment of money and the same snail not be paid into court or otherwise as the court shall have directed either forthwith or within the time limited for that purpose, it shall be lawful for the clerk of the court at the place at which such decree or order shall have been made, upon the request of the person entitled under such decree or order and without any previous notice or summons to the person required to pay the same, to issue out of such court a warrant in the Sixteenth form Contained in the First Part of the Sixteenth Schedule to this Act. Schedule. ^^^q bailiff of the said court shall execute the said warrant in any part of Victoria, and all constables and other peace officers within their several jurisdictions shall aid and assist in the execution of every such warrant ; and every bailiff or officer executing any such warrant as last aforesaid may by virtue thereof seize and take any of the lands tenements hereditaments goods and chattels personal of the person against whom such warrant shall have issued (excepting the wearing apparel and bedding of such person or his family and the tools and implements of his trade to the value of ten pounds which shall to that extent be protected from such seizure) and dispose of the same in due course of law in or towards payment of the sum in respect of which such warrant shall have issued ; and may also seize and take any money or bank notes and any cheques bills of exchange promissory notes bonds specialties or securities for money belonging to any such person against whom any such execution shall have issued as aforesaid. Such bailiff may and shall pay and deliver to the party suing out such execution any money or bank notes which shall be so seized 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 aforesaid 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 tne person entitled as aforesaid who may sue in the name of the party agamst whom any sucn warrant shall have issued or in the name of any person in whose name such party might have sued for the recovery of No. 1120.] MINES ACT 1890. 57 the sum or sums secured or made payable thereby when the time of " Mining statute 1805 '* payment thereof shall have arrived. Provided that the expression " lands tenements and heriditaments " in this section and in the said Sixteenth Schedule shall comprise and sixteenth include an equity of redemption, and also all interest to which the schedule, person against whom such warrant shall have issued is entitled at law or in equity in any houses lands or other hereditaments corporeal or incorporeal and real estates in Victoria and which he might according to the laws of Victoria have disposed of by virtue of any power or otherwise for his own benefit, and also any land or building or share or interest at law or in equity therein occupied or held by such person by virtue of any miner's right or business licence ; and all powers vested in any such person which such person might legally execute for his own benefit shall be and are hereby by virtue of such warrant vested in the said baihfi to be by him executed for the benefit of the party suing out such warrant. Provided always that no lands tenements and hereditaments shall be sold under any such warrant until one month next after notice of time and place of such sale shall have been published in the Government Gazette and in some newspaper circulating in the neighbourhood of such lands tenements and hereditaments. Provided also that when any such court shall decree or order the certificate of payment of money, the clerk of such court shall, upon the application be forwarded to of the person entitled under such decree or order, deliver to such person court of Mines.' a certificate in the form in the Second Part of the. Sixteenth Schedule U.^g'^^^^'J^ to this Act directed to the clerk of any other Court of Mines, and shall second Part make a minute thereof in the register to be kept by such first-mentioned clerk as hereby provided ; and such certificate, if forwarded to the clerk to whom the same shall be directed, shall be filed by him, and thereupon execution shall issue as upon a decree or order or the court to the clerk of which such certificate shall have been directed. 184. Whenever the bailiff of any court shall sell any land or building on sale of land • ... or shfirB held occupied or held under a miner's right or business licence or any share under a miner's or interest at law or in equity therein, whether under a warrant issued to^give'^' out of a Court of Mines or by a Vv-arden as hereinafter provided for, such bailiff shall give to the purchaser thereof a certificate of sale, specifying ' *' such land building share or interest and the name of the person whose land building share or interest shall have been sold ; and every such certificate shall forthwith vest in such purchaser all the right title and interest which the person against whom such warrant shall have been issued had at the time of issuing thereof in such land building share or interest. 185. Whenever any sum of money recoverable for costs damages on disobedience or otherwise under any decree or order made at the hearing of any suit payment o?"^ or of such appeal as aforesaid in any court or under any decision of JJIay'^be*'^''**"' any warden as hereinafter provided for a certificate of which decision ^^^j^""^*^ shall have been filed in any court holden under this Part of this Act shall jj, , remain unsatisfied either in the whole or in part, it shall be lawful for the person entitled to recover such money,- whether any such warrant as aforesaid or as hereinafter provided to be granted by a warden in case of the non-payment of any debt costs or damages awarded by the decision of a warden shall or shall not have been issued for the same, 58 MINES ACT 1890. [[5i Vict. 1865'""'^ -sjnfuie obtain from the clerk of the said court a summons in the form contained Seventeenth Schedule. in the Seventeenth Schedule to this Act or to the like ellect directed to the person liable to pay such money ; and such summons may by order of the judge of such court be made returnable before the same or any other Court of Mines or any judge of any Court of Mines, 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 summons shall be served personally. If the person so liable shall appear in pursuance of such summons at such place as shall be therein named, he may be examined upon oath touching his estate and efTects and as to the property and m.eans he has of paying satisfying and discharging such sum of money or such part thereof as shall remain unsatisfied and as to the disposal he may have made of any property and as to his intention to leave Victoria without paying such money or part as shall be still unsatisfied or to depart elsewhere within Victoria with intent to evade payment thereof and as to the mode in which the liability the subject of such decree or decision was contracted. The person obtaining such summons as aforesaid and all other witnesses whom the court shall think requisite may be examined upon oath touching the inquiries authorized to be made as aforesaid. non^-attendance 1S6. If a party SO summoncd as aforesaid shall not attend as he may be required by such summons and shall not allege a sufficient excuse for imprisoned. ^ J tut t p i t 1 lb. s. 149. not attendmg, or shall if attendmg refuse to be sworn or to disclose any .of the things aforesaid, or if he shall not make answer touching the same to the satisfaction of the court or judge before whom such summons chall be returnable, or if it shall appear to such court or judge by oral testimony or affidavit or by both that the said party contracted the liability which was the subject of such decree order or decision by any fraud or breach of trust or has made or caused to be made any gift delivery or transfer of any property or charged removed or concealed the same with intent to defraud the person entitled to such money as aforesaid or with intent to defeat any execution issued upon such decree order or decision, or if on such evidence as aforesaid it shall appear to the satisfaction of such court that the party so summoned has then or has had since the time of making such decree order or decision sufficient means and ability to pay the sum so recovered against him and so due and unsatisfied as aforesaid or that he is about to leave Victoria without paying such money as shall then be still unsatisfied or to depart elsewhere within Victoria with intent to evade payment thereof, it shall be lawful for such court or judge (if it or he shall think fit) to order that, unless such party shall pay into the court before which or the judge of which such summons shall have been rettirnable either forthwith or within the time limited in such order the money so unsatisfied together with the costs of and occasioned by such summons and examination, he shall be committed to prison for any period not exceeding six months. Examination 187. In any casB in which any defendant in any suit in any Court the^oriKinai of Miucs shall personally appear at the hearing of the same, the court /^"'"I'so ^^^^^ hearing or at any adjourment 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 No. 1120.] MINES ACT 1890. 59 other parties touching the things hereinbefore mentioned and of making ■• Mining Statute an order as such court might have exercised under the provisions here- inbefore contained in case the plaintiff had obtained a summons for that purpose after decree made as hereinbefore mentioned. 188. Whenever anv order for commitment shall have been made Form of comiiiitm lb. s. 151. under the provisions hereinbefore contained and tlie money and costs '''""""''"'^"t- named therein shall not have been paid into court in pursuance thereof, the clerk of such court shall, withoiit any previous ndtice 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 Eishteentti of the said court and the keeper of the gaol to whom such warrant is directed shall respectively 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 imprisonment satisfaction or discharge of the amount due under any decree or order ; as dlscharge^of 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 Prisoner to be warrant as aforesaid, who shall have paid or satisfied the sum of money pL^meift.'^ and costs remaining due at the time of the issuing of such warrant i^s. together with all subsequent costs, shall 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 v^^hich 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 the pHson!^^** ^'^"'^ summons for the examination of such partj^ shall have been issued by ^ft- «• i54. 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 or on disobedience any judge thereof shall make any decree or order other than a decree plrty may^r^ for the payment of money and any person named therein and intended co™™?,"^^ ^'^^ to be bound thereby shall disobey such decree or order, it shall be lawful lo. s. 155. 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, Nineteenth 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, 60 MINES ACT 1890. [54 Vict. •' Mining suttute but without sucL. Older such summons shall be made returnable at the place at and before the court out of v/hich 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 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 or to appear at any time or place to which the hearing of such summons m.ay 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 ill 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 i nstituted or be depending shall, without any previous notice or summons to the person so ordered to be committed, issue a warrant in the form til in the Twentieth Schedule to this Act or to the Hke effect ; and the bailiff of the said court and the keeper of the gaol to whom such warrant s'lall 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 thereof. Sohedulc Piiioner may be diCT 1890. 6i aforesaid : and in that case such ordei of commitment under the hand ','5.^""'" 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. (e) Interlocutory mid Miscellaneous Orders. 195. It shall be lawful for the judge of any Court of Mines, upon Power to grant the application of any person claiming to be legally or equitably 'niunction. 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 xmder 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 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. 196. The next preceding section shall not be deemed to lessen or General pciwvrs in any way interfere with the powers to grant an injunction which may i'ajan'tians not be incident to the jurisdiction of the Court of Mines as defined by section "'^ 't^ted. 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 proceedings under this Part of this Act of granting injunction orders as are vested in the Supreme Court or any judge thereof. 197. In any suit in the Court of Mines in which the Supreme Oourt to ha\'9 Court would in Uke case grant an injunction to restrain proceedings, fijlmo ^n'To^ the judge of the Court of Mines may grant an order to enjoin any person prjceerti.^-s at 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. 198. It shall be lav/ful for the judge of any court, upon the applica- Manager may be tion of any party to any suit or appeal, by order under the hand of such /V.' s.'iei. 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 v/ho 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 ^2 MINES ACT 1890. [54 Vict. •• Mining Statute occupatioii 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 &c. may be l99. It shall bc lawful for the judge of any Court of Mines, upon ordered to be . . *^ . , deposited. the application of any party to any suit or appeal in such court, by 76. s. 162. order under the hand of such judge to direct any person 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. I Production of 200. It shall be lawful for the judge of any such court, on the documents may r j-' x x x -j. i • i j_ i be ordered. application ot any person party to any suit or appeal m such court by lb. s. 163. order under his hand, to direct any other person party 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. Power to stay 201. It shall be lawful for any judge of any such court in his appeal. '"^^ discretion upon the application of any person who shall have appealed 76. «. 164. to such court from the decision of a warden to be made 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 pro- ceedings 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. ord. rs may be 202. Every ordcr authorized to be made under any of the seven and vJu'd!' ^^'^^ preceding sections may at the discretion of the judge be made lb. «. either ex parte or upon notice to the parties to be aft'octed thereby or their attormiy, and may also upon such notice be discharged or varied on the ap])lication of any person afl'ected thereby. Provided always that every ex jjarte order sliail be made on affidavit only ; but any order made upon notice as aforesaid may be made either on affidavit or oral te&timony or both. No. 1120.] MINES ACT 1890. 63 203. If any warden surveyor registrar or any other officer appointed ig^^^^^ ^^^'^ under or in pursuance of this Part of this Act shall refuse or neglect to Court to have perform any duty which in his capacity as such officer ought to be per- ordj^requTring formed by him, it shall be lawful for the judge of the Court of Mines, o"t,her office^ upon the appUcation of any person interested in the due performance of Jiutl^^s^of "lis such duty founded upon affidavit setting out the facts upon which the office, apphcation 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 m 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 discharge the same, the person upon whose application the same shall have been obtained shall (unless the judge shall otherwise order) 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 cUent. 204. Every order made by any judge under any of the provisions Form of order contained in any of the sections from the one hundred and ninety-fourth enforciug'it^ to the two hundred and second hereof inclusive may be made at any «. le?. 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 xwenty-flrst further recital 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 appointing a manager or receiver to lodge a copy of such order in the ofnce of the warden of the district in which the land t MINES ACT 1890. [54 Vict. 1865.""^ 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. Power to 205. On the application of any person to a judge of a Court of provide nai Mines stating that any owner of such land water race dam or reservoir funatic!" ° as mentioned in section one hundred and thirty-five hereof or of any lb. s. 168. share or interest therein is a lunatic and incapable of managing the same, such judge shall, in case he 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 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 he shall so be the owner, and for accounting for the income thereof, as such judge shall think proper ; and every such guardian shall as to such property have the same powers and perform the same duties as are now or shall be pre- scribed 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 exer- cise 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 eveiy 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 prima 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 Mines shall cause a minute of all he evwcnro p''i'i^ts dccrces and orders of the court and executions and returns thereto and of all other i)roccedings 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 foi'in prescribed by such general regulations as aforesaid ; and a document purporting to be a copy of any such entry in the said register, and to bear the seal of such court, and to be. signed Ih. «. 