1905.

GREVILLE . WILLIAMS.

November 20. Public Service Act, 59 Vic. No. 25, 88, 8, 60- Civil Service Act, 48 Vic. No. 24, 88. 46, 48-Civil servants-Abolition of office-Transfer of duties-Retirement of officers in excess-Pension.

The C.J.

Owen J. and

Cohen J.

An office cannot be said to be abolished within the meaning of s. 46 of the Civil Service Act unless the duties pertaining to that office are also abolished.

NEW TRIAL MOTION.

This was an action brought to establish a claim for a pension under sections 46 and 48 of the Civil Service Act, 1884. It appeared that the plaintiff entered the Government service in 1853. In 1890 he filled the office of accountant in the Bankruptcy Department, and continued to hold that position until 1896. In 1896 the Public Service Board inspected and graded that department when they found that a greater number of persons were employed there than was necessary. The plaintiff was held to be one of the number in excess, and, inasmuch as he could not be usefully and profitably employed in any other department, the Board dispensed with his services. The plaintiff admitted that he had received a gratuity and a pension in accordance with the provisions of s. 60 of the Public Service Act of 1895, but claimed that he was entitled to a pension under s. 48 of the Civil Service Act, 1884, in that his services had been dispensed with in consequence of his office having been abolished. He was willing to give credit for the amount he had received under s. 60. The action was tried by consent before Pring, J., without a jury, when a verdict was entered for the defendant.

It appeared from the evidence given at the trial that after the plaintiff's retirement his work was handed over to a clerk in the Bankruptcy Department, who was not called an "accountant" but a "clerk." The plaintiff now moved to make absolute a rule nisi for a new trial or to have a verdict entered on the ground that the plaintiff's retirement was under s. 46 of the Civil Service

Act of 1884, and that he was therefore entitled to a pension under s. 48 of the said Act.

Piddington, for the plaintiff. The plaintiff's office was abolished, he therefore came under s. 46 of the Civil Service Act, 1884. He was one of the number in excess only because his office was abolished, and therefore s. 8 of the Public Service Act, 1895, does not cover this case. The Civil Service Act is an organisation of offices with a definite title to each of them, and the only way in which an office can be got rid of is by not appointing anyone to it. The idea was to give stability and dignity to an office. Under s. 16 of the Civil Service Act, 1884, a list had to be prepared of offices. The performance of duties is a very different thing to an office. The clerk who is now doing the work is not called an accountant." In neither Act is there any provision made for a notification of the abolishment of an office.

C. B. Stephen and Harry Stephen, for the defendant. Sect. 46 only applies to cases where an office has been absolutely abolished. An office cannot be said to be abolished unless the duties are abolished. Here they are performed by another clerk. Sect. 46 does not apply to a case where the Board acted under s. 8 of the Public Service Act, 1895. It can only refer to a case where an office has been abolished, and no further services are required from anyone.

Piddington in reply.

THE CHIEF JUSTICE. I am distinctly of opinion that the plaintiff was retired under the provisions of s. 8 of the Public Service Act, 1895, and not under s. 46 of the Civil Service Act of 1884. I cannot see that the Public Service Board have power to abolish an office, though they could recommend its abolition. Under s. 8 of the Public Service Act the Board have power to deal with the case of an excess of clerks or officers in any department and to dispense with their services, in which event they would be dealt with under the provisions of s. 60. In this case it appears that the Board inquired into and examined the Bankruptcy Department, and came to the conclusion that the number of persons employed were more than necessary. They were not

1905.

GREVILLE

v.

WILLIAMS.

V.

WILLIAMS.

The C.J.

1905. able to find another department to which the plaintiff could be GREVILLE transferred, and they therefore dispensed with his services, and he was paid a gratuity under s. 60. It is contended that because the plaintiff held the office of accountant under the name of accountant and because now another clerk does the same duties under another name that amounted to an abolition of the office of accountant. I fail to follow that contention. a confusion between the name and the office. an office means the abolition of the duties of that office. In this case it is quite clear that the duties were only transferred, and that therefore the office was not abolished. Under s. 46 of the Civil Service Act it would be for the Governor to act under the advice of the Executive Council, and no such steps were taken in this case. I think the rule should be discharged with costs.

