SUPREME COURT.

RICKETSON V. DEAN AND LAUGHTON COMMON LAW.

19 July

GWYNNE, J., said it appeared to him that the case was disposed of by the application of the well-known maxim-" Omnis ratihabitio retrotrahitur et mandato priori æquiparatur." The drover Jones having delivered to Dean & Laughton, the plaintiff ratified their previously unauthorized services by receipt of the proceeds. It made no difference whether the action of Messrs. Dean & Laughton was rendered legal by means of request or subsequent recognition. They would equally be the agents in either case, and so liable for negligence if shown. He therefore thought the nonsuit aside.

was improper, and must be set

WEARING, J., after stating the facts and the considerations which influenced him in nonsuiting the plaintiff as before detailed, said :I think I took an incorrect view of the case. I now see that there were two transactions-one being a contract of agency between the plaintiff and the defendants, the other being a contract of sale between him and the purchasers of his cattle. By his conduct I think he confirmed the sales, but did not so ratify the acts of the defendants as his agents as to release them from the consequences of any negligent exercise of their authority, which he might be in a position to prove. The maxim, "Omnis ratihabitio retrotrahitur et mandato priori æquiparatur," here applies. By his receipt of the money produced by the sale of his cattle the plaintiff did undoubtedly ratify the sales which the defendant had effected, and this ratification was precisely equivalent to an original authority from him to sell. At the time this action was brought, therefore, the defendants stood in the same position towards the plaintiff as they would have occupied if they had been appointed his agents for the sale of the cattle at the first. Regarding them in the light of agents originally appointed, did the receipt of the proceeds of sale, and of the documents sent therewith, bar the plaintiff from suing the defendants for any negligence in the transaction of which he might have subsequent knowledge? The law relating to this subject I understand to be, that if an agent has, by deviation from his orders, or by any other misconduct or omission of duty, become responsible to his principal for damages, he will be discharged therefrom by the ratification of his acts or omissions by the principal, if

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SUPREME COURT. RICK ETSON v. DEAN AND LAUGHTON.

COMMON LAW.

made with a full knowledge of the facts and circumstances; but that if the ratification by the principal be without such knowledge, it will not be obligatory upon him, whether the want of knowledge arise from the designed or the undesigned concealment or misrepresentation by the agent, or from his mere inadvertence. The question here, therefore, is, did the defendants' letter of the 14th July, 1868, impart to the plaintiff complete information of all the facts and circumstances essential to his being able to form a correct opinion as to the defendants' conduct in this transaction? After a careful consideratiou of the contents of that document, I feel bound to answer the question in the negative. The circumstances as to which I think the information was deficient relate to the prices which ruled in Adelaide at the time of the sale at Blanchetown. The letter was undoubtedly explicit enough as to the origin of the mistake by which the defendants got possession of the plaintiff's cattle; but here it stopped. I am very far from imputing any designed reticence on the part of the defendants. This, however, does not affect the question, because, as I have already observed, mere inadvertent concealment of essential facts by an agent will avoid the effect of a ratification so obtained. If the plaintiff had been informed by the defendants of the rates at which cattle were then selling in Adelaide, he would have been in a position to judge whether it was or was not for his advantage to have his mob sold in Blanchetown; and then I think his silence during the interval which elapsed between his receipt of the letter of the 14th July, 1868, and the 23rd January, 1869, when this action was commenced, might have been regarded as presumptive proof of his having ratified the defendants' acts. But, as I have before remarked, he had not this information. As to the effect of silence on the part of a principal, the following remarks of Mr. Justice Story are directly applicable :-" In respect to silence," says he, "whether it operates as a presumptive proof of ratification may essentially depend upon the particular relations between the parties and the habits of business and the usages of trade. In the ordinary course of business between merchants and their correspondents, it is understood to be the duty of the one party receiving a letter from the other to answer the same within a reasonable time; and if he does not, it is presumed that he admits the propriety of the acts

SUPREME COURT. STEPHENS V. CORPORATION OF GAWLER. COMMON LAW.

of his correspondent, and confirms and adopts them. This presumption seems now in favour of commerce to be universally acted upon; and therefore, if the principal, having received information by a letter from his agent of his acts touching the business of his principal, does not within a reasonable time express his dissent to his agent, he is deemed to approve his acts, and his silence amounts to a ratification of them." (Story on Agency, section 258.) On the grounds I have stated, I consider that the nonsuit was wrong, and that, therefore, the rule to set it aside must be made absolute.

Rule absolute; costs of each party at the former trial to be costs in the cause.

HANSON, C.J., GWYNNE, J., WEARING, J.]

9 AND 19 JULY.

STEPHENS V. CORPORATION OF GAWLER.

