PECULIAR IMPOUNDING CASE.

Temuka Leader, Volume I, Issue 71, 21 August 1878, Page 3

PECULIAR IMPOUNDING CASE.

From the ’Tuapeka Times’ of Aug 14, we extract the following report of the decision given in the Lawrence Court by the R.M.. E. H. Carew, Esq., in a peculiar case of sheep impounding. The facts of the case are sufficiently given in the first part of the decision for the case to be understood ;

“ M‘Comh v. Michael —In this case, which had been adjourned from Monday last, Mr Carew gave the following decision :—Tiie evidence shows that defendant found about sixty sheep in his padclock damage feasant. The paddock was substantially fenced, but on one side a dividing fence ap] ears to have been to some extent out of repair from cattle damage. The defendant seized the sheep, about one-half of which belonged to plaintiff, for the purpose of impounding them. On the road to the Lawrence pound some of the sheep knocked up, night came on, and defendant finding he could not reach the pound that day, put them into an accommodation paddock, which has been proved to have been substantially fenced. On the following morning defendant wont to the paddock for the sheep, and then found that all but eighteen had escaped ; and it would seem from the evidence, through some person having tampered with the fence. Defendant then appears to have driven the remaining she'*p on the road back towards where he seized them, and left them on open Crown lands some miles dislant from his paddock, but, as defendant says, at a place where plaintiffs sheep commonly graze over. The plaintiff claims £47 10s for the conversion of his sheep, or an order for thfir return, and a sum for damages. It is contended for plaintiff that the seizure was unlawful, as the fence was not substantial within the meaning of the Impounding Ordinance, being out of repair. That, if the original seizure was lawful, the placing them in accommodation paddock was unlawful as not being a public pound ; and that in either case the defendant must he held liable for the full value of the sheep. I do not agree with either contention, for it cannot he held that a temporary want of repair will characterise a fence, in other respects in accordance with the Ordinance, as unsubstantial. If it were so, a person’s cattle might one day injure afenceand on another trespass on the land, and if the owner of the cattle were not known to the occupier, he would have no redress. Then, again, the Fencing Ordinance, which has to be read with the Impounding Ordinance, refers to a “ sufficient dividing fence requiring repairs.” showing to my mind that the words ‘‘sufficient” and “substantial” refer to the general character of the fence, hut yet I think a fence might be so much out offrepair as to lose altogether its character of a substantial fence, but it was not so in tin's case. I consider the paddocking of the sheep perfectly lawful. Section 11, Impounding Ordinance, provides that cattle and sheep may bo driven or sent to the nearest or most convenient public pound, and that authority will include anything necessarily incident thereto. There was no negligecnce, and as the sheep were knocked up, I think the defendant so far took proper precaution, and acted correctly, and is not liable for the sheep that escaped from the paddock. With respect to plaintiff’s sheep that he drove on to and left on Crowm lands, defendant acted improperly ; he should either have impounded them, have driven them to the owner, or have put them at the nearest convenient place outside of his land, and not several miles from it It is not shown how many of the eighteen sheep were plaintiff’s, but it seems probable that the number boro the same proportion as the original number did to the whole—or, say nine, which is one-half —and I am of opinion that plaintiff is entitled to some damages in respect to that number. It would be unjust to allow the value of Lie sheep, as for a conversion, for they would then bo defendant’s, but he would have no means of identifying them ; and I think there can be no reasonable doubt that there is little more risk of them not mixing with plaintiff’s flocks than there would have been if merely put outside defendant’s paddock. A judgement for plaintiff for 40s will, in my opinion, meet the case ; with costs of Court, 27s ; witness 13s; and professional costs, 10s 6d.