RESIDENT MAGISTRATE'S COURT, HAMILTON.

Waikato Times, Volume XXXIII, Issue 2657, 23 July 1889, Page 3

RESIDENT MAGISTRATE'S COURT, HAMILTON.

KninAY.-(U-.forcC.ipt. Jaclcson, 11, M.) TIII.'STKKS OK IiKWIS AND SI.MP.ION , V. (.! V.O. Ki>i;i:ctmiik. — Defendant paid into Court £2 (is, and judgment was driven fur plaintilt's for Ou:'amount paid in, while judgment was rec .rded for defendant for £7 '.Is. under the cipiity and pood conscience clause. No costs wr.rc allowed.

C.u,i>i:it v. Whanakk.-Illegal pounding. Claim, 7s Cil; mileage, 10s lid. The following important judgment was delivered by the Court:—This is a complaint made by (me Alexander Calder, of Whatawhata. against dug aboriginal native named Wlmnake. The complainant coinphiined that defondant illegally impounded three of his heifers in the public pound, Hamilton, on the 20th of May last, also in tho same complaint that tho defondant demanded excessive trespass rates for the alleged trespass of the said cattle. By the Oth suction of the Impounding Act, 1884, it is ono matter of complaint if the impounding was illegal under the Act; another if excessive trespass rates are demanded, and another if excessive damages are demanded. It therefore appears that two matters of complaint are contained in this complaint, and by section 103 of the Justice of the Peace Act, 1882, a complaint should contain only one matter, therefore I support the defendant's objection, and dismiss this complaint, on the ground that it contains more than one matter of complaint. In Cooper Applicant, Hamilton Respondaut, L.ll. (N.Z.) (i, 8.0, COS, it was decided that a person may be convicted of one offence out of two or more charged in tho information, but tho Court, whilst deciding upon a question of jurisdiction, remarked, " no more than one offence ought to be charged in the information." The District ,lmtgo Board says that justices will do well to require that ono offence only Khali be charged in the information. If 1 am in error in dismissing this complaint on tho above grounds and I am comli.V.liid togivu my decision on one of the matters of complaint, I will proceed further with my judgment on the first matter of complaint, that is, illegal impounding. Saw, us to the first matter of offence contained in this complaint, that is, the illegal impounding of the. three heifers. In the complainant's evidence it is admitted that these three heifers were rightfully taken to tho pound by the defendant (Whanake), but In.! complains (Ist) that they were furiously driven ; (L'nil) thai; driving rates were tendered before the o;>U'Ui wore impounded, and that defendant refined to deliver them up; (3rd) that the notice given by the defendant to the pouudkecner under Section LI of the Impounding Act, 188-1, was not sufficient. As to the furious driving it is well-known the difficulty in removing cattle from a run they have been accustomed to. These cattlo must have travelled nearly 18 miles on tho L'Oth of May (and the complainant says were then heavy in calf), uud from the evidence they