169. No. 1120.] MINES Act 1890. 65 and certified as a true copy by the clerk who shall have the custody " Mirtjmj .n^tute thereof, shall at all times be admitted in all courts and places whatso- ever 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 j udget hereof , court or judge upon such terms (if any) as to payment of costs or otherwise as such rehearings aud court or judge shall think fit, to grant as often as such court or judge "sue'^"*''' shall deem proper a rehearing of any suit in or appeal to such court »■ i^o. 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 apphcation 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 apphcation 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. Provided 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 herein- before contained as to trials of issues and questions of fact by assessors shall be applicable to new trials of issues and questions of fact and to the case of assessors directed or required on the granting of rehearings. 208. Any party to any suit in any Court of Mines who shall be dis- Appeal from satisfied with the granting of an application for the rehearing of such "Jhclring"''"^ suit may appeal from the order granting the same to the Full Court m no uq within seven days after such apphcation 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. 209. On the hearing or rehearing of any such suit or appeal or Ju'ige may state upon the trial or new trial of any issue in any Court of Mines it shall opinion of be lawful for the judge of such court (if he shall think fit) to reserve 'Tr-'" "^/r; ,. • ,1 r r -1 r 1 • ■ r ■ Mining Statute any question m the form oi a special case for the opinion of the Supreme ^^^^ " »■ i^i. Court which opinion such Supreme Court is to give ; and in such case no decree or order shall be made in rgspect 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 pre- pared 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. 1S32U, „ 66 MINES ACT 1890. [54 ViOT. " Mining Statute 1865 " s. 172. Appeal from Court of Mines. Full Court to decide the appeal. lb. s. 173. 210. Any party to any suit in any Court of Mines or to any 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 approved 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 should be dismissed ; and every such notice of appeal shall set 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 ca\ise tlie same to be set down to be argued before the said Full Court. 211. The said Full Court shall decide the matter of such appeal and make such order therein as shall appear just, and may either dismiss such appeal or reverse or vary such decree or discharge or 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 ajopeal 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 final, 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 Majesty in Council now or hereafter to be in force in relation to appeals from the Supreme Court of Victoria. Appeal not to lapse by death removal or resignation of judge of Court of Mines. Act No. 440 10. 212. No appeal from any decree or order of any such Court of Mines or judge thereof to the said Full Court shall lapse or from the coming into operation hereof shall be deemed to have lapsed in conse- quence of the death removal or resignation of such judge after such decree or order shall have been made, but notwithstanding 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 such appeal as such judge could have exercised had he lived or continued in office. No. 1120.] MINES ACT 1890. 67 213. As soon as the opinion of the Supreme Court shall have I'g^'S^^f'f^f "'^ been given upon any special case or the decision of the Full Court o., .i not pronounced upon any appeal, the said Prothonotary shall cause the or ckcisio'i^r'''^^ ■if same to be drawn up and shall transmit the same to the clerk of the tS'^be trans-"^' court from the decree or order of which or from the order of the iudee mined to court J ~ ot Mines. 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 whif^h or by the judge of v/hicli such decree or order shall have been made shall enter in the register to be kept by him as aforesaid a ::unute 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 en»T^ossnient as aforesaid ; and the decree or order as reversed or varied stMl 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 In ra-^f of a any such appeal brought or be about to be brought, it shall be lawful appeal an ' for the court the judge of which shall have reserved such case or from a°u^Ttay" t**^' the decree or order of which or from the order of the iudg-e whereof proceecUnKH . . HKiv bo htm. the appeal shall have been brought or for su(;ji judge, on the application , ,75 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 (;ourt 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. 215. It shall be lawful for the Governor in Council subject to wardons may b the provisions of the Public Service Act 1890 from time to time to »ppo'"ted. appoint in and for Victoria or any district or portion thereof 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 com- mencement 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 commission. 216. Every warden shall have jurisdiction to hear and determine Jurisdiction of all suits cognizable by a court of law which the Courts of Mines are "^^^f'l'yj 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 E 2 68 MINES ACT 1890. [54 Vict. ■■ Milting Statute 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 ujwn any such land of which the complainant 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 partnership account or as in any way accruing to the complainant from any mining partnership adven- ture 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 imj 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 m^de of recovery is hereby pro- vided ; and such jurisdiction shall ext^^d 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 parties, timitciiin dii.t Providcd always that where any sum of money shall be claimed to be liLomiXpii" <^l^i6 in respect of a debt or of a contract or upon partnership account aecisiVn'to^be accruiug to the complainant from any mining partnership advcn- finai. ture or interest, such jurisdiction shall not extend to cases where such sum shall exceed one hiandred pounds ; and in all cases of debt or contract the decision of the warden or assessors as hereinafter provided for shall be final. Causes of aci in,, 217. It shall not be lawful for any complainant to divide any dTvia'ni'.''" claim for the jJurpose of bringing two or more suits before a warden ; lb. s. 17S. 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 discharge 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 which who'ro "I'/^orr the demand shall be in respect of a debt or contract only the plaintiff hmuirod i)o>i,i(is ^^^^'^ recover more than One hundred pounds, he shall not, though Mcovond unless succeeding, be entitled to receive any costs other than he would have ih. ... 179. 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. ProoccaiiiKs 219. Every such proceeding as aforesaid before the warden shall be \^^7<^n\n^\'i--"<\' commenced by a summons, which, if the proceeding be for the recovery hy Rummon?. yf any land race dam or reservoir, or in respect of any encroachment or Twcnty-sccona trcspass thercou, shall be in the form in tha Twenty-second Schedule Hdifiiuic. hereto ; and if for any other purpose, in the form in the Twenty-third stSuio.''"'' 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 u]) according to the nature of^the^applicant's case, and shall require the defendant to appear before the said or some other wartlen on a day to No. 1120.] MINES AGT ]890. 09 be named and inserted in the summons by the said warden ; and upon ^gg^H'/"^ the day named in such summons or upon any adjourned day of hearmg 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 suffiriently to represent all the parties intoj'osted, or in the absence of any of the parties interested who having been duly served with surh sununons shall not ap))ear, shall hear receive and examine evidence and determine such complaint in 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. 220. The Governor in Council may appoint one or more clerks for Ai)p.)iutmeiit of . . vvivrtlciis cW'rlis. each warden, either by the name of such warden or of the districts or No. uu places or any of them in or at which such warden shall usually sit ; and *■ any such clerk may sign in the name of such warden and issue any such cierk,-? may issue summons as in the last preceding section mentioned, and every such »'^™'"°ns. summons so signed and issued shall be deemed and taken to be issued by such warden within the meaning of the said section. 221. Any warden may at any time either before or at the hearing Warden may of any summons if satisfied by affidavit that any defendant named m tilted sprvicp of such summons cannot after diligent inquiry be 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 necessary 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. , -.1 223. Any warden may upon the hearing of any summons amend warden may the same by striking out any one or more of the complainants upon such pliint by terms as to costs or otherwise as to such warden shall seem fit. 'cl-\^iaifitm! lb. s. 16. 223. Every warden shall keep a register in the form in the Twenty- Warden to kcop fourth Schedule to this Act ; in which he shall enter the several com- complaints"' plaints laid before him with the names and the last-known place of '^'^^^''.'"y ^^^'j'"''' abode of the parties, the nature of the relief sought, and where the Twenty-fourtii claim is pecuniary the amount sought to be recovered ; and every one scuediiic. of such plaints shall be numbered in every year according to the order in which they shall be entered. 224. Every person who shall obtain a summons from a warden complainant shall at the time of obtaining the same specify the amount sought to be ae„mnd ami recovered by such summons so far as the demand shall be pecuniary, jl';y''to^tiL ""'^ and such amount shall be entered in the said register in the proper warden, column for that purpose ; and it shall be lawful for the defendant at any time before the said summons shall be heard to pay to the warden such amount together with the costs incurred by the complainant in respect thereof up to the time of such payment and of delivering the notice next hereinafter mentioned ; and notice of such payment shall be com- municated by the warden to the complainant by causing the same to be 70 MINES ACT 1890. [54 Vict. Payment to warden of less tfcan the demand. lb. «. 133. 'I'ge^'"'"^ '^'"'"'^ fl^'ii"^6red at his usual or last-known place of abode or business, and the said amount shall be paid to the complainant and the said costs to the complainant or his attorney ; and after such payment no other proceed- ing shall be brought in any court in respect of the demand in satisfac- tion of which such amount shall have been so paid. 225. Any defendant in any proceeding before a warden for or which shall include a money demand may, at any time before the summons shall be heard, pay to the warden such sum of money as he shall think a full satisfaction for such demand together with the costs incurred by the complainant up to the time of such payment and of delivering the notice next hereinafter mentioned ; and notice of such payment shall be communicated by the warden to the complainant by causing the same to be delivered as his usual or last-known place of abode or business, and the said sum of money shall be paid to the complainant and the said costs to the complainant or his attorney ; but if the com- plainant shall elect to proceed and shall recover no further sum in respect of such money demand than shall have been so paid to the warden, he shall pay to such defendant the costs incurred by him in the said proceeding after such payment, and the warden may decree the same accordingly. 226. Previously to the issuing of any such summons as aforesaid, the fee of two shillings and sixpence shall be paid by the complainant to the warden ; and the said fee shall be deemed to be a part of the costs of the hearing. Fee to be paid. lb. «. 184. Cuiiipljiiiits not to be disuiissed for iiifuniiality lb. e. 185. Warden to make roll of assessors. lb. X. 186. 227. No complaint shall be dismissed by any warden because of any informality either in the summons itself or in the entry thereof ; nor shall any objection be taken or allowed to any such summons or complaint for any alleged defect or misnomer or inaccurate deseri])tion of any person or place, or on the ground that the complainant shall appear at the hearing of the summons to be entitled to difl.'erent relief from that which is sought thereby therein, or for any variance between such summons and the evidence adduced on the part of the complainant ; but such summons shall be amended by the warden so that the subject matter in dispute between the parties shall plainly appear, and the warden shall proceed to adjudicate according to the rights of the parties. Provided always that if it shall appear to the warden upon the hearing of the case that the defendant has been thereby deceived or misled and that injustice would be done by proceeding at once with the case, it shall be lawful for such warden, on such terms as to costs or otherwise as he shall think fit, to adjourn the further hearing of the case to some future day. 228. Every warden shall make or cause to be made a list of persons not less than fifty in number, or of such a number under and as near fifty as the population of the neighbourhood will permit, of good repute and who shall be holders of miners' rights or business licences residing within the district wherein such warden shall have jurisdiction ; and the said list shall be the roll of warden's assessors of such district. s^uMmoned°by* ■ 1^ shall be lawful for either of the parties previously to the warden. hearing of any such complaint to require from the warden, or for the jb. ». 187. warden either, before or during such hearing to require, that such No. 1120.] MINES ACT 1890. 71 complaint shall be heard before such warden and four assessors '.'/"' and thereupon such warden shall summon before him either orally or in writing a sufficient number of the persons Avhosc names shall appear upon such roll as aforesaid, or, if there shall be no such roll or if a sufficient number of persons whose names shall be on such roll cannot be found, then of indifferent persons to act as such assessors, until the number of four assessors shall be obtained. Provided also that before any assessors shall be summoned by any warden, such warden shall demand and receive the sum of two pounds from the person demanding assessors ; and each of the assessors before whom the complaint is heard shall be entitled to receive thereout the sum of ten shilHngs ; and in case the hearing of any complaint shall be adjourned to any future day, the warden shall demand and receive the further sum of two pounds for every such adjournment, and each of the assessors shall be entitled to receive thereout the further sum of ten shillings. Provided that where the warden without a requisition from either of the parties shall summon assessors, the warden shall before the hearing demand and receive from the complainant the sum of two pounds as aforesaid and also in case of any such adjournment such further sum of two povmds for the payment of such assessors at the rate aforesaid ; and any part of any of such sums which shall not be required for the payment of assessors shall be returned to the complainant, and the residue thereof thall eventually be paid as part of the cost of the proceeding by such of the parties as the warden shall in that behalf direct. 230. Either party shall be admitted to challenge any number of persons called as assessors not exceeding two without assigning cause, and any additional number provided he assigns of his challenge a cause certain ; and the truth of such challenges shall be inquired of by the warden. 231. Any person so summoned who without lawful excuse shall non-auendanee. neglect or refuse to attend or to be sworn or serve as such assessor ii>- «• isQ- shall be fined such sum of money not exceeding five pounds as such warden shall think fit. 232. Before such warden and assessors shall proceed to h^ar oath to^^e^^ any such complaint, such warden shall administer to each of such and warden .^nd assessors an oath in the form in the Twenty-fifth Schedule to this proceed to liear Act. Provided that if any of such assessors shall be unwilling from dedde."'