J. C.

1870

In re SKINNER.

tioner, Mrs. James Skinner, and delivered into the charge of Miss Scanlan that on the same day the High Court made a further Order, appointing Mr. Bailey, of the Agra Bank, Guardian of the property of the Petitioner's Daughter. Pursuant to the first of these Orders, of the 16th of July, the Petitioner's Daughter had been taken to and placed in the charge of Miss Scanlan that before the Petitioner's Daughter was placed in the care of Mrs. James Skinner, by the Order of the 22nd of March, the Petitioner and her Daughter had always lived together, and had never been separated for more than a few hours, the Petitioner and her Daughter entertaining a very strong affection for one another, and that the separation which had taken place had caused, and was still causing, very great mental pain, and even physical illness, to the Petitioner's Daughter: that, being dissatisfied with the three last-mentioned Orders of the High Court, the Petitioner and Mr. John applied to the High Court for leave to appeal to Her Majesty in Council; but the High Court, by an Order of the 29th of August, 1870, dismissed the application, on the ground, that Mr. John had no locus standi, and that the Petitioner was not entitled to appeal as a matter of right, as the Orders did not involve property of the value of £1,000, and declined to certify that the case was a fit one for appeal to the Privy Council: that the Petitioner felt aggrieved by the above Orders of the High Court of the 7th and 16th of July which affected the civil rights of the Petitioner and her Daughter, which cannot be measured by a money standard, and involved important questions of law; and also by the Order of the 29th of August, refusing the Petitioner leave to appeal, and, in consequence of such last-mentioned Order, it was necessary to apply for special leave to appeal against the Orders: that should the Petitioner obtain such leave to appeal, it will necessarily be some considerable time before such appeal could be heard, and that, in the meantime, unless execution of the Orders of the High Court was stayed, the Petitioner would for a long time be deprived of the society of her Daughter and only child, and her Daughter would remain among strangers, and be alienated from the Petitioner: the Petitioner, therefore, prayed for special leave to appeal from the Orders of the High Court of Judicature for the North-Western Provinces of the 7th and 16th of July, that exe

cution of such Orders might be stayed, and that the Petitioner's Daughter might be permitted to return to and live with her pending such appeal, or for further relief in the premises.

The petition was supported by the joint declaration of the Petitioner and John Thomas John, her alleged Husband, and was accompanied by translations of the correspondence between the parties relative to the custody of the person and property of the minor, and the proceedings, petition, and depositions had thereon, with the judgment of the Judge of the District Court of Meerut, and of the High Court of Judicature for the North-Western Provinces, both of which detailed very fully the grounds of their decision, and the Orders thereon, which were now sought to be appealed from.

Sir R. Palmer, Q.C. (Mr. Cave, with him), for the Petitioner:

This is an application under the special powers reserved to the Crown by the Statute, 3 & 4 Will. 4, c. 41, s. 4. There is no right of appeal under the Letters Patent establishing the High Court of Judicature in the North-Western Provinces. The Order of the Court below removes the Minor from the custody of the Petitioner, her Mother, on the ground, that she being a Mahomedan, the Minor is being induced to embrace the Mahomedan faith. In a similar case before this Tribunal, Camilleri v. Fleri (1), from Malta, leave to appeal was given against an Order for the removal of children from the custody of their parent. Although not an appealable grievance by the Letters Patent establishing the High Court, leave to appeal has in analogous cases been allowed under the general power of the Statute, 3 & 4 Will. 4, c. 41, s. 4: Shire v. Shire (2); D'Orliac v. D'Orliac (3).

THE LORD JUSTICE JAMES:

Enough appears from the petition to induce their Lordships to grant special leave to appeal. Such leave, however, must be without prejudice to any application to the Court below by the Petitioner, as she may be advised to make, to have access, at suitable times, to her Daughter.

(1) 5 Moore's P. C. Cases, 161.

(3) 4 Moore's P. C. Cases, 374.

(2) Ibid. 81.

J. C.

1870

In re SKINNER.

J. C.

1870

In re SKINNER.

By an Order in Council made on the petition, leave was given to the Petitioner to prosecute her appeal against the Orders of the High Court of Judicature for the North-Western Provinces of the 7th of July and the 16th of July, 1870, on giving the usual security; with liberty, pending the appeal, to make application to the High Court of Judicature for the North-Western Provinces for leave for the Petitioner, the Mother, to have access at suitable times to her Daughter.

Solicitors for the Petitioner: Watkins & Lattey.

Special leave to appeal-Grounds for Matter involving question of general

public interest on construction of a Colonial Act.

