'V V vVv. RI^ICE 3s 6d. NET. T'!E LAW OF IMPOUNDING IN VICTOrtiA, COMfKISI.Nii 'I llh POUNDS ijOT 1890 -VITM SECOND EDITION. HENRY J. ARMSTRONG, Solicitor. Author ol "The I.aw of Gold Mininy in Australia," " A Handy-Book on the Manay'Guient of Mining Companie.s," and "The Licensinj,^ Acts of Victoria." Melbourne: CHARLES P. MAXWELL (G, PAUTuiixiE & Co.), 4.38 Chasokry Lane. g>tate CilaUege of ^Agriculture At Qlotnell Itniversttg SItbtarg SF 196.A88yT"""'""""-"'"'^ ^'llfiiim in' ''"P°""'''"9 in Victoria, compri 1 1 III 3 1924 002 996 969 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924002996969 THE LiW OF IMPOUNDING IN VIGTOEIA. THE LAW OF IMPOUNDING IN VICTORIA, OOMPBISINO THE POUNDS ACT 1890 INTRODUCTION AND NOTES SECOND EDITION. By HENRY J. ARMSTRONG, Solicitor. author of "the law op gold mining in australia," "a iiasdv-book on the management of mining companies," and " the licensing acts of victoria." Melbourne : CHARLES F. MAXWELL (G. PARTRIDGE & CO.), 458 CHANCERY LANE. 1903. PREFACE TO THE FIRST EDITION. 'T'HIS little work will, it is hoped, be found of some -*- practical use to the profession, as no work is in existence here dealing solely with the subject of which it treats. It is, however, intended chiefly as a guide to pound- keepers, municipal councils, squatters, farmers, and others, who, in the author's experience, have invariably found an almost insuperable difficulty in reconciling a tangible Act of Parliament regulating the impounding of trespassing cattle with the abstract right to impound which is given only by the common law. Kyneton, 25th Jan., 1896. PREFACE TO THE SECOND EDITION. 'T'HE gratifying reception accorded to this little book ■ exhausted the first edition shortly after its publication, and it has been for some time out of print. The continued demand has called for the present edition ; and in this the notes to the sections have been carefully revised and mostly re-written, with a view to bringing the work completely up to date. Also, for the convenience of laymen, the Introduc- tion has been considerably amplified, and is unencumbered by the names of the cases referred to, all of which can, however, be readily identified with the notes by means of tlie Index. Kyneton, 1st Nov., 1903. INDEX OF CASES. I'AGR, Adam v. Ryan [23 V.L.R. 334 ; 3 A.L.R. 231 ; 19 A.L.T. 99] ... 49 Adams, Field v. [4 P. & D. 504 ; 12 A. & E. 649] ... ... 52 Allan V. Molntyre [8 V.L.R. (L.) 133; 4 A.L.T. 4] ... ... 41, 78 .Always I). Broom [2 Lutw. 1262] ... ... ... 74 Anderson t;. Deasy [5 A.J. R. 14] ... ... ... 70 Badkin «. Powell [Cowp. 476] ... ... ... ... .. 36,70 Bagshawt;. Wills[5 A.J.R. 115] ... ... ... ... 48 Bailey V. McDonald [4 A. L.T. 2] ... ... ... ... 40 BKhan, O'Keefe?;. [2V.R. (L.) 16; 2 A.J.R. 19] 50,68 Bennett, Degravesw. [2 W. & W. (L.) 191] ... ... .. 68 : Lamont v. [28 V.L.R. 438 ; 8 A.L.R. 177] . ... 38, 70 Biggs, Wormer t;. [2 C. & K. 31] ... ... ... ... 52 BignelU'. Clark [5 H. & N. 485 ; 29 L.J. Ex. 257] ... ...34,71 Blake, Knowles D. [5 Bing. 499] ... ... ... . 74 Boulton?;. Beynolds[29L.J.Q.B. 11 ; 2E. &E. 369] ... ... 47 Bourchiert). Mitchell [16 V.L.R. 415] ... ... ... ... 78 Ricketson I'. [12 A.L.T. 36] ... ... ... ... 78 Bourne D. Jones [3 W.W. &a'B. (L.) 45] ... .. ... 59 Boyle w. Tamlin [6 B. & C. 337] ... ... ... ... 40 Bradshaw, Rex y. [7 C. & P. 233] ... ... ... ... 73 Brandling V. Kent [1 T.R. 60] ... ... ... ... ... 36 Briggs n. Lowry [6 M. & W. 729] ... ... ... ... 53 Broom, Always ?J. [2 Lutw. 1262] .. ... ... . 74 Brough V. Wallace [2 W. & W. (L.) 195] ... ... 52 Brown 1-. Powell [4 Bing. 230] ... ... ... ... ... 47 Burch V. Kennington [1 Q.B. 679 ; 4 ?. & D. 509] 52 Burt u. Moore [5 T.R. 329] ... ,. ... ... 51 Butcher 1). Butcher [7 B. & C. .339] ... ... ... ... 51 Butcher V. [7 B. & C. 339] . ... ... ... 51 t;. Smith[5 W.W. & a'B. (L;)223] 40,49 Campion, Jones v. [4 V.L.R. (L.), 170, 473] . ... ... 46, 49 Caproii, Jones w. [S.C. Vic. 22 June 1S69] ... ... ... 66 Cheveley, Goodwyn v. [4 H. & N. 631 ; 28 L.J. Ex. 298] ... 46, 55 Churchill ?;. Evans [1 Taunt. 529] ... .. ... 51 Clack, Wagstaflf «. [Cam. Sum. Ass. 1826] ... ... ... 52 viii INDEX OF CASES. Clark, Bignell v. [5 H. & N. 485 ; 29 L.J. Ex. 257] Clement t). Milner [3 Esp. 95] .. Cosens, Gulliver i;. [1 C.B. 794] Costar, Taunton 1). [7 T.R. 431] Costello, Ross w. [13 A.L.T. 215] Crowe t). Nicholson [2 A. L.R. 178] Cruwes, Kimp u. [2 Lutw. 1573] D'Arcy, O'Shea v. [6 V.L.R. (L.) 142 ; 1 A.L.T. 170] Dargan v. Davies [2 Q.B.B. 118 ; 46 L. J.M.C. 122] Davies, Dargan v. [2 Q.B.D. 118 ; 46 L.J.M.C. 122] Deasy, Andersons. [5 A.J.R. 14] Degraves v. Bennett [2 W. & W. (L.) 191] Derliam, McLean v. [28 V.L.R. 564 ; 9 A.L.K. 1] Dod (■. Monger [6 Mod. 218; Brad. 282] Douglas D. Reynolds [2 W. & W. (L.) ]] Duckett, Green v. [11 Q. B. D. 275 ; 52 L.J.Q.B. 435] Eaton ?;. Southby [Willes 136] ... Edwards, Vaspor v. [11 Mod. 658 ; Brad. 204] ... Elliott, Evans u [5 A. & E. 142] Evans, Churchill I-. [1 Taunt. 529] ^ K. Elliott [5 A. & E. 142] Falvey, Jones v. [5 V.L.R. (L.) 230 ; 1 A.L.T. 23] ... ... 36, 56 Field V. Adams [4 P. & D. 504 ; 12 A. &E. 649] ... ... ... 52 Fletcher, Goldsbrough y. [6 \V.\Y. & a'B. (L.) 213] ... 33,42,54 Floranoe, Stewart v. [24 V.L.R. 417 ; 6 A.L.R. 221 ; 22 A.L.T. 90] 34, 40 Fotheringham, Sanderson v. [10 V.L.R. (L.) 17, 289 ; 5 A.L.T. 172 ; fi A.L.T. 122] 44,49,76 Ford, Rex u. [2 A. & E. 588] ... ... ... ... ... 43 Fry, Richards w. [7 A. & E. 698] ... ... ... ... 46 Gkoghegan v. Talbot [5 W.W. & a'B. (L.) 187] ... ... 42, 48, 77 Gill, Stephen !•. [3 V.L.R. (L.) 178] ... ... ... ... 62 Gillespie, Ritchie v. [2 W. & W. (L.) 40] ... ... 51 Glass, Wingfieldu [6 W.W. & a-B. (L.)4] ... ... ... 51 Glynn v. Thomas [11 Ex. 870 ; 25 L.J.' Ex, 128] ... ... ... 47 Goldsbrough v. Fletcher [6 W.W. & a'B. (L.) 213] ... 33, 42, 54 Goode, Paterson «. [8 A.L.R. 156] ... ... ... ... 76 Goodwyn v. Cheveley [4 H. & N. 631 ; 28 L.J. Ex. 298] ... ... 46, 55 Gove, McMillan v. [1 V.L.R. (L.) 142] ... ... ... ... 43, 78 Green v. Duckett [11 Q.B.D. 275 ; 52 L.J.Q.B. 435] 47 PAGK. . 34, 71 52 . 44 ,47 51 34; ,36; ,68 39, ,45 52 50 71 71 70 68 64, 66, 67 73 53 47 53 ... 47, 53 47 51 47 PAGE. 42 ... 46, 56 19, 66, 75 ... 44, 47 6-2 47 74 70 47 47 52 52 INDEX OF CASES. Green, Lewis v. [9 V.L.R. (L.) 354 ; 5 A.L.T. 121] Griffin, ex parte, Reg. v. Duncan [13 V.L.R. 509 ; 9 A.L.T. ' McLaurin v. [13 V.L.R. 140 ; 8 A.L.T. 192] Gulliver i;. Cosens [1 C.B. 794] ... Hailbs, ex parte, Eeg. v. Taylor [8 V.L.R. (L.) 149] Hale, Hatch v. [15 Q.B. 10 ; 19 L.J.Q.B. 289] ... Halford, ex parte, Reg. v. Hare [7 A.L.T. 142] ... Harney D. Kean [A. R., 25 Nov. 1857] ... Harries, Tiiomas v. [1 M. & G. 695 ; 1 So. N.R. 524] Hatch w. Hale [15 Q.B. 10 ; 19 L.J. Q.B. 289] ... Hooper, Lindou)'. [Cowp. 416]... Hoskins V. Robins [2 Saund. 328] IssELL, Watson w. [16 V.L.R. 607] ... ... ... 65 James, Sheriff c. [1 Bing. 34] ... ... ... ... .. 47 Jessell, ex parte, Reg. v. Hutchinson [10 V.L.R. (L.) 332; 6 A.L.T. 161]... ... ... .. ... . 39 Johnstone, Simpson v. [25 V. L. R. 4.30 ; 5 A. L.R. 301 ; 21 A. L. T. 156] 39, 45 Jones, Bourne V. [3 W.W. & a'B. (L.) 45] ... ... ... 59 1'. Campion [4 V.L.R. (L.) 170, 473] ... ... 46, 49 i). Capron [S.C. Vic. 22 June 1869] ... ... . 66 ex parte, Reg. v. Heron [8 V.L.R. (L.) 140 ; 4 A.L.T. 6] ... 76 V. Talvey [5 V.L.R. (L.) 230; 1 A.L.T. 23]... ... ... 36, 56 Kean, Harney v. [A.R. 25 Nov. 1857] ... Kelly, Parlier t;. [4 W.W. & a'B. (L.) 28] Kennington, Burch v. [1 Q.B. 679 ; 4 P. & D. 509] Kent, Brandling 1). [1 T.R. 60] ... Kimp D. Cruwes [2 Lutw. 1573] King, Poyner v. [5 A.L.R. (C.N.) 38] ... Whitemanw. [2H. Bl. 4]... Rirk, ex xmrte, Reg. v. Littleton [6 A.L.T. 21] ... Knowles f. Blake [5 Bing. 499] Ladd v. Thomas [12 A. & E. 117] Lamont v. Bennett [28 V.L.R. 438 ; 8 A.L.R. 177] Lewis V. Green [9 V.L.R. (L.) 354 ; 5 A.L.T. 121] Lindou v. Hooper [Cowp. 416] ... Lindsay, Mulhare i;. [N.C. 14] ... Lithgow t). Summers [4 A.J. R. 90] Lodge V. Rowe [1 V.L.R. (L.) 65] Loring v. Warburton [E.B. & E. 507 ; 28 L.J.Q.B. 31] 70 63 52 36 .32 52 5) 63, 67, .75 74 47 ... 38, ,70 42 52 ... 4L ,44 51 ... 73, , 75 47 INDEX OF CASES. PAG3. Lott, Trainor v. [A.R. 8 July 1864] ... ... ... ... 66 Lowry, Briggs t). [6 M. & N. 729] ... ... ... ... 53 Lyons 1). Martin [8 A. & E. 512] ... ... .. ... 43 Manchester &o. R. Co. v. Wallis [14 C.B. 213 ; 23 L.J.C.P. 85] ., 55 Mahoney, ex parte, in re Rawlings [1 W.VV. & a'B. (L.) 22] ... 67, 76 Main I). Robertson [2 V.L.R. (L.) 25] ... ... ... ... 31 Robertson v. [1 V.L.R. (L.) 5] . ... . ... 50, 65 Marrinan, ex parte, Reg. o. Edwards [13 V.L.R. 50 ; 8 A.L.T. 148] 47, 67 Martin, Lyons t!. [S A. & E. 512] .„ ... ... ... 43 Mellies, Pettitt w. [1 A.J.R. 124] ... ... ... . 51 Middleton, Rows v. [2 V.R. (L.) 59 ; 2 A.J.R. 54] ... ... 66 Milner, Clement w. [3 Esp. 95] ... ... ... ... ... 52 Mitchell, Bourchieri;. [16 V.L.R. 415] ... ... ... ... 78 1). Wright [4 V.L.R. (L.) 273] ... ... 46 Monger, Dod v. [6 Mod. 216 ; Brad. 282] . ... ' ... 73 Moore, Burt 1). [5 T.R. 329] ... ' ... ... ... ... 51 Mulhare r. Lindsay [N.C. 14] ... ... ... ... ...41,44 McDonald, Bailey v. [4 A.L.T. 2] ... ... ... ... 40 ex parte, Beg. v. Taylor [3 V.R. (L.) 13 ; 3 A.J.R. 31]... 63 Mclntyre, Allan v. [8 V.L.R. (L.) 133 ; 4 A.L.T. 4] ... ... 41, 78 McLaurin v. Griffin [13 V.L.R. 140 ; 8 A.L.T. 192] ... ... 66, 75 McLean v. Derham [28 V.L.R. 564 ; 9 A.L.R. 1] ... ... 64, 66, 67 McMillan?;. Gove [1 V.L.R. (L.) 142] ... ...43,78 Nicholson, Grower. [2 A.L.R. 178] ... ... ... ...39,45 Nibbs, West u. [4 C.B. 172] ... ... ... ... ... 47 O'Kebfe v. Behan [2 V.R. (L.) 16 ; 2 A.J.R. 19] ... ... .. 50, 68 O'Shea v. D'Arcy [6 V.L.R. (L.) 142 ; 1 A.L.T. 17(t] ... 50 Parker 1). Kelly [4 W.W. & a'B. (L.) 28] ... ... ... 63 Paterson ?>. Goode [8 A.L.R. 156] ... ... . ... 76 Persseu Smith[4 V.L.R. (L.)201] ... ... ... ...47,77 Pettitt w. Mellies [1 A.J.R. 124] ... ... ... ... 51 Pilkington's Case [5 Rep. 76a] ... ... ... .. .. 47 Powell, Badk in i;. [Cowp. 476] ... ... . ... ...36,70 Brownu. [4Bing. 230] ... ... ... ... ... 47 WiUoni--. [5 W.W. & a'B. (L.)249] ... .. ... 44 Poyneri;. King [5A.L.R. (C.N.)38] 52 Rawlings, In re, ex parte Mahoney [1 W.W. & a'B. (L.) 22] . . 67, 76 Reg. V. Carr, ex parte Sanderson [10 V.L.R. (L.) 178; 6 A.L.T. 5.3] 33, 54 V. Duncan, ex parte Griffin [13 V.L.R. 509 ; 9 A.L.T. 71] ... 46, .56 INDEX OF CASES. 4A.L.T. 6] L.)332; 6 A.L.T. Reg. V. Edwards, ex parte Marrinan [13 V.L.R. 50 ; 8 A.L.T. 148] . V. Hare, ex parte Halford [7 A.L.X. 142] V. Heron, ex parte Jones [8 V.L.R. (L. ) 140 !'. Hutchinson, ex parte Jessell [10 V.L.R. 161] i;. Littleton, ea; pa)-«c Kirk [6 A.L.T, 21] ... ... 63, V. Puokle, ex parte Hare [1 V.L.R. (L.) 142] V. Taylor, ex parte Hailes [8 V.L.R. (L.) 149] V. Taylor, ex parte McDonald [3 V.R. (L.) 13 ; 3 A.J.R. 31] .. ■;;. Wyatt, ex parte Rutherford [3 V.L.R. (L.) 126] .. Rex V. Bradshaw [7 C. & P. 233] V. Ford [2 A. & E. 588] ... Reynolds, Boulton v. [29 L.J.Q.B. 11 ; 2 E. & E. 369] Douglas V. [2 W. & W. (L.) 1] ... Richards «. Fry [7 A. & E. 698] Ricketsoiij). BoHrchier[12 A.L.T. 36] ... Ritchie v. Gillespie [2 W. & W. (L.) 40] Robertson v. Main [1 V.L.R. (L.) 5] Main «. [2 V. L.R. ( L. ) 25] Robins, Hoskins r. [2 Saund. 328] Robinson, Storey v. [6 T.R. 138] Ross «;. Costello [13 A.L.T. 215] ... . ... 34, »;. Sale Council [5 A. L.R. (C.N.) 18] Rowe, Lodge v. [1 V.L.R. (L.) 65] V. Middleton [2 V.R. (L.) 59 ; 5 A.J.R. 54] Rutherford, ex parte, Reg. v. Wyatt [3 V.L.R. (L.) 126] Ryan, Adam v. [23 V.L.R. 334 ; 3 A.L.R. 231 ; 19 A.L.T. 99] Sale Council, Ross v. [5 A.L.R. (C.N.) 18] Sanderson, ex parte, Reg. v. Carr [JO V.L.R. (L.) 178 ; 6 A.L.T. 53] V. Fotheringham [10 V.L.R. (L.) 17, 289 ; 5 A.L.T. 172 ; 6 A.L.T. 122].. 