J. C. 1865 v. DALLIMORE. the Act 24 Vict. No. 117, and the rights of any person entitled under the authority of the last-mentioned Act to depasture his THE QUEEN horses or cattle upon any such common. Section 65 gave the Governor in Council power in certain cases to proclaim lands to be a municipal common, or a gold-fields common, or a town common, or a farmers' common, as the case might be; section 67 reserved the rights of commonage to all persons resident on the lands so selected to be proclaimed. Section 77 provided that nothing therein contained should prevent the sale by auction, or selection, or the leasing under that Act, of any land comprised in any common proclaimed, or subject to licenses granted as aforesaid, before or after the passing of that Act; and the Governor in Council might at any time increase, diminish, alter, or abolish any such common. Part V., from section 80 to 121, related to "Licenses for pastoral occupation," section 80 providing that yearly licenses as to existing runs should be issued to confer no greater privileges than previous pastoral licenses conferred, while sections 81 to 87, contained specific provisions for the payment and assessment of the rents, and for ascertaining the grazing capabilities of the runs, which were to be fixed and determined on by the Board of Land and Works, in manner and form therein particularly provided; and when so determined, to be conclusive unless appealed against. In pursuance of these provisions, the Board of Land and Works proceeded to determine the grazing capabilities of each of the four classes of runs, into which the pastoral lands of the Colony were directed to be divided, and published, as required by the Act, in the Victoria Government Gazette of the 10th of December, 1862, the amount of rent to be paid in respect of such runs. The area of the Lamplough run was treated as 1500 acres, and the annual rent was fixed at £25. There was no appeal against the determination of rent for the Lamplough run, and the annual rent so determined was duly paid in respect thereof. On the 4th of March, 1863, the Respondent, Dallimore, and one Charles Forster purchased of the Respondents, Clough and Bogg, all their right, title, and interest to depasture stock on the Woodstock stations or runs, which, in the contract of purchase, were stated to include the stations or runs then known as Lamplough, J. C. 1865 v. Maiden Hill, Woodstock, Lansdown and Knighton, as the same were then held and occupied by Clough and Bogg under depasturing licenses from the Crown, standing in the names of the last-named THE QUEEN Respondents, together with the benefit of the licenses. It was by such contract provided that the boundaries of the runs should be as stated in the Government Gazette, except such portions as might have been deducted for commonage, sales, or reserves. The benefit of this contract became, by an agreement between the parties, dated the 4th of March, 1863, vested in the Respondent Dallimore alone. By a proclamation dated the 26th of October, 1863, the Governor of the Colony, in pursuance of the power given him by the "Land Act, 1862," abolished the gold-fields common described among others in the proclamation of the 28th of January, 1861, under the designation of Lamplough, and declared that the area therein described and marked as containing 3600 acres should be and constitute the gold-fields common for Lamplough. Notwithstanding that the original gold-fields common was thus abolished, the rents paid by the Respondents in respect of Lamplough run remained the same as before such abolition. But no fresh license for occupation was granted to them. On the 31st of December, 1863, the Board of Land and Works in pursuance of the 98th section of the "Land Act, 1862," No. 145, exposed to sale by auction in lots divers unoccupied Crown lands, including those in question in this appeal. The northernmost portion of the Lamplough run containing 3580 acres formed Lot 2, and was put up for sale by the name and description of Lamplough A. run, the amount of rent determined for the same being £50. This lot was sold to Ambrose Bowles at a premium of £75. The southernmost portion of the same run, containing 5500 acresformed Lot 3, and was exposed for sale by the name of Lamplough B. run, the amount of rent determined for the same being £85. This was sold to Daniel Noonan at a premium of £151. Chauncey, one of the officers of the Board of Land and Works was instructed by the Board to put Bowles and Noonan in possession of the runs purchased by them. He accordingly met them by appointment on the land, and formally gave them posA shepherd of the Respondent, Dallimore, was at the session. DALLIMORE. J. C. 1865 THE QUEEN V. DALLIMORE. time in possession of both the purchased runs, on behalf of the Respondent, and refused to give up such possession. On the 30th of March, 1864, Chauncey as such agent of the Board, made a demand on Dallimore personally of possession of the lands in question for the above purchases. He refused, however, to give up possession: whereupon the Appellant on the 13th of April, 1864, brought an action of ejectment in the Supreme Court of the Colony against the Respondent, Dallimore, for the two portions of Lamplough run, known as Lamplough A. run, and Lamplough B. run. On the 7th of June, 1864, the Respondents, Clough and Bogg, obtained leave to appear to the action, as landlords of the Respondent, Dallimore, and defend the property sought to be recovered. The action was tried before Mr. Justice Williams, and a jury, and a verdict was returned for the Appellant with one shilling damages, leave being reserved to the Respondents to move to enter a verdict for them on the grounds appearing on the Judge's notes of the evidence given. On the 24th of June, 