1884 v. VICKERY. referee who was taking this account made this inquiry it was open to him to have referred to it. As a matter of fact he did BUCKNELL not refer to it, nor did either the plaintiff or the defendant, so that the decision of the referee was arrived at without taking this evidence into account. An appeal having been lodged against his decision, it was overruled by the Primary Judge, and then this Court was appealed to against such decision, when it was reversed, and the conclusion which the referee had arrived at was upheld. Neither before the Primary Judge nor before this Court was this evidence sought to be put in. The whole of the argument proceeded from first to last, before the referee where attorneys appeared, and before the Primary Judge where counsel were heard, without any intimation of its existence. Now that the transcript is being prepared it has been discovered that a portion of this evidence has some bearing on the question which is going before the Privy Council-the allowance of two-anda-half per cent. commission. The defendant desired to have this evidence, as far as it deals with this point, inserted in the transcript, and application was made on his behalf to have it so included. His Honour came to the conclusion that as it was not used before him nor before the Court it ought not to go, and he has therefore directed that it shall not be inserted. A further point arises out of the decision of His Honour. It appears that when His Honour set aside the decision of the referee as to the allowance of commission he took that course because it appeared to him that his predecessor, Mr. Justice Hargrave, had decided this matter. He did this without going into the merits in any way, but simply being satisfied that it had been decided, he had it inserted in the minutes of the decree that commission should not be allowed. This Court did not act upon such evidence when it took the course I have mentioned. Now application has been made to His Honour to insert in the transcript his reasons for the course he took in reference to the conclusion of the referee, and His Honour has prepared a statement of his reasons for that purpose. I understand that His Honour said that he would furnish these reasons if either party applied to him to do so. That 1884 BUCKNELL v. VICKERY. would of course be a concession to the plaintiff only, because the defendant would not be likely to ask him to take any such course. These then are reasons of the Primary Judge in support of the decision appealed from and overruled, and they are drawn up in the same way as the Full Court would draw up its reasons for the Privy Council in support of a decree or order of its own. It is our decision sitting as the Full Court which is now appealed from. For this decision reasons are to be given, and not for the decision of the Primary Judge. The effect of a proceeding of this kind would be to give the Primary Judge after the reversal of his decision an opportunity to come in and support by argument on the record his view, in opposition to the Full Court. I am clearly of opinion that the reasons which His Honour has prepared, and which are now before us, in support of his order disallowing the commission ought not to be inserted in the transcript. As to the other point, inasmuch as the evidence taken at Fiji under a commission ordered by this Court, was filed as part of the proceedings, and was therefore made available for either party, although not used, I consider that it ought to form part of the transcript. I think, therefore, that His Honour's decision, on both points, must be reversed. FAUCETT, J. I am of the same opinion. It is quite clear that this evidence was taken under an order of the Court, and might have been referred to by either party before the referree, the Primary Judge, or this Court on appeal. As a matter of fact it has not been referred to. We know the great powers which the Privy Council possess, and that they may decide a question not on the grounds which were before an inferior Court, but upon others which do not appear upon the record. If this evidence is sent forward, the Privy Council may disapprove of the decision of the Full Court, which went upon the construction of the document, and may set it aside on that point. Although we do not take the view that it is necessary to support the decision with that evidence, there is no reason why we should not allow it to go forward. On these grounds, I entirely concur with His Honour that this evidence ought to form part of the transcript, 1884 the Privy Council being entitled to say that they will not decide BUCKNELL upon it. The other point is one of greater importance, because it involves a novel practice, namely-The Court here has decided on appeal in a particular case against the decision of the Primary Judge, who had given certain reasons which were verbally reported from the Court below. In considering the case we have considered those reasons, and given every effect to them that they were entitled to receive. Though these reasons are now brought forward for insertion in the transcript with the best intentions, I think their preparation was a