CRAINE v AUSTRALIAN

nee on the merits ought to be shown where the judgment is

ular. That is a position which ought to weigh very strongly

this Court when asked to grant leave to appeal. I there-

Solicitors, for the appellant, Leibius & Black for W. Clarke- Hill, Broome, W.A.

: (Byl, (HIGH COURT OF AUSTRALIA.] BNE: é "i 2 'i . APPELLANT; DEFENDANT, AND THE AUSTRALIAN DEPOSIT AND MORT-)| festos ales, _ GAGE BANK LIMITED J i} * Be ASTLETS, H. ©. or A.

ce - Appeal to High Court - Decision on question of fact - Reversing finding Sept. 23, 30; of fact - Weight of evidence - Action for possession of land - Adverse possession, Oct. 1, 2.

"Where a Judge in deciding between witnesses has given credence to verbal Grinith C.J, Barton and

ony which turns out, on more careful analysis, to be substantially incon "siacs JJ. 'XY, 26

CRAINE v AUSTRALIAN DeEposrr AND MortTGacE Bank Lrv.

sistent with itself, or with indisputable fact, a Court of Appeal will his findings based on such verbal testimony.

In an action to recover possession of land, the defence being possess

over fifteen years, the whole case turned on the particular time at w certain fence was erected on the land. 'The Supreme Court having found it was not erected before a certain date,

Held, by Grifith C.J. and Isaacs J. (Barton J. dissenting), that the indi putable evidence established that the fence was erected before that date.

Decision of the Supreme Court of Victoria (Madden C.J.) reversed.

An action was brought in the Supreme Court by the Aus lian Deposit and Mortgage Bank Ltd. against Thomas Hem Craine claiming possession of a certain block of land of wh

had been mortgaged to the plaintiffs by Harper by a mortga registered on 21st February 1902. It was further alleged default had been made in payment of the mortgage moneys that the defendant was in possession of the land.

The defence was that the defendant was in possession of land by himself or his tenant.

The action was heard before Madden C.J., who directed judg ment to be entered for the plaintiffs with costs.

From this decision the defendant now appealed to the Hi Court.

The appeal turned wholly on a question of fact, and the facts are sufficiently set out in the judgments hereunder.

Grirritu C.J: The question for determination on this app is entirely a question of fact. The action was for recovery land and the plaintiffs have the paper title. The defence is pt session for 15 years before December 1906 or January 1907, wh the plaintiffs made an entry. Incidentally, an attempt was mad

prove that in 1902 the defendant became tenant to the plain- H.C. or A.

but the evidence only established a negotiation with that Utes

The onus is, of course, on the defendant to establish his posses- pos USTRALIAN

His case is that before December 1891 he took possession Derosrr

the land and enclosed it with a fence, and that he afterwards ysosroace

tained actual possession of it until the plaintiffs' entry at the BaNx Lr.

end of 1906. The land in question has a frontage of 122 links to erimth 0.9.