44, Schneider V. Wright [4 V. L. R. ( L. ) 62] . Sheriff t). James [1 Bing. 34] Simpson 1). Johnstone [25 V.L.R. 340; 5 A.L.R. 301; 21A.L.T. 156] Singleton v. Williamson [7 H. & N. 747 ; 31 L.J. Ex. 287] Six Carpenter's Case [8 Rep. 147a] Smith, Butcher v. [5 W.W. & a'B. (L.) 223] Persse d. [4 V. L. R. (L. ) 201] V. Wright [6 H. & N. 821 ; 30 L.J. Ex. 313] Southby, Eaton v. [Willes 136] Speer, Wilder v. [8 A. & E. 547 ; 3 N. & P. 536] Stephen v. Gill [3 V.L.R. (L.) 178] 34, PAGB. 47, 67 74 76 39 67,75 44 62 63 43 73 43 47 53 46 78 51 50, 65 31 52 52 36, 68 59 73,75 66 43 49 59 33, 54 49, 76 44 47 39,45 47 47 40, 49 47,77 74 53 46,71 62: xii INDEX OF CASES. I'AGB. Stewart v. Florance [24 V.L.R. 417 ; 6 A.L.R.221 ; 22 A.L.T. 90]... 34, 40 Storey w. Robinson [6 T.K. 138] ... ... ... 52 Summers, Lithgow w. [4 A.J. R. 90] ... ... ... ... 51 Talbot, Geoghegan v. [5 W.W. & a'B. (L.) 187] ... ... 42, 48, 77 Tamlin, Boyle -«. [6 B. & C. 337] ... ... ... ... 40 Taunton D. Costar [7 T.R. 431] ... ... ... ... 51 Thomas, Glynn t). [11 Ex. 870; 25 L.J. Ex. 128] ... ... .. 47 V. Harries [1 M. & G. 695 ; 1 Sc. N. R. .524] ... ... 47 Ladd ij. [12 A. & E. 117] ... ... ... . 47 Trainor u Lott [A.R. 8 July 1864] ... ... ... ... 66 Trevanion's Case [11 Mod. 132] ... ... ... ... 75 Turner v. Williamson [11 V.L.R. 432 ; 7 A.L.T. 49] ... ... 66, 75 Upton, Welcome v. [5 M. & \V. .398] ... ... ... 46 Vaspor v. Edwards [11 Mod. 658 ; Brad. 204] ... ... .. 47, 53 Wagstafp y. Clack [Cam. Sum. Ass. 1826] ... ... ... 52 Wallace, Brough w. [2 W. & W. (L.) 195] ... ... ... 52 Wallis, Manchester &o. R. Co. v. [14 C.B. 213 ; 23 L. J.C.P. 85] ... 55 Warburtou, Loring v. [E.B. & E. 507 ; 28 L.J.Q.B. 31] .. ... 47 Ware, ex parte, Reg. v. Puckle [1 V.L.R. (L.) 142] ... ... 44 Watson D. Issell [16 V.L.R. 607] .. ... ... ... 65 Welcome t). Cpton [5 M. & W. 39S] ..." ... ... ... 46 West «. Nibbs[4C.B. 172] ... ... ... ... ... 47 Whiteman w. King [2 H. Bl. 4] ... ... ... ... 51 Wilder v. Speer [8 A. & E. 547 ; 3 N. & P. 536] ... ... 34, 4S, 71 Williamson, Singleton «. [7 H. & N. 747 ; 31 L.J. Ex. 287] ... 47 Turner v. [11 V.L.R. 4.32; 7 A.L.T. 49] . . ... 66, 75 Wills, Bagshawj). [5 A.J.R. 115] ... ... .. 48 Wilson V. Powell [5 W.W, & a'B. (L.) 249] ... ... ... 44 Wingfleldw. Glass[6 W.W. & A'B. (L.) 4] ... ... ... 51 Wormer u. Biggs [2 C. & K. 31] .. ... ... ... .52 Wright, Mitcliell u. [4 V.L.R. (L.) 273] ... ... ... 46 Schneider!;. [4 V.L.R. (L.) 62] ... ... ... ... 44 Smith y. [6 H. & N. 821 ; 30 L.J. Ex. 313] ... 74 THE LAW OF IMPOUNDING IN VICTORIA. INTRODUCTION. THE remedy of impounding, or distress for Distress damage _ feasant. damage feasant, existed in England long before the Norman Conquest. It appears to have been originally derived from the northern nations of Europe, among whom it existed at an early period in its simplest and most primitive form, viz., the seizure of a trespassing animal, and the detention of it until compensation was made by its owner for the damage done. The use of the pound — penfold or poundfold — as a place or enclosure in which distrained cattle were detained, is mentioned at a very early period in the laws of the Anglo-Saxons. And at the present day the right of distress for damage Imp.— ] INTRODUCTION. feasant remains almost the same as at common law. The Pound at common law. The Pound. — At common law a pound means a place or enclosure, either overt (e.g., an open yard or paddock) or covert {e.g., a covered shed or building) selected by the distrainor of tres- passing cattle at his own discretion and at his own risk for the safe keeping of the cattle or Under the Act. goods distrained ; Bla. Com. III. 12. By our statute law a pound is a place appointed to be a pound by the Governor-in-Council if the place be not within a municipality, or by the council of a municipality if the place be within a municipal district (sec. 4), and notified as such in the Government Gazette. A copy of the Gazette notifying the establishment of a pound is prima facie evidence that such pound was duly established (sec. 27), but that is not the only evidence ; and it is not necessary that the limits of a pound be proclaimed. Evidence of establishment. Pound tees, sustenance fees and trespass rates. Table of rates. Pound fees are fixed by the Act (Schedule II) ; and sustenance fees payable in respect of the sustenance of impounded cattle, and trespass rates payable to the impounder as compensation for damage done, are fixed by the council of the municipality controlling the pound (sec. 9). The table of rates to be charged for the trespass of cattle and their sustenance, as fixed by the council, and in the form in Schedule III to the INTRODUCTION. 3 Act, together with the name of the poundkeeper, must be painted in white letters on a black ground on a board kept erected on the gate or other conspicuous part of the pound (sec. 19). The pound must be kept in a fit state to Pound to be kept ^ ^ m a fib state. receive cattle brought tO be impounded. At common law, if the usual pound is in an unfit state a person who distrains cattle must find another, for he is bound to see that the pound to which he takes the distress is in a fit state to receive it, and he would be liable for any damage caused thereby to the cattle distrained. In "Victoria, however, it is assumed that the common law rule would be controlled by the necessity of placing the distress in the nearest accessible proclaimed pound, as the distrainor is not per- mitted to place them in any other. A pound may at any time be abolished or Abolition and removal. removed ; and all expenses of establishing, maintaining, removing or repairing a pound are payable by the municipality controlling it (sec. 7). Destroying or injuring, or attempting to Damageto . . T . n, . pound. destroy or injure, a pound is an ottence against the Act (sec. 30). Pound breach, or the break- ing of a pound or any part of it and retaking ■cattle after they are impounded, is not included as an offence under the Act, but is a misde- meanor at common law. The Poundkeeper. — A poundkeeper is to be Poundkeeper. 4 INTRODUCTION. appointed for every pound, and if the pound is within a municipality he is appointed by the council controlling the pound, in the same man- How appointed. Hcr as Its othor officers are appointed ; and the council also has power to suspend or remove him (sec. 5). He is an officer of the municipality under whose control the pound is maintained, Is a public but at the same time he is a public official officer. , named in a legislative enactment, whose duties are prescribed by the Act., and who is required to perform those duties under the Act (sec. 6). He is not bound to produce his appointment to persons impounding cattle as evidence of his right to receive them into the pound ; the fact of his acting in that capacity is sufficient. He aaij o . -g ^^^ 1^^ p^- J ^^ ^ fixed salary out of the muni- cipal fund of the municipality, and is not per- mitted to be remunerated by fees (sec. 5). Duty of pound- Ho is bouud to take and keep whatever cattle keeper. ^ are brought to him, at the peril of the person who brings it, and is not answerable whether they are legally impounded or not ; the im- pounder, and not the poundkeeper, is the person responsible. He is to receive the pound fees Sustenance fees, fixed by the Act (soc. 8), and also the sustenance fees and trespass rates (sec. 9). The sustenance fees are payable in respect of sustenance in the pound of impounded cattle, as fixed under the Act, and are payable in respect of impounded cattle, even though the poundkeeper has not INTRODUCTION. 5 been at any exjaense in providing sustenance for them. The trespass rates, also fixed under the Trespass rates. Act, are payable in the first instance to the poundkeeper, who holds them as a stakeholder, subject to the provisions of tlie Act (sec. 11). An additional trespass rate not exceeding Five ' pounds per head is chargeable in respect of the trespass of entire horses, bulls and rams (sec. 10). Any person impounding cattle must give to the poundkeeper a written memorandum specifying jie„,orandum to the description, number, brands and marks of ^°"" ^^^"' the cattle, the place where they were found trespassing (which must be clearly defined, so, as to enable their owner to find the place without difficulty), the damages claimed for trespass, and, if known, the name of the owner of the cattle (sec. 16). If excessive damages are claimed the owner of the cattle must pay them, and may then proceed to recover from the impounder the excess paid (sec. 26). The omission of any part of this requirement will not, however, constitute illegal impounding, though it might be an offence under sec. 30 (viii). The poundkeeper is to keep a pound book in ^°^"^ ^°°^- the form of Schedule IV to the Act, with proper entries, and this book is to be open for inspection to the public on payment of a small fee, and to a justice or a member of the police force free of charare (sec. 18). Entries in this^v^™=^°' o \ / entries in. book may be proved by a certified extract giving 6 INTRODUCTION'. the essential particulars ; the book itself need not be put in evidence. If an animal is not impounded in the prescribed manner the pound- keeper should not insert the fact in his pound book, for if the law has not been complied with the animal is not " impounded," though it may be placed in the pound. reMiTCcatae'" '^^^^ pouudkceper is required to receive and impounded. detain impounded cattle in his custody until the fees and trespass rates are paid (in default of which they may be sold), or until he receives an order from the justices under section 26, or an order for their release from the impounder (sec. 20). The pound must be kept in a fit state to receive impounded cattle, as persons im- pounding cattle have no option of placing them in any other than the nearest accessible pro- claimed pound to the place where the cattle were found trespassing. Registering brands. Sale of unreleased cattle. The poundkeeper is also required on payment of a fee to register the brands of any cattle with the name and address of the owner, and if any of such cattle are impounded at any time he is to give notice of the impounding to the registered owner (sec. 21), so that the owner may know when any of his cattle are impounded. Cattle impounded and not released are to be sold by auction at the pound after the time and in the manner prescribed by the Act, the pound- INTRODUCTION. keeper acting as auctioneer (sec. 22) ; and he is to apply the proceeds of sale as directed by section 24. If there be no purchaser at the sale the cattle are to be destroyed (sec. 23), and the carcasses disposed of. The provisions of the Act are very severe in p^™dfeg''p''<., respect to offences by the poundkeeper, which are enumerated in section 28, he being liable on conviction for any offence against the Act to a penalty not exceeding fifty pounds, or imprison- ment for ■ any period not exceeding six months, or both. If he is charged with neglecting to supply impounded cattle with proper sustenance, it lies upon him to prove that proper sustenance was supplied ; and in case any of the cattle are lost from the custody of the poundkeeper, they are deemed to have been lost through his negli- gence, unless he prove the contrary (sec. 29). Failing to supply proper sustenance to im- pounded cattle is an offence against the Act, but a poundkeeper is also liable at common law for keeping cattle in an unfit pound, or neglecting to properly sustain them. The Right of Impounding. — The authority to «;ehu»^^^.