do not seem to be any the worse. Complainant nays they are nil right now, and that there were no marks of violence on them except tho eye of one (which is all right now) was damaged, and he cannot say if the eye was damaged on tho 20th of .May. The complainant valued them at €8 each, and would not now take £9 each for them. The defendant (Whanake) and his witnesses say they drove them as quietly as they could under tha circumstances. They seem from tho evidence to have been driven hurriedly through the Borough of Hamilton, but I have no doubt it was difficult to keep them from breaking down the side streets, and I do not think they wore driven in such a manner a,s tn warrant me saying it amounted to illegal impounding under tho Impounding Act. John Wright said, in answer to a question put to him, when the nitivo horses went out of a walk it was turning tho cattle back, as they did not like going on. Now we come to the refusal of the defendant to deliver up tho cattle nfLor complainant's agent, John Calder, says driving rates were tendered, he overtook the defendant with the cattle, and in his evidence in chief says that lie nllWecl 8s for driving rates in his hand. On cross-examination corrects himself and says he never brought it out of his pocket, but rode np to the defendant with his hand in his pocket and said, will you take the, inonrv now, nnrl that the defendant said, no. —Henry Mnnkton who was present, did not hear the amount mentioned. Even supposing tho 8s was the amount he should have tendered (which I do n»t from the evidence think it was), I am nut at all satisfied the defendant knew what vas offered, and that a proper tender of the driving rates undo ; the money was not produced ; tho defendant was, a native, and nn that ground the lender ought to have been such that he could clearly understand what was meant. The poundkeeper demanded driving rates for nine miles, and the evidence shows no objection to the payment of driving rates for nine miles by complainant, and I gather from the evidence of Mr Sandes that it was morn than S miles, nearly nine from tin: p'ace the cattle wore taken trespassing to tho public pound at Hamilton, such being tho cise the tender of 8a if made, was not sufficient. Third. The notice given to the pouiirl- J keeper by defendant on impounding the cattle under Section 11 of the Impounding Act ISS4, I do not think sulticient (see Patara llingi Appellant v. Meiers, respondent. N.Z.L.II.,ISSS, Part 11., V il. (i.) The particulars required to lm given under thit section are mandatory and imt directory. The placo where the cattle were found trespassing was not stated. Whatawhatrv is not sufficient, that is tho name of tho township. The hurt upon which the cattle trespassed is not in thn township of Whatiwhatn. But supposing 1 he notice to be insufficient tho failing to comply with tho provisions of Se.ction 11 of the Impounding Act 18N1 except when cattle are not impounded in the nearest accessible public pound is not, I think, illegd impounding under the. Aet, it is an offence which can bo dealt with under Section 48, sub-Section 5, that is failing to comply with tho provisions of (ho Act. See. an Australian case, (Ca.«e 273, Robertson, appellant v. Main, respondent. The Argus, 29th of March, ISSS.) As to the second matter of complaint, nlthough having decided on one of the matters, lam not bound tn decide on tho other contained in the same complaint, I may make some remarks nn it. Now the other matter contained in the complaint is that excessive trespass rates wore, demanded, this is not. I think, borne out by the evidence, and I do not think this matter of complaint is sufficiently set out, it is .1 distinct matter of complaint, and should it define the offence, it (loos not show what is the amount of excessive trespass rates claimed by defendant, there is no amount shown. The schedule fur the. Impounding Act, ISSI, shows that three different amounts may be charged as trespass rates, these trespass rates vary, on nnfenced land trespass rates can be claimed for gnats and pigs, on fencpd land according to the crops on the land the cattlo trespassed upon, and to enable the defendant to know what he is charged with, the amount of trespass rates which complainant claimed to recover should be shown in the con,plaint, but suppose it to be -ulhcient, now, the. notice given under Section !) of tha Impounding Act, 18SJ, by John Caider, the agent of tho owner of th"'.se cattle when releasing them, complains that illegal damage.* were claimed by the defendant, and John Caldyr in his evidence, states that the pomidkeeper demanded from him damage*. The defendant also in his nitico given to the pomidkeeper, when iiup-umding the c>; 1.1 -i under S3Ction 11, claiiMu.l damages, and not trespass rates, trespass rates are not mentioned in the evidence or in the notice gi.pn to the poundkeeper by r.ntnphiinant under Section 9 but damages. I conclude therefore from theovidenco that excessive) or any trespass rates were not demanded. Certainly the. evidence does not show that trespass rates worn demanded by defendant, but damages, and if d-imajres and not tro.-pnss rates were claimed, the poundkesper (who docs nut in his evidence say trespass rates were claimed) should have released the cattle after driving rates and pound fees had been tendered by complainant's agent. See latter part of Exetiiui (i, which says: "But in enso he sha'l claim .such actual damages, although the cittle may be impounded in .1 pound, such cattle shall not be detained in a pound until payment be made of such actual damages/' Now, as to the notice given by the complainant. This notice given by tho agent of tho ir.vuer, as require.fl by Section '.) of the Impounding Act, 188-1, dees not contain either of the matters .-him n in the complaint. The section allows the owner to give notice that his cattle were, illegally impounded under the Act, and that trespass rates or damages demanded are excessive. Tho notice complains only that illegal damages were claimed. The complainant in his complaint complains that the three heifers were illegally impounded, and that excessive trespass rates wore demanded. Tho matter of complaint set out in the notice under Section ',) does not appear in tha complaint. Is this notice sufficient to enable him to complain of the two matters shown in the complaint? The notice shows that he only intended to complain to a justice that illegal damages were claimed. He claims to a justice that the cattle were illegally impounded, and that excessive trespass rates were demanded if it i<. necessary to give notice before a complaint is made to a, a. Justice under Sections O.ind 10. I think the notice given by complainant's agent under Section !) is insufficient, i.0., that he cannot complain of any matter not shown in his notice given to the pound keeper under section nine. Thon as to its being necessary to give nutico under Section 0 of the Impounding Act, 1884, before the owner of cattlo impounded on releasing thorn can complain to a Justice, the law is conflicting so far as my information extends. In Stephen v. Gill three V.L.K. (L). 17S, (read decision) it wao laid down that it is not a condition precedent to the right to sue for illegal information, to give this notice; again 111 Regina v. Taylor Exparte Nailes Blight V.L.R. (L). 149, it was decided that before an order can be valid the notice, required by Section 9, must have been given (read decision)'; this latter decision appears in volume eight of V.L.R., and is much later than the former one appearing in volume three of the V.L.I!. Such being the case, I think tho latest decision should bo the one hold to bo tho law, therefore, I feel bound to hold that the notice given by the complainant in not sufficient, not containing either of tho matters (if complaint set out in the complaint he made befure a Justice under Section 10 of the Impounding Act. 1884. Section 28 and 29 in the Victorian Pound Act are the sarao as Section nine and ten of our Act. Tho notice given by the complainants solicitor, live days after the cattle were released supplementing the notice given by complainant's, agent on the releaso of the cattle, I think was given too late. Section !) says on receipt of such notice the cattle are to be released, they were released fivo days before this supplementary notice was givon, and Section 10 says the complaint shall bo made within three days after the giving of such notice in writing.