street called Washington Street, by a depth of 139 links. The

endant has lived since 1885 on land immediately adjoining it

the west. Ata time about 20 years before the trial, which

in November 1911, the defendant put a fence across the front

und back of this piece of land and opened a gate leading into it

from his own premises. After that he used it for various pur-

including the keeping of a foal, a cow, horses and fowls,

• We all know that, when it is necessary to fix the date of an

it which took place many years ago, little or no reliance can

be placed on memory, unless it is aided by some contemporaneous

nearly contemporaneous event, the date of which can be fixed

by independent testimony, and which is itself connected with the

event the date of whiclr is in controversy, so that the memory

ling one event naturally recalls the other also. In weighing

'idence of such a kind, the greatest reliance is placed upon

mony of matters as to which the witnesses are least likely to

The defendant called a number of witnesses who fixed the

e of the fencing of the land at a period not later than

ptember 1891 by reference to events of which they had an

ependent memory, and the date of which could in some cases

fixed by reference to documents. The plaintiffs, in answer,

don the evidence of two ladies who fixed the date as being

not earlier than the end of 1893. The learned Chief Justice

accepted the evidence of those two ladies, and it is contended by

respondents that, as he saw the witnesses, we are not in a

ion to differ from him. But our task is not so simple as

In the case cited by Mr. Irvine of Khoo Sit Hoh v. Lim

Thean Tong (1), Lord Robeon, who delivered the opinion of th Judicial Committee, commenting on the duty of a Court o Appeal on the hearing of an appeal from a decision of a J founded upon oral testimony, and pointing out that asa rul is very difficult to reverse it, said: - *Of course, it may be in deciding between witnesses he has clearly failed on point to take account of particular circumstances or probabilit material to an estimate of the evidence, or has given credence testimony, perhaps plausibly put forward, which turns out o more careful analysis to be substantially inconsistent with itself, or with indisputable fact, but except in rare cases of character, cases which are susceptible of being dealt with wholly by argument, a Court of Appeal will hesitate long before it disturbs the findings of a trial Jadge based on verbal testimony This is, in my opinion, one of those rare cases, as I will proe to show.

Some facts are established beyond all doubt. Before the fence: were put up the land was open to Washington Street, and wa used as a short cut by people in the neighbourhood. The land a the back must therefore have been open also, as has, indeed, assumed. There is also positive evidence that it was so used asa short cut up to the time when the fences were put up, whene that was. The defendant says that he fenced the land in 188 and some of the witnesses to whom I will afterwards refer suj port him in that statement. But it is quite certain that a

• possibly soon after, possibly a year or two after, but certai after - the fence was erected, the defendant brought a young f a to the land which he had enclosed, and kept it there for at | eighteen months, so that the fences were erected before the bringing of the foal. The defendant says that the foal was b in March 1891, that its mother died almost immediately, that the foal was carted into Melbourne and put upon the la The learned Chief Justice, applying his knowledge of equi affairs, thought that it was in the highest degree improbable t a foal the sire of which was a stallion for whose service a fee seven guineas was paid, should be born at that time of the y That may be so. But there was no apparent motive to induce

e defendant to fix. March as the date of the foaling rather than later date - the only relevant fact being that the foal was born 1891, the precise month, whether March or September, being juite irrelevant. The learned Chief Justice seems to have ght that this inaccuracy in the defendant's evidence destroyed s whole case. That is very much like what the Judges whose ent was appealed from in Khoo Sit Hoh v. Lim Thean yy (1) had done. They thought that the defendants having guilty of falsehood in a particular matter, their whole case discredited. The Judicial Committee pointed out that that an entirely erroneous principle. So much for the undisputed facts. I will now refer to the dence relied upon to fix the date, premising that, so far as in be discovered from the judgment of the learned Chief ice, the integrity and honesty of those witnesses is not dis- uted, and that the worst that can be said is that they may have been mistaken. It is important, as I said, to remember that zater weight should be given to the testimony of witnesses ho depose to matters as to which they are not likely to be aken than to that of those who are likely to be mistaken. 'The first witness to whom I will refer is Walsh. He says that n 2nd July 1890 and 22nd September 1891 he took the ndant's foal to the Maori Chief Hotel, South Melbourne, that e foal was born at Brannigan's, Oatlands, and was about a fort- night old when he took it from there to South Melbourne, from hich place it was taken to the land in question. It is not sug- that he did not take the foal from the one place to the 'The way in which he fixed the date was this: - Up to 2nd July 1890 he had kept an hotel, and on that date he gave it up ind went to live at the Maori Chief Hotel, where he remained intil he was married, which, as shown by his marriage certificate, was on 22nd September 1891. He verifies the date of leaving e hotel he had kept by reference to a book containing a record ofeach day's takings up to the last day. So that, if he is at all ble, there is no doubt that he took the foal to South Mel- une between 2nd July 1890 and 22nd September 1891, which

'time he took his wife for a drive before she became bedridde

is sufficient to establish the defendant's case. There is no ro for doubt as to the date of those contemporaneous facts.

