plainant was entitled to retain possession, or whether | pegged out, that there was no notice given to the his marking out was unlawful. 66 Held, on the construction of Section 37, No. 291, per se, that, pending the application for a lease, the land might be legally taken up as a claim," subject to the rights of the lessees, if the lease was granted. The result, however of the joint operation of Sections 3, 4. No. 446, tras to establish the following proposi tions: 1st. That pending the application for a lease, it should not be lawful to mark out. 2nd. That when the application was no longer pending it should be lawful to mark out. 3rd. That an application should be considered as no longer penling when default had been made in proceeding with it. Consequently, under the facts abore stated, the complainant's marking out was lawful. Held, that proof of the due registration of his claim by the complainant was not a necessary part of his case. Held, that the words “of Melbourne," were a sufficient description of the "residence" of the holder of a Miner's Right to satisfy Section 4, No. 291. Critchley v. Graham, (2 W and W, 95, 211), distinguished. 66 Special case, stated by a warden of the goldfields, in a proceeding in which Richard Mark Antony and 11 others were complainants, and John Dillon was defendant; the complaint was that the defendant had trespassed upon a claim be longing to the complainants, entitled the Jubilee Claim," and had hindered them from working thereon. The case had been heard before the warden at Inglewood on the 30th November, 1888, and the evidence adduced by the complainants was to the following effect: They were, severally, owners of miners' rights," and had ob tained registration of the above-mentioned "claim," in their names, on the 15th November, 1888, having previously, on the same day, inserted the pegs. [Objection was taken to the validity of the "miners' rights," on the ground that the residence" of the respective holders was not sufliciently stated (Sec. 4, No. 291); and objection was taken to the validity of the registration, in the ground that the application for registration had not been signed by the applicants (Sec. 63: Bye-laws of the Maryborough Mining District: sch. VIII). On the 17th November the defendant had interfered with R. M. Antony, one of their number, when engaged in affixing to a tree on the claim a copy of the certificate of registration. The evidence adduced by the respondents was to the following effect:-An application for a lease, under the regulations relating to gold mining leases (sec. 24, No. 291), for the land comprised by the claim was pending, the applicant being a company, of which the defendant was chairman; the pega: 21pect of the lease had been done some time before the 15th November. In cross-examination it was elicited that the area applied for by the lease was supposed to be 30 acres (it being, in fact, considerably more), that there was no advertisement as required by the Regulations of the intended application for a lease, that there were occupiers on the ground within the area occupiers or any consent given by them to the application. On the conclusion of the case the following questions, in the form of a special case, were reserved for the opinion of the Supreme Court : I. Whether it was necessary for the defendant to prove compliance with the leasing regulations [e. Regulations relating to Gold Mining Leases, 1888], prior to the complainants marking out under miners' rights? 2. Assuming there were breaches of the leasing regulations by the applicant for the lease, were the complainants entitled to mark out a miners' right claim on the land applied for? 3. Whether on production of miners' rights purporting to have been issued to the persons named therein as complainants (sic), and without any other evidence than that of complainant Antony, that these were issued on the application of such complainants, the said complainants were entitled to sue, having regard to the provisions of the last section of Act No. 291 ? 4. Whether the registration of the claim was invalid by reason of the application to register not being signed by the applicants or any of them. If such registration be invalid, does it disentitle the Complainants from maintaining the action ? 