mistake. I have no reason to suppose that His Honour is varying the reasons he gave before, because they seem to me to be precisely the same; they do not go beyond the particulars stated before, though they are stated a little more fully. These are not the reasons submitted to this Court of Appeal. It is a strong ground, but at the same time it is travelling over this Court of Appeal to send reasons direct to the Privy Council, where they never would go but for the decision of this Court. That seems to me to be a ground why it should not be allowed. Besides, as His Honour the Chief Justice has properly put it, the appeal is from the decision of this Court, and not from that of the Primary Judge. These reasons of the Primary Judge appear in our judgment, because we have considered them; therefore, they must necessarily appear before the Privy Council. I think His Honour the Primary Judge was mistaken, though no doubt he, as he always is, was endeavouring to assist the administration of justice. I think the order should be set aside. INNES, J., said:-I am of the same opinion. With regard to the first point I may say that I have a distinct recollection of having read the evidence taken before Mr. Littlejohn, though I am not quite so clear as to having read the evidence which was sent down in the reference to him, in which this particular matter is referred to. However, it is quite certain that this is evidence to which Mr. Littlejohn, or either party, might have referred; and V. VICKERY, 1884 V. it was before this Court in the same sense. The mere fact that it BUCKNELL was not referred to or used, in no way shuts it out from forming a portion of the transcript, if it has relation to the matters on appeal, as stated by the orders of the Privy Council. It appears to me to be evidence of that character, and is, therefore, properly included. VICKERY. I concur with their Honours as to the other point, in holding that a mistake has been made by the learned Primary Judge. No doubt the idea never entered into his mind to draw up reasons in reply to this Court, still the document takes that form and reads as if it related to the judgment of the Court which overruled his decision. There is no doubt that the Order-in-Council requires that the reason given by the Judges, whose decision is appealed from, should be sent to the Privy Council. This is an appeal from the judgment of the Full Court, and not from that of the Primary Judge. The order says, "That the said Court shall certify to a copy of the reasons of the said Court for the judgment appealed against." I think the order should be set aside. Appeal allowed. Costs given to the appellant both in the appeal and in the Court below. The evidence directed to be incorporated in the transcript, and the reasons of the Primary Judge to be excluded. Solicitors for the appellant: Allen & Allen. HOLCOMBE v. THE MUNICIPALITY OF NEWCASTLE. Dedication of road-Implied repeal of public by private Act of Parliament— Special damage - Newcastle (Paving and Public Vehicles) Act of 1876Private Act of 1881. Where trustees (the municipal council of N.) of a market place, to whom the fee had not been granted, kerbed, guttered, and lighted certain approaches thereto, and these approaches were used as highways for many years; and in a private Act of Parliament were included in a list of certain streets of N.:-Held, that even if the trustees had not power to dedicate the approaches as public highways, their inclusion in the Act amounted to a legislative recognition of them as such. Held, also, that a private Act cannot, without clear and express words, repeal a public Act. The plaintiff was a tenant of a shop situated at the junction of two streets, one of which was blocked up altogether by the defendants, and the other narrowed by five feet, so that his thoroughfare became a cul-de-sac, whereby his takings fell off to a considerable extent. Held, that he had sustained private and particular damage such as to justify him in proceeding against the defendants without making the Attorney-General a party to the suit. THE facts in this case are so fully stated in the judgment of SIR JAMES MARTIN, C.J., that it is unnecessary to set them out here. On 28th May, the case was argued before SIR W. MANNING, P.J., who granted the injunction sought for. From this decision the defendants appealed, and their appeal was heard on the 25th and 26th of August, 1884. Stephen, Q.C., and Knox, for the appellants-The Act of 1881 is plain and unambiguous, and no part of the land affected by it must be excepted, merely because it is a highway. Inasmuch as the plaintiff's access is not absolutely blocked up, and his customers can still get to his shop, he must make the AttorneyGeneral a party to the suit: Fritz v. Hobson (1); Ives v. Moore (2); Ricket v. Metropolitan Railway Coy. (3); Benjamin v. Storr (4). The plaintiff can claim no right-of-way of necessity, because at the date of the grant the land was not surrounded; and even if he could the plaintiff could not say how the right-of (1) L.R. 14 Ch. D. 542. (2) 1 Ld. Raym. 486. (3) L.R. 2 H.L. 175. (4) L.R. C.P., p. p. 400 & 409. F. C. 1884 Aug. 25, 26. |