Another witness, named Schroeder, had in 1885 sold to defendant the land on which he now lives. He himself lived in the neighbourhood. He says that he saw the land fenced as long ago, at any rate, as 1891. He fixes the time as 1889, and fi it by reference to his wife's death which occurred on 4th March 1899, she having been bedridden for fully nine years before death, that is, from 1890. He says that he remembers the |

and that on that occasion they both noticed and commenti upon the fence in question. The only room for error is as to the length of time during which his wife was bedridden. It i impossible to doubt the rest of his story, if he is a witness | truth.

Another witness, named Thompson, also fixed the date as e in 1891. He says that he started business in Toorak on July 1889, and began to deliver goods in Washington Street at

make a short cut over the land and had to get through the fences. He is not likely to be mistaken about the time he com- menced business. That would establish the existence of the fence before the end of 1890. :

1890, and she says she saw the fence there before he was born She went away from the neighbourhood, and came back agaii 1891, and again observed the fence when her son Walter about 11 months old. Unless she is entirely wrong, the f must have been there before the end of 1891, Her husb George Cowan, who was also a witness, says that he saw I fence first in 1891. He had lived in that locality before, came back in 1891, and then saw the fence there.

Another witness, Robert Cowan, their son, fixes the date of th erection of the fence by the fact that when he was a boy he a cripple and had an operation performed on him by D Fitzgerald. He used to cross the land up to 1891. After operation he had a tricycle and could not cross the land wii

vase of the fence. He is quite certain about the date because he went to school in that year and won a prize which he now has. here is still another member of the same family, William Cowan, who recollects the land as fenced in 1889 before ey left the locality. He crossed it almost daily. He went y and came back in 1891, when the land was still fenced.

_ One other witness for the defendant I will mention on this rticular point, Albert Rhodes, a coachbnilder, who fixes the ate by reference to his apprenticeship which expired in October Up to that time he used to go through the land, and he

That is a tremendously strong body of evidence in support of the alleged fact that the fence was there in 1891. Besides that e is the evidence of four witnesses, whom I need not name, who fix the time by contemporaneous events, of the dates of ich they are perfectly certain, so that there is practically no for error. All of them show that the fence must have been e before 1893.

_ The only case set up in answer to this is practically the evi- ence of two ladies who say that the fence was put there in 3. The first is Miss McComas, who kept a school on what st originally have been the same block of land. Her house ot face Washington Street but a street which runs North and South to the East of the land in question. The back of her premises looks on to a piece of land at the back of the land in ion, and which must then have been vacant land. She says the fence was put up at the end of 1893. She fixes the year e her sister was married in that year. No doubt she was king to the best of her recollection. One of the reasons she ves for being sure that there was no fence then is that the it her school used to play on the land from 1887 to 1893, occasionally afterwards. She says they played what she football matches on the land in the winter of 1893, and that

matches or other games played by little boys in that year from those played in other years. She fixes the date by con-

~ - CRAINE v AUSTRALIAN Deposit AND MortGacE Bank Lrp.

