him. The only way it is alleged to be part of the testator's 1898 v. AUSTIN. estate is that it is so for the purpose of the duty being paid. THE QUEEN There is no machinery which vests such property in the executor in any way. The reasonable interpretation is that Madden, C.J. which the defendants put upon it; that in order to see the amount of duty chargeable the property is to be treated as belonging to the testator's estate. It would be impossible to construe sec. 102 as being incorporated into sec. 115, as the plaintiff contended for. Under the provisions of sec. 103, the general rule manifestly is that each devise, bequest, or legacy has to bear the duty in proportion to its interest in the estate, and in such adjustment the executor or representative shall deduct out of the assets the contribution of each contributory. As I have said before, where such transactions exist as alleged in this case, when transfers of property have been made to evade probate duty, the properties are not in the executor's hands. As his only remedy is to deduct the duty from the assets in his hands he could not give effect to or take advantage of the provisions of sec. 103 by any possibility. The property itself would never come into the executor's hands. All he could do would be to pay the duty. He never could deduct the share which he may have had to pay out of the personalty out of the lands mentioned in these challenged transfers. I think these matters show, as I have said, whichever way you look at it, that the only equitable and just interpretation of sec. 115 is that which the defendants contend for, and that the opposite contention would not only lead to impossibilities of compliance but to gross injustice. We find that in sec. 115 payment of the duty is to be enforced in the way I have before alluded to; that is, the same as in sec. 101. Sec. 101 is the only general section which provides for the enforcement of payment of duty, and that is the section which sec. 115 looks back to. In sec. 112 the same process of enforcement is expressly indicated. The effect of sec. 115 is to show, not that the property so transferred is to bear the whole burden of the duty that shall be paid out of the estate, but the particular proportion of the duty attributable to itself. I think, 1898 THE QUEEN v. AUSTIN. therefore, that every argument makes for the defendant's view. Then the only question is what should I do upon this question Madden, C.J. of law? It is practically an objection to the further maintenance of the action against the defendants at all; alternatively it alleges that the claim is defective for want of necessary parties. I do not feel confident in saying that in no possible aspect could the presence of the executors be required upon the record. However, the plaintiff does not suggest that there is any ground outside the main point for so retaining them. That being so, I think I should hold that there is no remedy against these particular defendants for this specific debt. This is a distinct claim based upon the provisions of sec. 115, and it appears on the true interpretation of that section the holders of the properties and not the executors should be sued. The only decision bearing upon the issue is that of Graham v. Graham (c), and that only amounts to a dictum. It goes very much in the same direction that I now propose to take. I think the use of the expression of "a remedy in rem" in that case was more in a colloquial sense than in its strict legal sense: the remedy operates on "the thing" through the person who holds "the thing." First, the person pays the duty himself before the property is sold to realize the duty. I hold, therefore, that the action is not maintainable as against the executors, but only against the particular individuals alleged to hold the properties. Judgment with costs for the defendants Solicitor for plaintiff: Guinness, Crown Solicitor. (c) [1874] 5 A.J.R. 100. W. H. M. HANTON v. FORBES. 1898 June 16 Mines Act 1890 (No. 1120), s. 32-Cancellation of registration of residence area— Jurisdiction of warden to hear application-Registration of land exempted Madden, C.J. from mining purposes-Right of private individual to intervene. The warden has no jurisdiction under sec. 32 of the Mines Act 1890 to enter tain an application by the holder of a miner's right to have the registration of a residence area cancelled on the ground that the land is excepted or withheld from mining purposes by an Order in Council. The Crown is the only party who can take steps for the cancellation of such registration. SPECIAL CASE stated by the warden of the goldfields at Bendigo. A summons was issued by Hercules Hanton against Eliza Forbes, whereby Hanton sought, by virtue of his miner's right, to have it declared that the defendant's registration of a residence area was registered in contravention of the provisions of the Mines Act 1890, such contravention being that the land so registered is reserved for site for a public building by Order in Council gazetted 5th January 1872, in pursuance of the provisions of the Land Act 1869, and also excepted or withheld from occupation for mining purposes or for residence or business under any miner's right or business license by Order in Council gazetted 16th April 1886, in pursuance of the provisions of the Land Act 1884, and he further sought to have the registration of such residence area cancelled. When the case was called on before the warden the defendant took a preliminary objection that the warden had no jurisdiction to hear the case. The complainant requested the warden to state a special case, and he refused so to do, and the complainant then obtained an order nisi directing the warden to state a case. This was made absolute, and the warden accordingly stated this case. The following facts were admitted by the parties:-The complainant is the holder of a miner's right; the land, the subject of these proceedings, is part of the land reserved as a site for public buildings by Order in Council gazetted 5th January 1872, and is also part of the land excepted or withheld from occupation for mining purposes or for residence or business under any miner's right or business license, by Order in Council gazetted 1898 HANTON V. FORBES. Madden, C.J. That T. 16th April 1886, and is still so excepted or withheld. The special case now came on for hearing before Madden, C.J. Roberts for the complainant-By sec. 32 of the Mines Act 1890 general jurisdiction is given to a warden to cancel registration—(ɑ) upon proof that the person registered as the holder is no longer the holder of a miner's right; (b) that such person has obtained such registration in contravention of any of the provisions of this Act or of any by-laws of the mining district. The registration in this case was in contravention of the provisions of secs. 15, 16, and 17 of the Act. The lands have been exempted from mining purposes, and no registration can be allowed. [MADDEN, C.J. That may be a matter for the intervention of the Crown, but you have no interest which confers any right upon you to interfere.] The provisions of sec. 32 are general, and there is no limita 1898 HANTON V. tion. In Wakeham v. Cobham (a) the fact of the Crown lands being temporarily reserved did not deprive the warden of jurisdiction. The complainant does not apply to be put into possession; he applies to have the registration cancelled on the ground Madden, C.J. that it was obtained in contravention of the Act. H. Barrett for the defendant was not called upon. MADDEN, C.J. It is somewhat difficult to answer the questions as stated. As to the first question asked, I am of opinion that under the circumstances disclosed in the special case the warden has no jurisdiction. But I think he has jurisdiction to hear a wrong application, and to hold it to be wrong. A wrong plaintiff invokes the general jurisdiction which the warden has, and I think the better answer to give is to say that in my opinion generally under sec. 32 the warden has jurisdiction to hear and determine an application at the instance of a person entitled to make it for the cancellation of the registration of a residence area, and that in this case he would have such jurisdiction if the plaintiff had any right to institute the suit, but that as the land is Crown land permanently reserved, as stated in the case, for public buildings, and also is land excepted and withheld from mining purposes under a miner's right or business license, the plaintiff has no right in this case to raise the question of the wrongful occupation or wrongful registration of the defendant. The right which a miner's right gives to the plaintiff is merely to occupy for mining or residence purposes a portion of unoccupied Crown lands, and that right does not give him any authority to adopt the legal rights of the Crown. In this case he himself could have no right to occupy this particular residence area if the defendant were got out of it. He has personally no interest whatever in the wrongful occupation of that site by the defendant, and therefore it appears to me that he has no lawful right to complain of the wrongful occupation. It is a matter for which the Crown only can be a plaintiff, and therefore the application of the plaintiff is wrong. This view is supported by the decision in Osborne v. Morgan (b). (a) [1870] 1 A.J.R. 93. (b) [1888] 13 App. Cas. 227. FORBES. |