*^'"^'' alleged conscientious motives to be sworn, it shall be lawful for the ih. ». i9o. warden upon being satisfied of the sincerit}^ of such objection to permit t weiity-tiitli such person instead of being sworn to make his solemn affirmation and declaration in the words contained in the Twenty-sixth Schedule to Twenty-sixth 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 expiration of two hours from the time at which the case shall have been left to the ^2 MINES ACT 1890. [54 Vict. '^^ining Statute assessors they shall intimate to the warden that a majority of them cannot agree upon a verdict, then oUch Avarden shall himself decide such complaint ; and every such decision shall be carried into effect by the sam.e or any other warden. If demandfd'!^' 233. Either of the parties shall be at liberty, previously to or lb. s. 191. 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 before 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 eventually be paid as part of the costs of the proceeding by such of the parties as the warden shall in that behalf direct. OTder a" survey 234. If beforc 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. dec[siontobe 235. A miuute of every decision of a warden or of assessors in recorded. .(.j^g form Contained in the Twenty-seventh Schedule to this Act or to Twenty^s^vnth ^^^^ effect shall on the day of the pronouncing thereof be entered by Schedule. such Warden in the register to be kept as hereinbefore provided ; and such warden shall make an order in accordance with such decision, and Vvrite 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, to be made lb. s. 192 No. 1120.] MINES ACT 1890. 73 shall at all times be admitted in all courts and places whatsoever as '• Mininrj statute evidence of such decision or order and of such custody without any further proof. 236. It shall be la\vful for any warden, upon such terms (if any) wanieu may as to payment of costs or otherwise as such warden shall think fit, to rehearing, 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 sucli complaint or upon any rehearing thereof. 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 upoti 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. 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 hereinbefore 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 Warden may be lawful for such warden (if he shall think fit) to reserve any question caw^ ^p*"^' 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 submitted by said master to the said warden, who shall make his order in accordance with such opinion. And when- ^^^^ ^ ever 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 '"-^y i^e I'ati. 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. 237. In case any such proceeding before a warden or warden and Duty of warden , . . 11, anJ assessors assessors shall be tor the recovery and possession oi any land water race when proceeding drain dam or reservoir or any share therein, such warden or assessors of 'iand*'&c^^'^^ shall determine the right to the same and fix the boundaries of any such iv. s. 195. 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 dis- pute ; and if the complainant shall succeed, shall determine whether any and what sum in the nature of mesne profits should be paid to the complainant ; and in the event of the complainant so succeeding, the 74 MINES ACT 1890. [54 VirT. '^Mining staivie warden 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 com- plainant 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. Duty of warden 238. In case any such proceeding before a warden or warden and {iiicl iisscssors L o wiien proceeding asscssoTs shall be in respect of the right to divert any water or to divert°w"-aterlc. Tcmove any Tcservoir race drain or dam, such warden or assessors shall n. s. 196. determine such right ; and if the complainant shall succeed, such warden shall declare him at liberty to divert or remove the same, and may make an order enjoining any defendant from preventing such diversion or removal. ?nd asfeslo^rf^" ■ In casc any such proceeding shall be in respect of any is'Tn r'espec't^o?^ cncroachment or trespass upon or any unlawful interference with or encroachment, injury to any such land race drain dam reservoir or water, such warden lb. $. 197. 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 com- mitted ; and the warden shall order such damages to be paid accordingly, and that the person found to have encroached or trespassed interfered 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 implements goods and chattels to be removed from the land race drain dam reservoir or water so encroached or trespassed upon interfered with or injured or from the using of such water, and to cause such complainant to be put into possession thereof. andLsLTore**" 24:0. In casc any such proceeding shall be in relation to any debt when proceeding qj. contract or to mouev due in respect of any such land or water or any in respect of . . . ^ itt i money due on a share Or interest therein, or in respect of any gold or other metals or contract . lb e 198 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 deter- mine), 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 a partnM^«hfp!'^ ^® P^^^ 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. No. 1120.] MINES ACT 1890. 75 S41. All constables and police officers shall within their severa] " Mimrvj suuute jurisdictions aid and assist the warden in the execution of any of the c^j^gjaJi^s duties imposed upon him by any of the preceding sections. to assist. 242. Whenever in or by any decision in any of the said cases Mode of en- J i j £ 1.111. forcing warden's before a warden or a warden and assessors any sum of money shall be decision in case awarded by way of debt damages or costs or otherwise and the same '^f '*oo shall not be forthwith paid, such warden, or any other warden on pro- duction 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 behalf, shall grant to the party so applying a warrant under his hand in the form in the First Part of the Sixteenth Schedule sixteenth TlPTPtn Schedule neretO. First Part. Any bailiff of any Court of Mines to whom such warrant shall be deHvered 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 coiild 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 baihfi, 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 juvSt or reasonable so to do, until after the expiration of three days from the day on which such decision shall have 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. 76 MINES ACT 1890. [54 Vict. (&) Special Powers and Duties. '• Mining statvic 243. Notwithstanding any of the provisions hereinbefore con- 1865" s. 201. tained, it shall be lawful for such warden, if he shall think fit, at the earth may be time of the making of any such decision by him or by any such seized. assessOTs, to ordeT 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-seventii Twenty-seveuth Schedule to this Act or to that effect shall be entered and Schedule. 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. Warden may 244. It shall be lawful for any warden in his discretion, upon the on^adjacen"*'^'^ application of any person claiming to be legally or equitably interested claim. jj^ ^j^y claim or in any land comprised in' any lease (granted under the lb. s. ..02. provisions of any Act authorizing the granting of leases for mining for gold or for metals or minerals other than gold) or in any other land adjoining any claim or land comprised 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) adjoining such first-mentioned claim or land or other land for the pur- pose 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. 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 aforesaid. 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 any 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 declaration shall forfeit and pay any sum not exceeding fifty pounds. Warden may 245. It shall be lawful for any warden upon the application of any Sn'notici'.'"*' person claiming to be legally or equitably interested in any land claim lb. «. 203. water race drain dam reservoir or easement, such ajiplication to ])o made on notice served twenty-four hours at least before the time for the No. 1120.] MINES ACT 1890. 77 making thereof on the parties interested in opposing the same or such " Mimtuj statute 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. . *| 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 ex- tracting or removing any earth gold or nic-tai or mineral other than gold taken from such land, or from selhng or disposing of or damaging or otherwise interfering with such land claim, water race drain dam reser- voir 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 imless 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 Ije 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. 246. If by reason of the pressing emergency of any particular case vvardeu mny it shall seem proper to the warden so to do, he may, on the application fni^seven"uy^^^ of any such person as last aforesaid but without any notice, by order ^^'s '"04' ' under his hand grant such injimction as last aforesaid ; but to be in force for a perion 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 imder this section shall be at liberty, at any time before the expiration of the said period of seven days as well as thereafter, to apply under the provisions of the section next preceding for an injunction for any longer period. 247. It shall be lawful for any warden, upon the application of any warden nmv party to any proceeding on summons before him (such application to be gou'^&J;'"'*'''^ made on notice served twelve hours at least before the time for the ib. s. -zo-,. making thereof on the parties interested in opposing the same or such of them as shall appear to such warden sufficiently to represent the par- ties 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 hall be proved to the satisfaction of such warden, by order under hisSj ^8 MINES ACT 1890. [54 Vict. Form of order. lb. «. 206. Twenty-eighth Schedule. ' ' Mining Statute 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 pro- ceeding, 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 adver- tisement under the circumstances and in the manner mentioned in the section next preceding but one as to the notice by that section required. 248. Every order made by a warden under any of the four next preceding sections may be in the form contained in the Twenty-eighth Schedule to this Act or to that effect, without any further 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 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. 249. 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 retui'nable 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 circumstances 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 men- tioned in such summons on affidavit or on the oath of one or more than one credible witness, or upon both oath and afiidavit ; and if it shall appear to such warden that the person so sunmioned has in fact knowingly disobeyed such order, it shall be lawful for such warden, if On disobedience of orders other than for the payment of money party may be iiummoned and committed. lb. s. 207. Nineteenth Schedule. No. 1120.] MINES ACT 1890. 79 under all the circumstances of the case he shall think fit, to order that " Mining statute such person be committed to prison ; and thereupon the said warden shall without any previous notice or summons to the person so ordered to be committed issue a warrant in the form in the Twenty-ninth Schedule xweuty-ainth to this Act or to the like efEect ; and the bailiff of the Coiirt of Mines of °" the district in which such order shall have been made and the keeper of the gaol to whom such warrant shall be directed shall respectively exe- cute 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. 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 prrformam"." custody such person may be, on receiving an order for that purpose 208. 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 j)art of the order as can no longer be performed together with all costs subsequent to the pronouncuig 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 forth- with 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 hhii, by order under his hand directed to such officer to order the immediate discharge of such person, who shall be discharged accordingly. 251. Any such order of commitment as last aforesaid may (if the Order may Ik- special circumstances of the case shall appear to any such warden to " _ warrant it) be made by such warden ex parte and without notice, on ' ' proof by affidavit only of the wilful disobedience of the order for the disobeying of which such order of commitment shall be applied for : and upon such ex parte order being made under the hand of the said warden, such warrant as aforesaid 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 oeruflcate of damages or costs in or by any decision of any warden shall remain tardi'Jfnmy bp unsatisfied in the whole or in part, the warden who shall have the H':'^ i," <^'"'"* custody of the register in which such decision shall be registered shall, n'""'^' 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 MINES A(5TJ1890. [51 Vict. ^Mining statute a certificate in the form contained in the Thirtieth Schedule to this Act Thirtisth to the Uks efJect ; and it shall be la\vful for such person to file Schedule. ^he Said certificate with the clerk of the Court of Mines of the district in which such decision shall have been made ; and thereupon such pro- ceedings 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 Avhich 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. ixteenth Schedule. Part II. Mode of enforcing •arden's order ■here not pccially provided for. lb. s. 211. 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 perform- ing 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 aforesaid in the performance of liis duty under this Part of this Act. Appeal. lb. 8. 212. Act No. 14ti . 18. Thirty-firs-t Schedule. (c) Appeals. 254. Any per.son who shall be desirous of appealing from the decision of a warden upon any hearing or rehearing of a case before him or before him and assessors in cases where such de<"if"'on is not hereby declared to be final, and whether the decision be a di^^missal 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 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 lieard, a notice in writing in the form in the Thirty-first Schedule to this Act stating the intention to appeal and the grounds of such appeal and the time and place at which such appeal will be heard. scrviro of notice 256. If either party to any proceeding in a warden's court shall "lb T'l'ii appear by attomey, notice of appeal may be served upon such attorney. No. 1120.] 8 MINES ACT 1890. 81 256. Any warden may if satisfied by affidavit tliat any person Act No. uc> named as a respondent in any notice of appeal under the last pre- ^^vanicm may ceding section but one cannot after diligent inquiry for him be found, or '^^^^^^ lervlce of cannot from any cause by reasonable exertion be served with such notice not ke of appeal, 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 respondent, and service of such notice of appeal in the manner directed ly sach order within the time Hmited by this Part shall be good service to all intents and purposes. Before any appeal shall copy of com- be heard as provided for in the last l3ut one preceding and next following de('is'ion"of tue sections hereof the appellant shall deliver to the clerk for the use of the de'Mvered°on'' court, or shall see that there be provided for the use of the court a copy appeal, of the complaint before the warden and a copy of the decision thereon which is appealed against. 257. Such appeal shall be heard at such sitting of such court or at coirt to make \ such other place within the mining district and at such time as the .. Mining statute judge of such court shall by writing under his hand direct ; and such i**^^" -i^- court shall proceed to make an order reversing or varying such decision or dismissmg such appeal ; and all such orders shall be final and conclusive on the parties ; and the judge shall (if necessary) order pay- ment 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 make such order with respect to the costs of the appeal ^^.^ and of the proceeding appealed from as such court shall think fit. * 258. Previously to the hearing of any complaint, the parties Agreement to thereto may agree to accept the decision of the warden or assessors as f'^L*''?"'''';, , , . ,° „ , ^ , 1 r 1 ^ MimngStiHute the case may be as final ; and a memorandum of every such agreement ises •■ «. 214. 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. 259. If upon the hearing of such appeal the subject-matter of the fppg^f^j^'J.g dispute shall appear to the court before which the appeal shall be heard less than twenty not to exceed in value twenty pounds, the appellant shall not although ^covered unless he succeeds be entitled to receive any costs of such appeal from the speciauircuni- opposite party, unless the court shall be of opinion that the special 1*^°^*^^,^^^" circumstances of the case entitle the appellant to costs. ib. «. 