1906 BELL v. CLARKE. whether the previous pegging cannot be said to enure for his benefit CUSSEN, J. is another question. In the case of Wearne v. Froggatt (c), a somewhat similar question arose concerning posts, and it would be a little remarkable if complainant's title would be good if he had simply lifted his peg out of the ground and driven it in again, but would be bad if he had simply left it there. I need not, however, and do not, decide that question. I also think that the principle of Critchley v. Graham has been adopted in other countries where our mining law, as construed by Molesworth, J., has been adopted. It was urged by counsel for the defendant that the doctrine of Critchley v. Graham was gone, and he urged that I need and should not give effect to the doctrine in this case, because, in regard to claims, or perhaps all holdings other than residence areas, there was no provision for cancellation of the registration thereof. But it is clear that there are provisions in the Mines Act by which a person entitled to the possession of them can be put into such possession by proper proceedings, and it may be that the defendant here is entitled to be put in possession. I do not think that I should lightly disregard this "most wise law," as the Privy Council termed a by-law affirming the principle in Mulcahy v. Walhalla, etc., Co. (d). With regard to the case of Lows v. Telford (e), Molesworth, J., pointed out in Whiteley v. Schlemm (f) that though a freeholder, claiming title against a person wrongfully in possession, might treat the latter's remaining in as a trespass, a claim-holder cannot always do so, as freeholds and claims are different things. I answer the question in the affirmative, and it follows that the complainant has the costs. Solicitors for the complainant: Crawford & Ussher (for FitzSymons, Morwell). Solicitor for the defendant: A. G. Roberts, (c) 2 V.L.R. (M.) 1. (e) 1 App. Cas. 414. (d) [1871] 2 A.J.R., p. 94. (f) 8 V.L.R. (M.), p. 61. S. R. L. HOOD, J. 1906 July 25, 31. McCALLUM v. PURVIS. Justices Act 1904 (No. 1959), s. 21—Order to review-Amount involved not exceeding 51.-Vermin Destruction Act 1890 (No. 1153), s. 20-Notice-Service by registered letter-Address-Expenses reasonably incurred by inspector, evidence of. The objection that a decision of a Court of Petty Sessions sought to be reviewed does not involve an amount exceeding 57., and does not fall within the exceptions specified in the Justices Act 1904 (No. 1959), sec. 21, cannot be taken on the return of the order nisi. Bevan v. Moore ([1899] 24 V.L. R. 792) discussed. Semble, the proper course to follow is to apply by summons to have the order nisi set aside. The Vermin Destruction Act 1890, sec. 20, provides that notices may be served on any owner or occupier of land by posting the same in a registered letter addressed to him at his usual or last known place of abode : Held, that where the name on the letter was misspelt, but was identical in sound with that of the defendant, while the address itself was correct, the notice had been duly served. Evidence may be called to show that any costs, charges, or expenses incurred by any inspector under the Vermin Destruction Act 1890 were not reasonably incurred. ORDER TO REVIEW. This was an order to review a decision of the Court of Petty Sessions at Yea. The complainant, A. McCallum, an inspector under the Vermin Destruction Act 1890, proceeded against John Purvis for the recovery of 31. 14s. 9d., being money paid for the defendant at his request. It appeared from the evidence that the defendant was the occupier of certain land, 320 acres, at Homewood; that on 1st February 1905 the complainant had posted a notice to the defendant requiring him to destroy the rabbits on the said land, and that the notice was sent in a registered letter addressed -"J. Pervis, Homewood." The defendant failing to destroy the rabbits on his land, the complainant entered thereon and expended the sum of 31. 14s. 9d. in the destruction of rabbits, and commenced these proceedings under sec. 22 of the Vermin Destruction Act 1890 for the recovery of that sum. At the conclusion of the complainant's case the defendant stated that his defences were :-That no notice had been sent as required by the Vermin Destruction Act 1890, inasmuch as the notice had been addressed to "J. Pervis" instead of "J. Purvis," and that the work was unnecessary and unreasonable. The defendant swore he never had received the notice. Without going into the other defences raised, the Court dismissed the case, with 11. 8s. 6d. costs, on the ground that the Act provided that the notice must be duly served, and that the defendant had not received the notice. An order nisi to review the decision was granted, on the grounds : 1. That service of the notice mentioned in sec. 14 of the Vermin Destruction Act 1890 was proved, and the non-receipt by the defendant (even if proved) was immaterial. 