WANDERING STOCK CASES.

Shannon News, 26 August 1924, Page 2

WANDERING STOCK CASES.

I.IIE LEGAL POSITION

At the Levin Magistrates Court before Mr J. oiout, S.M., William (iardnei, o- 0..u».-on," Was chargeci cn six Juilormauuuo in allowing siock to wander witnin the Borough oi shannon. me Boroqgn Hanger prosecuted and closed ins case with a statement of tile offences alleged to nave oeen committed.

Mr p\ L.-Rollings (Foxton), appeared lot' the 'defence and asked tne uencii to dismiss tlie case. His deience, me .intimated would be a technical one. One of bis points was that the information did not disclose any qflence. The information diu no 0 state that the streets named as those m which the stock was lound were within the thorough oi Shannon, li they were not within the Borough, then there was no offence since me Shannon Borough did not .nave power to legislate outside the Borough, une information said tnat stock was founu in Sheehan street, but, did not state mat this street was within tne Borough. Another information was m respect of Stout street, but m this case'also there was no specification that the street was within the Bor ough. Tiie detence was that if me miormaiion did not specily» that toe offence had been committed within the Borough, and'as tlie Borougn Council had no power to legislate outside the Borough, men the charge was not tenable owing to ambiguity. It inignt be thin these streets werb within the Borough. They might he, but the onus to prove this was on the prosecution and this the prosecution had faded to do. couiisef quoted tlie late Chief Justice Pbendergosl, to the effect that in a case of an oiience against a by-law the exact by-law under which tne information was brought should be stab ed, aiid also the exact place where, tlie oftence was alleged to have been committed. This had not been done in the present case. His second point was that mere was no proof or me existence oi' the by-law.. His point was that the court did not take official notice of a Borough. by-law. He submitted tiiat the only way of proving a Borough‘by-law was to produce tlie original motion of passing oi such by-law, or a sealed copy, bearing the signature oi the Mayor of. the Borough and two councillors. This was not done in the. present case. A bylaw was not admitted by a Court as was a Statute ol Parliament, and not being admitted, must be proved. If tne original was not in existence, then a sealed copy must he produced. The Bench; 1 hold that the copy oi tne by-laws handed in to the Court by the Hanger is a sealed copy, li you say otherwise, then you must give proof of your contention. Some argument took place at this point as to whether a rubber-stamp mark on tne copy constituted a seal, counsel claiming that there was nothing to prove tnat the stamp affixed was tile official seal of file Borough. A third point on which lie relied for tlie defence, counsel stated, was that there was‘no proof tiiat the bylaw, even if a recognised by-law of tiie Shannon Borougn, had been properly made according to the provisions of tiie Act. The judgment- in cases (quoted) of a similar nature, was to the effect that a by-law was properly made, if passed at a special meeting and confirmed at a .subsequent meeting .held in four weeks of such special meeting. He submitted that there was nothing to prove that tlie by-law under which the iniormittio.ri was laid, had neen properly made.

- The Bench; According to Section •li ol file By-laws Act, any by-law purporting to be a byTaw of a local ixxty, shall he deemed to be such, ii the seal of the Council Is affixed, and ii the contrary is not proved.

Counsel stated that tlie re was still another point which he wished to make and that was that the by-law even if good, was unreasonable. The information ' staled that the stock was found in such and such a street.” He submitted that the effect of this ny-law. was tQ make an offence of a perfectly harmless act. As the wording ol the information stood and u-s tiie by-law permitted it to,'Stand, a butcher or a grocer might leave a noise in a street while he delivered goods, and find that Tie had oonimitled an offence.

There was another point in connection with this by-law, which he submitted made the by-law unnecessary and uncertain jn its application and made possible a grave miscarriage of justice. According to the By-law any stock if found wandering might be taken up by the ganger, should the owner thereof not he in atendunce. The result oi this was that anybody having temporary custody, of a horse ‘lor instance, might commit a breach of the by-law, lor which the owner, would be responsible. It did not matter wlio w i.iO toe guilty party: the owner might be 100 miles away when the lOlience was committed by tile person who had charge oi the animal. Could it be said that the Borough Council hud<*power to legislate to this extent? Thu by-law might be good if it made the pc. son having custody oi the animal responsible. As it w.as it only so ght to make the owner responsiOK; and w.as therefore unreasonable.

Still a further point was that there was no authority to prosecute. In the case of Walters v. Fitzgerald,, it was gtven by Justice Connelly that only those officers of the Council duly authorised, could bring a case under a by-law. The Ranger had not produced authority showing that he was a duly authorised officer. The Bench; This document' was handed to me. i Counsel: I object to it being used,

as it was handed into Court after the prosecution had closed their case. I have a further point and that is . that there is no proof that these particular cattle were the propeity of. my clients- | The Bench: The ranger stated that he knew the stock. Counsel: I will leave the case at this and will not call evidence, l will ask Your Honour to dismiss the i

i case on the grounds which I have i brought forward, particularly on the ; first point that there is nothing to , show that the streets named are within the Boro-ugh. The Behch: There is. the'evidence that the Ranger said that the streets are within the Borough. Counsel: I will ask you to take notice that I object to authority being j put in after the case was closed. The Bench: This will not help you,

Mr Hollings. If the case is thrown out on a technical point, I will cerallow it to be brought again. Well, I will look into the matter and in the meantime all the other Shannon cases had better be adjourned. What affects this case', affects all of them. x Judgment was reserved, a batch of some 30 other cases of wandering stock being adjourned.