house in Washington Street, and Miss McComas says that, f the purpose of the wedding, which took place on 18th July 189 at Miss McComas's house, Mrs. Anderson sent her some chees butter, and crockery across the land from her house. It app clear that at that time there was a vacant piece of land at back of Mrs. Anderson's, Miss McComas's, and the land in qu tion. Miss McComas herself said that the boys at her sel ool used to play cricket just outside the wire fence upon vacant So that when Miss McComas says that the cheese, butter crockery were " brought across the land by the back way" to house, it is obvious that they must have been brought across the land at the back described as vacant land by all the witne! . It is suggested that she meant that, having direct access a that vacant land from Mrs. Anderson's premises, the bearer the goods went out of Mrs. Anderson's front gate, along street, across the land in question and the vacant land at | back of it, and then in at Miss McComas's back gate. That is the only fact Miss McComas relies on to fix the date. It obvious that, if the land at the rear was vacant, there was no necessity to go over the land in question. So that its suppo condition of being unfenced could not have been brought un her notice by the suggested fence. The circumstances on which Miss McComas relies to fix the date are therefore quite irrelev: to the date of the actual fencing. The other witness was Mrs. Anderson, who admits that she a defective memory for dates. She gave evidence which strongly corroborates the fact that the land at the back of the land in dispute and her land was open. She says that she was afr id she would be called upon to pay half the cost of a dividing fence which could only mean that she was the owner of the adjoini land at the back. She has nothing by which to fix the date when the land in dispute was fenced except a conversation about this land, which she said she had with Professor Harper at beginning of 1891, and which turned out to have been not witl him, but with someone else. She thinks the fence was put up in 1893 and also that it was nearly three years after that conver' tion. Nothing could be more vague. She had no interest in th

land, and had nothing to connect the fencing of it with any event in her life. Under these circumstances it appears to me that the evidence of those two witnesses is entirely displaced, and that there is thing in it upon which the learned Chief Justice could rely. he words of Lord Robson (1), he gave weight to testimony ich turns out on more careful analysis to be substantially nsistent with itself, or with indisputable fact." Under these circumstances it seems to me that we are thrown upon the positive evidence of the defendant's witnesses, the nesty of which is not questioned, and the weight of which is great. 'It appears, however, that the defendant in his attempt to get sion of this land has not got it all. The frontage of the to Washington Street is a steep bank, and in order to make fence secure it had to be put back some distance from the line f frontage. The learned Chief Justice found that the fence was et 6 inches back from the street. To that strip, therefore, the lant has acquired no title. If a person having title to land ludes within his fence less land than he owns, he may never- be held to retain possession of the whole. But that does not apply to a person who has taken possession of the land of another. He can only keep that which he has had in his actual ion. So that the plaintiffs were entitled to recover in action the strip of land which is outside the fence, and the ndant is entitled to retain the remainder.

RTON J. I regret that I am unable to agree that this should be allowed. The case was narrowed down in

it and back lines of the land in dispute? If he did so 15 before Iecember 1906, he gained a title by possession. If, ver, he fenced less than 15 years before that date, then it is that the acts done by Russell on behalf of the plaintiffs, amounted to a dispossession of the defendant, prevented le plaintiffs' title from being barred by lapse of time, and their entary title remained valid.

ea CRAINE v AUSTRALIAN Deposir AND MortGacE Bank Lrp.

~ CRaINE . AUSTRALIAN Deposir AND Mortcace Banx Lrp.

Both parties seem to have virtually decided to treat the q tion of fencing as dependent on the time when a foal of defendant was brought to the land in question. The foal w kept there, and a cow was brought in so that he might be with her milk, his mother keing dead. The foal then must hay , been a young one when brought to Toorak, and the fencing evidently put up to keep the two animals in. Now, of t witnesses who were called, there were two whose evidence the chief subject of argument on the appeal. They were Michae Walsh, testifying for the defendant, and Miss McComas, for plaintiffs. It must be borne in mind that on the real issue in case - that of possession - the onus of proof rested on defendant. The evidence as to possession was purely ora although certain writings were referred to in refreshment o memory. If Walsh's account is to be accepted, the foal brought to a hotel in South Melbourne where Walsh was stay between 2nd July 1890 and 22nd September 1891, and, if so, fencing was erected between those dates - in which case defendant would have been entitled to his Honor's judgment. On the other hand, if Miss McComas's evidence is correct, the fencing was not erected until September 1893 or later. In that case the defendant's possession, when broken by the re-entry of the plaintiffs through their agent, had not endured for 15 year: and the plaintiffs were entitled to judgment. The case was, in respect of all the witnesses on the question of possession, a ti