2. That upon the evidence the said Court of Petty Sessions at Yea should have made an order for the amount claimed. Lewers moved the order absolute. Starke showed cause-No important public matter of law, or matter of general application, or undecided question of law, is involved, and therefore the decision of the justices cannot be reviewed Justices Act 1904 (No. 1959), sec. 21. Lewers-It is too late to raise that question on the return of the order nisi. [HOOD, J. That was my opinion, but the Full Court held otherwise in Bevan v. Moore (a).] Lewers-Cussen, J., decided in a recent case that this objection could not be raised at this stage: O'Sullivan v. Humphris (b). The matter was not expressly decided in Bevan v. Moore. Starke referred to Hepworth v. Gleeson (c) and Gleeson Brothers v. Ellison (d). HOOD, J. In view of the decision of Cussen, J., I will consider this point. Starke submitted-(1.) There was no evidence that the amount claimed was reasonable; (2) that the magistrates were justified in holding that the notice had not been properly served. (a) [1899] 24 V.L.R. 792. (b) [1906] V.L.R. 563. (c) [1901] 27 V.L.R. 316. HOOD, J. 1906 MCCALLUM บ. PURVIS. HOOD, J. 1906 MCCALLUM V. PURVIS. Lewers-There is evidence that the work was reasonable, but it is submitted that the inspector is the sole judge on that point: See secs. 16, 17, 18, 19, 22, and 26 of Vermin Destruction Act 1890. The notice was properly addressed, and the finding of the magistrates on that point was wrong: Letherbarrow v. Ward (e); American and English Encyclopædia, vol. xvi., p. 122; Janes v. Whitbread (f). Cur, ad, vult. HOOD, J. Upon the return of this order nisi, counsel showing cause raised the point that the case fell within sec. 2 of the Justices Act 1898, as amended by sec. 21 of the Justices Act 1904, and that therefore this order nisi should be discharged. The sum at stake is under 51., so that the section applies, unless some of the answers made to the objection can be sustained. Those answers were(1) That this is not the proper time to take the objection, and (2) that the order complained of involved some important public matter of law, or some matter of general application within the meaning of the section. The order complained of is the dismissal with costs of a complaint made under sec. 22 of the Vermin Destruction Act 1890. That Act provides for service of a notice upon the occupier of land requiring him to destroy all vermin thereon, and, by sec. 20, that notice may be served, inter alia, "by posting the same in a registered letter addressed to him (the occupier) at his usual or last known place of abode." The complainant proved compliance with this section, except that the name of the defendant was spelt" Pervis," and the objection was taken that this misspelling invalidated the service, at all events if the letter never reached the defendant. The magistrates were satisfied that the defendant did not receive the notice, and dismissed the case, apparently considering that the misspelling was fatal. If the decision had laid down a general rule to the effect that any mistake whatever in spelling would vitiate the notice, the decision would have been within the exception. That, however, was not what the magistrates did. They took the very natural view (if the Act permits of it) that the real question was, Did the defendant ever receive the notice? and finding that he did not, they simply held that this particular notice (e) [1841] 5 Jur. 388. (f) [1851] 11 C.B. 406. was bad, a decision merely upon a question of fact peculiar to this particular case. In my opinion, therefore, this objection is a good one, unless the first answer prevails-namely, that it is now too late to take it. The object of this legislation was to save expense, and to prevent appeals from justices when the amount does not exceed 5l., unless in exceptional cases. That object is defeated if the point can be raised at this stage, because by this time all the expense has been incurred, whereas if the matter is dealt with upon the granting of the order nisi subsequent costs will be avoided. Nor is the respondent injured by this latter course. If he is advised that the order nisi has been wrongly granted as being obnoxious to this section, he can apply to set aside this ex parte order, in the same way as he could any other order made in his absence, merely at the costs of an ordinary summons. But though this may be the object of the Legislature, yet the real question is-What is the true meaning of the section, always, however, bearing in mind the evil sought to be remedied? To me the section seems clear. No order to review shall be granted or made under sec. 141 of the Principal Act, etc., unless it appear to the Supreme Court, or a Judge thereof, that the order complained of ought to be reviewed, etc. It cannot have been intended that this matter should be dealt with both on granting the order nisi and also on the return thereof. Such a course would only increase the expense, and would also make one Judge sit on appeal from another Judge of co-ordinate jurisdiction. The Judge, therefore, who grants the order nisi must either finally decide this point (subject to application to set it aside), or else leave it alone altogether. But the latter course is opposed to the words which prohibit the granting or making of any order, and to the object sought to be attained. Above all, such a course is in contradiction to the reference to sec. 141 of the Justices Act, because that section deals solely with the granting of the order nisi. Sec. 146, under which the hearing comes, enacts what is to be done on the return of the order to review, and has no bearing upon the granting or making thereof. In my opinion, therefore, the present objection cannot now be taken. It was said, however, that the matter is covered by decision, and such certainly has been the general impression. In the case of Bevan v. Moore (g), the Full HOOD, J. 1906 MCCALLUM v. PURVIS. |