215. 260. Every such appeal shall (unless an issue shall be directed ^pP'J.^''b*°judgo or the trial of any fact by assessors be required as hereinafter men- aione unless tioned) be heard and determined by the judge alone ; and no ground of required, appeal, excepting those stated in the notice of appeal, shall be entered "'■ upon, unless the judge shall allow either before or at the hearing other no ground of grounds to be added, upon such terms as to adjournment costs or ^^^^''tg^jQ otherwise as he may think fit. be entered on. 261. Upon the hearing of any such appeal the court may (if it shall Assessors may think fit) direct an issue to be tried at such time as it shall appoint ^jI's^^it'. before such court and six assessors ; and either of the parties to any such 1832 i. I. 82 MINES ACT 1890. [54 Vict. ■■ Mining statute 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 fh pronouncing its order on the appeal shall act on the verdict found on such trial ; but whenever an issue shall be tried on 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 given 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. Provided also that the party so requiring shall at the time v/hen he shall so require pay into court for assessors, over and above the sum 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. Prjvi^ions as to 262. The provisions of the sections hereof in regard to the trial of i)'roc=ediugs in issues and of questions of fact in original proceedings in the Court of appHcabie^to"'^'' Miucs, and in regard to the persons from whom assessors are to be appe.ai3.° chosen and to the summoning and other proceedings in respect of jb. s. 218. assessors, shall be applicable to the trial of such issues and questions of facts in the case of appeals to the Courts of Mines. In cases of 263. Whenever any such appeal shall have been brought or be injunction &c. about to be brought, it shall be lawful for the warden from whose procec.ifngs may dccisiou the appeal shall be or be about to be brought, on the appli- /i'r'-' o cation 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 ujjon such terms as he shall think proper ; but without such order or an order to the same ef?ect 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. Ai)poal3 from 264. No appeal from the decision of a warden to the Court of Mines of the district within which such decision shall have been pronounced n'mol'd^'f' '^'^^'l impeded or shall lapse or from the coming into operation A^t^Xu 44G liereof 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 (;essation 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 bc^fore the succeeding judge at the same place and as nearly as may be at the same time as it would have been before the preceding judge if remaining in office. No. 1120.] MINES ACT 1890. 83 265. Upon the hearing or rehearing of any appeal frona a warden ^"^^Z"- or upon any proceeding before a warden or a warden and assessors either Parties may party to any such appeal or proceeding may apply to the judge or warden or wardin'ttf^ to reserve any question of law in the form of a special case for the opinion ca^eTr opTnTdn of the Supreme Court, which opinion such Supreme Court is to give, and '^JJ^^l"'"""' in such case proceedings 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 sacli 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. 263. If the judge or the warden shall refuse upon any such appli- Proceedings on ^ J- r -1 iiiiT_ J refusalto reserve cation to reserve any such question as aforesaid no order shall be made special case, 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. VvTien the judge or the warden shall refuse to reserve any when judge or such question as aforesaid the applicant may within ten days after the T case'the ^ day of such refusal apply to the Supreme Court for an order nisi calling ma''/o"der one* on such judge or warden and also upon the opposite party to show cause *° stated, 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. 268. As soon as the opinion of the Supreme Court shall have been opinion of the given upon any such special case the Prothonotory shall cause the same ^ brdraw^a'up* to be drawn up, and shall transmit the same to the clerk of the Court t" court^i"'**'^'^ of Mines or warden ; and the judge or warden who shall have reserved '^^'"'i'* °'" "'"''•i'"' the same shall make his order in accordance with the opinion given on binding on such special case, and the Supreme Court may upon the argument of j 25. any such special case as aforesaid 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 accordance with any such opinion of the said Supreme Court, but the same shall be binding and conclusive upon all parties. 269. After any appeal against the decision of any warden or Mode of a.s83Ssors shall have been determined, if such appeal shall be dismissed, dedMon^after it shall be lawful for any warden to proceed to enforce such decision in ^pp'*'; the same manner as such warden might have done if no such appeal had isei'"*"!' 220."'* been brought ; and in case any such decision shall be varied upon appeal, the decision so varied shall be deemed to be the decision of the warden whose decision shall have been appealed against. F 2 84 MINES ACT 1890. [54 Vict. '^Mining statute It shall be lawfiil foi any warden to proceed to enforce tlie decision as so varied in the same manner as if it had been the original decision and no such appeal had been brought. Provided always that if any decision when so affirmed or varied shall contain an award of debt damages and costs or either of them and the same shall not have been previously paid or satisfied, or in case any decision of the Court of Mines reversing the decision of the warden shall contain an award of debt damages and costs or either of them or an order for payment or repayment of money, and the same shall not forthwith or within the time limited for that purpose be paid or satisfied, it shall be lawful for the clerk of the court, on the applica- tion of the person entitled to such debt damages and costs or either of them or to such money and without any summons or notice to the person required to pay the same, forthwith to issue execution for the amount thereof in the same manner as if the same had been recovered by an original proceeding in the said court ; and in case such court shall order that any money received by any respondent under the decision appealed against shall be paid into court, and the same shall not forthwith or within the time hmited for that purpose be paid into court, or in case such court shall decree costs against any party to such appeal and the same shall not be paid within the time limited for that purpose, it shall be lawful for the clerk of such court (upon the application of the person entitled to receive the same and without any summons or notice to the person required to pay the same) forthwith to issue execution for the . amount thereof in the same manner as upon any decree of the said court for payment of money, or in case the said court of appeal shall order that possession of any such land race drain dam reservoir or water as is hereinbefore mentioned or of any gold or other metals or minerals or of any share or interest therein respectively shall be delivered or restored to any party to the appeal, then it shall be lawful for any warden, and he is hereby required, to cause possession thereof to be delivered or re- stored to such party, and (if necessary) for that purjiose to cause to be removed from any such land race dam reservoir or water any other person his servants goods and chattels : and all constables and other peace officers shall assist him in doing so. (3) Miscellaneous Provisions. Party im- 270. It shall bc lawful for any person in custody under any order discharged by of commitment made under this part of this Act, upon giving reasonable /6^r22i*^°"* ^^^^^^ *o person (or to one of such persons if more than one) on whose application such order was granted or if such person or none of such persons can be found to the judge or warden by whom such order was made, to apply in a summary way on affidavit to the Supreme Court for his discharge ; and it shall be lawful for such court in its discretion and on such terms (if any) as he shall think fit, by order under his hand directed to the gaoler or other person in whose custody such applicant may be, to direct that such applicant shall be discharged, and such applicant shall be discharged accordingly. Provided that it shall not be lawful for such court upon such application to inquire into the merits of the decree or original order on which the order of commit- ment was founded. No. 1120.] MINES ACT 1890. 85 271. If the judge of any Court of Mines or any warden shall not ^rf^-^vo. 446 arrive at the court-house or place before one o'clock in the afternoon of ^i^^^ any day upon which the holding of a Court of Mines or Warden's Court aijoum court J J sr o 1 1 11 1 1 <2 1 absence oi as the case may be at such court-house or place shall have been fixed judge, or to which the sitting of such court shall have been adjourned, the clerk of the Court of Mines or warden's clerk as the case may be shall open such court and adjourn the same to such day as shall be directed by the judge or warden, and in default of such direction or in the event of the death or resignation of the judge or warden, to such day as he shall think fit. 272. All fees charges and sums of money which shall or may be Fees how imposed or made payable under this Part of this Act, and for which m'^'J^J^^ j^'^jj^c no other mode of recovery shall be directed, shall be recoverable in a ^^"^ " *• 222. summary manner before any justice being a warden. 273. All summonses plaints answers notices decrees orders Documonts may warrants and other documents whatsoever used in any proceedings m or i)rint. any court or before any warden under this Part of this Act or in relation to any such proceedings may be in writing or in print or partly in one and partly in the other, notwithstanding that they or any of them may be hereinbefore directed to be in writing ; and the expression " written pleadings " hereinbefore used or in any schedule hereto shall mean pleadings written or printed or partly written and partly printed. 274. The provisions of any Act not hereby or otherwise repealed, Jurisdiction and r • ■ • J- i.- ■ J i iT_ • duties of court conferrmg any jurisdiction or imposing any duty upon or otherwise judges clerks relating to any Court of Mines or any judge thereof, or any clerk of such unfieTother^ court, or upon any warden existing immediately before the passing of ^'-'^^ preserved, this Act, shall apply to the Courts of Mines and judges and clerks thereof and to the wardens established and appointed under this Act. 275. Any of the parties to any suit or appeal or to any pro- summons to witnesses. lb. s. 225. 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 of the court or of the warden as the case may be summonses to witnesses, to be served at the option of such party either by himself 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. 273; All affidavits to be used in any Court of Mines or before Wlio may take a judge thereof or in any proceeding before a warden shall and may ^^^'^^^^g'e be sworn before any judge of the Supreme Court, or any commis- sioner 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. 277. It shall be lawful for any party to any suit or appeal or to Appearance in any proceeding before a warden or warden and assessors or to the trial attorney! of any issue or question of fact in any Court of Mines or to any such ib. «. 227. 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 68 MINES ACT 1890. [54 Vict. •^Mining statute attorney retained as an advocate by sucli first-mentioned attorney, or for*a' barrister retained by or on bebalf 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 represented 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. Fees to counsel 278. The fces to bc allowed to barristers-at-law and attorneys and attornejs practising in any Court of Mines or before a warden for appearing or lb. s. 228. acting on behalf of any other person in any suit appeal or other pro- ceeding 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 s\iit 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 in the 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 upon of "bilk and" the application of any person who shall have employed any attorney or Tb^s'^lzQ^^^ barrister in any suit appeal or other proceeding in such court or before such judge, or for a warden upon the application 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 bc enforced in the same manner as any decree of the court or order of the warden for payment of money. Allowance and 280. It sliall be lawful for the judge in cases of suits and all other coats.'"" °' proceedings before the court of which he shall be judge or before lb. s. 230. 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 proceeding 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 No. 1120.] MINES ACT 1890. 87 occasioned by the taxation of costs after the hearing, the judge shall, " Minin'j Slulute either at the hearing or rehearing of any such suit appeal or other proceeding or at the time of pronouncing his decision or of making any order under this Part of this Act, and the warden shall, at the time when the decision of him or of him and assessors shall be pronounced 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. 281. Whenever any suit or other proceeding is brought before * j^,y|'^^'^^';J.Vrac^^^^^^ warden or in a Court of Mines or before a judge of such court which when'suitstrucic such warden court or judge has no jurisdiction to try, such suit or other j irisdiction. proceeding shall be dismissed, and such warden court or judge shall ah^Nu. ue 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 prove his case. 282. If any person shall wilfully insult the judge or any warden ^^^'^^p* °f or any assessor or any clerk bailiff or officer of any court holden VLndei inning statute this Act during his sittings or attendance in court or before such ^^^^ " *• 23i.j« 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 prevarication, 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-second Schedule to this Act shall and may be Thirty-second issued by such judge or warden, and shall be good and valid in law without any other order summons or adjudication whatsoever ; and the baihff and gaoler to whom the same shall be addressed shall obey the same. 283. If any claim shall be made to or in respect of any goods or interpleader, 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 ; 88 MINES ACT 1890. [54 Vict. " Mining Statute and thereupon 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 summons 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 proceedings before such warden as the case may be. uiM^"***'"" °^ 284. In all cases in which any particular number of days not Act No. 446 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. Power to make 285. It shall be lawful for the Chief Justice of the Supreme Court ^"^Milingsuu'iue ^^^^ ^^^7 ^wo or more of the judges of the Courts of Mines from time .to 1865 " «. 233. time, but subject to this Part of this Act, to frame such general rules as to them shall seem expedient for and concerning 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-law 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 provided 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 proceedings in his court and of the warden to pro- ceedings 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. Orders in 286. Evcry Order in Council made for the purposes of this Division nXrto i)e*\ai(i of this Part of this Act, and all general rules framed under the power i'ari[amont. hereinbefore contained, shall be published in the Government Gazette ; lb. t. 234. and every such order and all such rules respectively shall be 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, No. 1120.] MINES ACT 1890. 89 DIVISION 3. — PENALTIES. " Mining Statute 186.'> " s. 233. 287. Any person who shall cut or remove any live or dead timber penalty for or any earth from or who shall mine or employ any other person to omlp^uom'' mine in or shall cut or construct any race drain dam or reservoir through or upon any Crown lands applied to any public \ise or purpose or hond fide used or excepted as mentioned in sections fifteen and seven- teen of this Act without being authorized so tj do as hereinbefore mentioned shall be hable to the penalties by law imposed for the unauthorized occupation of Crown lands. And auy person not being the holder of a business hcence issued under this Act or any Act repealed by this Act who shall carry on or follow any business on any gold-field, 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 conviction. 288. If any person tendering his vote under this Part of this Act Penalty for Oil educes shall knowingly and wilfully make a false answer to any of the questions connected with aforesaid or personate or attempt to personate any voter or attempt to ^ 236 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 officer shall be guilty of a misdemeanor ; and shall on conviction 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 mining board shall on conviction thereof before a competent court forfeit law!''