IMPORTANT JUDGMENT.

Dunstan Times, Issue 1131, 4 January 1884, Page 3

IMPORTANT JUDGMENT.

The following important judgment appears in the Palmerston Times of yesterday, and will be read with interest by many of our country readers. The point at issue was whether a man whose land is trespassed upon could impound the trespass, claim damages irrespective of the Impounding Ordinance, and without suing in a court of law. Mr Fraser, for the defendant, submitted that he could do so, and Mr Robinson, who reserved his decision, gave judg meat as follows :

This is a claim of L 6, of which L 3 is money paid under protest to obtain the release of some cattle of plaintiffs, to have been 'lllegally impounded by defendant on his own land, and L 3 damages for loss of time, etc. It appears by the evidence that on the 10th August the defendant found thiee head of cattle of plaintiffs on his land, that he impounded them in his own stock yard and claimed 20s per head damages, and that the plaintiff paid this amount under protest to obtain the release of the animals, which the defendant refused to give up unless the money was paid to him. It also appears that the damage alleged to have been done by the cattle was mainly the destruction of flower bulbs in a box, the other damage being of small consequence. These bulbs were not, however, in the paddock on the 10 b, the defendant having removed the box on the evening of the 9th to try to save such of them as were not too much injured. It is admitted that the fence was not a “ substantial fence ’’ within the meaning of the Impounding Ordinance and Fencing Act; but the defendant, on impounding, did not rely upon the Impounding Ordinance, but upon his common law right to impound cattle damage feasant. For plaintiff it was argued that the Impounding Or 'inance applied, and that defendant had no right to impound the cattle, as his fence was not “ substantial,” and that the 'homages claimed were excessive. I have given the matter some consideration, and have come to the conclusion—l. That the defendant had a common right to impound damage feasant, which is not taken away by the Impounding Ordinance. 2. That as the impounding was not under the Impounding Ordinance, the defendant was not restricted to the damages claimable under thar, ordinance. 3. That as the plaintiff has paid the damage claimed he cannot, even though the payment was under protest, recover back the money so paid. The ease of Gulliver v. Cozens, I C.B. 380, 436, is entirely in point. In that case the defendant had impounded some sheep damage feasant, and claimed L2 15s 9d damages, which plaintiff paid under protest to obtain pnsessi >u of his animals. It Was estimated by a ju r y that the damage done by the sheep was ss. The case was heard before Baron Alderson. who directed a nonsuit; and on argument before a full Court it was held that the plaintiff could not recover. The onus lay upon him to have tendered sufficient amends if those sufficient amends were i e used to bring delenue. There was no duress in this case, and the taking was not unlawful. Judgment for defendant, with costs LI Is.