^^^ impound cattle damage feasant {i.e., doing dam- j^™'™"""™ age to a crop or grass by feeding or otherwise) is derived solely from the common law. It is not a right given by Statute, except in certain cases where the common law does not apply, INTRODUCTION. Exceptions. Distress. Principle of comniou law right. such as trespass on streets or roads. An occu- pier of land adjoining a road which is properly fenced on both sides has a statutorj" right to impound cattle wandering without control on such road (sec. 17) ; and the council of a muni- cipality may, under sees. 408 and 409 of the Local Government .4ci, impound any cattle driven along or on any street or road for the purpose of grazing without the consent of the council. A distress damage feasant (i.e., a seizure for the purpose of impounding) is different from a distress for rent. Tn the latter case a man may distrain any cattle he finds on the premises ; in the former the cattle can only be distrained for the damage they are actually doing. At common law, the right of distress damage feasant is founded on the principle of recompense, which justifies a person in detaining that which occasions the injury to his property, until amends be made by the owner : Bullen on Distress. By the common law of England the law allows a man to be his own avenger, or to minister redress to himself in the case of another's cattle damage feasant or trespassing on his land, by distraining them : Bla. Com. III. 5. The law regards cattle distrained damage feasant as a mere pledge or security for payment or satisfaction of the damage done, over which the distrainor has no other power than to detain INTRODUCTION. 9 ifhem until satisfaction is made. The distress is the remedy given at common law ; any power of sale subject thereto is added by Act of Parlia- ment : Bla. Com. III. 10, 14. If a stranger's cattle are found damage feasant on the land of another without his leave or licence, and without any default or negligence of the owner of the land, such owner may at common law distrain or impound the cattle so found, and may detain them until he is paid or tendered a fair com- pensation for the injury. An occupier of land may distrain cattle by night as well as by day, otherwise the cattle may be gone before he can take them : Co. Litt. 142a. Before any impounding Act existed in Vic- Sghtin vicLia. toria a person in possession of land could under the common law impound cattle damage feasant, and the present Act contains no express nega- tive words to take away the common law right of the actual occupier to impound for trespass. In fact, the common law right remains, except in ■certain cases where it is done away with. The Act merely limits, and in some case extends, the right existing at common law. It is only neces- sary for a defendant to set up and prove his common law right, and then if the plaintiff would rely upon any statutory limitation he must reply it. The defendant might then be liable to a penalty, but he would not be a trespasser. 10 INTRODUCTION. Seizure at comniou law. Detention for upwards of three days. Thus an occupier of land may, in the absence of any enactment to the contrary, seize" and drive off or impound cattle damage feasant, or may drive them to a convenient place for the owner and so far detain them. A seizure at common law necessarily implies some detention, and cattle seized damage feasant may be detained for a reasonable time before being taken to the pound. It is not necessary that cattle seized for the purpose of impounding should be conveyed to the pound immediately and without delay. No time is expressly provided by the Act, and the general rule is applicable that where no time is prescribed for doing an act directed to be done it must be done at and within a reason- able time. The onus of showing that the detention was reasonable is on the defendant, who has to establish full compliance with the Act. If cattle are detained for upwards of three days in any place not being a proclaimed pound the distrainor can claim no damages in respect of the trespass (sec. 13), and though the original seizure may have been lawful the detention would be a wrong. Cattle must be seized for impounding. It is absolutely necessary, whether under the common law or under the Act, that cattle tres- passing be seized only for the purpose of impounding. They must be taken to the nearest accessible proclaimed pound (sec. 16) ; an impounding in this State in any other pound INTRODUCTION. 11 is the only act which constitutes the offence of illeo^al impounding. This does not necessarily Nearest O JT o i/ accessible mean the nearest pound, but the nearest acces- ^°^"'^' sible pound to the place trespassed upon, i.e., the actual spot where the cattle trespassed by feeding without authority. The object of the section is for the protection of the owner of the cattle, not of the person impounding, so that the owner may know where to look for them ; and the question what is the nearest accessible pound is one of fact for the justices in each par- ticular case, and may be determined, by a consideration of the relative convenience to the person impounding of driving trespassing cattle to one or other of the pounds to which he has access. An occupier of land impounding cattle must Memorandum ^ J. o (_Q poundkeeper- give to the poundkeeper a written memorandum specifying the particulars before mentioned (sec. 16). ' Non-compliance with this direction is not within the offence of illegal impounding created by section 30 (iii), but may constitute an offence under section 30 (viii). The descrip- ^ ' ■*- Place of trespass. tion of the place of trespass to be specified in the memorandum must be sufficiently clear to enable the owner of the trespassing cattle to find the place without difficulty. The name of a town has been held to be sufficient, but not the name of a district, nor does the heading of the memorandum with an address as in a letter 12 INTRODUCTION. sufficiently specify the place where the cattle were found trespassing. dSneJFeattie. I* does Hot matter to whom the cattle dis- trained belong, if they be really trespassing. They may be taken damage feasant although they came on the land without the owner's knowledge or consent, or by the default of an- other ; and it is necessary that the distrainor actually get into the locus in quo before the cattle get out of it. The distress must be taken in the act of trespassing, at the time the damage was done ; if the damage was done yesterday the distress cannot be taken today. And even if the owner of the trespassing cattle, before they are seized, drives them out within view of the land-owner, they cannot afterwards be dis- trained, even though they were driven out purposely to avoid being seized. SiinTd""' ^^ -^ horse in a cart in the actual use of a person cannot be distrained damage feasant ; nor can any animal which is under the immediate con- trol of its owner ; nor a horse if there is a rider on it, even though the man rides over the crop of another ; nor a horse being led by a person at the time, or otherwise under his personal care, and being actually used by him ; but sheep in charge of a shepherd may be seized and im- pounded, though they have trespassed without the knowledge or even against the wish of the shepherd. INTRODUCTION. 13 If several cattle are trespassing an occupier seizure of one of ■*■ ^ ^ several. cannot take one of them and claim trespass damage for the whole ; he can only take the one beast for its own damage. A person distraining cattle damage feasant is Distrained oattie '■ c^ a may not be used. not at liberty to work or use a distrained beast ; but milch kine may be milked. He must also, while the cattle are in his custody, provide them with proper food and water. Goats, pigs and geese trespassing may be Goats, pigs and destroyed (sec. 15), and it is not necessary that they shall be killed instantaneously ; but the Act applies only to these animals, and not to dogs or domestic fowls. Goats and pigs are within the interpretation of " cattle " under the Act (sec. 3), and may, therefore, in the discretion of the occupier, be either impounded or destroyed. Restoration of Trespassing Cattle. — An Restoration of cattledistramed. occupier who finds cattle trespassing on his land may instead of impounding them restore them to their owner, and may then demand and recover from the owner the amount of any trespass rates which would be payable under the Act if the cattle were impounded. Only the occupier of land has this privilege ; an owner of land who is not an occupier has no rights in this respect (sec. 12), And it is only the owner of who may^be^^^^ the cattle who can be sued for the trespass rates ; '^'"^^' the servant or manager of the owner of a run 14 IxVTRODUCTION. Demand of trespass rate. or station, who is non-resident, is not liable for a penalty incurred by the trespass. But if a superintendent of a station acted throughout in his own name, and not in that of the owner, he would be liable. A formal demand of the trespass rate from the owner of the cattle is not necessary, nor is it a condition precedent to the recovery of the trespass rates. The acts of trespass and restora- tion in themselves give rise to a present claim or demand, which the restorer of the cattle may proceed to enforce without any preliminary steps ; the making of a complaint (i.e., the issue and service of a summons) is in itself a sufficient demand, as it is in the case of a debt or demand for goods sold and delivered. Assessment of Jt ig not for the occupicr of the land to assess dainaf?e. ■*- the amount of compensation when he restores the cattle ; it is the duty of the owner of the distrained cattle to assess and tender to the occupier of the land compensation for the damage done by the cattle, as he is the wrong- doer in the first instance. How cattle may be restored. In restoring cattle under section 12 it is not necessary to deliver them to the owner person- ally ; delivery to an overseer or agent is sufficient, but on the hearing of a complaint for recovery and trespass rates the justices must satisfy themselves that the person who took INTRODUCTION. 15 delivery of the cattle on their restoration was an overseer or agent with authority to receive them. In cases where the cattle are wild and unmanageable they will be sufficiently restored to their owner if they are replaced to his know- ledge in a field or paddock occupied by him ; but if they are so unmanageable that the distrainor cannot get them out of his paddock and into that of the owner, this would not be a restoration. If cattle are restored to their owner before special damages not recoverable. impounding upon a promise by their owner to pay what is due on them the justices have no power to order special damages above the ordi- nary rates ; they are limited to the trespass rates fixed under the Act. But the distrainor county^comt may, if he choose, proceed in the County Court for damages for the trespass in lieu of demand- ing the trespass rates under the Act before the justices, for section 12 does not take away the jurisdiction of the County Court to award damages. A distrainor may in the alternative proceed ll'^evfuSices under section 59 (4) of the Justices Act for damages for trespass by cattle in cases where trespass rates have been fixed, if the rates so fixed do not in the opinion of the Court afford sufficient compensation to the complainant for such trespass, provided the total damages shall not exceed £50. This proceeding cannot, 16 INTRODUCTION. however, be taken if the cattle have been impounded ; it is only available after restoration under section 12. Tenderof Tender OP Amends. — Closelv allied to the amends. *^ authority to restore trespassing cattle under section 12 is the right of the owner of cattle seized for the purpose of impounding, but not actually impounded, to tender payment of the trespass rates fixed under the Act, and obtain delivery of the cattle seized (sec. 14). This is merely a re-enactment of the common law right. But the cattle must have been seized for the purpose of impounding, and the amount to be tendered must be the trespass rate fixed under the Act, even though the parties may have agreed between themselves to a higher rate. A refusal to return the cattle on tender of the proper amount is an offence against the Act. When to be Tender of amends cannot be made after the made. cattle are impounded, even though they have been wrongfully taken ; and if a tender be legally made after seizure and before impounding, the detainer after the tender is unlawful. Detaining cattle after payment of the trespass rates and subsequently impounding them does not, how- ever, constitute illegal impounding under the Act ; though it may be a wrongful detention and a wrongful impounding at common law, giving aright of action to the owner of the cattle. INTRODUCTION. 