^^ and pay for every such offence a penalty not exceeding ten pounds : i>>. «. 237. and every such penalty shall be recovered in a summary way before a justice being also a warden. 290. If any warden appointed under this Act shall knowingly penalty on adjudicate in any matter in which he shall have any pecuniary interest, rf'hlte"ested.^ he shall be guilty of a misdemeanor ; and shall on conviction before any ib. s. 238« competent court be liable to a fine and imprisonment or both in the discretion of such court. 90 MINES ACT 1890. [54 Vict. "Mining Statute 1855 " s. 23.1. Penalty for e.jtortion. Assault on warden and other offences. lb. s. 240. Penalty on wi'ness neglecting to appear. lb. s. 241. Penalty on cle or b iililf hold other oflics'a o anting as counsel Ac. Jb. 8. 242. 291. Any officer appointed under this Part of this Act or 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 erf this Part or on any account whatsover 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. 29.^. Any person who shall assault obstruct or resist any warden or any person duly authorized by any warden so to do in lawfully entering upon any claim or land or in performing any other act authorized hereby or any bailif? or other officer or any clerk or assistant of such bailiff or officer or any inspector or other person in the perform- ance of his duty or in the exercise of his powers under this Part of this Act, or any person who after 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 on 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. 293. Any person on whom any summons issued out of any Court of Mines or by any warden requiring such person to 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 j\ayment or tender of his expenses shall have been made on the scale hereinbefore mentioned, and who shall refuse or neglect without sufficient cause to a])pear 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 justice^ forfeit and pay any sum not exceeding ten pounds ; but no such conviction shall exempt such person from any action for disobeying such summons. 29 i. Every person who being a clerk of any Court of Mines or the nK partner of such clerk or a person in the service or employment of any such, clerk or 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 execution of this Part of this Act, and also every officer 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 rk Ko. 1120.] MINES ACT 1890. 91 court, shall for every such offence on conviction thereof before a com- " Mining statute petent 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 Part Recovery of of this Act, any person shall be entitled to enforce any civil remedy barcivilremedy. which he may have by reason of the act or default in respect of which »• 2i3. the penalty shall have been recovered. 296. No proceedings under this Part of this Act shall be removed Pmcceciings nnt or removable into the Supreme Court, save and except as hereinbefore into Supreme ^97. Any person who shall feel himself aggrieved by any convic- Appeal to tion or order of any justice or justices under this Part of this Act may ^^"^^^^^'""^ appeal from any such conviction or order to the next Court of General Sessions of the Peace which shall be held nearest 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 respec- tively 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 forthcoming to abide the determina- tion 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. 298. Notwithstanding anything hereinbefore contained, no person incapacitytosue shall be entitled to institute proceedings in any court holden under this "igiJ}?"' ^ Part of this Act or in any other court or before any warden to recover i'"- «• -t^- possession of any land occupied by virtue of any miner's right issued under this Part or of any f;hare in such land, or to recover any damages for or to restrain the occupation of or encroachment upon such land or any part thereof, 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 consoli- dated 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. Part II. — Mining on Private Property. 299. In the construction and for the purposes of this Part of this mtrr .r.tition. Act the following terms shall if not inconsistent with the context ov - The Mimnr; on subject-matter have the respective meanings hereby assigned to them ihm'^s^^^ (that is to say) : — " Earth " shall include any rock stone quartz clay sand soil and ' Earth." mineral : " Gold " shall signify as well any gold or silver as any earth con- " Gold." taining gold or silver or having gold or silver mixed in the substance thereof or set apart for the purpose of extracting gold or silver therefrom : 92 MINES ACT 1890. [54 Vict. " The Mining on Priv. Prop. Act 1881." " Minister." " Mining lease." ' To ini;:e.' Owner.' " Private land." " The Mining on Priv, Prop. Amend. Act 1888 " s. 3. Siib-tributer." " Tributcr." " Warden.' Register and registration Mining '' The Mining on Priv. Prop. Act 1884 " s. 8. Lease or agre.iment may be enforced when mining lease taken out. III. s. 9. " Minister " shall mean the responsible Minister of the Crown for the time beino; administering this Part of this Act : lease " shall mean a lease from the Governor in Council for mining purposes, that is, the searching for winning working getting making merchantable carrying away or disposing of mines and minerals or purposes con- nected therewith, and shall include a grant or licence for mining purposes : " To mine " shall mean to disturb remove cart away wash sift smelt refine crush or otherwise to deal with any earth by any mode or method whatsoever for the purpose of obtaining gold therefrom : " Owner " shall include a mortgagee and lessee and shall also include 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 : " Private land " shall mean 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 : " Sub-tributer " shall mean any person who has made an agree- ment with a tributcr upon the terms of paying a portion of the gold taken from such land to such tributer for the right to mine in or on land held by such tributer under a tribute agreement, and shall also mean any person who has made such an agreement with another sub-tributer : "Tributer" shall mean any person who has made an agreement with any person other than the owner claiming the right to mine in or on any land derived from such owner upon the terms of paying a portion of the gold taken from such land to such owner or last- mentioned person for the right to mine therein or thereon : " Warden " shall mean one of Her Majesty's wardens of the gold-fields in and for Victoria or in and for any district thereof who has jurisdiction over the land applied for on lease or the greater part thereof. 300. A register shall be kept for the purposes of this Part of this Act in accordance with regulations to be made by the Governor in Council, and registration of any lease purporting to give the right to mine in or on private land or of any agreement for mining in or on private land shall consist in recording in such register particulars or such lease or agreement. 301. If any such lease or agreement as aforesaid be registered, then upon the execution of a mining lease of the private land the subject of such lease or agreement, such lease or agreement may with regard to all reservations covenants and provisoes therein contained and all matters arising under it and with regard to the rights derived through it of all j)arties claiming a right to mine on such private land be en- forced on and from the date of such mining lease in the same manner as if it had been an agreement or contract made under the provisions of this Part of this Act. No. 1120.] MINES ACT 1890. 93 30.?. Every such lease or agreement shall at the expiration of the The Minin'j on mining lease of the private land the subject of such lease or agreement xiu-^Tw^'^'' absolutely cease and be determined between the parties thereto. Agreement when detsraiiued. 303. Every such mining lease shall so far as possible be in the of nii,:i: g form and to the effect and contain the reservations covenants and ^ jj provisoes hereby provided in the case of other mining leases to be granted under this Part of this Act but shall not as between the parties to any such lease or agreement interfere with any of the provisions of the said lease or agreement. 304. A mining lease granted under the foregoing provisions shall Mi.iing lease net not be subject to any of the regulations contained in the Thirty-third rertain"^^*"^* *° Schedule hereto except those relating to the execution custody form and Thhty-th'ird" effect of the mining lease and to the registration or filing of any ^'heduie. transfer sub-lease mortgage or encumbrance thereof. 305. The owner of any private land may if a mininsj lease of such ow"ermay • 1 1 1- T f 1 1- mine or may land have not previously been applied for make application for and make a contract . . . . . with others lor shall have priority in respect of such application for a mining lease of that purpose, such land or may contract with other persons to mine upon such terms «• i^- and conditions as may be agreed upon subject in each case to the provisions of this Part of this Act. 306. Every application for a mining lease (save as hereinbefore Application for provided) shall be in accordance with the regulations in the Thirty- /fi'^s^'u!"'^'^ third Schedule hereto. Thi:ty-third Schedule. 307. In accordance with the regulations in the Thirty-third Notice to ouTier Schedule hereto, notice shall be given to the owner and occupier of the /J,^ VTs"'"' land proposed to be entered upon, and in case the whole or any part xhirty-third of the surface thereof is required such notice shall so state and if a part only is required such notice shall define such part and shall request such owner and occupier and they are hereby required respectively within twenty-one days to deliver to whomsoever such notice directs the particulars of their respective estate and interest in such land and of the respective claims for compensation under the provisions of this Part of this Act made by them in respect thereof, and in default of compliance by such owner or occupier with the requirements of this section, their respective claims for compensation shall be deemed to have been waived and abandoned, arid the compensation payable to such owner or occupier or both shall be ascertained in the manner in which it is here- inafter provided that the amount of compensation shall be ascertained where a claim for compensation has been waived and abandoned. 308. Any person being an applicant for a mining lease may treat Po.ver to .agree and agree with the owners and also with the occupiers of any private compeXtion. land proposed to be entered upon as to the amount of purchase money or ib. s. le. compensation to be made to them respectively for the damage which they may respectively sustain l^y reason of the land being taken or of being deprived of the possession of the surface thereof or of any part of such surface as the case may be, and for damage to the surface of the whole or any part thereof as the case may be which may arise from the carrying on of mining operations therein or thereon, and for the expense of severing such land or any part thereof from other land of the owner or occupier and for all consequential damages ; and the right to 94 MINES ACT 1890. [54 Vict. ■ The Mining on Compensation in respect of any such damage shall not be abridged or in anywise affected by reason that such damage would not be the subject of an action at law. As soon as an agreement or contract has been made it shall be forwarded to the Minister, when a mining lease may issue to the applicant in accordance with the regulations in the Thirty- third Schedule hereto. Notwithstandirg anything in this Part con- tained, an agreement or contract may be entered into with the owner and occupier for comxpensation being made by percentage of the gold taken from the mines under such land or otherwise. Priv. Prop 1884." Thirty-third Schedule. Owner of land or buildings enti Icq to (•om[>3n3ation for injury and depreciation from mining operations. lb. s. 17. 309. If any land or buildings thereon adjoining of in the vicinity of any land held under any mining lease granted under Ih's Part of this Act be injured or depreciated in value by any operations carried on by th? 'e Bte the owner of such land or buildings shall be entit'el t^ com- pensation for all loss and damage thereby sustained by him, aid the amount of such compensation shall be ascertained in the same manner as the amount of compensation in respect of other claims under the provisions of this Part aie ascertained. If compensation 310. In casc the amount of purchase money or compensation be ""■reemeiit tiie Hot ascertained by agreement within one month from the date of entry determinld''^ ^7 mining Surveyor to survey such land, then the owner or occupier clmrt oi'liines'^ respectively may proceed before a warden or in the Court of Mines of the mining district in which the land taken possession of is situate, and in manner provided by Part I. of this Act (but without assessors) to ascertain the amount of compensation to which he may be entitled under the provisions of this Part of this Act. And such owner or occupier respectively shall lodge with the warden or the clerk of the said court as the case may be two copies of his claim in the form pre- scribed in the Thirty-fourth Schedule hereto or to the like effect. 311. Every Court of Mines held under the provisions of Part I. of this Act shall have original jurisdiction to hear and determine any claim made for the value of any land taken and for the determination of the purchase money thereof or of any claim made for compensation under the provisions of this Part of this Act in respect of any private land within the mining district of such court, and every warden shall have jurisdiction to hear and determine any such claim which the Court of Mines is hereby empowered to hear and determine. Provided that where any such claim is heard and determined by a warden an appeal shall lie to the Court of Mines in whose mining district the land taken is situated, and the provisions of Part I. of this Act with regard to appeals from a warden to a Court of Mines riiall be deemed to be incor- porated in this Part for the purpose of the bringing hearing and determining such appeal and enforcing the decision thereon. 812. The warden or clerk of the said court shall enter or cause to be entered in a book kept for the purpose a note of such claim having been received numbered in the order in which the same was received and a note of the day and hour Avhen the same was left with him, and as soon as practicable thereafter shall endorse a similar note on both the copies of such claim, one of which shall be filed in the office of the warden or of the said court as the case may be and the other shall within fourteen days after the same shall have been lodged be forwarded by such warden or clerk to the Minister. Court of Mines, lb. s. 18 Thi.ty-fourdi Schedule. Juriidlction of Court of Mines and of warden with respect to claims for compensation. lb. s. 19. Appeal. Note of claim to he filed in office of warden. lb. «. 20. No. 1120.] MINES ACT 1890. 95 313. Such warden or clerk as the case may be shall fix a da,y •■ The Mimn'j on within thirty days after the copy of any claim has been forwarded to fssi -^rii.^"* the Minister, and shall also name the place for the hearing of such Hearing of claim, and give due notice thereof to such owner or occupier and to the Minister ; and the warden or the judge of the said court shall accordingly attend at the time and place appointed in such notice and shall determine the amount of compensation to be paid to such owner or occupier in respect of his claim in like niannsr as far as may be practic- able as proceedings are had before the said warden or in the said court under the provisions of Part I. of this Act and under any rules or regulations made thereunder ; and all the powers exercisable thereunder by any judge warden or clerk respectively may so far as practicable and consistent with the lyrovisions of this Part of th's Act be exercised by any such judge warden or clerk ia carryhi^- oul; the provisions of this section. 3 14-. The owner occupier or applicant shall be entitled to costs of costs to be at the hearing of the claim at the discretion of the warden or the tar'ien°o°r?nuit. court. 315. If such owner or occupier fail to proceed for a period oft 1 i 1. fc r three months after it has become lawful tD proceed as aforesaid, then hx"'w!rived.