5. Whether having regard to section 4 of the schedule No. 291, Miners' Rights, setting out the holder's residence, or "of Melbourne" only are valid and sufficient within the meaning of that section? A sixth question was asked, but as the answer to is implied in the answer to the preceding five, it is unnecessary to state it here. it Topp, (with him Barrett.) for the complainants. As regards questions 1 and 2, the defendant cannot set up the pending application for a lease under section 37, No. 291, as default has been made in proceeding with the application before the complainants had taken possession under their "Miners' Rights," section 4, No. 446. Applications for leasing are under the Regulations relating to Gold Mining Leases." made under the authority of section 43, No. 291. The defendant made default in the following respects: He marked out 46 acres, as appeared by the survey, there being no power to mark out more than 30 acres without the consent of the Minister of Mines, which was not proved to have been obtained. Regs. 2 and 3, section 37, No. 291. No such advertisement has been inserted as is required by Reg. 4 (B) No notice has been given as required by Reg. 4. (D); no deposit had been made as required by Reg. 4 (E); he did not use reasonable endeavors to obtain the consent of occupiers, Reg. 5 A. The onus is upon the defendant to show that he has complied with the regulations. Lennos v. Golden Fleece Company, (5 A. J. R., 18). The 3rd question is not very intelligible, but it is submitted that there is sufficient proof of the "Miners' Rights." As regards the 4th question, there is n prov sion in the bye-laws requiring the application to be signed by the applicants. As regards the 5th question, it was held that " of the City of London" was a sufficient description of, the "true place of abode.” Vassier v. Alderson, (3 M and Sel 165). i a authority to write them. As to the first question I shall answer it in the affirmative, in the following form, as according to the views of the counsel on both sides, the two first questions should be put into one, which would meet all the requirements of the case. The questions in effect are whether the fact that the defendant's application for a lease had been neither MacDermott (with him Helm) for the defendant. granted nor re used was an answer to the action, Section 37, No. 291, governs this case. The defend- although the defendant had made default under section ant was in possession before complainants, and had 4 of the Act 446. I think that that question would duly marked out the land, for the lease of which he meet what was required by the first two questions. had applied. The ground thus applied for is protected That was to say, assuming that the defendant was in from entry, occupation or interference, whilst the default, was the fact that the application for a lease application is pending. The complainant cannot, in was neither granted nor refused an answer to the this case, rely upon any irregularity made by the de- complainants application? It was put by Mr. Helm fendant in proceeding with the application subse that under section 37 of the Mining Act, apart from quently to the marking out. If the applicant for the the Act 446, from the time that the land was marked lease was complainant he would be bound to prove out till the time of the application for the lease was compliance with the regulations, but only in such a disposed of by granting or refusing it, there could be case; section 37, No. 291. The complainants acted to marking out as by other persons; that such an wrongly in taking possession, they should have act was an absolutely unlawful act. I will dispose applied to the warden in the first instance, no man of that by argument on that sect on without reference can be a judge in his own case. This was, in effect, to the fourth section of the later Act 446. That view the decision in Critchley v. Graham, (2 W and W., is not in accordance with views previously expressed 95, 211). This case has been followed and its prin- in this Court by Mr. Justice Molesworth in the ciple extended in Bottrell v. Waverley G. M. Coy. (2 V.Baker's Gold-mining Company v. Keating, (1 V.R (M) R. (M). 16).; Vallancourt v. O'Rorke, (1 V. R. (M). 18). There the plaintiff company applied for 43); Barker's G M. Coy. v. Keating, (1 V. R. (M). 18). mining lease; while the application was pending HIS HONOR-This is a special case stated by the the defendants took up the land applied for as a claim, warden on the hearing of a complaint in a proceeding but did not conform to the by-laws. They remained in which Richard Mark Antony and others were in possession and worked it. Subsequently, and also complainants and John Dillon was defendant, the pending the application, the plaintiff company took up complaint being that the defendant had trespassed on the land applied for as a claim. The lease to the the plaintiff's claim. The facts appearing upon the plaintiff company was refused, and after the refusal special case and the questions--I say questions the complainant again took up the land applied for as because there are some of the facts stated in them a claim ander the by-laws and sued defendants for were that on the 14th August, 1888, the defendants enroachment. It was held that, pending the applicamade application under 37 of the Mining Statute, for tion for a lease, the land might have been legally a lease that they marked out the ground, and some taken up as a claim by the applicants for others, time before the 15th November---the precise date subject to the rights of the lessees if the lea-e were was not fixed-they made default in the meaning of granted; that the plaintiffs by