17 Cattle seized damage feasant may not be de- Detenuon for o ^- other time, and are then seized for the purpose of impounding, and the owner tenders the tres- pass rates for the latter damage, the distrainor is bound to let them go ; he cannot detain them for the first damage, as they were not then taken in the act of trespassing. Illegal Impounding.— The words " illegal im- niegai impounding:, pounding " are used in the Act in two different aspects, viz., in section 26 and in section 30 (iii). In the former section the proceedings authorised in respect of illegal impounding are in the nature of a civil remedy ; under sec. 30 (iii) they are for an offence. It will be well to consider them separately, in order to avoid any confusion that might arise owing to the same words having been inserted in the two sections. And it must leaning of. be remembered that though this expression " illegal impounding " is used in one section Imp.— 2 18 INTRODUCTION. As a civil remedy. Under former Act. quasi-criminally and in the other section civilly, the words are held to bear the same meaning in each : i.e., the interpretation of " illegal impound- ing " is the same in both sections. First, as a civil remedy : — Under section 26, which provides for a remedy in damages, it has been held that illegal impounding can only be for sending cattle to a pound not being the nearest accessible pound, or for impounding cattle not liable to be impounded at all. There are only these two kinds of illegal impounding in respect of which damages can be awarded. Under the former Pounds Act the word " illegal " meant illegal by non -conformity with the requirements of the Act as to the modus Under present operaTOC^'i prescribed by it. Under the present Act it means contrary to the provisions of the particular Act — not unjustifiable. A marked distinction is shown between the proceedings under section 26 and those under section 30 (iii) in that the notice to the poundkeeper on re- leasing the cattle seized (sec. 25) is a condition precedent to seeking the civil remedy, and the complaint for damages must be made within ten days after service of the notice ; whereas on an information under section 30 (iii), seeking enforcement of a penalty, it is not necessary that proof of the notice to the poundkeeper under section 25 should be given, and there is no limitation as to time. INTRODUCTION. 19 Sections 25 and 26, then, deal only with sees. 25, ae ' ' -J fleal with irregularities in impounding, and not ^^v^ith "■'■''°"''"'''"'^' illegal impounding as an offence. These sections confer a civil jurisdiction upon justices with Jurisdiction of power to award compensation m three cases, ^^}^^^ '" viz., (1) where there has been an illegal im- ™ "p^"=='''°"- pounding under the Act by the impounder, (2) where there has been an illegal impounding under the common law if the cattle were not trespassing, and (3) where there has been a demand of excessive trespass rates by the im- pounder. The first of these matters of complaint also constitutes an offence under section 30 (iii), but that section, dealing with an offence and not a civil claim, provides a punishment and not a remedy. The illegality of impounding cattle not liable to be impounded is not " illegal im- pounding under this Act," and, therefore, is not the subject of an information under section 30 (iii). The civil remedy is provided by sections civii remedy \ / ./ i i/ provided, 25 and 26. The owner, if he succeeds, obtains an order in his favour against the impounder, and by means of that order he can obtain from the poundkeeper the trespass rates, which are retained to abide the order. The distinction between a person seeking damages for some irregularity and a person proceeding for a penal conviction, must be kept clear. In one case he seeks compensation for a civil remedy ; in the other he prosecutes for an offence against the public. 20 INTRODUCTION. Notice of inteution to complain. Jurisdiction under sec. 26. When damap^es can beawat'ded. The circumstances under which the owner of impounded cattle may give notice of complaint under section 25 are " that such impounding was illegal under this Act," and •' that the rates demanded for the trespass of such cattle are excessive." These two are the only causes of complaint mentioned in section 25, and a com- plaint under section 26 can only be made in pursuance of the notice required by section 25. By virtue of section 26, however, the justices may also find that " the cattle were not tres- passing," in addition to their jurisdiction to deal with complaints for illegal impounding and charging excessive trespass rates. Thus the owner can only enter his complaint in two instances, yet the justices have jurisdiction to decide in three, including the question whether the cattle were or were not trespassing when impounded. It is now settled that damages may be awarded to the owner of cattle illegally im- pounded, whether the illegality arises out of a breach of the Act, or is merely a wrong at common law, in that the cattle were not tres- passing when impounded. The words " under this Act" are left out of the latter part of section 26, and the words " illegal impounding " only are used, and therefore the justices may make an order for damages for illegally impound- INTRODUCTION. 21 ing, whether the illegahty is under the Act or the common law. The jurisdiction of the justices to award '" '■^''^'^ ''*^^*- compensation, therefore; may be regarded as extending to cases (1) where the cattle were not trespassing, (2) where the impounding was illegal either under the Act or at common law, and (3) where the trespass rates demanded are excessive. We need not now consider the last case. (i). Where the cattle were not trespassing : — cattienot \ / i o trespassing;. Under the common law cattle can only be dis- trained damage feasant, and therefore cattle which are not trespassing cannot legally be im- pounded. The impounding of such cattle, how- ever, does not constitute illegal impounding " under the Act" — it is an unlawful act at com- mon law, and for this, viz., impounding cattle not liable to be impounded, a remedy is pro- vided in section 26, though the owner is not compelled to avail himself of the statutory remedy alone. In the case of Robertson v. Main, Fellows, J. held that there are only two kinds of illegal impounding, viz., where the cattle were not sent to the nearest accessible pound, and where the cattle were not liable to be impounded at all. This decision was followed by Higinbotham, C.J., in McLaurin v. Griffin, in which case he held that the only questions which thejustices could decide under section 26 22 INTRODUCTION. were : whether the cattle were or were not trespassing ; whether the impounding was or was not illegal by reason of the cattle having been impounded in a pound not being the nearest accessible pound ; and whether the trespass rates demanded for the trespass of the cattle were or were not excessive ; and that it was only in one or more of these cases that compensation could be awarded by the summary mode of procedure impending at to tlio owuor of the cattlo. These rulings have common law. been followed by Hood, J., in McLean v. Der- ham, in which he held that for the purposes of awarding compensation illegal impounding under this section means both illegal impounding under the Act and illegal impounding at common law. (ii). Where the impounding was illegal : — Illegal impounding under section 26, as under section 30 (iii), has been held to be constituted only by sending trespassing cattle to a pound not being the nearest accessible pound to the place of trespass ; but this refers only to illegal impounding " under the Act." The decisions just quoted have established that illegal im- pounding under the latter part of section 26 is constituted by impounding cattle illegally either under the Act or at common law. The impound- beawfvdedlior. i"g ^f Cattle uot liable to be impounded is not illegal impounding " under the Act," but it is an illegality at common law, and the ruling of the Court is that though an impounder of cattle INTRODUCTION. 23 can only be complained against for illegal im- pounding "under the Act," yet by virtue of the section damages may be awarded for illegal impounding whether under the Act or at com- mon law. The justices may find that the cattle were not trespassing, and may make an order for damages sustained by the owner in conse- quence of the illegality at common law. As to damages : — These can be awarded under Damages. section 26 only in two cases — where the im- pounding has been illegal (under the Act or at common law), and where the impounder has demanded excessive trespass rates. In these cases the owner of the cattle must give to the poundkeeper notice in writing of his intention to complain — sometimes wrongly called a pro- test — and he must follow up his notice by making his complaint within ten days. The wording of section 26, tied as it is to sec- conflict between the two sections. tion 25, is very vague. Section 25 provides that in two events an owner of cattle impounded may give notice of complaint, viz., if the impounding is illegal under the Act, and if excessive trespass rates are demanded. Under section 26, how- ever, the justices may find in three events, viz., either of the two in respect of which notice is necessary, and, in addition, that the cattle were not trespassing. Following on in the same section they may award damages for (1) illegal 24 INTRODUCTION. impounding, not specifically stated to be illegal impounding under the Act — and (2) for demand of excessive trespass rates. Thus we have a conflict between sections 25 and 26, and a further conflict between the earlier and the latter por- tions of section 26. What, then, will constitute illegal impounding ? In the first part of section 26, the expression being "illegal impounding under this Act," this has long ago been defined as impounding cattle elsewhere than in the nearest accessible pound, and that only ; but in the latter part of the section the words " under this Act " are omitted, and the Court, fortified by earlier decisions, appears to have seized on this point and assumed that the Legislature intended to give jurisdiction to the justices to award dam- ages for impounding cattle which were not trespassing ; in other words, to apply the mean- ing of illegal impounding not only to illegal impounding under the Act, but under the com- mon law as well. The section is obscure and loosely drawn, but the Court has no doubt rightly judged the intention of the Legislature rather by deduction of what was intended to be the wording of the section than by a literal interpretation of it. aiiolTeiice. imp^ounding i.8 Secondly, as an off"ence : — There is no distinc- tion between the words "illegal impounding" in section 30 (iii) and the same words in the first part of section 26. Under the former section, INTRODUCTION. 25 however, the meaning is more hmited, and the proceeding is for a conviction for an offence against the public. The offence of illegal impounding is created g'«»*^^iijpra. If the cattle are detained beyond three days the distrainor loses all right to recover trespass rates or damages under the Act. As to detaining cattle seized for the purpose of impounding, see notes to sec. 12, "Restoration of Trespassing Cattle"; Sanderson v. Fotherinijham, 10 V.L.R. (L.) 289 ; 6 A.L.T. 122. 