1864, the Respondents obtained a rule nisi to set aside the verdict for the Appellant and to enter a a verdict for the Respondents on the grounds, first, that the right of entry was not in the Crown, but in Bowles and Noonan. Second, that the proclamation of the common did not determine the possession of the Defendant, or if it did, the revocation of such proclamation revested the possession in the former licenses. Third, that the Crown had no power, under the 98th section of the Land Act, 1862, to dispose of the lands to Bowles and Noonan, in the manner proved at the trial. Fourth, that no demand of possession was proved, the demand itself being insufficient, and no authority to make the demand was proved. Fifth, that, as licenses to occupy the land from 1847 to 1863, continuously, and particularly for the year 1861 were issued, the 71st section of the Act, 24 Vict. No. 117, did not apply to the Lamplough run, but only to unoccupied Crown lands, or if it did so apply, that the licensee was as much entitled to occupy the land as the commoners. Sixth, that the order in council of the 9th of March, 1847, coupled with possession and payment of license fees, and rent, and recognition, from time to time, by the Crown and its officers, established a tenancy, and that such tenancy had not been determined. J. C. 1865 V. The rule nisi was argued before the Supreme Court, and judg- THE QUEEN ment having been given for the Respondents on the 10th of September, 1864, was then made absolute. The Appellant applied for, and obtained, leave to appeal from this judgment. The Attorney-General (Sir R. Palmer), Sir Hugh Cairns, Q.C., and Mr. Kekewich, for the Appellant: The question at issue, though seemingly involved, is simply one of tenure. The Respondents derive their original title, if they have any beyond that conferred by the license of the 20th of March, 1862, from the occupation of their predecessors as licensees under the Crown, of lands forming part of a run in the unsettled district called Lamplough. It is not pretended that there has been any sale of these lands under the provisions of the Imperial Acts, the 5 & 6 Vict. c. 36, or the 9 & 10 Vict. c. 104, or in fact any lease under the Order in Council made pursuant to the last-named Act, though it is said that a lease had been applied for by one of the Respondents' predecessors. Be this as it may, the question would still remain, what claim such occupier had to the grant of a lease, even if applying for it, and that is not sufficiently before the Court to require argument, for both these Acts were repealed, while the Orders in Council made under them were made subject to future amendments and alterations by the Constitution Act, 18 & 19 Vict. c. 55. Now, it was in this state of things that the Respondents or their predecessors were in occupation of the lands in question as licensees of the Crown. Then came the Colonial Act, 24 Vict. No. 117, for the sale of Crown lands, and the proclamation of gold-fields commons, and the due proclamation of the Lamplough run, notwithstanding its occupation by the licensees as such, who continued to hold the residue with the other lands occupied by them. It was after this proclamation that the Respondents, Clough and Bogg, applied for and obtained the license of the 20th of March, 1862, which by the terms of it is limited to one year and no longer; and besides being so limited by the memorandum appended to it, so much only of the original Lamplough run as remained after the goldfield DALLIMORE. J. C. 1865 proclamation, was subject to future appropriations by the Crown or Board of Land Revenue. Then came the Act 25 Vict. No. 145, with THE QUEEN all its special provisions to be found in the sections under Parts 1, 2, 3, 4, and 5. v. DALLIMORE. Notwithstanding these various dealings by the Crown and its officers with the lands so occupied by the Respondents, they continue in the occupation and treat their possession as if it was a valid and subsisting title, by parting with it to the Respondent, Dallimore. They obtain, however, no renewal of the license of March, 1862, and must, therefore, be held to be but tenants on sufferance. But the proclamation of 26th of October, 1863, which abolished the previous goldfields common, and constituted one for Lamplough, put an end at once to the Defendants' right of possession. We say, then, that the Crown was, throughout these proceedings, and is now, the owner of the lands in question, and on the true construction of the Acts, was entitled to dispose of them in the manner stated, having, before the commencement of the action, done all things necessary to entitle it to recover possession of such lands. Mr. Bovill, Q.C., Mr. Cotton, and Mr. A. K. Stephenson, for the Respondents. At the time of the agreement for transfer by the Respondents, Clough and Bogg, to Dallimore, they were in licensed occupation of the land mentioned in the writ, which they, or their predecessors, had held anterior to and in the year 1861. Their title, therefore was transferred to the Respondent, Dallimore, who, at the date of the writ of ejectment, was in the lawful possession and occupation of the land in question. We maintain that the Crown had no power to determine the tenancy of the Respondents by proclamation, and never intended to do so. The proclamation for making the Lamplough run a goldfields common, had no such effect. That is evident from the continued occupation of the Respondents, and the license subsequently granted to them. There never was any due revocation of the occupancy of Clough and Bogg, who by the payment and acceptance of rent, as well as under the general lease of their licenses, were at the least tenants from year to year. The Order in Council of March, 1847, gave the licensees a claim to a |