James Brown, - Appellant; Alexander McLachlan, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 11 December 1872 |
| Date | 11 December 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 559
ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.
Mews' Dig. tit. Colony, II. Particular Colonies, 1. Australia, c. South Australia; tit. Statute, F. Effect of one Act on Another, 3. Repeal, c. Repeal of Special by General. S.C. L.R. 4 P.C. 543; 42 L.J. P.C. 18; 21 W.R. 277.
brown v. m'lachlan [1872] ix moore n.s., ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA. JAMES BROWN,-Appellant; ALEXANDER MoLACHLAN,-Respondent * [Dec. 11, 1872]. The Australian Fencing Act, No. 6, of 1865, does not apply to waste lands in South Australia held on lease from the Crown for pastoral purposes. If a Statute professes merely to repeal a former Statute of limited operation, and to re-enact its provisions in an amended form, an intention to extend the operation of its provisions to classes of persons not previously subject to them is not to be presumed as a necessary inference, unless the intention to the contrary is clearly shown [9 Moo. P.C. (N.S.) 394]. This was an action brought by the Appellant to recover half the value of a fence erected by him, between adjoining tracts of land respectively occupied by him and the Respondent, and of which it was [385] alleged that the latter had availed himself. The action was based on the provisions of the South Australian Fencing Act of 1865-6, No. 6 (the 4th section is set out in the judgment, post [9 Moo. P.C. (N.S.)], p. 389). The first count of the declaration stated, that the Plaintiff was the Owner, within the true intent and meaning of the Fencing Act, No. 6, of 1865, of a fence, not being a party-fence, and that such fence divided certain land known as Avenue Range from certain other land known as Mount Scab, and that the Defendant, being the occupier of the last-mentioned land had availed himself of the fence within the true intent and meaning of the Act, and that the Plaintiff had duly made a demand in writing of the Defendant under that Act for payment of half the value of the fence, yet the Defendant had not paid the same. There was also a second count, alleging an agreement by the Defendant to pay half the value of the fence, and a breach of that agreement. The Defendant pleaded, first, to the second count, a denial of the agreement. Second, to the first count, a denial that the Plaintiff was the Owner of the fence. Third, to the first count, a denial that the Defendant was the occupier of the adjoining land. Fourth, to the first count, a denial that the fence was a dividing fence. And, fifth, to the first count, a denial that the Defendant availed himself of the fence. The action was tried before Mr. Justice Wearing. At the trial, admissions signed by both parties were put in. It was admitted between the parties, first, [386] that the fences in respect of which the action was brought, were dividing fences between the respective runs mentioned in the declaration. Secondly, that the Plaintiff was, at the time of the erection of the fence, a tenant of the Crown for pastoral purposes of the run called Avenue Range, and continued so therefrom to the time the action was brought, and that the fences were erected on the boundary line thereof by the Plaintiff. That any objection to the form of lease or leases under which the Plaintiff claimed was to be open to the Defendant, and a form of lease used by the Crown for leases for pastoral purposes was to be admitted as evidence to raise any point arising on the form of the lease. Thirdly, that the Defendant was, at the time of the demand mentioned in the declaration, occupier of the Mount Scab run mentioned in the declaration, and before such demand had availed himself of the fences; and, fourthly, that the demand mentioned in the declaration was made as therein stated. A form of lease and renewed lease was put in the evidence. The learned Judge directed the jury that there was unanswered evidence that the Appellant was the Owner of the fence in question within the meaning of the Fencing Act, 1865; and the jury thereupon gave a verdict for the Appellant for the sum of £184. A rule was afterwards obtained by the Respondent to set aside the verdict, on * Present: Sir James William Colvile, Sir Barnes Peacock, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 559 IX MOORE N.S., 387 BROWN V. M'LACHLAN [1872] grounds, first, that the Judge who tried the action misdirected the jury in directing them that the Plaintiff (the Appellant) was [387] the Owner of the fence within the meaning of the Fencing Act, 1865; secondly, that there was evidence that the fence was not a party-fence within the meaning of that Act; and, thirdly, that there was no evidence that the fence was not the...
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