LAWS ON GOLD FIELDS.

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either side. Probably it might be of use to draw attention to them at a. time when we were on the ere of a new Gold Fields Act, and the Legislature might deem it advisable to put some doubts to rest. The learned Judge then proceeded to discuss at considerable length the arguments as to this question of the miner's right as they had been used or might be used on either side. The respondent, he said, contended that the break in the miner's right at any link of the chain of title was fatal, and insisted that the land, upon the occurrence of that break, was Crown land once more, until some one—either the old occupier or some other party —made a new title to it; and that a miner holding a miner's right and coming to take possession of it was not a stranger nor a wrong-doer intruding on a person in possession, but was a person with a perfect title coming to assert that title against a person who was in possession, not only without any title whatever, but in defiance of the law which made his occupation Tinder such circumstances an offence punishable with fine and imprisonment. The 6th section of the Act of 1866, it was said, limited the duration of the authority to occupy by virtue of the miner's right strictly to the continuance of the miner's right, after which it ceased to be of any avail; and the 97th section made every unauthorized occupation an offence, punishable with fine and imprisonment. It was urged, therefore, that on the expiration of the miner's right every shadow of rightful occupation was gone ; and that a mere continuance of the occupation after taking out new miners' rights was of no avail to set up the title again without a renewal of all the steps that were originally necessary for the taking up of open Crown lands, as the claim had then become. For the appellants it was argued that the Act did not leave the question to depend upon the 6th and 97th sections, but proceeded by the 112th section to define and limit the disability in respect of title which it was intended to impose upon the non-holder of a miner's right. It was argued that the 6th section defined the authority to be conferred by the miner's right; that the 97th section defined what penalties of a quasi criminal character should be incurred by the non-holder of a miner's right; and that the 112th section defined what disabilities of a civil character, so to speak, touching the title, should be incurred by the non-holder of a miner's right. It was contended that these sections must be read together, and that nothing as to the civil disabilities was left by the Legislature to be deduced by inference from the 97th section when they chose themselves to say expressly in the 112th section what these liabilities should be, in terms defining and limiting them, and excluding all inferences that would extend them farther. It was reasoned that no one with the responsibility of framing this Act or of interpreting it could read the 6th and 97th sections without being sensible that if they stood alone an effect would be produced upon titles held under the miner's right that the Legislature could not possibly contemplate, and feeling that something had still to be expressly said on that subject. That something, it was argued, was said in the 112th section, which defined what effect should be produced on titles by the non-holding a miner's right, and by so defining it excluded all further effect. The 112th section, it was contended, limited the effect to this—that no person whose right to his claim was attacked at a moment when he was without a miner's right should have aid of any Court to make good that right; but it was contended that if the time of his being a non-holder was allowed to pass, and he was not attacked until he became a holder of a miner's right, the opportunity of attack was gone, and he must suffer no prejudice in respect of title on the mere ground of having at some previous time been a non-holder. In fact, he must be caught out. It was argued that the 112th section must either have this meaning or else have none at all. According to the argument of the opposite reasoner, the 6th section and the 97th section had done all that the 112th section did, and a great deal more besides. Where, then, it was asked, was the need of the 112th section? For what purpose was it inserted in the Act? If the former sections had imposed unlimited disabilities as to title, why add this section to impose limited disabilities, which were only a small portion of those that had been imposed already ? The only possible purpose of the 112th section was by expressly imposing disabilities within a certain limit to fix the extent of such disabilities and to exclude all inference beyond them. And it was argued that this reasonable limitation was an absolute necessity ; that otherwise no title under the miner's right would be secure, as it would be impossible for any one purchasing mining property to ascertain whether every one who preceded him in the numerous assignments or successions had a miner's right, and had it at the right time, and had it in respect of the identical piece of ground that was then being purchased. The 112th section of our Act was a transcript from the 90th section of the Victorian Gold Fields Act, continued in the Victorian Act of 1865, section 246 ; and in Victoria this section was always made the touchstone of any disability as to the right to sue affecting the non-holder of the miner's right. In the Victorian Courts, no objection based on the non-holding of a miner's right ever went behind the time prescribed by this section —viz., the time of the attack made upon the title of the person alleged to be a non-holder ; and the familiar expression in the mouths of the Victorian Judges was, that the " miner's right was no part of the title." It was admitted that the Victorian Act did not contain the clause making the occupation of Crown land without a miner's right liable to be punished by fine and imprisonment. In Victoria that seemed to be left to the operation of some other Act, probably the Waste Lands Act; but that circumstance did not, it was contended, meet the argument that our Act must be interpreted as a whole. The cases collected under the head of " Miner's Right " in McFarlane's " Digest of Mining Law in Victoria " would show, it was said, that the objection based on the non-holding of a miner's right always rested on the sections answering to our 112th ; and yet an examination of the original reports of these cases would show that there was abundant opportunity for taking the objection behind the date there fixed, if it was thought available. It was strongly argued that there was an absolute necessity of limiting this objection to title, as it was limited by the 112th section. The miner's right did not apply to any particular piece of land, and it was not transferable. After the holder had abandoned or assigned the portion of land which he had originally taken up with it, he did not abandon the miner's right, nor hand it to his assignee, but passed on with it to other pieces of ground, which he occupied in succession by virtue of it. Any number of these pieces he might assign, and with none of them would he transmit the miner's right. If a purchaser of mining property was obliged to be always provided with legal evidence of the existence at the proper time and in the right hands of these pieces of parchment, none of which passed to him along with the property that they affected, the title of mining property, it was contended, would become 2