14. Whenever any cattle have been seized for trespass by any occupier for the purpose of impounding the same if the owner of the cattle or some person on his behalf pay or tender to the person seizing or having charge of such cattle before the same have been actuallj^ im- pounded the trespass rate provided under this Act the person having charge of such cattle shall forthwith deliver up the same to the owner or the person tendering the said rates on bis behalf. Tender of Amends. — This section re-enacts the common law that when cattle have been seized for the purpose of impounding the owner may obtain them on paying or tendering the trespass rate payable. Seizure for the purpose of impounding is the only seizure contem- plated by the Act; see Jonex ». Campion, 4 V.L.R. (L.) 170, 473; Welcome v. Upton, 5 JM. & W. 398 ; Richards v. Fry, 7 A. & E. 698 ; Goodwyn v. Cheveley, 4 H. & N. 631 ; 28 L J. Kx. 298. As to secondary evidence of trespass rates, see note to sec. 19 ; Beg. V. Duncan, ex parte Griffin, 13 V.L.R. 509 ; 9 A.L.T. 71. An owner of land accepting trespass rates for the damage done by sheep is not therebj' precluded from suing for damages in respect of a previous trespass; Mitchell v. Wright, 4 V.L.R. (L.) 273. The trespass rates to be tendered under this section are those provided by the Act, although the parties may have agreed between them to a higher rate ; and a refusal in such circumstances to release TENDER OP AMENDS. 47 the animals seized on a tender of the legal rate is an offence under Section 14. sec. 30 (viii) ; Per.sse v. Smith, 4 V.L.R. (L.) 201. Tke Pounds As to detention of cattle after payment of demand, see note to sec. ' , ,. ' ., ^ •' ' Detention after 30 (iii) ; Reg. v. Edwards, ex parte Marrinan, 13 V.L.R. 50; 8 payment. A.L.T. 148. No action can be maintained for detaining cattle distrained dam- when tender to age feasant where a tender of sufficient amends was made after the ™»"s- cattle had been impounded ; Sheriff v. J amen, 1 Bing. 341. The taking is unlawful if a tender of sufficient amends be made before the taking ; if after the taking and before the impounding, then iJ,^p™u„|ji|-|j, though the taking is lawful the detainer after the tender is unlawful ; Evam V. Elliott, 5 A. & B. 142 ; Gulliver v. Cozens, 1 C.B. 788 ; West V. Nibs, 4 C.B. 172 ; Six Carpenters Case, 8 Rep. 147a ; Loring V. Warburton, E. B. & E., 507 ; 28 L.J. Q.B. 31 ; Singleton v. Williamson, 7 H, & N. 747 ; 31 L.J. Ex. 287 ; Thomas v. Harries, 1 M. & G. 695; 1 Su. N.R. 524. Tender after the distress and before the impounding makes the detainer and not the taking wrongful; Olynn v. Thomas, 11 Exch. 870; 25 L.J. Ex. 128. Tender after the impounding is too late / Pilkinqton's Caie, 5 Rep. A**^'' ,. ' ° ' -^ ' i impounding. 76a; Cro. Eliz. 813 ; Ladd v. Thomas, 12 A. & E. 117. Where cattle distrained damage feasant are in a private pound While in private [e.g. under sec. 13) and the distrainor admits they were about to be ^°"" ' forwarded to a public pound, a tender of amends made while they were in the private pound is not too late ; Brown v. Powell, 4 Bing. 230. A tender of amends to the wife of the distrainor was held .jg ^^jf^ sufficient if she is agent for the purpose ; Ibid ; Gilbert on Replevin ; though it was held that tender of amends to a mere bailiff was not -jq bailiff, good ; Pilkington's Case, 5 Rep. 76a ; unless authorized ; Hatch v. Hale, 15 Q.B. 10 ; 19 L.J. Q.B. 289. A man left in possession has to man in no such authority; Boulton v. Reynolds, 2 E. & E. 369; 29 L.J. possession. Q.B. 11. If cattle have trespassed to-day and have gone off, and trespass Second trespass. again at another time and are then taken, and the owner tenders amends for the latter damage, the distrainor cannot keep them for the first damage ; Vaspor v. Edwards, 12 Mod. 658 ; Brad. 204 ; 1 Ld. Raym. 719 ; 1 Salk. 248 ; Co. Litt. 161a. Excessive damages paid to release cattle seized but not impounded Excessive may be recovered in an action for money had and received ; Green '" ^ "' V. OacJcett, U Q.B.D. 275 ; 52 L.J. Q.B. 4.35. 48 THE POUNDS ACT 1890. Sections 15, 16. Th£ Pounds Act 1874 s. 18. Power to destroy goats pigs and geese trespassing. 15. The occupier of any land and a Crown lands bailiff upon Crown lands may destroy or cause to be destroyed any goats or pigs or geese trespassing on such land ; and if the owner of such goats or pigs or geese fail to remove their carcasses within twelve hours after the destruc- tion of them, the person destroying such goats or pigs or geese shall cause such carcasses to be buried. Animals need not be killed at once. Dogs, &c. This section does not impose any obligation to kill the animals instantaneously, or any liability for injuring the animals ; Bagshaw V. Wills, 5 A. 3.^. 115. The section will apply only to those animals which are specially named in it, viz., goats, pigs and geese ; expresno unius est exclusio allerius. Dogs or domestic fowls are not included in it; see Gioqhegany. Talbot, 5 W.W. & a'B. (L. ) 187. Goats and pigs are included in the interpretation of " cattle," (sec. 3), and can therefore be impounded or destroyed. Any impounding of dogs or domestic fowls would have to be done under the common law ; the Act does not limit the right as to these. Cattle to be impounded in the nearest pound. Particulars to be specified. lb. s. 19. 16. No cattle shall be impounded under the provisions of this Act except in the nearest accessible pound (a) to the place where such cattle were found trespassing, and the person by whom or by whose order any cattle are sent to the pound shall in a written memorandum (&) specify to the poundkeeper the description number brands or apparent brands and marks of such cattle, the place where they were found trespassing (c), the amount of damage claimed for such trespass according to the rates fixed by this Act, and so far as the person impounding can state the same the name of the owner of NEAREST ACCESSIBLE POUND. 49 such cattle (d) ; and such animals may be either Section i6. led conveyed or driven to such pound (e). The Pounds (a) Njiakest Accessible Pound. — See notes to sees. 25, 26, and 30 (iii). The question which under this section is the nearest accessible Nearest accessible pound is a question of fact for the justices in each pariioular case, pound. and may be determined by a consideration of the relative conveni- ence, to the person impounding, or driving trespassing cattle to one or other of the pounds available. The object of the section is for the protection of the owner of the cattle, not of the person im- pounding, so that the owner may know where to go to look for his cattle. The defendant had impounded a bull in a, pound not nearest to the place where the bull had trespassed, but in one which in defendant's view was more accessible to the place where the bull was seized. Some meaning must be given to the word "accessible" which is used in this section. The Legislature did not say the " nearest pound," but the " nearest accessible pound." Tlie question of convenience must be considered in determining which is the nearest accessible pound. It was a question of fact for the justices to say wliat was tlie most reasonable thing for the defendant to do; Adam v. Eyan, 23 V.L.R. 334 ; 3 A.L.R. 231; 19 A.L.T. 99. The provisions of the Pounds Statute 1865 (No. 249) as to driving Under No. 249. to the nearest pound were merely directory ; Butcher v. Smith, 5 W.W. & a'B. (L. ) 223. Under this section, however, they are mandatory. This section is analogous to section 11 of No. 249. No. 249 a. 11. The direction in the introductory part of the latter section that cattle impounded under that Act should be sent to the pound nearest to the place where the cattle were found trespassing is changed into a prohibition that no cattle shall be impounded except in the nearest accessible pound; McLaurin v. Oriffin, 13 V.L.R. 140; 8 A.L.T. 192. At common law a pound means a place for safe keeping selected Pound at by the distrainor at his own discretion and at his own risk ; under the Act it means the nearest accessible proclaimed pound ; Jones v. Campion, 4 V.L.R. (L.) 170. The place trespassed upon means the actual spot where the cattle Place trespassed Bspassedby feeding without autho 10 V.L.R, (L.) 289 ; 6 A.L.T. 122. upon, trespassed by feeding without authority ; Sanderson v. Father ingham. 50 THE rOUNDS ACT 1890. The occupier of land is bound under this section to impound in the nearest pound, except in cases within section 12. He cannot assert that the cattle may be better looked after while kept by him Cattle must be in his own paddock or enclosure than they would have been in the placed in pound. ,„,».. pound ; O'Shm v. D'Arcy, 6 V.L.R. (L.) 142 ; 1 A.L.T. 170. Section 16. The Pounds Act 187i. "Within a reasonable time. Onus of proof. Illegal impounding. Effect of non- compliance. It is not necessary that cattle seized for the purpose of impounding should be conveyed to the nearest pound immediately and without delay. No time is expressly provided, and the general rule is applicable that where no time is prescribed for doing an act directed to be done it must be done at and within a reasonable time ; Sanderson v. Fotheriiigham, supra. The onus of showing that the detention was reasonable is on the defendant ; he has to establish full compliance with the Act ; per Stawell, J., in Jones v. Oampion, supra. The offence of illegally impounding applies only to impounding cattle elsewhere than in the nearest accessible pound ; McLaurin v. Griffin, supra ; and see notes (c) to sec. 30. {b) Mbmobandum to the Popndkeepbr. — Non-compliance with the direction in this section as to the memorandum to be given to the poundkeeper is not within the offence of illegally impounding created by sec. 30 (iii) ; Boherlson v. Main, 1 V.L.R. (L.) 5. But such non-compliance may constitute an offence under sec. 30 (viii) ; McLaurin V. Griffin, 13 V.L.R. 140; 8 A.L.T. 192. Form of Memorandum. Form of memorandum. Description of place. ' Meredith." ' Eosstown." To the poundkeeper at X. Impounded by A.B. of X on this day of 19 the following cattle, viz : 1200 sheep [or 10 horses, or cows, cfec. ] branded or marked [describe brands or marks} found trespassing on [describe the land accurately, and whether tillage land or not] and belonging to D.E. of X. [or owner unknown] upon which trespass damage is claimed of per head. (Signed) A.B. (c) Place of Trespass. — The description of the place must be such as to enable the trespasser to find the place without difficulty. Under the Pounds Statute 1865 (No. 249), a description of the place as "Meredith" was held to be sufficient ; O'Keefe v. Behan, 2 V.R. (L.) 16 ; 2 A.J.R. 19. But under the Pounds Act 1874 (No. 478), it was held that the description " Rosstown" was insufficient, as it applied to a district round a railway station which was not a PLACE OP TRESPASS. 51 parish, or », municipal, electoral or postal district ; McLauriii v. Section 16. Griffin, 13 V.L.R. 140 ; 8 A.L.T. 192. The Pounds AH 1874. Under the Pounds Statute 1865 (No. 249), the following memo- connnon. I'andum was held to be sufficient :-" Impounded by the manager of the Ledoourt and Warra Warra Farmers' Common on 4 Oct. 1870, 1415 sheep (describing them) mostly belonging to Mr. P. (plaintiff). Trespass damage on the lot. M. (defendant)." The fair inference was that the sheep were impounded from the common by the man- agers, and a reference to the Schedule of the Act would show the scale of fees which should be tendered on that description of land ; Pettit V. Mellies, 1 A.J.E. 124. As to description of " land " under the Thistle Act (No. 1145), sec. "Land." 4, see Lithgow v. Summers, 4 A.J. R. 90. Under the Pounds Statute 1865 (No. 249), a memorandum to the "Loddon." poundkeeper headed like a letter, "Loddon, Nov. 2, 1868," was held not to sufficiently specify the place where the cattle were found trespassing. The word "Loddon" does not express whether the land was enclosed and cropped so as to enable the poiindkeeper to charge the appropriate fees. Nor does it describe the place of tres- pass in such a way as the trespasser has a right to have it described under the Act ; Wing field v. Glass, 6 W.VV. & a'B. (L.) 4. {d) Name of the Owner. — The memorandum must contain the Owner of cattle, name of the owner of the cattle, if knowp ; McLaurin v. Griffin, supra. 