THE CHIEF JUSTICE. It must be presumed that the prisoners knew the state of their account.

Ralston. This case raises the very important question whether if evidence not legally admissible against the prisoner and not objected to by counsel for the prisoner is left to the jury, the conviction will be quashed. R. v. Gibson (1) decides that the conviction will be quashed.

INNES, J. You must first of all satisfy the Court that the evidence was inadmissible.

Ralston. The evidence was inadmissible on the same ground that the evidence in the case of R. v. Watkins (2) was held inadmissible. The prisoners were not in any way connected with the evidence given. It was not shewn that the candles sold by Green ever got into the possession of the prisoners. The Crown should have gone one step further and proved that the candles were bought by Mrs. M'Donald for the prisoners, or that the candles found in the shop were candles similar to those bought from Green. With regard to the evidence given by Littlejohn, there was nothing to shew that the two men who took the room at the Coffee Palace were the prisoners. His evidence, as it stands, is simply that two young men took a room on the 3rd August. There is the same objection to the evidence referred to in the sixth ground. Even if the Court is against me as to the admissibility of the evidence, I would ask the Court to give a decision on the first question raised.

Heydon, for the Crown. The members of the profession are very anxious for an expression of opinion of this Court on the case of R. v. Gibson (1). The point is whether the conviction will be quashed if the Judge does not withdraw from the jury inadmissible evidence, even though counsel for the prisoner has raised no objection to the evidence and has not requested the Judge to withdraw it from the jury.

THE CHIEF JUSTICE. As we are of opinion that the evidence in this case was admissible, it is unnecessary, for the purpose of

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RICHARDSON.

1892.

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COWPE

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RICHARDSON.

this decision, to say anything with reference to R. v. Gibson (1). I may, however, point out that I do not think that case warrants the course adopted in this case.

WINDEYER, J. I do not think that the mere fact of the jury The C.J. having heard inadmissible evidence is sufficient to vitiate a trial.

INNES, J. In R. v. Gibson (1) the Judge pointedly directed the jury's attention to the inadmissible evidence and refused to withdraw it from their consideration. That case does not decide that the Judge is bound of his own motion to expressly withdraw inadmissible evidence from the jury, and I do not think that the Judge is bound to withdraw inadmissible evidence from the jury unless he is requested by counsel for the prisoner to withdraw it from their consideration. That case seems to me to be simply an authority for saying that where a Judge does, as he did in that case, draw the attention of the jury to inadmissible evidence and leave it to them as material evidence to be considered against the prisoner, in such a case unless before verdict the Judge corrects that mistake and withdraws such evidence from the jury, the verdict will be vitiated. But where evidence is given which if standing by itself is inadmissible (as for instance where it is only the first stage in some piece of evidence, that it is intended subsequently to connect the prisoner with, but which does not go further and therefore becomes not evidence against the prisoner), and which is not objected to, a Judge is not called upon expressly to tell the jury that they must not consider that evidence, and his neglect to do so will not vitiate a verdict. The observations of some of the Judges in R. v. Gibson (1) go beyond the circumstances of that case, and are too wide and are liable to misconstruction. However, in this case we are not called upon further to consider R. v. Gibson (1), as the evidence here is clearly admissible.

Conviction sustained.

Attorneys for the prisoners: Crick & Meagher.

ANDERSON AND OTHERS v. PRINGLE.

Mining—Mineral licenses—Holding more than one license,

There is nothing in the Mining Act (37 Vic. No. 13) to preclude one person from taking out eight mineral licenses in his own name, and by virtue of such licenses taking possession of 320 acres for the purpose of searching for shale.

THIS was an appeal from the Mining Court of Appeal holden at Mudgee. The following is the special case stated by Docker, D.C.J.:

This is a cause wherein the complainants (appellants) seek to be declared entitled to possession of 320 acres of land, measured portion 42, situated in the parish of Airley, county of Roxburgh.