of memory, and, in respect, at any rate, of the testimony upon which the case mainly depends, there is no reason to question the desire of the witnesses to tell the truth. The question is whit of them best stood the memory test, and, particularly, which them best stood that test on the materials before the learned Chief Justice on the hearing. His Honor found for the plaintiffs, and before further discussing the case I will refer to the decision of this Court in Dearman vy. Dearman (1), with which I think this case falls. Grigith C.J. said (2): - *If Judge has found in favour of the party upon whom the burden of proof lies the Court of Appeal may review the case w greater freedom, for instance, in the case of an application t

a non-suit on the ground that, though there was some tilla of evidence, there was nothing upon which reasonable nought to act. But if the tribunal of first instance, having n and heard the witnesses, comes to a conclusion in favour of party upon whom the burden of proof does not lie, it is it hopeless to try to induce a Court of Appeal to interfere h that finding unless it has clearly proceeded upon a wrong nciple." In respect of the issue of possession the plaintiffs the persons upon whom the burden of proof did not lie, and decision of Madden C.J. was in their favour, In dealing the same question I quoted from the often cited case of loghlan v. Cumberland (1), the following passage, which I will

• • "Even where, as in this case, the appeal turns on a ion of fact, the Court of Appeal has to bear in mind that its y is to re-hear the case, and the Court must reconsider the materials before the Judge with such other materials as it may ave decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully ing and considering it; and not shrinking from overruling if on full consideration the Court comes to the conclusion the judgment is wrong. When, as often happens, much on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is ensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative ibility of witnesses from written depositions; and when the on arises which witness is to be believed rather than no her, and that question turns on manner and demeanour, Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But e may obviously be other circumstances, quite apart from er and demeanour, which may show whether a statement is ible or not ; and these circumstances may warrant the Court iffering from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen." n I said for myself (2): - " An instance of the last mentioned e of affairs would be where, apart from any question of

CRAINE v AUSTRALIAN Deposit AND MortGacEe Banx Lrp-

CRAINE v, AUSTRALIAN Derosir AND MortGace Bank Lap.

manner or demeanour, there were undoubted documents turnir the scale in favour of one witness, who might seem not to be that could be desired, as against another witness consider; more plausible." Zsaucs J., after quoting from Riekmann ) Thierry (1), and Coghlan y. Cumberland (2), said (3): - that the position is clearly laid down by the very hig! authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in it opinion ought to have been given in the first instance. But the are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery the appellate Court is in as good a position as the primary Judg to say what ought to have been the decision ; but where viva va

the primary Judge acts that is altogether outside the reach the appellate tribunal. The mere words used by the witne: when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness-box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some o! the material, and it may be, according to the nature of th particular case, some of the most important material, unvecorded - material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reacl of the Court of Appeal. So far as their judgment may depi upen these circumstances they are not in a position to reve the conclusion which has been arrived at by the primary tribunal. Now, it may be that in some cases the effect of what call thé unrecorded material is very small, indeed insigniticant, and utterly outweighed by other cireumstances. It may be, on the other hand, that it guides, and necessarily guides, th tribunal to the proper conclusion, If that is the case, as I have

(1) 14 B.P.C., 105. (2) (1898) 1 Ch, 704. (3) 7 C.L.R., 549, at p. 561.

aid before, the Court of Appeal cannot say that the conclusion ong without disregarding the material which it knows must ve been existent before the tribunal below, and is necessary to y just conclusion." That embodies the principle upon which the urt acted in Dearman v. Dearman (1). Now I have said that case mainly rests upon the time when the fences were ted, and the bringing of a particular foal to the land in ion was used by a number of witnesses to fix that time. e is evidence of witnesses for the defendant that the fences e erected before 1891 - which is the year upon which the ndant rests his case - namely as early as 1889. Having iven attention to that evidence, I am not disposed at all to say hat the learned Chief Justice was wrong when he considered, as e must have done, that that evidence was too vague and indefinite as to memory and date to rest any conclusion upon.