'The omission would constitute an offence under sec. 30 (viii). (e) iMPonNDiNi Generally. — A tenant holding over after the Tenant expiration of bis term cannot distrain his landlord's cattle which ■were put on the premises by way of taking possession ; Taunton v. Costar, 7 T.R. 431 ; Butcher v. Butcher, 7 B. & C. 399. Where G. allowed cattle to remain in a public park contrary to Breach of grazing' licence, the conditions of his licence for grazing, which required all cattle to be removed before 6 o'clock p.m., it was held that they could be impounded, and that the Board of Land and Works were not merely put to their remedy for breach of the conditions of the licence ; Ritchie v. Gillespie, 2 W. & W. (L.) 40. As between persons having concurrent possession, see Whiteman v. King, 2 H. Bl. 4 ; Burt v. Moore, 5 T.R. 329 ; Churchill v. Evans, 1 Taunt. 529. If the parties were in joint possession it is assumed they would be in an analogous position to partners or joint tenants, and neither one of them would be owner or occupier with power to impound trespassing cattle 52 THE POUNDS ACT 1890. Section 16. The Pounds Act 1874. Ownership of cattle. belonging to his partner or joint tenant ; see reported note of Poyner ■ V. King, 5 A.L.K. (C.N.) 38. It matters not to whom the cattle distrained belong if they be really trespassing. So cattle may be taken damage feasant although they come on the land without the owner's knowledge or consent, or by default of another ; 1 Roll. Abr. 665 ; but not without their owner's knowledge and throngh the default of the owner of the soil ; Kimp V. Cruwes, 2 Lutw. 1573. A horse in a cart in the actual use of a person cannot be distrained damage feasant ; nor can any animal which is under the immediate control of its owner; Field v. Adams, 4 P. & D. 504; 12 A. & E. 649. But sheep under the charge of a shepherd may be impounded for trespass, even though they have trespassed without the know- ledge or even against the wish of the shepherd ; Brough v. Wallace, 2W. & W. (L.) 195. Name of owner. A person in charge of trespassing cattle must give the name and address of the owner on demand ; see see. 30 (v). Horse in cart. Shepherrled sheep. Horse ridden ; or led. When distress to be made. Cattle driven out to avoid distress. A horse cannot be distrained damage feasant if there is a rider on it, as tending to a breach of the peace ; Storey v. Robinson, 6 T.R. 138 ; Hoskins v. Robins, 2 Saund. 328. And even if a man rides over the corn of another the latter cannot distrain the horse damage feasant ; 9 Vin. Abr. 121 : " Distress.'' It was ruled that a horse may be distrained if it is being led by a person at the time ; Wag- stajf V. Clack, Cambridge Sum. Ass. 1826 ; but in a subsequent case it was held that a horse could not be distrained while in the actual possession of another under his personal care, and being actually used by him ; Field v. Adams, supra ; and see Burch v. Kennington, I Q.B.D.679; 4 P. & D. 509. To support a distress damage feasant it must appear that the dis- trainor actually got into the locus in quo before the cattle got out of it ; Clement v. Milner, 3 Esp. 95. For the distress must be taken in the act at the time the damage was done ; if the damage be done yesterday the distress cannot be taken to-day ; ]Vorme.r v. Biggs, 2 C. & K. 31 ; Lindon v. Hooper, €owp. 416. If a man sees cattle damage feasant on his land and is about to distrain them, and the owner of the cattle before they are seized drives them out, they cannot afterwards be distrained, even though they are driven out purposely to prevent the distress. And if the occupier of the land does seize them they may be rescued ; for the animals must be dam- age feasant at the time of the seizure ; Wormtr v. Biggs, supra. IMPOUNDING FROM COMMONS. 53 If a number of cattle are doing damage an occupier cannot take Section 16. one of them as a distress and claim trespass damage for the whole of — r '^ ° The Pounds the cattle, though he may lake one of them for its own damage and Act 1874. bring an action of trespass for the damage done by the others ; ""^ of ^ Vaspor V. Edioards, 12 Mod. 658 ; Gilbert on Distress. Cattle distrained damage feasant cannot, although remaining on Distress for the premises, be distrained for rent, as they are already in the custody of the law; Co. Litt. 47; Eaton v. Southby, Willes 136; Briggs v. Lowry, 8 M. & W. 729. As cattle impounded are taken only in the nature of a pledge or Distress may r ■ , ■ -,. . ■ not be worked, security to compel the performance of satisfaction a distrainor is not at liberty to work or use a distrained beast ; Bia. Com. III. 13. But milch kine may be milked ; Cro. Jac. 148. If cattle distrained damage feasant are stolen the distrainor is not Cattle stolen, answerable ; Vaspor v. Edwards, supra. A poundkeeper may not impound or assist to impound cattle ; see Poundkeeper. sec. 28 (i). A road inspector appointed by a council for the purpose of seizing wandering cattle and impounding them, could not there- fore act as poundkeeper. Impounding fkom Commons. — As to the sufficiency of the memo- Commons, randum to the poundkeeper at the time of impounding cattle from a common, see notes to this section, supra (c). The Land Act 1890 (No. 1106), sec. 106, provides : — "All commons Land Act may be governed by managers appointed as herein provided, and *' Managers, such managers shall during their continuance in office have power to distrain any cattle and swine trespassing on such common, and shall be taken to be occupiers of the common within the meaning of any Occupiers. Act; now or hereafter in force relating to the impounding of cattle ... . . and shall be taken to have in respect of such common the same power of preventing encroachment and trespass thereon as any bailifif lawfully appointed may by law exercise in respect of any lands of his employer." Under the Land Act 1862 the managers of a farmers' common were ^fj^'^ ^°' entitled to impound cattle damage feasant, and were not restricted to the remedy by way of conviction and penalty given by section 129 of that Act; Douglas v. Reynolds, 2 W. & W. (L.) 1. The remedy given by the above section would not deprive the owner of he rights he possessed independently of the Act ; Ibid. 54 THE POUNDS ACT 1890. Sention 17. J^aiid Act 1865. Land Act 1869. Effect of sec. 60. Practice. Under the Land Act 1S65 (No. 237), sec. 48, the managers of a common during their continuance in office liad power to distrain any cattle, sheep and goats (but not swine) trespassing on such common, and were taken to be the owners within the meaning of any Act in force relating to impounding of cattle ; see Oeogkegan v. Talbot, 5 W. W. & a'B. (L.) 187. Under the Land Act 1869 it was held that the managers of a common were the owners under the Pounds Statute solely by force of the Land Act, and were not the occupiers. The persons who depastured on a common were the occupiers ; Golds- brough v. Fletcher, 6 W. W. & a'B. (L.) 21.3 ; Heg. v. Carr, ex parte Sanderson, 10 V.L.R. (L.) 178; G A.L.T. 53; compare the Land Act 1890, sec. 106, supra. Sec. 60 of the Land Act 1869 does not mean that managers of a common have an unlimited power as at common law to distrain for damage feasant. The effect is to confer upon managers of a common tlie same powers and liabilities in this respect as owners of land have ; Sanderson v. Fotheringham, 10 V.L.K. (L.) 17 ; 5 A.L.T. 172. In an action against managers of a common for seizing and im- pounding sheep it is not sufficient to plead that the defendants were such managers, &c. , and in that capacity impounded the sheep while trespassing on the common. It is incumbent upon them as upon any other owner or occupier of land to allege all that is necessary to satisfy the requirements of the Act ; Ibid. Occupier of adjoining land may impound off roaa Tlie Poutith Ac/ 1874 s. 20. 17. The occupier of any land adjoining a public road which road shall be fenced on both sides by a substantial fence (a) may impound any cattle wandering without control upon such road ; and such cattle when impounded shall be liable for the same amount as they would be chargeable with if trespassing upon land Trespass rates, other than tillage land, and such amount shall be received by the keeper of the pound in which such cattle are impounded, and shall be paid by him to the council of the municipality in which such pound is situated (b). IMPOUNDING PROM ROADS. 55 (a) The road must be fenced on both sides. As to what is a sub- Section 18. stautial fence, see notes to sec. .9 (c). The Founds There is no obligation at common law upon the owner of land to '"'''' ■'■*''*■ fence between his land and a public highway, but merely a duty to fence if he would protect himself against trespassers ; Ooodwyny. Uw to fence. Gheveley, 4 H. & N. 6.31 ; 28 L.J. Ex. 298. Thus, cattle may be dis- _ ,,, ^ . trained if they are wrongfully on a road and stray from it into an fromroad. adjoining close, notwithstanding the obligation to fence ; for a dis- trainor is not bound to fence against trespassers ; Manchester, Sheffield and Lincolnshire Rail. Co. v. Wallis, 14C.B. 313; 28L.J.C.P. 85. (b) The only statutory authority to impound cattle trespassing is Statutory iiutilioritFy to given by this section and by section 409 of the Local Oovernment Act impound. 1890 (No. 1112) infra, also referring to roads, and the Land Act\QO\ (No. 1749), sec. 153, referring to commons. The right of impounding from roads by occupiers of adjoining lands, or by a municipal council, or from commons by the managers, does not exist at common law. The Local Government Act 1890 (No. 1112) provides : — Local Govern- „ , . , , , , . men(^c« 1890 " Sec. 408. For the purpose of any law now or hereafter to be in a. 408. force relating to the impounding of cattle every municipality, includ- ing the City of Melbourne and the town of Geelong, shall be deemed the owner and occupier of all public highways public or private street roads bridges and ferries within its municipal district. " Sec. 409. Any cattle driven along or on to any street or road for the purpose of grazing without the consent of the council of the municipality shall be deemed to be trespassing on such street or road and may be impounded by the council under any law for the time being in force relating to the impounding of cattle." A person driving cattle along a public road adjoining unfeneed Road adjoining unfeneed land, land must have a reasonable tune to drive them oil it if they stray ; Butcher v. Smith, 5 W.W. & a'B. (L.), 223 ; Goodwyn v. Gheveley, supra. The damages under this section are to be paid to the council as To whom ° ^ damage paid, occupier of the road, and do not form part of the municipal fund under see. 8. 18. Every poundkeeper shall keep a pound- ^"^^p^Jtin^d" '" book in the form in the Fourth Schedule to this tL Pounds Act 1874 s ''1 Act and shall make all entries therein as soon after the doing of the several things required to Foui-tti Schedule. 