The facts are that the respondent (Pringle) on the 28th day of May, 1891, took out eight mineral licenses in his own name, and by virtue of the said eight mineral licenses he, on the 29th day of May, 1891, took possession of and occupied the said 320 acres of land, measured portion number 42, for the purpose of searching for shale. He took possession of the said land in the prescribed manner by erecting posts at all the angles thereof, digging trenches and erecting notice board, and maintained the boundary mark and notice board, and kept four men continually employed in searching for shale until the 23rd day of June, 1891, on which date the said respondent made an application under the sixth Regulation, relating to mineral licenses, to convert his holding of the said 320 acres into a leasehold. On the 14th day of November, 1891, each of the above named appellants took out a mineral license, and on the 16th day of December, 1891, the above named respondent (Pringle) was summoned by the above named appellants to appear at the Warden's Court, Rylstone, on the 11th day of January, 1892, to answer the complaint of the above named appellants, by which complaint they sought to be placed in possession of the said 320 acres of land. The said complaint was heard by the Warden (J. E. Wotton), and he gave the decision as follows:

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November 18.

The C.J. Windeyer J.

and Stephen J.

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V.

PRINGLE.

"It is alleged for various reasons that defendant held illegally, ANDERSON but nothing is shewn by complainants Anderson and others that the Warden had any power to place complainants in possession. The evidence taken went to prove that Pringle held eight mineral licenses in his own name which, according to Regulations 1 and 2 (mineral licenses), the Warden considers he is entitled to hold and to take eight forty acres in virtue thereof. It is proved by witnesses called for complainants, continuous labour and payment of men employed by Pringle, and the keeping of the boundary marks and notice board and two applications for mineral leases for the same portion being in existence and not dealt with under Regulation 28 (mineral leases) no one is entitled, pending result, to enter upon the land; besides which, Lane, and not Anderson and others, was the person apprised by the department who must take proceedings to clear away Pringle's title under mineral license. The complaint is therefore dismissed with costs, 161. 2s."

The above named appellants appealed to the District Court, at Mudgee, sitting as a Court of Appeal in its mining jurisdiction. The said appeal came on for hearing on the 26th day of April, 1892. The appellants' attorney (Mr. G. Davidson) opened the case, referring to the facts and the law applicable thereto, and Mr. Edward Clarke (the respondent's attorney) contended that on the opening he was entitled to a verdict, and the said Court dismissed the appeal with costs.

The appellants' attorney contending that the above named respondent could not multiply himself or his powers by multiplying his mineral licenses, and could not, therefore, legally occupy the said measured portion 42 of 320 acres, being eight men's ground, and that in consequence the title of the said 320 acres of land so occupied by the respondent as aforesaid became forfeited, and entitled the appellants to be declared entitled to possession of such 320 acres of land; and also contending that by s. 15 of the Mining Act, 1874, one person cannot hold more than one man's ground by holding several miners' rights. And by s. 63 of the said Act, every mineral license shall confer on the holder thereof the same rights and privileges in respect of or in connection with mining for minerals other than gold as are

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declared by this Act to be conferred on holders of miners' rights in respect of mining for gold. Therefore, one person cannot hold ANDERSON more than one man's ground by holding several mineral licenses, PRINGLE. and the respondent's title to occupy the said 320 acres is forfeited, not being able to occupy eight men's ground by virtue of the eight mineral licenses in his own name.

The respondent's attorney contending that no power or authority was given to the Warden by the Mining Act or Regulations to place the appellants in possession, as the facts did not come within Regulation 5 of the mineral license Regulations; and, it being adinitted by appellants that they had not marked or pegged out the ground, or even been thereon, respondent's attorney also contended that the respondent was legally in possession, using as argument the main features of his Honour Judge Docker's decision, which, being set out fully, it is unnecessary to repeat here.

His Honour Judge Docker gave the following decision:

In this case it appears that the respondent is the holder of eight mineral licenses in his own name, by virtue of which he took possession of a measured portion of land containing 320 acres, for shale mining, under the Mining Act.

He subsequently applied for a lease of the same land, which application is now pending.

The appellants lodged no objections either to the registration of the mineral area or to the issue of the lease within the specified time; but they, being each the holder of a mineral license (eight in all), applied to the Warden to be put in possession of the land in question. This the Warden refused to do and dismissed the case. The applicants now appeal against this decision.

The principal points taken on behalf of the appellants are :— 1. That an individual can only take possession of one parcel of land, not exceeding 40 acres, whether he hold one or more licenses.

2. And that if he takes up an excess of area, then the taking of possession is invalid, and the Warden can put other persons in possession, notwithstanding the pendency of an application for a lease by the first party.

I am of opinion that the appellants must fail on every point.