the second pegging out the 4th section of 446 of the amended Mining Statute. abandoned the title under the first, and that the On the 15th November the plaintiff pegged out this defendants being in occupation at the time of the ground in the presence of one of the defendant's em- second pegging out by the plaintiffs had a good title ployes, that they on that day applied to have their claim as against the plaintiffs in a suit for encroachment. registered, that the application was granted, that it | When delivering judgment, Mr. Justice Moles was marked out the same day, and the certificate of worth said:"In one aspect of the case the deregistration was issued on that day. On the 17th "fendants should succeed—that is, if the plaintiffs' November the complainants sought to post on the "case depends upon the application for a lease, pro ground a copy of the certificate, or the certificate "tecting the land against the defendants' taking up. itself. The defendant prevented them from doing so, "The section as to leases commences with prohibitory and that prevention going on and consequent interfer- "words, apparently general, but the conclusion of the ence, the complainants brought the action. "section shows that all that is meant by them is, that peared in the course of the case that miners' rights no taking up is good as against the lessees. The were put in evidence, and one witness was called to application for a lease is only a provisional title; if state that these miners' rights were granted on the "refused, it is just as if it had never been made. It application of the various persons mentioned in them."might have been good policy to protect generally: It also appeared that the complainants applied for "but the protection is merely quoad the applicant for registration of the claim; that the application for "the lease." I understand Mr. Justice Molesworth, registration was not signed by the complainants by these words, to decide that even while an applicathemselves, but the names of the complainants were tion for a lease was pending, there being no default registered by a person who, so far as I can see, had by the proposed lessees, the words of the section do It ap 66 66 sion. none. right; be in at not prohibit another person from marking out the see if the person in possession has a strong prima ground. Then, again, to deal with the strict words facie title. lie has no title to of section 3 and 4 of the Act 446, the third section, all. He has not a show of right to be in posses"That, pending any application for a lease, it shall Title he has none. Right to be there he has not be lawful to mark out." If any meaning is to be Were the lease granted he would have had a put to these words, it surely must be that the Legisla- but it was admitted that while he was working ture meant that after the pendency of an application there he was working illegally. He has never had a it is lawful to mark out. It is true it is not so in so title. He has made application for a lease, but he has many words, but it does indirectly by putting a pro- been in default; even if he had not been it gives him hibition on marking out up to a particular time. But no title. It is plain, therefore, he does not come section 4 of the Act 445 states that "the pendency within the principle of Critchley v. Graham, and if of an application shall begin with the marking out of the Court is to apply it, it would be in favour of the the land by the applicant, and shall come to a deter- complainants. Critchley v. Graham said that where mination when the application for a lease shall be no the Legislature prescribed a particular mode of deallonger pending." It is no longer pending when there ing with the matter that mode was to be applied. is default; consequently, so soon as there is default it, As I read sections 3 and 4 of the Act 446, they pracis lawful to mark out. Then it was put by counsel tically say that when an applicant for a lease makes for the defendant, relying on Critchley v. Graham, 2 default you may mark out. On the doctrine of W. and W., that as long as the defendant was in Critchley v. Graham that is the method to be adopted possession no matter how illegally the possession was, here. It, therefore, I have to apply that authority, pending the application for the lease, no person could I would apply it in a directly opposite way to that take possession, or mark out, or do anything until he which I have been asked by the defendant. I will, had first taken proceedings before a warden to be put therefore, decide the first two questions for the comin possession. In the case of Critchley v. Graham plainants which I have already stated. The next itself very little difficulty may be found. It was question to deal with is whether on production of decided under the Act 32, section 77. By that miners' rights purporting to have been issued to the section it was enacted that where the person in occu- persons named therein as complainants, and without pation