F.C. 1891 HUMPHREYS v. COLDWELL. in arrear, on the 26th November 1889 one Benson, as agent for the defendant, demanded of the plaintiff possession of the premises in dispute, after he had begun to read a written notice signed by the defendant of his intention to proceed to recover possession of the premises. The notice was in the form provided by the seventh schedule to the Act. Possession not having been given, on the 4th December 1889 Benson again demanded possession. The rent being still in arrear, the defendant issued a complaint before justices, in the form provided by the eighth schedule of the Act, on the 10th December 1889, and the justices on the same day granted a warrant under sec. 91 of the Act commanding a constable to enter the premises, and give possession thereof to the defendant. The warrant was not put in execution, as the plaintiff entered into a bond to try the landlord's right. The only question left to the jury was "Whether Benson had demanded possession before reading the notice?" and this question was answered in the negative. Upon motion for judgment before Holroyd, J., judgment was ordered to be entered for the defendant, and against this judgment the plaintiff now appealed. The arguments were substantially the same as in the Court below. Box for the appellant. Isaacs, for the respondent, was not called upon. HIGINBOTHAM, C.J. delivered the judgment of the Court [HIGINBOTHAM, C.J., A'BECKETT and HODGES, JJ.]. We think that the question raised in this appeal has to be determined by the plain meaning of the words of sec. 96 of "The Landlord and Tenant Statute 1864," which provides that "in every case in which the person to whom any such warrant shall be granted had not at the time of the granting the same lawful right to the possession of the premises, the obtaining of any such warrant as aforesaid shall be deemed a trespass by him against the tenant or occupier of the premises, although no entry shall be made by virtue of the warrant." The action is brought by the tenant against the landlord, and it appeared that before the landlord F.C. 1891 HUMPHREYS v. COLDWELL. applied to the magistrate to grant a warrant the landlord had twice demanded possession, and had thereby determined the tenancy, which was a condition precedent to the regular and legal issue and service of the notice of intention to apply under the Act. But at the time of the granting of this warrant for possession the landlord had the right to the possession of the premises, although he had Higinbotham,C.J. not taken properly the earlier step of determining the tenancy before he served notice upon the tenant of his intention to proceed. Sec. 96, taken according to the plain meaning of its terms, is in complete harmony with sec. 100 and sec. 90. They all fit in together. They all provide that while a landlord must not irregularly, or without determining the tenancy, even proceed to serve a tenant with notice of his intention to apply, and thereby harass and perplex the tenant, and that if he does so he shall be liable for any special damage sustained by the tenant by such irregularity, yet the tenant has not the right to the action of trespass given by the Act if the landlord had the right to possession at the time the warrant was granted. If we were to throw any doubt upon the decision appealed against, we should not be following the plain meaning of the Act. Appeal dismissed, with costs. Solicitors for appellant: Wisewould, Gibbs & Wisewould. W. H.M. BOURCHIER . MITCHELL. Highway—Travelling sheep- Owner of fenced land adjoining highway—Trespass by sheep-Impounding-Primary judge deciding on point not raised-Appeal. Apart from the provisions of " The Land Act 1884" (No. 812), sec. 120, as to agricultural allotments, the owner of fenced land adjoining a highway is bound to allow sheep travelling along the highway, which trespass upon his land by walking under the fence, to remain upon his land for a sufficiently long time to give the persons driving them an opportunity of removing them. Where the learned primary judge, after hearing evidence on the whole case, decided on a point not raised, and which could not be properly raised between the parties, the Full Court, on appeal, dealt with the case on the evidence already given, without requiring a new trial or re-hearing. APPEAL by the defendant from a decision of Webb, J., reported 16 V.L.R. 415. F.C. 1891 Feb. 17, 18, 19. F.C. 1891 BOURCHIER v. MITCHELL. Kelly and Bindon for the appellant-The learned judge was in error in concluding that the defence was drawn with reference to sec. 120 of "The Land Act 1884" (No. 812); the defence was founded upon the decision in Goodwyn v. Cheveley (a). No evidence was adduced in support of the supposed defence under "The Land Act 1884," and the only particle of evidence given was an answer given by a witness to a question put by the judge himself, which was to the effect that the land in question was originally selected by one Kilby, and was purchased by the defendant from Kilby. The plaintiff's pleadings admit that the land was owned by the defendant in fee simple. The defendant does not come within the section, and is not limited by its provisions. He was not a "purchaser" within the meaning of the section. It does not apply to a freehold at all, and the defendant was possessed of the freehold. [HIGINBOTHAM, C.J. We have asked the learned judge as to what took place at the hearing, and he has informed us that counsel for the plaintiff, in his opening address, referred to "The Land Act 1884" as a possible defence relied on by