% But, as 1 have said, the two witnesses upon whom, as it seems yme at any rate, the case mainly rests, are Michael Walsh and McComas. It does not matter for the purpose of this case hether the month in which the foal was born was March or ptember; what is important is the year of its birth. Walsh ved to an entry in his book of takings as to the last day of lease of the Criterion Hotel, which is 2nd July 1890, and he says he has his marriage certificate which is dated 22nd Sep- ember 1891. He goes on to say that he helped to bring the foal n Oatlands to the Maori Chief Hotel in South Melbourne at e time, which he cannot fix, between those dates, and if that is ect the fences must have been erected some time between dates. He does not give any particular reason why the ing of the foal should have been between those dates, but says it was. The Court has to give that evidence all due ght. It may or may not have impressed the learned Chief very deeply. Miss McComas, who is supported by Mrs. erson, says that the fences were not there in September of 3, and that the 'school children played football there in the er of that year. It is common knowledge that the season playing football is winter, and, if the boys played football e, it is not likely that the land was then fenced, especially as

~ CRAINE v. AUSTRALIAN Deposit AND MortcacE Banx Lrp.

CRAINE v AUSTRALIAN Deposit AND MortTGaGE Banx Lrp.

the fence was erected for the purpose of keeping in the cow the foal, and it is not likely that Craine would have permitt football while a young foal and a cow were there in an enel paddock or yard. During the same winter Miss McComas's sist was married at Miss McComas's house, and Mrs. Anderson, b a near neighbour, sent cheese, butter and crockery for use on occasion. Miss McComas says " they were brought in the bael way. The only way they could have been so brought was act the land." It must be remembered also that she says she saw th foal there tethered by a rope, and that at the time the foal cam the land was not fenced. She also says that she had a ericke pitch at the back of her house, and outside the wire fence. does not appear whether the land at the back of the land in question was occupied by anybody, but that is a matter upon which his Honor, no doubt, fully informed himself before he gave judgment. I have said that the evidence of Miss McCo1 is supported by that of Mrs. Anderson, into the details of which I do not propose to go. f

This was clearly a matter of accuracy of memory; it was case of credibility in the sense, not of the truthful intent, but o the reliability, of the witnesses. It may be assumed that all witnesses who testified in this part of the case were actuated b the best motives, and gave their evidence to the best of tl ability. In that sense all were credible. But whether a wit was credible in the sense of being reliable was a question which the learned Chief Justice had to solve in each instance. He he: the witnesses examined and cross-examined. Evidently 1 were put to every test to which witnesses are commonly put both to see whether they were telling the truth, and also to whether they were accurate in their recollections. His Honor compared the witnesses together and contrasted their evidence, remembering that the human memory is fallible. He gave du weight to every circumstance which was used by the witnesses support of their memory, and also gave attention to the way in' which they gave their evidence - and in questions of memory as well as of credibility that is of considerable moment. Then, after taking advantage of all the opportunities he had for weighing th evidence - evidence which cannot be said to be anything but con-

not discharged the onus which was upon him, the onus of 19!

blishing possession by him commencing at the latest before Crarve mber 1891. The question now is whether we should disturb res USTRALIAN

finding. Upon the principles I have already referred to, and Derosrr

ng regard to the difficulties of arriving at a decision on a ee

tion of memory - difficulties which are infinitely greater Baxx Lt.

efore a Court of Appeal than before a Judge of first instance - Barton J.