OWEN and COHEN, JJ., concurred.

Attorneys for the plaintiff: Aitken & Aitken.

It seems to me The abolition of

Attorney for the defendant: The Crown Solicitor.

ALEXANDER v. BALLONI.

1905.

Arrest on Mesne Process Act, 1902 No. 24, s. 6-Setting aside-Trivial November 17.

irregularities.

In future writs of ca. re. will not be set aside for trifling irregularities in the writ or process connected therewith unless it can be shown that the defendant has actually been misled or prejudiced thereby.

SUMMONS to set aside a ca. re., which had been referred by The Chief Justice in Chambers to the Full Court.

The grounds of the summons were (1) that in the copy writ served on the defendant the name of the defendant had been omitted from the words "or until the said shall by other

lawful means be discharged from your custody." (2) That the writ was void in that it was not in the form prescribed, inasmuch as in the notice subjoined thereto signed by the plaintiff's attorney the words after such arrest were omitted after the words "within eight days." (3) That the affidavit of the plaintiff was bad and insufficient, because it was not expressed wholly in the first person, but partly in the first and partly in the third person. (4) That the affidavits did not show that the action would be defeated unless the defendant was apprehended.

The omission of the defen

Rolin, in support of the summons. dant's name in the place indicated is an irregularity sufficient to avoid the writ. The copy served must be a true copy of the writ, and cannot be amended after service: Byfield v. Street (10 Bing. 27); Moore v. Morgan (16 M. & W. 95). As to the second ground, the omission of the words " after such arrest " is a departure from the form prescribed and the writ is therefore bad. The writ must, by s. 6, be in the form prescribed by the Judges.

THE CHIEF JUSTICE. The notice is no part of the writ.

Rolin. It must be part of the writ, because Rule 236 provides that "the time specified in the writ for putting in bail shall be eight days," and the notice is the only part of the writ which

The C.J.
Owen J.

and Pring J.

1905.

conveys this information. The notice is a necessary part of the ALEXANDER Writ by virtue of the Rule of Court. Even if not strictly part

v.

BALLONI.

of the writ, a form has been prescribed for it, and it must be in that form and must either be endorsed on or served with the writ.

The omission of the words "after such arrest " causes a material alteration in the sense of the notice. Without those words it means "within eight days after giving bail to the sheriff." Bail may be given to the sheriff at any time, but if it is specified that special bail has to be given within eight days after the arrest, the time is rigidly fixed.

THE CHIEF JUSTICE. The writ in this case follows the old form prescribed by the Rules of May, 1856. I never heard it contended that the writ under the old practice was misleading. Can you show that the defendant was in any way misled or prejudiced?

Rolin. It is not necessary for me to show that he was actually misled. All I need is to show a material irregularity which might mislead. Matters affecting the liberty of the subject are always dealt with strictissimi juris: Taylor v. Roe (68 L.T. 213). It has been the practice of this Court to set aside the writ for the most trifling error: Mock Sing v. Dat (19 W.N. 230); Vacuum Oil Co. v. Cole (20 W.N. 35); Fenwick v. Olsen (20 W.N. 146). As to the form of the affidavit see Rule 381.

Bignold, for the plaintiff, was not heard.

THE CHIEF JUSTICE. This matter came before me in Chambers, and upon a consideration of the arguments addressed to me, and the cases cited, I came to the conclusion that it was time some definite principle was laid down in reference to irregularities of the kind appearing here, and I accordingly referred the case to the Court.

The first objection taken is that the name of the defendant has been omitted from the passage directing the sheriff to retain him until he should "by other lawful means be discharged from your custody." This irregularity was no doubt first discovered by the defendant's attorney, and it is hard to see how the defendant could in any way have been prejudiced or misled by the omission.