° all claim for compensation by such owner or occupier shall except as i'j. s. 23. hereinafter provided be deemed to have been waived and abandoned. Provided that when any claim for compensation is by the operation of this section deemed to have been waived and abandoned the Minister shall direct the warden of the district to ascertain and fix the amount of compensation to be paid by any person who desires a mining lease under this Pa't of this Act of the land in respect of which such claim is deemed to have been v/aived and abandoned, and for the purpose of ascertaining and fixing the amount of such com_pen- sation, the said warden shall have the same powers as he has in other cases where the amount of compensation to be paid is not ascertained by agreement. Such person shall pay such amount to the Minister to be paid over to the Treasurer of Victoria to be held by him in trust for the owner or occupier, and thereupon a mining lease may be granted in respect of sucli land and mining operations com.menced iiotwithstanding anything contained in this Part. 316. All parties under disability to sell and convey who Jj'^^jjj.j,""^^®'^ seised or possessed of or entitled to any private land or any estate or luving limited interest therein may settle by agreement subject to the approval of to*sei?L'e'(mve^ the v/arden v/ith any person desiring to mine therein or thereon the oti'fer p^wir^. amount of compensation to be paid in respect of any such land estate ib. s. 21. or interest, and 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 applicant (that is to say) : — All corporations, tenants in tail or for life, guar- dians, committees of lunatics and idiots, trustees, or feoffees in trust, for charitable or other purposes executors and administrators, and all 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 aforesaid by all . such parties other than lessees for life or for lives and years or for 96 MINES ACT 1890. ['^ [54 Vict- •• The Mining on yeais 01 f 01 any less interest shall be binding not only on themselves fssl'.'^'^''' ' '^"^ and their respective heirs executors administrators and successors but also on every person entitled in reversion 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 on their cestuique trusts whether infants, issue unborn, lunatics, femes covert or other persons. incorporai ion 317. The scctions thirty-eight to forty-five both inclusive of the Lands Com- Lands Compensation Act 1890 are hereby incorporated with and 1890"'*"" shall be read as part of this Part of this Act, and in the construction of s. 25. the sam_e the words " of the .execution of the works " shall be read and construed as though the words " of the carrying on of mining operations " were Gubf;tituted therefor, and the words " this Act " and " this Act or the special Act " shall be read and construed as though the words " Part 11. of the Mines Act 1890 " were substituted therefor, and the words " the board " shall be read and construed as though the words " any person desiring to mine therein or thereon " were substituted therefor. whatcompensa- 318. The Compensation to be ascertained under the provisions of this Part of this Act shall include the several matters and tliinors which lb. s. 26. by this Part are made the subjects of compensation. I£ atr enic r.tnot 319. Unless an agreement have been made between any person appiiiantli.nd' applying for a mining lease under this Part of this Act and the owner omi'rkT or occupiex of any land to pay a percentage of gold taken from the whole of land niincs Under such land or otherwise in lieu of compensation, or unless not purchased iiriinn -Ti i oomp-nsation to such pctson havc taken the whole of the land and paid the purchase Mil urTor money thereof in respect of which such mining lease is applied for, oecuiVn'^ before any mining lease is granted to any such person such person shall lb. e. 27. to the Minister the amount of compensation and costs (if any) ascertained by agreement or determined as payable in respect of any land of which such person desires a mining lease, and the Minister shall pay to the owner and occupier respectively the amount to which each may be entitled. Miiiinpc leases^ 3S0. The Govemor in Council may in the name and on behalf of for n KinK on Her Majesty grant to any person subject to the provisions of this Part ]TTlT'^ of this Act and to the regulations in the Thirty-third Schedule hereto Thirty-third a mining lease to be effectual on or below or both on and below any s hc.iiiie. private 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 such mining lease may be granted notwithstanding that the person applying for the same may not in all respects have complied with the said regulations. ^uin^n«lb'^^l' 321. No mining lease shall be granted under this Part of this i>"''i'''i'C'i in Act until after the expiration of one month from the date of notifica- (Jdvernmenl . i . . . uazette. tiou in the Government Gazette of intention to grant the same and in Jb t. 29. some newspaper the place of publication of which is near to the land sought to be leased. No. 1120.] MINES ACT 1890. 97 322. The term for which a mining lease may be granted undet " The Mining on . . Priv Prop Act this Part of this Act shall in the case of land mined in or on under an issi- «. so. agreement existing on the first day of August One thousand eight Jj^J^gg"^*^ ^''^^ hundred and eighty-four be for the unexpired term of such agreement not exceeding eleven years and in all other cases not exceeding fifteen years from the time of granting the same, and the yearly rent to be payable in respect thereof shall be at the rate of sixpence for every acre demised. Provided that every mining lease granted under the authority of this The Mining Part shall contain a condition that if the lessee his executors adminis- *' trators and assigns fail at any time during the term to fulfil the con- ditions and terms therein contained or to use the land bond fide for the pui'poses for which it is demised, such mining lease shall for any such failure be voidable at the will of the Governor in Council. 323. In the case of every mining lease and lease under " The Mining Rent reserved in on Private Property Ad 1884: " made or issued previously to the unde'r^Ict*^^* eighteenth day of December One thousand eight hundred and eighty-five '"•^'luccd. by the Go\ ernor in Council the rent reserved shall from and after the said date be deemed to be at the rate of sixpence for every acre demised ; and every such rainijig lease and lease shall so far only as regards any rent accruing due after the 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. 324. The rent reserved by or payable under any mining lease jji^j^j^^j ^g^jg issued either before or after the passing of this Act under " The ^'^ p°'i° «• » affecting of any other land shall be ascertained and paid as hereinbefore in this Part provided and shall be as nearly as may be in the form and subject to and contain the terms provisions and conditions contained in mining leases under this Part. 336. After the granting of any mining lease under the provisions jurisdiction, of this Part of this Act or after the registration of any agreement made •• The Mining on between the holder of a miner's right and the owner of any private land Q z 100 MINES ACT 1890. [54 Vict. *• The Mining on as hereinafter provided the jurisdiction of the warden and of the Court ^"^^ of Mines and every other jurisdiction estabhshed or continued by Part I. of this Act with respect to mining on Crown lands shall apply to any private land comprised in such mining lease or to land the subject of such agreement as the case may be and to mining in any land in which such mining is authorized by such mining lease or agreement, 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 mining lease has been granted under this Part or land the subject of any such agreement as aforesaid. Ejectment n ay 337. In case any mining lease granted under the authority of this the Court of Part of this Act is or is hable to be forfeited or declared void or deter- ^I'Tss 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 conditions of such mining lease ; or 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 mining 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. On forfeiture of 338. If any mining lease of any private land be declared void or oT™?enantr*^ forfeited for breach of any of the covenants of the same, any person k)'icas" and*^*"^ mining on such land as a tributer or sub-tributer shall unless he have shau'h^ve'"^ been the cause either wholly or partly of such breach be entitled to ^^iioiiy ceased havc a mining lease issued to him for the remainder of the term of re-enter!'^ ""^^ the mining lease so declared void or forfeited. If after mining opera- ib. s. 39. tions have been commenced in or upon any private land held under a mining lease granted under this Part of this Act the same have wholly ceased without the consent of the Governor in Council, it shall be law- ful for the Governor in Council on the application of the owner of the land to authorize him to re-enter and take possession of such land whereon mining operations have so wholly ceased notwithstanding that such lease may not have expired. Encroarhins on 339. The Warden may upon the application of any corporation &c. " having the care and management of any public highway street or road lb. s. 40. 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 or some experienced miner or miners to enter upon and inspect any land or mines comprised in any mining lease under this Part of this Act and every part thereof for the purpose of ascertaining 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. No. 1120.] MINES ACT 1890. 101 340. The warden may upon the application of the owner ot The Mining on occupier of any land adjoining any land whereof a mining lease has issi-^l^^ii'^'''' been granted under the provisions of this Part of this Act or upon the '^^1"°^''^^^^"" application of any person authorized by such owner or occupier by ^" " writing under the hand of the warden authorize such owner or occupier or any person nominated as his agent by such owner 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 encroach- ing upon the land of any owner not being land comprised in the mining lease of such person under the provisions of this Part. 341. The person or persons authorized by an order made under the Powers of authority of this Part of this Act may enter into and inspect and authorized to survey the land and mines described in such order and every part fnspeit."** thereof, and descend any shaft or mine, and for such purpose use the ib. «. 42. engines and other machinery ordinarily employed for that purpose by the persons whose shaft or mine is descended ; and the lessee of such shaft or mine or other person for whom the same is being worked shall pro\'ide all labour assistance appliances and materials necessary to facihtate 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. 342. Every such owner occupier agent and mining surveyor or owner occupirr miner shall before entering on such land make a declaration before sur'^Vor ami the warden (who is hereby authorized to take the same) that he the "^^eaaratTo^u.*^ said owner occupier agent surveyor or miner will not (except as a /(,. «. 43. witness in a court of justice) v?ithout the consent in writing of 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 pubUc 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 mining lease of such persons, save only as to whether such persons working such mines are encroaching on such public high- way street or road or upon land of any owner (not being land comprised in the mining lease of such persons as aforesaid) as the case may be and every person who acts contrary to such declaration shall forfeit and pay any sum not exceeding fifty pounds. 343. The warden may upon the application of the corporation or warden may applicant obtaining an order under the provisions of this Part of this ?o'jo"isf from Act (such application to be made on notice served twenty-four hours at trespassing, 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 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 102 MINES ACT 1890. [54 Vict. ^r^c 3«n- «• i". machinery worked by steam for a period of twelve months prior to the passing of " The Regulation of Mines and Mining Machinery Act 1883," and such certificate shall confer the same privileges as a certificate of competency. 360. Every certificate of competency or service under this Division Certificates to of this Part of this Act shall specify the name place and date of birth pa^icSars. of the person to whom such certificate is issued. «• n- 361. After the coming into operation of this Act any person Penalty on who is not the holder of a certificate of competency or of service from person taking the said board or who is wholly or partially deaf or whose sight is de- ma^cMne^y. fective or who is subject to fits giddiness or any other infirmity likely to ib. s. 12. interfere with the efficient discharge of his duties, and who takes charge of machinery in which steam water or air or any two or more of them 112 MINES ACT 1890. [54 Vict. " The Regulation are used as motive power, and every other person who employs any "idinir^^ such person as aforesaid shall be guilty of an offence against this Ma^hjnery Act piy^gioj^ of this Part of this Act. The provisions of this section shall Disqualification of holder of certificate. lb. «. 13. Plans to be furnished. lb. s. 14. Plans to be drawn to scile and to be o pen for inspection. lb. s. 15. Shafts with vertical or ovcrhanRing ladders to liav platforms. lb. I. 1«. not apply to air winches or boring machines worked underground. 362. Any person holding a certificate of competency or of service under this Division of this Part of this Act or under " The Regulation of Mines and Mining Machinery Act 1883 " as an engine-driver and who is charged with an 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 to show cause why he should not be disqualified as a certificated engine-driver, and if he fails to satisfy the said board he may by an order of the Governor in Council published in the Govern- ment Gazette be disqualified for any period from acting as an engine- driver ; and 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 or air or any two or more of them are used as motive power. 363. 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 may 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 a copy thereof deposited in the office of the warden nearest to such mine ; and within three months from the date of such order a correct copy of such plan and sections shall be so deposited at the office of the warden 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 the original plan and sections and also upon the copy deposited at the warden's office at intervals of not more than two months, and such original plan and sections shall contain complete information of all the underground workings up to the date of the abandonment of such mine. 364. 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 the copy of any plan and sections of a mine lodged at the office of the warden, and an inspector under this Division of this Part of this Act 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 of this Part of this Act. 365. In every case where at the time of the passing of " The Regulations of Mines and Mining Machinery Act 1883 " vertical or overhanging ladders were used in connexion with the shaft of any mine No. 1120.] MINES ACT 1890. 113 1883.' securely fixed platforms shall be constructed at intervals of not more ^' ^''^/J^f'^'J^'*''" than thirty feet from each other in such shaft, and such ladders shall Machinery Act have sufficient spaces for foot-holds of not less than six inches ; but in no case shall new vertical or overhanging ladders be constructed either in substitution for old ones or otherwise. Every person who contravenes or does not comply with this section after the passing of this Act shall be guilty of an offence against this Division of this Part of this Act. 366. If any person employed in or about any mine suf?er any Enu)i^>yer^to injury in person or be killed owing to the non-observance in such mine ^^J^g^Jf '"^'"''"^ of any of the provisions of this Division of this Part of this Act, such non-observance non-observance not being solely due to the negligence of the person so ^ injured or killed, or owing in any way to the negligence of the 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 deter- mined 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. Provided that any warden or warden and assessors if required either by the warden the plaintif? 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 provisions of this section, and the decision of the warden or of assessors shall be final. Suits for every such claim may be commenced and all proceedings 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 this Act all of which provisions shall be and the same are hereby declared to be applicable to suits to enforce claims for compensation hereunder. Nothing in this proviso 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. 367. Any competent person may be appointed an inspector under inspection of this Division of this Part, and any such inspector or any person autho- mlchinery. rized in writing by the Minister or by a Police Magistrate in that behalf ib. s. i8. 