56 THE POQNDS ACT 1890. Section 19. be entered therein as possible, and shall not A^tim''^ make any entry after any dispute as to the sub- ject-matter of such entry shall have arisen ; and the said pound-book and a copy of this Act, which the poundkeeper is hereby required to keep, shall at all reasonable times be open to the inspection of any justice or member of the police force free of charge, and of any other person upon payment of the sum of sixpence. Proof of entries. A pound-book kept in pursuance of this section is j, document of such a public nature under the Evidence Act 1890 (No. 1088), sec. 23, that entries in it may be proved by a certified extract giving the essential particulars; Jones v. Falvey, 5 V.L.K. (L.) 230; 1 Extract. A.L.T., 23. "An extract from" means not the whole of the entry but a quotation or citation from it, or an abstract of the material portions ; per Barry, J., ibid. Cattle If an animal is not impounded in the manner prescribed the impounded. poundkeeper ought not to insert the fact in his pound-book ; for if the law has not been complied with the animal is not "impounded " although it may be placed in the pound ; Ibid. Neglect to keep Neglect to keep the pound-book as required, or wilfully making false entries therein, is an oflfenoe under sec. 28 (vi). pounded cStie 19. On the gate or some other conspicuous conspicuous ' part of evcrv pound there shall be erected and part of pound. ■*- ^ ± 76.8.22. maintained a board (a) having painted thereon in white letters on a black ground the name of the poundkeeper and a table in the form in the schedule. Third Schedule to this Act of all fees charges and rates which he is authorized by this Act to receive : And whenever any cattle are im- pounded the poundkeeper shall forthwith post a written notice on the gate or other conspicuous DUTY OF POUNDKEEPER. 57 part of the pound giving the number particulars Sections 20, brands or apparent brands and marks of the '- cattle so impounded; and such notice shall ^""s^*- remain so posted until such cattle have been claimed or disposed of in due course of law. (a) Upon the hearing of a complaint or information under the Act Senondary secondary evidence may be given of the trespass rates and charges painted or printed on the board erected at the gate of the pound as directed by this section ; lierj. v. Duncan, ex parte Griffin, 13 V.L.R. 509; 9 A.L.T. 71. 20. Every poundkeeper shall receive and J'^"^^^^^?^^^^ tj»'i* ,1 jjIIi 1 • ^ pounded cattle detain m nis custody any cattle lodged in such in custody. pound until the trespass rates for which the same were impounded and all lawful fees and charges shall be paid, or until he shall receive notice of the decision or order of justices as hereinafter provided, or receive an order in writing signed by the person impounding such cattle for their release without payment of the trespass rates. This section contemplates the poundkeeper acting as a stakeholder Poundkeeper. between the owner and the impounder of the cattle. See notes to sec. 5, Badkin v. Powell, Cowp. 476 ; Brandling v. Kent, 1 T.R. 60. Neglect by the poundkeeper to comply with the provisions of this section will constitute an offence under sec. 28 (vii). 21. Every poundkeeper shall upon payment gh^noHoe to'° of a fee of Five shillings register (a) any brands sng brands of and marks used in branding and marking cattle ii>. ». 24. with the name and address of the person causing the same to be registered ; and when any cattle 58 THE POUNDS ACT 1890. Section 22. are impounded the poundkeeper shall forthwith rhePmmis in casB such Cattle are branded or marked with Acl 1874. any registered brand or mark deliver at or post to the registered address of the person causing such brands or marks to be registered and in case such cattle are not so branded or marked insert in the Government Gazette and in a news- Fifth Schedule, paper published in the district a notice in the form in the Fifth Schedule to this Act {h). Object of (a) The object of the registration is to enable an owner of cattle to ascertain without delay when any of his cattle are impounded. (h) A fee of 2s. 6d. is payable to the poundkeeper for sending notice to the owner of the cattle ; see Second Schedule. Cattle not 22. Whcu Cattle sliall not have been released released to be .— .— ■ a?the''pound!'" from tho pouud wlthln twenty-one days after lb. s. 26. ^1^^ giving or inserting the notice in the last section mentioned the same shall be sold by public auction ; and such sale shall be made on the first day next after the expiration of such twenty-one days which shall be for the time being appointed by the Governor in Council or the council of the municipality by notice in the Government Gazette and a newspaper published in the district for the holding of pound sales. And at such sale the poundkeeper shall act as auctioneer, and such sale shall be held at the pound and shall commence at the hour of noon, and not more than one head of great cattle nor more than ten sheep goats or pigs shall be sold in one lot ; and the poundkeeper shall neither POUND SALES. 59 in person nor by his agent purchase any cattle Section 23. at any such sale or have any interest of Siivj The Pou-nds kind in cattle so purchased. Sales from a pound are the closest resemblance we have in this pound sales. State to sales in market overt; per Barry. J., ixi Joius y. Falvey, 5 V.L.R. (L. ) 230. Under the English law impounded cattle may be sold openly in the public market seven days after seizure, and after three days' printed notice given of the sale. No power appears to be given by the Act enabling the pound- Defloiency in keeper to recover any deficiency arising from the sale of impounded cattle, if the amount realised shall be Insufficient to pay the fees and charges. But quaire whether there would not be a remedy at com- mon law ; Bourne v. Jone^, 3 W. W. & a'B. (L. ) 45. Such a provision was made in the old Pound Act of 1855 (IS Vie. No. 30). Tlie deficiency in sale of cattle impounded from streets by the council of a municipality is provided for by Part I (9), sec. 42, of the Thirteenth Schedule to the Local Government Act 1890 (No. 1112). The poundkeeper is not permitted to purchase at a pound sale ; Poundkeeper. sec. 28 (ii). A poundkeeper acting as auctioneer at a pound sale need not be so As auctioneer, licensed ; see the Auction Saks Act 1890, sec. 29. In a case before the County Court at Sale, where a horse was impounded and incorrectly described in the Gazette advertisement, and sold nineteen days after publication of notice instead of twenty- one days, and the plaintiff sued the shire council for damages, an objection was taken that the poundkeeper, although appointed by the council, and paid by them, was a public servant holding an office under the Pounds Act, and not a servant of the council, and the objection was upheld; lios^ v. Sale Council, 5 A.L.R. (C.N.) 18. See note to see. 6. 23. When any cattle have been offered for « no purchaser •^ at sale cattle to sale at any pound sale and no bid has been made and sou"*''"^ at such sale. for such cattle and the same are^'''-^"- not worth the sustenance fees that would be payable in respect thereof during the interval 60 THE POUNDS ACT 1890. Section 24. between such sale and the next day appointed AaiaiT'^' for holding a sale at such pound, the pound- keeper may cause such cattle to be destroyed and dispose of the carcasses in such way as he may think best, and any proceeds of any sale of such carcasses or any portion thereof shall be deemed the proceeds of the sale of impounded cattle. Deficiency in In this section also no provision is made for payment of any deficiency in fees and charges ; see notes to s?e. 22. tife''"roceeds°ot ^4. The procceds of all sales of impounded ^°™'^2y*'^"' cattle sold under the provisions of this Act shall be applicable in payment — First, of any costs and charges attending such sale ; secondly, of all sustenance fees ; thirdly, of fees and charges payable as the case may be into the consolidated revenue or any municijDal fund ; and fourthly, to the impounder of such cattle of the rates due to him for the trespass thereof, and the residue if any shall be payable to the owner of such cattle ; but if such rates or residue be not claimed by any person entitled thereto within six years after such sale, or in case such person shall have been an infant, /eme covert, of un- sound mind, or beyond the seas at the time of such sale within six years after the termination of such disability, the same shall form part of the consolidated revenue or the municipal fund of any municipality within which such pound is situated as the case may be. POUND SALES. 61 The proceeds of every pound sale shall in Section 34. case the pound be not within a municipality be ^2ct(m'^' received by such person and dealt with for the purposes aforesaid in such manner as may be directed from time to time by the Governor in Council, and in case the pound be within a municipality shall be received by such person and dealt with for the purposes aforesaid as may be directed by the council of such municipality, and in default of any such directions the proceeds of such sale shall be received by the pound- keeper, and by him applied as hereinbefore directed. And if within fourteen days after any pound if proceeds r.ot *J ^1 claimed within sale any person entitled to any trespass rates or St'elSe!*'''*^ to any residue of the proceeds of such sale, shall not have claimed payment thereof, such pound- keeper shall pay the amount of such trespass rates or residue in case his pound be not within any municipality to some receiver of revenue, and in case his pound be within a municipality into the municipal fund of such municipality, but such payment shall not prejudice the right of any person to the amount so paid or any part thereof In the case of a pound within a municipality the proceeds of the To whom , 1 1 . 1 , , V T 1 ■ 1 1 proceeds paid, sale are to be applied : — (1) In payment to the persons entitled thereto of the costs and charges of the sale. (2) In reimbursement to the poundkeeper of any expenses incurred in sustenance of the cattle, and in payment of any surplus of sustenance fees into the municipal fund. (3) In payment into the municpal fund of the pound 62 THE POUNDS ACT 1890. Section 25. ^^^s and charges. (4) In payment to the impounder of the trespass rates. If the cattle have been impounded from a road the trespass Tlie Pounds Act 1874. rates should be paid to the municipal council as occupier of the land trespassed upon. (5) In payment of the residue (if any) to the owner of the cattle. Poundkeeper. The proceeds of sale are to be received and applied by the pound- keepei', unless otherwise directed by the council of the municipality. Failure by the poundkeeper to pay over money payable is an offence under sec. 28 (iv). See notes to sec. 22 as to deficiency arising from the sale of im- pounded cattle. uStopound- 25. The owner (a) of impounded cattle may o"SesandTes give notice (h) in writing to the poundkeeper poundkeeper ° _ ^ ' °_ -"^ _ ^ cattieandT^etain that hc iuteuds to complaiu to a justice against rates and fees ,-, . T •, jiiiii i pending order of the porson impounding such cattle that such justices. ^ ^ . lb. s. 28. impounding was illegal under this Act (c), or that the rates demanded for the trespass of such cattle are excessive ; and upon receipt of such notice and payment of such rates with the pound and other authorized fees and charges the pound- keeper shall release such cattle and shall retain such trespass rates to abide the order of justices as hereinafter provided. (a) See notes to sec. 12, "Owner of Impounded Catti.e." (6) See notes to sec. 26. Object of notice. On an appeal from Petty Sessions it was held that the object of this notice was to get a fund in hand to satisfy the claim of the owner ; it was not a condition precedent to the right to sue. A complaint against the impounder of sheep for illegally impounding them might be maintained by the owner after obtaining their release, although no notice of the intention to complain had been given at the time to the poundkeeper; Stephen v. Gill, 3 V.L.R. (L.) 178^ In the above appeal, however, the respondent was not represented, and the case was not argued. The decision was over-ruled in Reg. V. Taylor, tx p%rte Haiku, 8 V.L.R. (L.) 149, ivfra. NOTICK TO POUNUKEEPKR. 