the defendant, and that it was in consequence of that reference, not called in question by the defendant at the time, that he conceived that this was an agricultural area or grazing area within the meaning of the Act, and upon that basis his judgment rested. It appears clearly from the note of his judgment, in which he states that the defendant knew very well what he was pleading, and that, in order to bring himself within the meaning of sec. 120, he alleged that the fence was "a substantial fence." We desire to intimate our opinion that it may be expedient for both parties, if they agree, that the case be remitted to the judge to decide upon the evidence already given as to the other points raised, and that his judgment thereon be subject to appeal by either party.] Kelly, after consultation with the appellant, intimated to the Court that he could not agree to this course being adopted. Kelly-The judge was wrong as to the meaning of "substantial fence"; those words refer merely to the requirements of the selector. The words are to be construed according to the (a) 28 L.J. (Ex.) 298. circumstances of the individual: Winter v. The Queen (b). Sec. 120 does not include a purchaser from a purchaser according to the proper construction of the terms: Maxwell on Interpretation of Statutes (2nd ed.), pp. 46, 89. Counsel then argued upon the general facts of the case. Mitchell and Anderson for the respondent-It is admitted that it was never intended to bring this case under "The Land Act 1884" at all. PER CURIAM. We think that we cannot treat this case as coming within "The Land Act 1884." We should like to hear counsel upon the facts of the case as relating to the other points. Counsel then addressed the Court upon the evidence relating to other points in the case. HIGINBOTHAM, C.J., delivered the judgment of the Court [HIGINBOTHAM, C.J., A'BECKETT and HODGES, JJ.]. This is an appeal from the judgment of Mr. Justice Webb. The case is a peculiar one, and has presented general difficulties in dealing with it. It was an action, in substance, for illegally impounding sheep travelling on the highway and found on the defendant's land immediately adjoining the highway. The defendant, admitting certain allegations in the statement of claim, traversed others, and set up a plea of justification to the whole of the causes of action, which were three in number, the case being put in different forms by the plaintiff. The form of that plea of justification is, at the least, uncertain. It might possibly be open to an objection that it did. not set forth a good defence, but it was, at all events, uncertain. The case, when it came to trial, was opened by the plaintiff, whose counsel referred, in opening the case, to the possible defences that might be set up by the defendant. Amongst others, counsel for the plaintiff referred, as a possible defence, to sec. 120 of "The Land Act 1884," which contains special provisions regulating the rights of an owner of land held by different species of tenure. Neither the plaintiff nor the defendant gave any evidence of the (b) 4 A.J.R. 178. F.C. 1891 BOURCHIER v. MITCHELL. F.C. 1891 BOURCHIER V. MITCHELL. defendant's title to the land, and at the close of the defendant's case the learned judge put a question to a witness, the answer to which informed the judge that the defendant purchased the land in question which had been selected by another person. The learned judge drew a conclusion from that answer, assisted in part by the Higinbotham, C.J. reference made to the possible defence in the opening of the plaintiff's counsel and possibly also from the uncertain statements in the plea of justification, which was, in our opinion, clearly erroneous. He concluded that this was land held by a selector under "The Land Act 1884," sec. 120, and proceeded to deliver a judgment founded upon the construction of the words "substantial fence" contained in that section. Now, it is admitted on both sides that no evidence was given which justified a judgment founded on the interpretation of those words in that section, and the judgment founded on those words cannot therefore be upheld. That being the state of the case, we have then to consider what course it is our duty to take. The Court is empowered, upon an appeal from a judgment, to exercise very large powers of dealing with the subject-matter of the action. It may, on special grounds assigned, call for further evidence, or it may make any order which ought to have been made, or it may, if it thinks that a new trial ought to be had, order that a new trial shall be had without dealing with the facts in evidence. We have, therefore, to determine whether this case ought to go to a new trial, or rehearing, or whether we may not, with due regard to the rights and interests of the parties and the effectual attainment of a just judgment, deal with the case upon the evidence presented to the judge. We are no doubt, exposed to the difficulty of not being able to judge in a matter of a conflict of evidence from the manner and demeanour of witnesses, but we are of opinion that the circumstances of this case do not render it a duty on us to direct a rehearing, and that conclusion is fortified by the fact that neither of the parties to this appeal has called upon us to direct a rehearing or a new trial. Then dealing with the facts in evidence, having heard them read and argued upon, we are of opinion that the finding the facts in dispute with reference to the legal right in question must be in favour of the plaintiff. There were only two facts in dispute apart |