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 of this Part of this Act are being complied with ; and the owner of such mine or machinery shall provide all labour and assistance necessary for that purpose. If any person fail neglect or refuse to comply with or offer any impediment or obstruction to the carrying out the provisions of this section, he shall be guilty of an offence against this Division of this Part of this Act. Immediately upon any miner working in the mine making a complaint under this Division of this Part of this Act 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 18326* H 114 MINES ACT 1890. [54 Vict. " The Begulalion divulged by the inspector. No inspector under this Division of this Mining Part of this Act shall be allowed to hold any interest whatever in any Ma€Ainery Act ^j^g district in which he is authorized by the Minister to act. 368. Every person who contravenes or does not comply with any of the provisions of this Division of this Part of this Act or who is guilty of neghgence by which any person is 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. What is an offence against this Division. lb. s. 19. Employes to inform employers of breaches of this Division. lb. s. 20. Notice of accident to be given to local inspector. lb. 8. 21. Burden of proof to lie on defendant. lb. a. 22. Every company to have a registered manager. lb. e. 23. Coroners' inquests on deaths from accidents in mines. iV t. 24. 85 g, 36 Vict, c. 77 8. 22. 369. Every person employed in or about any mine shall satisfy himself of the safety of any tubs chains tackle windlass ropes or other appliances he may use before commencing and whilst at work, and in case of any defect or insecurity he shall cease to use anything unsafe ; any 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 he may be, and 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, or otherwise he shall be guilty of an offence against this Division of this Part of this Act. 370. The mining manager of every mine shall within twenty-four hours after the occurrence of any accident attended with serious injury to any person give notice thereof to the local inspector of mines, and any mining manager who omits to give such notice shall be guilty of an offence against this Division of this Part of this Act. Any portion of a mine where an accident occurs shall not be interfered Math until inspected by the inspector or coroner's jury unless with a view of saving life or preventing further injury. 371. For the purpose of any proceeding taken under the pro- visions of this Division of this Part of this Act against any mining manager or person in charge of or giving orders or directions 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. , 372. Every mining company whether registered or co-operative shall appoint and continue to have a manager who shall be deemed the mining manager of the company under this Division of this Part of this Act, and the name and address of such manager for the time being shall be notified in writing to the local inspector of mines and also to the Minister of Mines, and no person shall be so appointed who has not the management of the mining operations carried on by such company. 373. With respect to coroners' inquests on the bodies of any persons whose death may have been caused by accidents in niin(vs the following provision shall have effect (that is to say) : — 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 serve on the jury empanelled on the inquest ; and it shall be No. ,1120.] MINES ACT 1890. 115 the duty of the constable or other officer not to summon any person "//f. 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 iimT"" "* whenever it is practicable one-half of the jurymen shall be miners. 374. Every person charged with an offence against this Division ^y^.^^^'^j/JJ^'j'^"" of this Part of this Act shall be a competent witness on his own behalf Mining ,,. 1111 1 !• Machinery Ac I at the hearing of such charge and whether the person so charged is iss? " s. 2. charged solely or jointly with another or others. wHifoffences^*"^ against tliis 375. No person so charged shall be compellable to be a witness on ^i^iv^'*^°°jj™™i'''' any such hearing. Defendant not to be compelled 376. Every person who is guilty of an offence against this Division to give evidence, of this Part of this Act shall be liable to a penalty not exceeding if he penaitv. is the owner mining manager or person -in charge of or giving orders or •■ The Regulation directions relating to the carrying on of any mining operations in any "Jj^i^g^ mine fifty pounds and if he is any other person ten pounds for each offence, to be recovered in a summary manner before two or more justices ; and the whole or any part of such penalty may be awarded by such justices to any person injured or to the personal representative of any person killed in consequence thereof, and such award shall be in addition to any right of action such person or personal representative may have under this Division of this Part or otherwise. DIVISION 2. — DRAINAGE OF MINES. 377. In the construction of this Division of this Part of this Act iit-rpr.'tation. the following words and expressions if not repugnant to the context shall '^^^"21" have the respective meanings hereby assigned to them (that is to say) : — 1877 " «. 2. " Crown land " shall include all lands of the Crown : •' " Machinery " shall apply to and include all appliances including Machinery.- tunnels used or that may be used for the purposes of raising lifting or draining water whether worked by steam water or other power : " Mine " shall apply to and include all land or ground held used " Mine." or occupied by any person for mining purposes : "Mining purposes" shall mean the purpose of obtaining gold or " Mining _^ any metal or mineral other than gold by any mode or ''"p'"''^*" 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 of '"'''''^'""y " • ,• • • i j_ 1 " Mining statute persons association company jomt-stock company or corpora- ises 3. tion 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 any person using '^O'^,"'" °' ""y or occupying any land or ground for mining purposes and •• The Drainage shall also include any person or number of persons associa- "imend^et tion company joint-stock company or corporation using or^^^^''' ^- occupying any land or ground, and whether Crown land or land the property of any jU'ivate person, for " minmg purposes " as the words " mining purposes " are defined in this section : *' Warden " shall mean one of Her Majesty's wardens of the gold- " warden." fields in and for Victoria or in and for any district thereof. H 2 116 MINES ACT 1890. i [54 Vict " Drainage oj Mines Act 1877 " s. 3. Onuers of pumping machinery may require contribution from owners of claims for the drainage thereof. Calculation of expense of drainage lb. e. 4. 378. The owner of any machinery already erected or hereafter to be erected upon or near to any quartz reef or other mineral lode or to 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 ; and in default of payment 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 other- wise to the owner of such machinery as the warden shall think just and reasonable. 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 make such other order concerning the premises as the justice and equity of the case may demand and siich 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. 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 form of a special case for the opinion of the Supreme Court, which opinion such Supreme Court is to give, and in such case proceedings 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. 379. The expense of the drainage effected by the owner of any machinery shall be arrived at by calculating — (a) The interest on the value of the machinery and plant used for drainage purposes only : (b) The wear and tear of such machinery and plant : (c) The cost of oil grease and packing : (c^) The 2Jroportiouate cost of fuel expended or of horses employed in drainage operations : («) 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 No. 1120.] MINES ACT 1890. 117 (/) Sucli other expenses as the owner can prove that have neces- " Drainage of sarily been incurred in respect of the drainage effected by is?"'!'' any machinery. 380. No drainage due shall be demanded for any period during No drainage suspension of draining operations ; and in determining the cost of drainage demanded in 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 vakie of such water shall be ascertained and deducted from the general cost of such drainage. 381. In determining the mines the owners of which shall be liable '^^o'^'', o/. <5 calculating to contribute towards the expense of the drainage effected by the owner amount of coiitriUut'ioii of any machinery regard shall be had to the total length of reef or lode ^ g 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 con- tributed in respect of each mine drained shall be proportioned as nearly as may be to the length of such reef or lode or to the extent of such auriferous lead or deposit contained within each such mine and to the amount of benefit so derived. 382. The owners of each mine liable so to contribute shall receive work done by .owners. Ih. s. 7. credit for the value of any work they shall perform in assisting to drain, and such value shall be added to the general cost of drainage. 383. Any order made by a warden in exercise of the jurisdiction Form of or powers conferred by this Division of this Part of this Act shall be „ ' Drainage signed by the warden making the same, and may %e either written or "J^^^Y^ct printed in the form or to the effect in the Thirty-sixth Schedule hereto, isse •■ s. 3. and shall be valid and effectual without any recital or statements ||.he|f^e''"' necessary to show jurisdiction ; and no order of a warden under this Not to be set Division of this Part shall be set aside or declared invalid in any court of'^rni!^ whatsoever for want of form. 384. Whenever any sum of money or portion of any sum of Filing and money ordered to be paid in or by any decision or order of a warden of°a*rd"en°s*^ under this Division of this Part of this Act, and whether such money "j'^M^nes of'^'^* was ordered to be paid at one time or in periodical payments, shall district, remain unsatisfied in whole or in part, and whether after previous executions or not, for fourteen days or for 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 applica- tion of the owner of machinery claiming to be entitled to the moneys in such order or any attorney in his behalf grant to the party so apply- ing a certificate in the form in the Thirty- seventh Schedule to this Thirty-seventh Act or to the 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 proceedings 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, sch terms may be enforced in the^same manner as orders by a warden 118 MINES ACT 1890. [54 Vict. ■' The Drainage of Mines Amend. Act 1886." Certified order to be a charge on property of mine owner. lb. s. 5. Warden may restrain sale of such property until moneys paid. Remedies in this Division to be cumulative. lb. s. 6. 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. 385. Whenever and so soon as any order of a warden made 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 order to be paid shall so long as any part thereof remains unpaid and unsatisfied become and be a charge subject to prior encumbrances 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 restrain the sale or other disposal or transfer of such interest in the land plant machinery or property until such moneys have 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 contributed. 386. The remedies provided in the three last preceding sections 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 last- mentioned sections. Preamble. Incorporation of trustees. " The Mining Accident Itelie/ Fund Act 1884 " $. 2. DIVISION 3. — ACCIDENTS RELIEF FUND. 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) :— 387. The Minister of Mines the Speaker of the Legislative As- sembly the Mayor of the city of Melbourne the Mayor of the city of Ballaarat'the Mayor of the city of Sandhurst and the Mayor of th^ No. 1120.] MINES ACT 1890. 119 town of Ballaarat East and the Mayor of the borough of Creswick and " The Mining the President of the Miners' Association for the time being respectively Fund"Act^^^^' shall be and shall be deemed to have been from the passing of the Act No. 826 a body corporate by the name of " The Victorian Mining Acci- dent Relief Trustees " (hereinafter referred 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 authorized Quorum and to be done by the trustees may be done by any three of such trustees at officer"."''" ° any meeting of the trustees duly convened by the Mayor of Melbourne ^>>. s. s. 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 meeting 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 appointed, and they may pay such secretary officers and employes such salaries and re- muneration as they think fit. 389. All moneys raised by public subscription for the relief of the Moneys vested in truste- lb. s. 4. sufEerers by the accident which occurred in the New Australasian mine at Creswick in the month of December in the year of our Lord One thousand eight hundred and eighty-two and forming the Victorian Mining Relief Accident 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 Dodgshun, Robert Glover Benson, Emanuel Stein- feld, William Mountford Kinsey Vale, Ephraim Lamen Zox, and Edmund Gerald FitzGibbon, are hereby declared to be and to have been / rem the passing of the said Act vested in the trustees. 390. All moneys vested in the trustees by the Act No. 826 or by "J'?® "^'."'^F}*"* T-\- ■• i-i- -r-. I- 1 • A !• 1 Milling Accident this Division of this Part of this Act shall form subject to the pro- Relief Fund." visions 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 120 MINES ACT 1890. [54 Vict. The Mining and bequests unless specially directed by the donors thereof to be other- plnd^Act^"'"^' wise applied shall be deemed to have formed and shall form respectively part of the capital moneys of the Fund. Investment of Fund. lb. s. 6. 391. All moneys forming part of the Fund may be invested in Victorian Government Debentures Victorian Government Inscribed 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 mortgage of freehold lands tenements and hereditaments in the city of Melbourne or its suburbs. Eestriction on alienation of lb. s. 7, 392. In addition to such moneys as the trustees may from time to rap^ta^i^moneys time rcceivc and which do not under the provisions of this Division of this Part of this Act form part of the capital monej^s 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. Application of income. lb. s. 8. Audit of accounts. lb. «. 9. 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 pay- ments to the persons named in and in accordance with the provisions of the Schedule of Act No. 826. Any income remaining thereafter in any year and any moneys specially directed by the donors thereof to be so applied shall be used by the trustees in assisting persons who may be injured by any other mining accident in Victoria and permanently disabled from supporting 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 payments in accord- ance 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 unexpended, such moneys shall be deemed to form part of such capital moneys. 394. The accounts of the trustees for the year ending on the thirty-first day of December shall in each and every year be 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. Ko. 1120.] MINES ACT 1890. 121 895. The trustees shall in each and every year so soon as the •• The Mining yearly audit of their accounts is complete cause to be prepared a state- Funo^AcP"''^^ ment under their common seal of moneys received and moneys expended Jf^* " y-hiw may be revoked by the (lovernor with the advice of the Executive Council witliin which period all persons objecting to such revocation must send their objections in writing to the Law Officers at their office in Melbourne otherwise they cannot be received. Dated the day of SMttonUO. 