Special leave to appeal (the sum involved being below the appealable amount) allowed, on the ground that the question involved the construction of a Colonial Act which affected the interests of a large class in the Colony for which the Act was passed.

In granting the special leave the Judicial Committee limited the appeal to the construction of the Colonial Act.

THIS

HIS was an ex parte application for special leave to appeal. The Plaintiff was the Lessee of several large tracts of land known as" Sheep runs" in South Australia, under leases from the Crown granted for pasturage purposes, in which manner a great portion of the land of South Australia is leased out. One of the Plaintiff's runs adjoined a run occupied by the Defendant, and some time before the commencement of the action the Plaintiff erected a wood and wire fence between his run and that of the Defendant; and the Plaintiff claimed a contribution from the Defendant on account

* Present:-SIR JAMES WILLIAM COLVILE, SIR ROBERT PHILLIMore (Judge OF THE HIGH COURT OF ADMIRALTY), and SIR JOSEPH NAPIER, BArt,

J. C.

1870

BROWN

v.

of this fence, under the 4th section of the South Australian Fencing Act of 1865 (29 Vict. No. 6), which provides "that when any occupier of land has heretofore availed himself, or shall hereafter avail himself, of any fence, not being a party fence, dividing MCLAUGHAN. such land from the land adjoining; the occupier in possession shall, upon demand, be liable to pay to the Owner of such dividing fence one-half part of the value, at the time of such demand, of so much of such fence as shall abut on the land so occupied as aforesaid." At the trial it was admitted, that the fence in question was a dividing fence and had been erected by the Plaintiff at his own expense, that the Defendant was the occupier of the adjoining land, and that he had availed himself of the fence in question. The Plaintiff also proved the erection of the fence by himself and the cost of it. The jury found a verdict for the Plaintiff for £184. A rule nisi was subsequently obtained, calling on the Plaintiff to shew cause why the verdict should not be set aside and a new trial had between the parties, on the ground of misdirection in the Judge having directed the jury that there was uncontradicted evidence of the Plaintiff that he was the owner of the fence. This rule was argued, and in the result, the Supreme Court ordered the verdict to be set aside. and a nonsuit entered, on the ground, that this Act did not apply to fences erected by pastoral Lessees.

This was the judgment from which the Plaintiff in the Court below applied for special leave to appeal against. The Petitioner alleged, that according to the above Act of the Local Legislature of South Australia he was entitled to claim and recover from the occupiers of the lands adjoining the half value of the fencing so erected by him, and submitted that the questions involved in the action were of considerable importance, not only to him, but also to the whole of the Lessees from the Crown of land for pastoral purposes.

Mr. J. Cunningham, in support of the application:

There are several grounds on which this Tribunal has permitted departures from the rule relating to appealable value. These were, first, where the matter in dispute involved an important principle or point of law; secondly, where it involved similar interests of a large class of persons; thirdly, where, though the amount immediately

J. C. 1870

BROWN

v.

MOLAUGHAN.

involved is below the appealable value, £500, the matter indirectly involves an equal or greater sum; and, lastly, where the rights of the Crown or of a Colonial Government are involved. All these grounds existed in this case. In the first place an important question of law is involved, viz., as to the construction of the Act of 1865, 29 Vict. No. 6, on a point which affected the interests of a very large class of persons in the Province for which alone this Act was passed, bearing in mind the fact, that a very considerable portion of the Territory of South Australia was leased out to what are termed "Pastoral lessees." Then, certainly, it involved a sum much larger than the appealable amount as stated in the petition of appeal, the Plaintiff having erected many other fences of a similar kind, for which he cannot recover contribution if this decision stands. It is submitted that the same principle would be involved in these cases if other actions were brought. Moreover, there was the irregularity, if not fatal error, in the proceedings, namely, the ordering a nonsuit to be entered without leave reserved, which is contrary to a well-established Common Law rule of practice; and moreover, the Order, while purporting to be made in pursuance of the rule, was a flagrant departure from it; the rule being a rule to shew cause why the verdict should not be set aside and a new trial had between the parties on the ground of misdirection, whereas the Order was to set aside the verdict and enter a nonsuit.

SIR JAMES W. COLVILE:

Their Lordships are disposed to grant leave to appeal, on the ground, that it is a question on the construction of an Act, and one of general interest in South Australia. It being understood that the appeal is to be confined to the merits of the decision, namely, whether the South Australian Fencing Act applies to fences erected by holders of leases under the Crown for pastoral purposes.

Solicitors for the Petitioner: Torr, Janeway, & Tagart.