SUPREME COURT.

Evening Star, Volume VIII, Issue 2116, 16 February 1870, Page 2

SUPREME COURT.

IN BANCO. (Before Mr Justice Ward.) KF.ru v. Fulton. —Argument on demurrer. Mr Macassey appeared for the plaintiff, who is a farmer at the West Taieri, Mr Jas. Smith, with whom was Mr Haggitt, for the defendant, who is a ranholder. The declaration stated that the 4th August last, the plaintiff was the owner of thirtynine head of cattle, which were running at the West Taieri; that these cattle were taken and driven by the defendant to the West i Taieri pound, where the latter wrongfully and maliciously caused them to be impounded, until the sums of L2 IGs Sd and LI IDs were paid, to the plaintiff’s loss and damage. By Ins second plea, the defendant stated that, at the time of impounding of the cattle, he was solely entitled to occupy the land known as run No. 48, held under lease granted by and on behalf of the Queen ; that because the cattle of the plaintiff were depasturing in that land, he, occupier of the lan I in question, by virtue of the provisions of an Ordinance passed by the Superintendent and Provincial Council of the Province, entitled an Ordinance to amend the law relating to the impoupding of cattle, he drove and impounded the same at the nearest public pound at West Taieri. The defendant also said that the said cattle in the declaration mentioned wore not those described or known as sheep, nor was the plaintiff driving them along any road passing through the run ; neither were they being driven by the plaintiff or his servants. On these pleas, five questions of law were raised, the principal being that the 35th section of the Impounding Ordinance furnished no justification for the wrongs alleged to have committed by the defendant. Vv Mr Macassey, in addressing the Court on this point, said in considering it, it would be necessary to look at section 11 of the Ordinance, in conjunction with section 35. (Du looking at that section, it would be seen that the owner or occupier of land might impound cattle found trespassing, providing the land was substantially fenced, if he impounded on his own land, he was required by section 10 to give notice that he had done so to the owner of the cattle, and he was also required to give*notice as to farther matters. If he exercised the power conferred by section 11 and drove the cattle to a public pound, he was required to give a notice containing a series of particulars. This was not required without good reasons. In the first place, it was done to fix the person causing the cattle to he impounded with the responsibilities of of the act; and in the next place, it left no discretion with the poundkeeper, as to the amount to be paid for the damage done. There was a wide and remarkable difference between the provisions of the two sections—while section 10 authorised the occupier or owner of laud to impound on his own run : the other section authorised him to drive to a public pound. But section 35 did not say in what way the impounding was to he effected. It seemed, therefore, that the only construction to be placed upon section 35 was that, by inference, the powers conferred by sections 10 and 11 were conferred on the ranholder under section 35. The declaration stated that the plaintiff's cattle had been driven and impounded by the defendant, who sought to justify the act by the powers conferred under section 35. He (Mr Macassey) said, in the first place, only two views could be entertained. Either section 35 authorised cattle to be driven off and impounded, or it did not. If _it did not, there could be no justification for the wrongs pleaded to in the plea, and if it did, it must be held that that section was by inference incorporated with section 35. The plea confessed that the cattle were taken and driven off the land and impounded, and it was also distinctly stated that no notice was given in accordance with sections 10 and 11. If the Court held that the impounding under section 35 must be done in the same way as section 11, the absence of such notice was fatal to the impounding. Mr Smith, in rtfply, pointed out the distinction between the sections, and submitted that non-compliance with the conditions imposed by those provisions was not to render thq impounding unlawful, but merely rendered the persons impounding liable to a penalty. Neither was any time in which to deliver notice specified ; and the doing so was not necessarily a contemporaneous act with the impounding. The proper construction to be placed on that provision was, he submitted, that it should be douc within some reasonable time. The arguments had not concluded at four o’clock.