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 CD. his attorney [or in person] sues E.F. of [if more than one defendant mention them all tcith their places of abode so far as known as directed by the Act but if nuinei-ous some may be 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 of the plaintiffs case in para,(jraphs as directed by the Act and then conclude as follow^: — ] The plaintiff therefore prays [setting forth the relief souijht] or such other or further relief as shall be just. Note. — The amount sought to be recovered so far as the demand is pecuniary ia pounds. Section m TENTH SCHEDULE. Plaint No. To [names of defendants] of You (and each of you) are herebj' 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 plaiutitls] 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 lieard 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 clciir days before the time at which you are hereby retpiired to appear and by so doin^- y u will avoid any further expense Iq respect thereof. No. 1120.] MINES ACT 1890. Tenth Schedule— con Names of parties appealing. THIRTY-Sl^LOND SCHEDULE. Section 282 To the Bailiff of the Court of Minco of the Mining District of and to the Kce|)cr of the (iaol at These are to conuiiaud you the said l)ailifr to apprehend O.K. and to convey him to the said goal and deliver him to tlic said keeper theieof, and you and the said keeper are hereby required to receive him into ynur ; ustody in the said gaol and him there safely to keep for tlie term of [unless the sum of sliall l.e sooner paid]. I Ihc undersigned judge of tlie said court [or warden] having now here adjudged the said O.B. [to pay a line of and in default of inunediate payment thereof] to be imprisoned for I lie said term for that he the said O.B. [Here state thr ra-ir- a -< folloirs :'] has now during my sitting in mj- office as such judge [or warden] wilfully insulted me the said judge [or warden] [or an assessor liailiff &c. ai Ihr cn^e may lif la\\ fullvin attendance during 7ny sitting or intcrrui)tcplit anl and objectors (if any) shall )je entitled to take copies and make extracts, as spceilied in Rule lo. 21. After the Minister is satisfied, by all or any of the courses aforesaid, tliat (he particuhii s transmitted to liim are sufficient, he shall notify such fact to tlie watden, m Iio shall on receipt thereof, or as soon thereafter as practicable, post the notice hel cinbefoie directed in that event by Rule 10. '2'2. The applicant, or if tliere be two or more such two or any two named in the application, shall l)e bound to attend the first court and all adjounnnents thereof (if any), either by himself or themselves, and may be heard by his or their counsel or a^;ents ; but in case tliere he more than two applicants, any two of tlieni attending (whether the saine or not who atten act 1880 Appendix E. — (Rule 6.) Notice to Ownfr or Occupier To [name and description in full], owner [or occupier]. I, the undersigned, do in accordance with the above-mentioned Part of the above- mentioned Act hereby give you notice that of has lodged with me an application for a mining lease of so much of the lands owned [or occupied] })y you as is stated or defined at the foot hereof : And I do hereby demand and n tjuire you to deliver to me within days lierenf full particulars of your estate aiul interest in such lands, and of the amount of compensation which you claim, or which you may agree with the applicant to receive, being either a sum of money or a per- centage on the amount of gold or otherwise for the damage which you may sustain by reason of being deprived of the possession of the surface thereof or of any part of such surface, as the case may be, and for damage to the surface of the whole or any part thereof, as the case may be, which may arise from the carrying on of mining opera- tions thereon or therein, and for the expense of severing such land or any part thereof from other land of the owner or occupier l)y means of a fence, if deemed necessary for tlic sake of protection or security so to do, and for all conseciuential damages whatsoever. I do also hereby give you notice that on the expiration of the time above men- tioned Esq., mining surveyor, is authorized to enter into and u))oii your land and survey the same on beiialf of Her Majesty. In the event of your having failed to agree with tii« a])plicant as aforesaid as to tlic amount of such compensation, and Xo. 1120.] MINES ACT 1890. unless hereof, 1890. Thirty-third Schedule— fo???/H!(Cf/. such amoniit is ascertained by agreement within one niontli from the service j-ou will have to take proceedings as directed by Fart 11. of tlie Iline^ Act Si's" ill 5 *2 K C O S " s o % o S 3 >■. 5 >> c c i::."^ = a.o 3 - a te - ^ 5", = — (1) For the first months men (2) Subsequently when in (nil work men 43 .£ ?■ r) "13 (1) Locality (2) Term (not to pxtved 15 i/co/'s) (3) Time of com- mencing' opera- tions. o = o *- aj o a = ^ £ s. rf. (fl ^ . ^ " — a3 ^ ^ -- p ■j: 3 a; 5= S ic* u ^ ^ 1- « o = oj .- ^ .5 Q c "2. J 2 r ^ "* u »3 -^"^ .= i-. q. fs Dated this day of 18 Warden. part ii. op the minba act 189(» Appendix F. — (Rcle 7.) Notice to Owner and Occupier, To of I, the undersigned, hereby give you notice that I shall, in the name and on behalf of Her Majesty, on the day of 18 , at or about j^^^^ o'clock .m., enter into and upon the land owned or occupied by you as Alioinient described in the margin, and which is required for mining purposes under the Section provisions of the alKive-mentioned Part of the above-mentioned Act, and shall Parish tlien proceed to mark out and siu \ ey sucli land ami to treat with you oi- any person on your bclialf as to the amount of compensation to be made to you in money lor tlie damage whicli you may su.stain by reason of being dcprive may be caused by reason of the seveiance of 3ucli land (including the expense of erecting a fence between the land entered ujjon and such other land, if deemed necessary for the sake of protection or security so to do), and for damage arising by reason of any injury occasioned by sucli entry or operations to such other land, or' it.s \ alue or the enjoyment thereof as regards trade comfort, freedom from nui.sance or otherwise, and for the expense of severing such land or any part thereof fiom other laixl owned or occupied by you by means of a fence if deemed necessary for the .sake of protection or security so to do, and for all consequential damages whatsoever. Dated this day of 18 . Mining Surveyor, Division, PART n. OF THE MINES ACT 1890. AppE>rDix G.— (Rule 7.) Notice to Applicant. To of I, the undersigned, hereby give j'ou notice that I shall in tlie iianic and upon behalf of Her Majesty, on the day of at or about o'clock .m., enter into and upon the laud descri))ed in the Area. margin, and of which a mining lease has been applied for by you, and shall then proceed to mark out and survey such land, and you aie hereby required to attend at the place and time above mentiouul to point out to me the boundaries of tlie land yoii reipiire. MINES A(;T 1890. \'A Vict. Thirty-third Schedule — continued. If you or some person on your behalf do not attend, your application will, unleu the Minister of Mines other^^-ise direct, be deemed to be abandoned. Dated this day of 18 Mining Surveyor, Division, PART 11. OF THE MINES ACT 1890. Appendix H. — (Rule 9.) Form of Notice to be pouted on the Land by the Surveyor, To all persons vi^hom it may concern. APPLICATION FOR A MINING LEASE. I hereby give notice that the applicant [or applicants] undernamed did, on the day of leave with the warden at an application for a mining lease of [ acres or yards] of [the land upon which //;/.>■ notice ix posted], and which, under the direction of the said warden, I have the day of surveyed ; and that any person desiring to object to the issue of the said mining lease must enter his objection within seven clear days from the date of this notice at the office of the warden. Dated day of 18 Mining Surveyor. A.B. of [address], CD. NoTB. — For the notice to be posted on the outside of the surveyor's office, and the post office or polic* court, as required hy Rule 9, oniit the words in italics in the above form, and instead thereof ijisert " land ntualed," describing; the situation. PART n. OF THE MINES ACT 1890. Appendix L — (Rule 24.) Form of Agreement as to Amount of Compeniation. Whereas A. B. , of , has applied under Part II. of the Mines Act 1890 for a mining lease of certain land situate [describe the land] of which land CD. of is the [ovmer or occupier, as the rase may lie]. And wliei-ea.s the said CD. has claimed comyjensation under the said Part of the said Act, it has been and is hereby mutually determined and agreed between F.F. and the said CD. that the amount of compensation to be paid in money (percentage of gold taken from the mines under such land, or otherwise) to the said CD., under the said Part, for damages, shall be [according to cirnimstancc-i]. In witness whereof the said parties have attached their signatures hereto. Dated this day of A.D. 18 PART II. OP THE MINES ACT 189% Appendix J. — (Rule 32.) This indenture made the day 18 between Her Most Gracious Majesty Queen Victoria of the one part and [not more than fire names nnll be inserted in the leayi'] (hereinaftei' called the lessee ) of the other part: AVitnesscth tha'fc in consideration of the rents hereinafter reserved, and of the covenants and pro- visos hereinafter contained. Her Majesty doth by these presents grant and demise unto the lessee , h executors, administrators, and transferrees all tlio.'^e mines of gold and silver in and under all that piece of land particularly described in tlie First Schedule hereto, and as the same is set forf^h and delineated in tlie plan heieou indorsed and therein coloured yellow and green, and containing acres, more or less (licreinafter called " the said mine"), for the purpose of mining for, working and winning the said gold and silver, with full power to the lessee , h executors, administrators, and transferrees, and (liis and) tJieir agents and workmen to dig, pick, make and use on the said land and mine hereby demised, excavations, pits, shafts, -MIXES A(T ]8!)u. 141 Thirty -THIRD Schedule — continued. levels, water-courses, and other works necessary for working and winning the gold and silver in or under the said land, and to take and appropriate tlio same during tlie term hereby granted; and to make and construct on the land hereby demised races, drains, dams, reservoiis, roads, and tramways; and also to erect on tlie same land all buildings, engines, furnaces, pumps, machinery, and things necessary for winning and obtaining the said gold and silver, and for effectually carrying on the works of the said mine ; and also to erect on the land hereby demised such offices, cottages, and dwelling-houses for the use of the persons and workmen employed in the said mine and works as tlie said lessee , h executors, administrators, and transferrees shall think fit, togetiier with all and singular shafts, levels, drifts, ways, works, fixtures, erections, liberties, easements, advantages, and appurtenances, which are now or at any time during the term hereby granted may be held, occupied, or enjoyed, with the said mine and land hereby demised, for the purpose of working the said gold and silver, l)ut nevertlieless excepting and reserving from mining operations to the full depth of feet from the surface the whole of the land delineated and colonreil yellow on the said plan and also excepting and reserving and furtlier exooptiiig : To hold tlie said mine, land, and premises (suliject nevertheless to such rights, interests, and authorities as may be lawfully subsisting therein at the date of these presents) unto the said lessee , h executors, adminis- trators, and transferrees from the date hereof for the term of years next ensuing, im the purpose of working and winning the said gold and silver and for no other purpose, yielding and paying therefor yearly and every year during the said term unto Hei- ilajesty, Her heirs and successors, the yearly rent of £ (al the rate of j~>er acre) by equal quarterly payments of each to be made in advance, the first payment to be made on the day of the date hereof, and the next paj incnt on the day of next, and the succeeding pay- ments respectively to be made on the same daj's in each succeeding year, clear of all rates, taxes, and assrssraents to which the said land, mine, and premises arc now or at any time during tlie said term may be subject or liable. Provideil always and it is hereby agreeil that if the said quarterly rent shall be in arrear for twcutj'-one days after the same sliall have become payal)le, or if any otlier sum of money hereby covenanted to be paid shall be m arrear twenty-one days after the time appointed for payment thereof, whether such rent or sum of money shall have been legally de- manded or not, any bailiif of Ci'own lands may, by himself or his agents, enter upon tlie said land, and seize and distrain all gold, and rock or earth cnutainiug gold, actually gotten, and all machinery, apparatus, tools, waggons, c;vrts, carriages, engines, plant, live and dead stock, and all other goods, chattels, and effects what- soever in, upon, and about the said land, mine, and premises; and every distress then made may take away, sell and dispose of, as in cases of distress for rent reserved in common leases, and out of the moneys arising thei-eby retain so much as shall be sufficient to satisfy the said arrears and othei- iiayiiieuts, and which shall at the time of such sale be unpaid, and all expen.ses iiicuried liy him or them; and if any sui])lus, tlie .same to be paid to the said lessee , h executors, a(li!iinistrator.«, or transferrees. And the said ie.ssee do hereby for h msel , h heirs, executors, administrators, and transferrees covenant witli Her ATajesty, Her lieirs and successors, in manner follow- ing, that is to say: — 1. That the said lessee , h executors, .administrators, and transferrees shall and will during the aaid term pay unto Her Majesty, Her heirs and successors, the rent hereby reserved, at the times and in manner hereinbefore appointed for payment thereof clear of all deductions. 2. And shall and will, except when preveiiteil by inevitable accidi^nt or during the execution of reyiairs, make, construct, and work the said laud, iniiie, and jiremisesin the best and most effectual manner, and without interruption. And shall and will dili ,'eiitly e.xplore and search for gold and silver, and work tlie said land, mine, and jiremises to the best advantage. 3. And shall and will employ in the construction of the works, or in mining operations on or under the said land, mine, and premises during the fiisl iminth of the said term and during the usual hours of laboiu-, able and competent workmen aw' 'iiiners at the least, and during the remainder of the said term iK.t. less than such miners and workmen; unless prevented by inevitaWe accident or during the execution of repairs. 4. And shall and will, during the said term, effectually drain the said mine, and pump out all water likely to cause injury thereto, or M-hich wouhl prevent or inter- fere with the working thereof ; and if the said mine shall l>c atrectcd, or liable to be affected, by the same flow or body of water as any other mine or mines contiguous thereto, shall and will contribute with the lessee or lessees, or owner or owners of Buch other mine or mines, a reasonable yiroportion of the machinory and labour neces.sary to free and keep free such mine or mines iicjin water to a workable e;nlatioiis of the mid viininij lease. Now know ye and these presents witness tliat I the said as the person so authorized as aforesaid, do hereby consent to the making and execution of such transfer Provided nevertheless that this licem e and consent sliall not be construed to extend to giving the said permi.ssiou to make any further transfer under any mining lease or disposition of the said land and prcmi^;es, or any part thereof, without the further licence of the person for the time Inung authorized to grant mining leases of private lands. In witness whereof I liave hereunto set my hand and seal this day in the year of our Lord One thousand eight hundred and THIRTY-FOURTH SCHEDULE. part ii. of the mines act 1890. Claim for Compensation. Before the warden at the day of 18 [or] In the Court of Mines of the Mining District of on the day of 18 . A.B. of in Victoria seeks to recover from Her Majesty the sum of pounds under Part 11. of t'le Mines Act 1890 for damages hi respect of a piece of land in the parish of - in Victoria containing acres the proynn-ty of the said A.B. [or in the occupation of the said A.B. |. And the following [or annexed hereto] are the particulars showing how tlio above amount is made uj). lAivncuLAKH : «igncil A.B. [or C. D. Allorncy for A. B.] No. 1120.] MIXES ACT ISOO. 146 THIRTY-FIFTH SCHEDULE. Section 844. PART II. OF THE MINES ACT 1890. Form of Warden's Injuxctiox. {Form of Order obtained by a Corporation.) Upon reading the affidavit of A. B. sworn the Qa,y of 18 [state any other affldavits], and on hearing the other evidence produced [//"o;?//] before me, I find that A.B. and CD. \_name the persons to he 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 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] contmuing of mining operations by such persons in the said mine or in that part thereof [defy the machinery of the said [the name of oicner 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 oivner of machinery] in respect of the land or ground occu]>ied or used by the a.uA [name of owner of mi ne^ At [place of mine] and known as [di srribe mine]. And I order that the said money be paid as follows [here .stale time or 1 1 mix ofpnyimnl, and if considered desirable by n-arden, place of payment, as a bank or olhern-i.se] : And I impose the following terms upon the said [name of owner of marhijiery] [here .stale the terms impo.sed] : And I order compliance with this order by the several parties lierein 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 tile "latter 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 ordir in the following terms [here set out copy of ivar den's ordc-.?-]. Dated this day of a.d. A.B., Warden. MELBOURNE : By Authority : J. Kemi', ilovernmeiit Printer.