1898 HANTON V. FORBES. In answer to the third question I say it is not such a registration as the warden can cancel, whether good or bad, at the instance of this plaintiff. As to the second I shall merely say that it is Madden, C.J. unnecessary and undesirable for me now to answer that question, because the facts are neither admitted nor are they clearly before me in such a manner as would enable me to deal with it. Questions answered accordingly, and the plaintiff directed to pay the defendant's costs. Solicitor for plaintiff: Roberts. W. H. M. 1898 May 5. A'Beckett, J. BROCKLEBANK v. RYAN. Land Act 1890 (No. 1106), s. 127-Proclamation forbidding cutting timber on Crown lands-Mining lease-Lands held under mining lease-Powers of cutting timber given by lease. By sec. 127 of the Land Act 1890 power is given to the Governor in Council to forbid by proclamation the cutting of timber under certain dimensions from Crown lands although a person may be duly licensed or otherwise authorized so to do. Land held by a lessee under a mining lease from the Crown is Crown land within the meaning of such a proclamation. Semble, the powers conferred by such mining lease are not nullified by the terms of such a proclamation. Where a clause in a mining lease giving power to cut timber for mining operations and for domestic purposes is followed by a clause forbidding the cutting of timber of less than certain specified dimensions, the former clause is limited by the effect of the latter clause. ORDER nisi to review. This was an order nisi to review the decision of the Court of Petty Sessions at Moonambel. An information had been laid by John G. Brocklebank against Thomas Ryan for cutting live timber from Crown lands which at a height of two feet from the ground was of less diameter than twelve inches. The Court of Petty Sessions dismissed the information, and this order was taken out to review such decision on the following grounds :(1.) That there was no evidence that the timber or sapling cut 1898 V. RYAN. A'Beckett, J. was within the limits of the land leased to the Surprise Gold Mining Company. (2.) That the prohibition contained in the BROCKLEBANK proclamation of the Governor in Council in the Government Gazette, 1890, p. 3857, overrides or nullifies any license or authority granted to such company by the lease put in evidence to cut timber of the size and dimensions prohibited by the said proclamation. (3.) That there was no evidence that the timber or sapling cut was so cut for any mining operation authorized by the said lease or for the domestic purpose of any person residing on the land subject to such lease. (4.) That the justices erroneously construed clauses 15, 16, and 17 of the said lease. (5.) That on the proper construction of the lease there was no power or license under the said lease in or to the said company or its servants to cut timber of the size and dimensions appearing in the evidence. (6.) That the evidence disclosed a breach by the company or its servants of clause 17 of the lease. It appeared from the evidence that the informant was a Crown lands bailiff, and proceeded against the defendant, who was a servant of the Surprise Gold Mining Company, for cutting timber of the size mentioned above. A proclamation was produced and put in evidence purporting to be made under the provisions of the Land Act 1890, declaring that "no person although he be duly licensed or otherwise authorized shall cut or remove timber which at a height of two feet from the surface is of a less diameter than eighteen inches on or from the Crown lands in the undermentioned parishes." The parishes were duly set out, and included the parish in which the act complained of was done. Evidence was given that the defendant had cut a sapling on Crown lands, and that the sapling was only seven inches at two feet from the ground. The defendant told the informant that he was cutting the sapling under instructions from the manager of the Surprise Gold Mining Company. The defendant produced and put in evidence the mining lease granted to the company. The land on which the sapling was cut was within the area included in the mining lease. The manager of the company stated that he directed the defendant to get some props of a particular size for 1898 the mine; it was admitted that the sapling was under twelve BROCKLEBANK inches in diameter. The lease by clause 15 provided that the V. RYAN. A'Beckett, J. lessee "shall not nor will cut any timber on the said land except for the mining operations hereby authorized and for the domestic purposes of those residing on the said land." By clause 17 it was provided that the lessee "shall not nor will cut or remove or permit to be cut or removed from the said land any live trees which at the height of three feet from the surface of the ground are of less diameter than twelve inches and shall not nor will remove or permit to be removed bark from such trees." The defendant justified the cutting of the tree under the terms of the lease, and also contended that the lands comprised in the lease were not Crown lands within the meaning of the proclamation. The justices dismissed the information, saying:-"We have heard enough of this case, and are unanimous that there is no case. We are of opinion that clauses 15 and 16 of the lease give the company power to cut any timber for mining or domestic purposes, and that clause 17 does not restrict them, except where the timber is cut for the purpose of sale." The informant then obtained this order nisi to review