had done anything by which the claim was any other evidence than that of the complainant forfeited then it should be lawful for the warden to Antony that these were issued on the application of summon the person before him, and decide whether or such complainants, the said complainants were entitled not there had been a forfeiture. The Full Court to sue, having regard to the provisions of the last secdecided, in Critchley v. Graham, that that particular tion of the Act 291. I answer that in the affirmative, mode having been prescribed for determining whether and I cannot understand why the warden felt any a forfeiture had been incurred it must be pursued, difficulty whether there was one witness or twenty witand no other mode must be pursued. I find that in nesses. He assumed that the miners rights were granted Barton . Davis, 4 W.W. and A'B., Mr. Justice on the applications of those persons. If he did not beMolesworth held that the principle laid down in lieve the witness that they were, that was another matCritchley v. Graham applied to the new Mining Act. ter; but it was not put in that way The fourth question The principle of Critchiey v. Graham was un- was whether the registration of the claim was invalid doubtedly very largely extended by that by reason of the application to register not being That being so, I have to determine whether the signed by the applicants or any of them. If such defendants can bring this case within the author- registration be invalid, does it disentitle the comity of Critchley v. Graham. It must be admitted plainants from maintaining this action? It seems to that the authority of that case does not apply in every me that the latter portion of the question does not case where a person has been in possession It does apply. It seems to me clear from the rules that not mean that in every case where a person was in their right to have possession, and their right to work, possession you must first go before the warden before was independent of the registration, They might you could mark out. Durant r. Jackson, 1 V.L.R., have been wrongly registered; they could go within 6, was a case where a person had been in lawful 14 days and be correctly registered. In this case occupation, where he had had a lease which had been they might have gone and got correctly registered determined by effluxion of time, but had since paid during the interval. With regard to question 5, rent, so that to some extent it might be said that he whether, having regard to section 4 of the Act 291, had some kind of title to the ground. But it was miners' rights setting out the holder's residence as of held that the principle of Critchley v. Graham did not Melbourne only are valid and sufficient within the apply there. In Cooper v. White, 4 V.L.R., 10 where meaning of the section, I think the address was an applicant for a lease was in possession, it was held sufficient. There is nothing to indicate that a sepathat Critchley v. Graham did not apply. That being rate street, or a separate number in each street, or a so in those cases, it becomes a matter of inquiry particular floor in a house is to be written. There whether it applies in this; and, using the language of might be two Smiths in one house, and any number Mr. Justice Molesworth in one of the cases, I think of persons of the same name in a coffee palace. There that it only applies where the person in possession has is no reason why a letter addressed to a particular a strong prima facie title. So I have to look here to person as of "Melbourne" would not find him, and I case. think it would find him. As to costs there is no reason why I should depart from the general rule and not give costs to the successful party, although questions of nicety and difficulty were involved. The questions will be answered in favor of the complainants with costs. There is another question, No. 6, which has been practically abandoned by both sides at the bar, and it is unnecessary to answer it in its present form. The onus is on the when it was brought to the inn. defendants to prove exemption. Duffy in reply, cited Marwell on Statutes 2nd edition p. 84, and as bedrooms to notices in Henderson v. Stephenson L. R. 2 H. L. C. Eng. & Ir. Ap. 470 Watkins e. Rymill 10 Q. B. D. 178. The judgment of the Court was delivered by Higinbotham, C. J. The plaintiff by his amended claim demanded damages for the loss of his money Questions answered in favor of the complainants and goods, wrongfully taken and carried away from with costs. Solicitors, for complainants: I. Sunderland Bar-lodger. rett for defendant: Connelly and Tatchell. SITTINGS IN BANCO. (Before Higinbotham. C.J., Kerferd and a'Beckett J.J.) the defendant's premises, in which plaintiff was a The learned judge found a verdict for the plaintiff for the amount claimed, L15 15s. He held that the defendants were not innkeepers, but that as they held themselves out as accommodating all travellers presenting themselves they incurred the same responsibility, in so far as becoming liable for the loss of property of their customers, not consequent on the customer's own negligence. No authority is stated for this proposition. Negligence is not el arged against MILLAR V. THE FEDERAL COFFEE PALACE COMPANY the defendants, and it was properly admitted by Mr. LIMITED. March 13th. Carriers and Innkeepers Statute No. 78.