ecially where, as in this case, little, if any, assistance is

afforded by documents, and considering also the advantages

ich the learned Chief Justice, who tried the case, had in seeing

d hearing the witnesses, I cannot bring my mind to the conclu-

'sion that the judgment at which he arrived ought to be reversed. onsequently, as I understand my brother Jsvacs agrees with the

ef Justice, I find that the conclusion which commends itself

o me is not that at which in their wisdom my brothers have

Isaacs J. read the following judgment : - The case resolves if into a pure question of fact, namely, whether the appel- fenced in the greater part of the land in dispute not later n about November 1891. The burden of proof as to this on the appellant at the trial; and it rests on him now more heavily, because he has to get rid of an adverse ding. His position as a claimant by way of statutory title another man's land is not one which invites a benevolent ude on the part of any tribunal. But he is entitled to all the tage which the law as applied to the actual facts accords And the question is, has he on the whole satisfied the he has assumed. I acknowledge the force of the rgument of learned counsel for respondents that the finding of e trial Judge should not be disturbed without our being com- ly satistied of the appellant's right. The recent Privy ouncil case of Khoo Sit Hoh v. Lim Thean Tong (1), was relied on. It is not said in that case that the Court of Appeal is 0 blindly accept the primary judgment even though based on al testimony - that would be an abdication of its statutory (1) (1912) A.C., 323.

H.C. or A. functions. In The Glannibanta (1), to which I referred in Dear

ie man v. Dearman (2), Baggallay J.A., in delivering the judgm Crane of the Court, after referring to The Juliu (3) and The Alice (4), Avsteaman Stid: - * Now we feel, as strongly as did the Lords of the P

Derosir Council in the cases just referred to, the great weight that is d smoke to the decision of a Judge of first instance whenever, in a con Bank Lrp. of testimony, the demeanour and manner of the witnesses

IsaacsJ. have been seen and heard by him are, as they were in the

referred to, material elements in the consideration of the truth- fulness of their statements. But the parties to the cause nevertheless entitled, as well on question of fact as on questions of law, to demand the decision of the Court of Appeal, and Court cannot excuse itself from the task of weighing conflie evidence and drawing its own inferences and conclusions, thoug! it should always bear in mind that it has neither seen nor heat the witnesses, and should make due allowance in this respect." Their Lordships of the Privy Council in Khoo Sit Hoh vy. Li Thean Tong (5) say that as a general rule the Court of Appeal will hesitate long before it disturbs such findings. In oth words it must be extremely cautious and will require to thoroughly satisfied by the appellant that the decision is wron, But it is pointed out that sometimes less hesitation is expected - where for instance the primary Judge "in deciding between witnesses has clearly failed on some point to take account particular circumstances or probabilities material to an estima
of the evidence." In the present case, with the utmost respect for the learned Chief Justice from whom this appeal comes, and whose kn ledge of men and affairs makes it difficult to differ from him

applies to more than one portion of the testimony. I do not pro: pose to do more than indicate them very briefly. I put aside all the witnesses stated to be, for some personal reason, not to be relied on,and yet there are left many witnesses for the defendant who are stated by his Honor to be respectable people, whom he

(1) 1 P.D., 283, at p. 287. (4) LR. 2 P.C., 245. (2) 7 C.L.R., 549. (5) (1912) A.C., 323, at p. 325. (3) 14 Moo. B.C.C., 210.

1 no reason to distrust as to credit, and who gave evidence On the other hand, the plaintiffs' witnesses were also com- led as being candid and truthful. The point relied on by learned Judge for preferring their recollection is stated to be their reasons for remembering what they swear to were well tablished, and seem natural, and in cross-examination they dily recalled other distant or contemporary occurrences as well hose material. Whether the reasons and contemporary occur- so given have the decisive force assigned to them, is an ence the value of which is as much within the power of this rt to estimate as at the trial. Then the non-production of annigan and Burns and the lad who helped to bring the foal the Maori Chief Hotel is independent of any demeanour or unrecorded event. In some other respects the grounds of conclusions reached by the learned Chief Justice - such as the ing and effect of McKinley's testimony upon that of Clara ne, and the likelihood of the mare being served at the time d to or later - are equally independent of any special \dvantage possessed by the trial Judge. Consequently, when the matter comes to be fully sifted, there is no substantial reason why, consistently with well established iples applicable to appeals, and aided by the learned Judge's statement of the way he arrived at his findings, and the ost photographie presentment of his impressions as to the personal value of the several witnesses, an appellate Court should ot be able to satisfy its own mind as to the merits of this case. e decision cited, the Privy Council said (1) : - * Their Lord- s, after carefully reviewing all the probabilities of the case, e not prepared to say he" (the trial Judge) " was wrong." But indicates, if the probabilities of the case had made a clear contrary impression on their Lordships' minds, their decision Id have been different. the present case there is no doubt that Miss McComas is the support of the learned Judge's finding. Mrs. Anderson, is specially associated with her, admits having a bad for dates, and is not really positive in her statement as