such decision, upon the grounds herein before stated. Cussen to show cause-Land held under a mining lease is not Crown land within the meaning of the section: Essendon v. Blackwood (a). In that case the Privy Council regarded the Crown as having a reversion only, and as being no longer the present and immediate owner. That view is borne out by sec. 2 of the Land Act 1890, where it is provided that "nothing herein contained except where otherwise expressly provided shall affect alter or repeal the Mines Act 1890." Under the Mines Act power is given to grant a lease for the purposes of mining. Purposes of mining" must include cutting timber. A Crown lands bailiff has no right to interfere with a mining lease, and the proclamation has no effect within the area comprised in the mining lease. Where a lease is granted over Crown land it ceases to be Crown land: Reg. v Dickenson (b). (a) [1877] 2 App. Cas., p. 583. (b) [1888] 14 V.L.R. 732. Paul to move the order absolute was not called upon. A'BECKETT, J. The prosecution in this case was for the breach of a certain proclamation prohibiting the cutting down of trees of certain dimensions. The proclamation was made. under the Land Act 1890, sec. 127, and it declared that no person, although duly licensed or otherwise authorized, should cut dead or live timber of a particular description from such portions of Crown lands named in the proclamation. That prohibition extended over the whole parish. The question is whether land included in a mining lease is exempted from the operation of such a proclamation-that is, whether it is Crown land within the meaning of this power. I think that, considering the power under which a mining lease is granted-that is, the statutory power and the limited rights which such power gives--that the land included in a mining lease is Crown land within the meaning of this authority given to issue a proclamation under sec. 127, and it is within the area designated by the proclamation. I think the case to which I have been referred, in which doubts were expressed by the Privy Council as to what should be considered Crown lands under another Act, is no authority as to the construction to be put upon that section which authorizes the issue of such a proclamation. So that I have in the first instance to deal with a valid proclamation, giving valid directions as to the land comprised under this mining lease. I hold that the proclamation is operative so far as the area goes over the area comprised in the mining lease given by the Crown. I think that the provisions of the Crown lease and the authority given by such lease would override any restrictions which the proclamation purported to create; and if I thought that the lessor or the servant of the lessor (as in this case) was exercising the authority given by the lease, I should have no hesitation in saying that the magistrates were right. The magistrates thought that the defendant was doing only that which the lease authorized him to do. They took the same view as to the effect of the proclamation as I do; they do not say that this land is held under a mining lease, and therefore there is no offence; but they say that the lease authorizes him to do what he was doing 1898 BROCKLEBANK บ. RYAN. A'Beckett, J. 1898 v. RYAN. A'Beckett, J. and they distinctly relied, in giving their decision, on the BROCKLEBANK terms of the covenants contained in the lease. I think they erroneously construed the covenants of the lease. I think that clause 17 is a general restriction applicable to timber which might be cut under clause 15. Under clause 15 the lessee may cut timber for mining operations and for domestic purposes; then clause 17 says that he is not to cut or remove timber of certain dimensions. I think this latter clause is a limitation upon the general authority given by clause 15. I understood Mr. Cussen to say that he was not prepared to combat that as a matter of construction; but independent of any concession in argument, it is my view that clause 15 does not give a general right, but is subject to the limitation of clause 17. That being so, the decision was wrong, and I make the order absolute, with costs. Order absolute. Solicitor for informant: Guinness, Crown Solicitor. W. H. M. 1898 May 5. A'Beckett, J. HODGSON v. COLLIER. Crimes Act 1890 (No. 1079), s. 102-Possession of stolen wood, posts, etc. By sec. 102, if any post, etc., be found in the possession of any person or on the premises of any person with his knowledge, and such person being summoned before a justice shall not satisfy the justice that he came lawfully by the same, he shall on conviction by the justices forfeit and pay over and above the value of the article so found any sum not exceeding two pounds. Held, that the words "came lawfully by the same " mean came honestly by the same." The defendant employed a contractor to put up a fence for him. The contractor in erecting the fence took posts belonging to the prosecutor; and subsequently the prosecutor called upon the defendant and demanded the return of the posts or the price thereof. The defendant refused to return or to pay for the posts. The prosecutor then proceeded under sec. 102 of the Crimes Act 1890. The defendant in his evidence stated that he had no knowledge where the posts came from. The justices convicted the defendant and ordered him to pay the price of the posts. Held, that upon these facts the defendant was improperly convicted. ORDER TO REVIEW. This was an order nisi to review the decision of justices at |