-Coffee Palaces-Money in parcel or package-Coffre palaces are common inns, and their proprietors are innkeepers within the Carriers and Innkeepers Statute No. 78. Money contained in a purse or package brought into an Inn in the pocket of a guest is not "money contained “in any parcel or package brought into an inn" within the meaning of 1 Act No. 78. And where a purse containing money is stolen from the bedroom of a guest the onus is on the innkeeper to prove the facts which entitle him to the protection of the Statute. Appeal from the County Court. The facts shortly were that on the 29th September, 1888, the plaintiff, who was a guest at the coffee palace of the defendant company, placed two silk handkerchiefs, a pair of gloves, and a purse containing £14 in the chest of drawers in his bedroom. He locked the drawers and also the door of his room on leaving. On his return some hours later he found the door open, and that his property had been taken from the chest of drawers. The learned judge at the trial held that though the defendants were under certain of the liabilities imposed by law on innkeepers, that they were not innkeepers within the Statute, and gave judgment for the plaintiff for £15 15s. Duffy for the defendant appellant :---If we are subject to the liabilities of innkeepers, we are entitled to the protection of the Statute. We are not liable because there was no declaration of value. On the other hand, if we are not innkeepers we are only liable for negligence, and there is no evidence of it here. Thompson v. Lacey 3 B. and Ald. 283 defines a Common Inn. The cases are collected in Calyes Case S. L. C. 9th. Edition Vol. 1. p. 142. Bryant for the plaintiff respondent :-This is an inn I admit, if the defendants are innkeepers they are innkeepers within the Statute. It should have been shown that the money was in a parcel or package Bryant that in the absence of negligence the owner of a house, not being an inn, is not liable for the theft by a stranger of the property of the persons staying in the house. But we think that the evidence showed that this house was an inn, and that the defendants have the liabilities as well as the rights of innkeepers. It does not matter by what name a house may be called. If the owner or occupier holds out that he will receive travellers in his house, and will provide them with everything which they require on their journey, he is an innkeeper, and his house is an inn. The defendants' house is called a coffee palace, and it is a matter of common knowledge that the name indicates a class of houses in which board and lodging, and everything which travellers ordinarily require, are supplied to customers. The absence of a licence to sell spirituous liquors alone distinguishes the defendants' coffee palace, and other houses of the same character and bearing the same title, from ordinary inns. And if the defendant's house be an inn, the defendants are liable at common law, without negligence on their part, for the loss of the property of a customer, where the loss has not been induced by the customer's own misconduct or neglect, subject to the special exemption mentioned in the Act No. 78, limiting the liability of innkeepers in respect of certain valuable articles brought to the inn and contained in a parcel or a package. In the present case the plaintiff does not appear to be chargeable with negligence or miscon duct of any kind. He placed his property, consisting of a purse with money in it, and the other articles lost in drawers, which he locked, and he locked the door of his room. None of the articles lost except the money comes within any of the classes of valuable articles enumerated in the act. The exemption claimed is created by an Act of Parliament drawn with reference to carriers and such things as are ordinarily entrusted to the care of carriers. The introduction of innkeepers into the act is not taken from English law, and it may fairly be considered that the immunity conferred on innkeepers was intended to apply to such things as are brought in to an inn as packages or luggage of the kind as to which a responsibility attaches to carriers. If a traveller enters an inn with a purse or package in his pocket, that would not be a bringing into the inn of a parcel or package within the meaning of the act. It does not appear in this case how the purse was brought in, and the defendants have failed, therefore, to give any evidence of a fact necessary to entitle them to the protection of the act. Probably they could not have given such evidence. The defendants sought to limit their liability by proof of a