CRaAINE v AUSTRALIAN Deposit AND MorteGace Banx Lop.

CRAINE v. AUSTRALIAN Deposrr AND MortGacE Bank Lrv.

to 1893, If Miss McComas is not decisive for the plaintiff, no on else is. Now her memory is as to a negative circumsta namely, the absence of a fence. She has no positive fact whi links itself necessarily to the erection of the fence. And it i plain from the evidence - even her own, without saying mor about other evidence placing the fact beyond controversy - thai she relies on a wedding to fix the date. A wedding is a family event and at once impresses itself o1 the mind; and, as a rule, its date is revived yearly. But when another person's fence was erected is a vague circumstance to begin with, and offers no occasion for reminder. 'There is nt circumstance which ties the wedding to the fenced or unfenced condition of the land. Miss McComas does not say the thing must have come over the land in dispute, or could not have cor over if it were fenced. Mrs. Anderson says she does not know which way they came. The football matches, as they are te went on for years before and apparently after 1893. So that tl is no definite landmark which delimits the contested event. On tl other hand, Schrceder deposes to a cireumstance which, assumi honesty, does not easily permit of error, His evidence entirely discarded simply because he spoke of palings and wi After many years, the mind may positively intermingle the wit and posts of the fences in question with the palings of oth fences in close proximity. But the main fact is as to an enclo ing fence at all, and his wife, who died not later than Mare 1900, drew his attention to the fence in 1891 at latest. Cowans, as the learned Judge said, gave their evidence well; M Cowan moved to Grange Road in 1891 and saw the fence ti So did her husband. So did her son Robert, who says he has clear memory of it, and had a special reason for recollecting t date in connection with an infirmity which compelled him to u: a tricycle, and he remembers he could not cross the land with tricycle on account of the fence. But he got rid of the trieye soon after 1891 - needing it no longer. I do not repeat details which have just been stated by the learned Chief Jus but viewing the evidence as a whole, I am clearly of opinion t case made by the defendant greatly preponderates, and that tl

should be allowed as to all but the 2} feet strip of H.C. oF A. 4 1912.

CRAINE

Appeal allowed with costs. Judgment "as ae ete ie wried by limiting tt to the recovery U7 ig se ceo @ strip 2 feet 6 inches wide along ax Washington Street. Judgment for the ee ae defendant as to the residue without -

itors, for the appellant, Croft & Rhoden. olicitors, for the respondents, Davies & Campbell.

B.L. (HIGH COURT OF AUSTRALIA.] SIDENT &c OF THE SHIRE OF | , : PIR is oo gigs Ve igf AND RREtT! AND ANOTHER . . «| RESPONDENTS.

nent - By-law - Validity - Traction Engine - ''Vehicle - Local H.C. oF A. i Act 1903 ( Vict.) (No. 1893) secs. 197 (23), (29), (34), 495, 594. 1912,

'sec. 197 of the Local Government Act 1903 (Vict.) it is provided that a Murzounxe, lity may make by-laws for the following purposes (inter alia) : -

Oct. 8, 9, 10, Regulating the hours during which and conditions on which loco- é 'engines or rollers iinpelled by steam or electricity may proceed over Grisith C.J.,

)) Prohibiting or regulating the use on any road of any vehicle not the nails on its wheels countersunk in such manner as may be specified