THE IMPOUNDING CASE.

Gisborne Times, Volume XXVI, Issue 2260, 4 August 1908, Page 3

THE IMPOUNDING CASE.

JUDGMENT FOR PLAINTIFF. AN IMPORTANT POINT. Judgment of general interest to farmers anil settlors was delivered yesterday morning by Mr W. A. Barton, SAL, in the. case in which Harry Edward Kent proceeded against Robert Sinton for having wrongfully taken possession of a certain horse, detained same on his own property, anil refused to deliver it up, except on payment of two shillings. Tho judgment is as follows : “The plaintiff claims that on the 7th day of June 1908 the. defendant wrongfully took possession of a certain horse, the property of the plaintiff, ‘and wrongfully detained the same on the defendant’s land, and refused to deliver the same except on the payment of two shillings, which sum the plaintiff .paid under protest. The plaintiff therefore claims from the defendant the sum of (a) damages £2, (b) the said sum of 2s. From the evidence it appears tint on the date , named the defendant found a horse, tho property of the plaintiff, ••traying on the public road at Tin> roto", near the land of defendant, and took it to his own land and there detained it, anil subsequently released it to.'Mr White after some discussion as to what fees .were payable on it. The evidence is conflicting as to what amount was actually demanded from the person who released it, hut I am satisfied that some demand was made, ind defendant admits, ns is shown by his receipt, having received the sum of two shillings, which he describes therein as pound charges. Section 12 of the Impounding Act 1894 provides that the occupier of land trespassed upon by cattle, the owner whereof shall lie known to him, may impound and detain the same in any convenient place on his own land, etc. It is clear that defendant considered that ho was acting under this section in detaining the horse on his own land. The horse in question, according to defendant’s own evidence, was found by him on the public road ; n the daytime, and that being so, he had no .right to take it on to his own land at all, but should have taken it to the nearest public pound. Defendant has, therefore, committed an act of trespass in detaining the horse on his own land, .instead of driving it lo tho pound. Had the horse been found on the 'road between sunset and sunrise", defendant would have been justified in keeping it in his own yard during the night, and removing it to the pound after sunrise the following morning. Seotion 17 of the Act before referred to 'is very clear upon the point. In reference to the contention of counsel for the defendant that tho proceedings should hive been by wav of complaint as provided by Section 9 and 10 of the Impounding 'Act 1894. I am of opinion that in the circumstances of this case the sections referred to do not apply, as this is an action at common law for trespass. It is probable that had the defendant acted "within his right by taking tho horse to a public pound, that it would have cost the plaintiff more than ho actually paid the defendant. However, that is not a matter for m.v consideration. AVhat I am called upon to decide is, whether tho defendant has committed an act of trespass by detaining the horse upon his own land instead of taking it-to a public pound. In mv opinion he has. Judgment will, therefore, lie for" plaintiff for the sum of two shillings, the amount paid for the release of the horse, and damages ten shillings, with costs £4 18s 9d.”