[COMMON LAW.

LANDS CLAUSES CONSOLIDATION ACT, 6 of 1847-Municipal Corporation Act, 1861-Injurious affecting of land.

To entitle a party to compensation under the Lands Clauses Consolidation Act, No. 6 of 1847, for the injurious affecting of land by a Municipal Corporation in the execution of works authorised by Act 16 of 1861, there must either be an actual acquisition of land or an interference with the right to the soil by the Corporation.

owner of land in Gawler, acting in execution of

SPECIAL CASE. The plaintiff was the and the Corporation of that town, powers given them in the Municipal Corporaion Act of 1861, had altered the footpath by cutting it down several feet below the natural surface, when the plaintiff's cottages were left on a bank, and the use of supports for the walls rendered necessary, which was contended by the plaintiff and admitted by the defendants amount to an "injurious affecting "" of the said land. The claim was founded on the Lands Clauses Consolidation Act, 6 of 1847 s. 68, which provides

"That if any party shall be entitled to any compensation in respect of

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SUPREME COURT. STEPHENS V. CORPORATION OF GAWLER. COMMON LAW.

any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction under the provisions of this or the Special Act, or any Act incorporated therewith, and if the compensation claimed in such case shall exceed the sum of Fifty Pounds, such party may have the same settled either by arbitration or by the verdict of a jury, as he shall think fit; and if such party desire to have the same settled by arbitration, it shall be lawful for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature of the interest in such lands in respect of which he claims compensation, and the amount of the compensation so claimed therein; and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed, and shall enter into a written agreement for that purpose within twenty-one days after the receipt of any such notice from any party so entitled, the same shall be settled by arbitration in the manner herein provided; or if the party so entitled as aforesaid desire to have such question of compensation settled by jury, it shall be lawful for him to give notice in writing of such his desire to the promoters of the undertaking, stating such particulars as aforesaid; and unless the promoters of the undertaking be willing to pay the amount of compensation so claimed, and enter into a written agreement for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to the Sheriff to summon a jury for settling the same in the manner herein provided; and in default thereof they shall be liable to pay to the party so entitled as aforesaid the amount of compensation so claimed, and the same may be recovered by him, with costs, by action in any of the Superior Courts."

S. 4 of Act 16 of 1861 (The Municipal Corporation Act) enacts that the "Act specified in the table following (being No. 6 of 1847) "in the respects and as to the sections therein set forth shall be 'incorporated herewith, that is to say as to the purchase of land "otherwise than by agreement-ss. 18 to 68."

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The question for the opinion of the Supreme Court was whether the plaintiff was entitled to compensation under 6 of 1847, s. 68.

Stow, Q.C., and Way for the plaintiffs.-The question is whether the s. 68 gives a right to compensation, or whether it only prescribes the mode of procedure. If it does not the clause is altogether inoperative, and by placing the interpretation upon it that it does is the only means of giving effect to the words of the Act; and if it were possible to give such an effect to an Act of Parliament as to enable a man to obtain compensation whose property has been

SUPREME COURT. STEPHENS V. CORPORATION OF GAWLER. COMMON LAW.

injured by a Corporation or Company, the Court should so interpret it. That view is supported by the case of

Ferrar v. London Commissioners of Sewers, L.R., 4 Ex., 227, 19, L.T.N.S., 485, 21 L.T.N.S., 295

in which it was decided in the first instance expressly that the 68th clause did have that effect, and was overruled on appeal upon another point, the Judges in the Exchequer Chamber expressing their belief that such a construction could be placed upon the clause if it were necessary to decide it.

Boucaut and Barlow for defendants.-The 68th clause gave no right whatever, but only prescribed the mode of procedure for the enforcement of a right. The argument that the Legislature would not intend that a Corporation should take land without compensating the owner would have been equally open in any of the cases in which it had been held that the 68th clause had not the effect contended for, and it was not necessary to decide that the 68th clause was inoperative, because it was clearly the intention of the Legislature that lands taken should be compensated for ; but it did not follow that because the Legislature would not intend to take away a man's land without paying him for it, that in regard to the inconvenience a man suffered by having a street lowered for the public good the same principle should apply. The Corporation under the 106th section of their Act were compelled to make the streets as nearly as practicable of the same breadth and level. If they were held liable to compensate the plaintiff, the whole value of the rates, which was limited to two shillings in the pound, might be swallowed up in paying claims for compensation. There were many instances in the Act in which the Corporation were especially empowered to do what would cause loss or damage to individuals, and

Boulton v. Crowther, 2 B. & C., 703,

shows that it was intended that private individuals might be made to suffer injury for the public good. A person could not obtain compensation for lands injuriously affected, unless "some land"