notice posted in the bedrooms of their inn, and a notice endorsed on the receipt for their charges. The learned judge considered that there was no evidence of the plaintiff having assented to the conditions of these notices. Upon this point we see no reason to differ from the conclusion of the learned judge. For the reason above stated, we think it unnecessary to consider the effect of section 4, forbidding the restriction of liability by such notices. We concur in the judgment of the learned judge, except in his decision that the defendants were not innkeepers within the meaning of the Act No. 78. The appeal will, therefore, be dismissed with costs. March 12th, 26th. Stamp Act, No. 645 s 51 -Promissory note Document requiring Stamp-Contract of Sale-Bought note. In order that a document may be a promissory note within 8. 51 of the Stamp Act, No. 645, it must substantially contain a promise to pay a definite sum of money, and nothing more. A document containing a promise to pay money as part of a contract containing other stipulations would not be a promissory note within the meaning of the Act. The defendant had purchased from the plaintiffs, who were brokers, 500 shares in a mining company, and had signed a document which was in form a bought note, but which was really a contract of sale, by which, after stating that defendant had bought the shares, it was agreed that the purchaser should pay £10 of the purchase money forthwith, and the balance, £27 108. at any time on or before 19th August, 1888, and that the vendors should deliver scrip on payment. Held (Higinbotham C.J., dissentiente): That the instrument was not liable to stamp duty as a promissory note, and could be received in evidence without being stamped as such. Mortgage Insurance Corporation v. Commissioners of Revenue, 2 1. Q. B. D. 352 followed. Per Higinbotham, C.J.-That the fact that there is no stamp duty on agreements by the Victorian as by English Stamp Act distinguished this from the English cases, and that the desire to prevent inconvenience and uncertainty ought not to influence judicial opinion in the interpretation of the terms of 8, 51, which are not ambiguous, and therefore ought to be construed literally. Appeal from the County Court The facts are sufficiently stated in the judgment. Hood, (for the defendant appellant). The plaint summons was not proved. There was no evidence that plaintiff did buy the shares, except the bought note, which is inadmissible. It is a promissory note within Sec. 51 of the Stamp Act, and should bear a 1s. stamp. Sec. 51 gives a special meaning to the term; Croft e. Grimbley, 5, A. L. T., 89, 90. In England the question is whether this is a promissory note or an agreement, but here, whether it is taxable as a promissory note or not at all. The words "promissory note," in Sec. 51, should receive a wide interpretation. Reg v. Smith, 12, Q. B. D., 485, per Lord Coleridge Sutton v. Sutton, 22 cr., D. 518, per Cotton, L. J. The exemptions in the schedule indicate this. E. 9. Government debentures are exempted. Bryant (for the plaintiff respondent). This is not a promissory note. The parties did not intend it to be. It is a contract containing and undertaking to pay, and prescribing the time, manner and conditions. Mortgage Insurance Company v. Commissioners of Inland Revenue, 21 Q. B. D., 352. Hood in reply. Higinbotham, C.J.-Appeal from a judgment of the judge of the County Court, directing that a verdict should be entered for the plaintiff for £27 10s., the amount claimed, and £9 costs. The plaintiff sued to recover money as the balance due by the defendant to them, as her agents, on the purchase for the de- fendant of 500 shares in the Hidden Secret Company No Liability. The contract proved by the plaintiffs was a contract between vendors and purchaser. The objections which have been relied on, founded on this variance, were rightly overruled, in our opinion, by the learned judge. They would be fully met by an amendment of the particulars. The defendant could not have been misled, and no application was made for a postponement of the trial on that ground, The contract treated as one of sale did not require that any specific share should be sold or appropriated to the defendants. It would be sufficient if the plaintiff's were ready and willing to deliver any of the specified scrip upon payment of the price at the due date, and it does not appear that the plaintiffs were not prepared to fulfil their contract in this respect. A further objection was taken for the defendant that the document put in evidence in support of the plaintiffs' claim was not stamped in accordance with the Stamp Duties Act, 1879. This objection raises an important and frequently recurring question. The document had a penny stamp affixed to it. In form it was a bought note, signed by the defendant as purchaser of the shares. In substance, it was a contract of sale by which, amongst other terms, it was agreed that the purchaser should pay £10 of the |