63 A notice under this section of the intention to complain against gpctioii 25. the impounder for illegally impounding is essential to the validity of an order under sec. 26 finding that the impounding was illegal and jct 1874. giving damages, though the owner may not seek to have the cattle Notice essential, released before such order ; Stephen v. Gill over-ruled ; lieg. v. Taylor, ex parte Haiks, 8 V.L.R. (L.) 149; and see Turner v. Williamson, 11 V.L.R. 432; 7 A.L.T. 49. In the above case (Reg. v. Taylor, ex parte Hixiles), it was held Eftect of want of that the want of the notice justified the poundkeeper in refusing to "° "^^' obey an order of justices made under the Police Offences Statute 1865 to deliver up cattle illegally detained. If no notice be given there is no starting point for the ten days Time. named in section 26 within which the complaint is to be brought ; per Holroyd, J., in Reg. v. Taylor, ex parte. Hailes, supra. The notice of intention to complain to be given to the pound- When notice to keeper must be given at the same time with the release of the cattle. Under the Pounds Statute 1865 (No. 249) it was held that a notice given within two days of the release was bad ; Parker v. Kelly, 4 W.W. & a'B. (L.) 28. The giving of a notice constitutes the pound- keeper a stakeholder, and if not given properly the damages might be wrongfully paid over ; Ibid. When an information uiider sec. 30 (iii) for illegally impounding Proof of jjiving is laid against an impounder it is not necessary that strict proof of ' .. the notice in writing to the poundkeeper under this section should be given, since by neglecting to give the notice the complainant only deprives himself of the right to claim from the poundkeeper the trespass rates paid to and retained by him ; Reg. v. Littleton, ex parte Kirk, 6 A.L.T. 21. It is only in proceedings against the , . When necessary, poundkeeper for the illegal detention oi the cattle impounded that it is necessary to give such proof of the notice ; Ibid, and see Turner V. Williamson, 11 V.L.R. 432; 7 A.L.T. 49. ]?OBM OF Notice to thk Poundkeepek on Releasino Cattlh pomi of notice. FROM The Pound. To the Poundkeeper at X. I hereby give you notice that I intend within ten days after tlie service of this notice to complain to a justice at X. against A.B. for impounding in the pound at X. certain cattle belonging to me, viz. : [describe them an in the memorandum to the poundkeeper at note to sec. 16] on the ground that such impounding was illegal under the Pounds 64 THE POUNDS ACT 1890. The Pounds Act 1874. Section 26. -^ci 1890 [or, on the ground that the rates demanded for the trespass of such cattle are excessive], and I herewith hand you the sum of being the amount of rates and charges claimed and the pound and other authorized fees in respect of such impounding. Dated this day of 19 C. D. (owner). Not a protest. This notice is sometimes called a "protest." It is more than a protest ; it must state the intention to complain to a justice. (c) Justices have jurisdiction under this and the next following sections to award damages to the owner of stock illegally impounded, whether the illegality arises out of a breach of the Act or is merely a wrong at common law, because the stock were not trespassing when impounded. Sec. 25 is clearly limited to cases where cattle are illegally impounded under the Act, i.e., to cases where some violation of the Act has occurred, such as not impounding the cattle in the nearest accessible pound to the place where they were found tres- passing, and sec. 26 is undoubtedly tied to sec. 25, because it starts off with the words "every such complaint." But in sec. 26 are inserted further words. The section having given the jurisdiction then contemplates something further, and says that the magistrates may find that the cattle were not trespassing at all. That is an illegal impounding altogether ; McLean v. Derhani, 28 V.L.R. 564 ; 9 A.L.R. 1. See note (c) to sec. 26. Complaint of illegal impounding or excessive damages to be heard before justices. JVie Pounds Act 1887 «. 29. 26. Every sucli complaint shall be made within ten days after the giving of such notice in writing (a); and shall be heard and determined in a summary manner before any two or more justices, who may dismiss the same or may find that the cattle were not trespassing or that such impounding was illegal (6) under this Act or that the rates demanded for the trespass of such cattle are excessive, and may make an order against the defendant for the amount of damages (c) sustained by the owner in consequence of such illegal impounding or excessive demand ILLEGALLY IMPOUNDING. 65 and for the amount of all pound and other Section 36. authorized fees and charges paid by the owner ^^^i^"'"'' to the poundkeeper as aforesaid, and such order shall be an authority to the poundkeeper to pay to such owner such trespass rates so retained by him (d). And the said justices may hear and determine the said complaint notwithstanding any question of title to the property or sugges- tion of right that may be involved therein (e). See notes to sec. 25. This and the preceding section deal with irregularities in impound- ing, and not with the offence of illegally impounding ; see Turner v. Williamson, 11 V.L.R. 432; 7 A.L.T. 49. (a) In the computation of time with reference to the iuterpreta- Time. tion of Acts the number of days is to be reckoned exclusively of the first day and inclusively of the last day ; Watson v. Issell, 16 V.L.R. 607. A complaint under this section by an owner of cattle impounded Notice a against the impounder for illegally impounding or for demanding p™^e^'™t excessive trespass rates must be preceded by the notice to the poundkeeper required by section 25, and must be made within ten days after giving such notice ; Turner v. Williamson, supra. Formerly, if any one irregularity in the distress were committed Irregularity, it vitiated the whole, and made the distrainor a trespasser ab initio ; 1 Vent. 37. But it was provided by Statute 11 Geo. II. c. 19 that for any unlawful act done the whole should not be unlawful, or the party a trespasser ab initio. (6) Illegally Impounding (under Sec. 26)— See note (c) to sec. illegal 30 (iii). impounding. Illegal impounding under this section must be for sending cattle Wh.it is. to a pound not being the nearest accessible pound (see sec. 16), or for impounding cattle not liable to be impounded at all ; per Fellows, J., in Robertson v. Main, 1 V.L.R. (L. ) 5. There are only two kinds of illegally impounding ; one for not sending the cattle to the nearest accessible pound, and the other for impounding cattle not Imp. — 5 66 THE POUNDS ACT 1890. Section 26. The PouTids Act 1887. liable to be impounded. The only questions which the justices can hear and determine under this section are whether the cattle were or were not trespassing ; whether the impounding was or was not illegal by reason o£ the cattle liaving been impounded in a pound not being the nearest accessible pound ; and whether the rates demanded for the trespass of the cattle are or are not excessive. It is only in one or more of these cases that compensation can be awarded by the summary mode of procedure to the owner of cattle impounded. Per Higinbotham, C.J., in McLaurin v. Oriffin, 13 V.L.R. 140; 8 A.L.T. 192. The ruling in the above cases was followed by Hood, J., in McLean v. Derham, 28 V.L.R. 564; 9 A.L.R. 1 ; see note (c) to sec. 26. See note (a) to sec. 16 as to the meaning of "nearest accessible pound." Civil remedy. Proceedings under this and the preceding section are in the nature of a civil remedy ; under sec. 30 they are for an offence. The notice to the poundkeeper is a condition precedent to seeking the civil remedy; Turner v. Williamson, 11 V.L.R. 4.32; 7 A.L.T. 49. Meaninff "illegal. What justices have to decide. Under the Pounds Act 1855 (18 Vict. No. 30), the word "illegal' meant simply illegal by non-conformity witli the requirements of that Act as to the modus operandi prescribed by it ; Degraves v. Bennett, 2 W. & W. (L.) 191 ; and see Jones v. Capron, Sup. Ct. Vic, 22 June, 1869. And under the Pounds Statute 186.3 (No. 249)itwas held that justices had no jurisdiction to enter into the question whether there was power to impound from unfenced land, but were confined to inquiring wliether tlie requirements of the Act had been complied with; O'Keefe v. Behan, 2 V.R. (L. ) 16; 2 A.J.R. 19. And in another case under the same Act it was decided that the legality of the impounding which the justices had to try was simply whether the requirements of the Act had been complied with ; it was not part of their duty to decide whether or not the impounding was justifiable ; " illegal " means contrary to the provisions of the particu- lar enactment — not unjustifiable; Jiowe v. lIiddlelou,2\'.R. (L. ) 39; 2 A.J.R. 54. Driving through The driving of cattle across the land of their owner on the way to owner's land. pound does not render the impounding illegal ; Trainor v. Lott, Argus Rep. 8 July 1864. Notice to owner. Notice to the owner of impounded cattle is not necessary to make the impounding legal ; Ross v. Costello, 13 A.L.T. 215. ILLEGALLY IMPOUNDING. 67 Where M. seized cattle and put them in his yard and demanded Si-ctioii 36. trespass for them and said he would send them to the pound if the The Pounds trespass money were not paid, and the poundkeeper refused to ira- Act 1887. pound the cattle, and thereupon M. let them go, it was held that Seizure without ^ '^ ° mipoundmg. there was a seizure only and not an impounding, and that a convic- tion for illegally impounding was wrong ; In re Uaxvlivrjs, ex parte Mahoney, 1 W.W. & a'B. (L.) 22. The defendant having#eized cattle belonging to the complainant Impounding which had trespassed drove them to the povmd, and before impound- damage, ing the cattle agreed to accept two shillings per head for the damage done. The complainant paid the sum demanded, which was not a trespass rate authorized by the Act ; but the defendant nevertheless impounded the cattle. The defendant being charged with having illegally impounded the cattle, it was held that this was not an illegal impounding under the Act, as there was no violation by the defendant of the express provisions of the Act ; lieg. v. Edwards, ex parte Marriiian, 13 V.L.R. 50 ; 8 A.L.T. 148. An owner is not bound to avail himself of the statutory remedy Act must be given by this section, but if he do so he is bound to comply with the "^''"P '^ *' • provisions of the Act ; Turner v. Williamnon, supra. The words " impounding was illegal" in this section bear the same gg,, sijrtii). meaning as the words "illegally impounding" in sec. 30 (iii) ; JfcLaurinv. Griffin, 13 V.L.R. 140; 8 A.L.T. 192. The nature of the illegality must be set forth in the order of Order of justices for illegally impounding under this section; Seg. v. Littleton, ex parte Kirk, 6 A.L.T. 21. (c) Damages. — The justices cannot in one proceeding make an Damages and order against a defendant for damages under this section, and by ^^""^ ^' the same order impose a penalty for illegally impounding under sso. 30 (iii). Such proceedings may, however, be amended by the Court ; Reg. V. Heron, ex parte Jones, 8 V.L.R. (L.) 140; 4 A.L.T. 6. Justices have jurisdiction under this section to award damages to Damages the owner of stock illegally impounded, whether the illegality arises ii°J.x>uudinl'. out of a breach of the Act or is merely a wrong at common law, because the stock were not trespassing when impounded. It is noticeable that the words " under this Act" are left out of this part of the section, and, therefore, the justices may make such an order for illegally impounding, whether that illegality is under the Act or under the common law ; McLean v. Derham, 28 V.L.R. 564 ; 9 A.L.R. 1. See note (c) to sec. 25. 68 THE POUNDS ACT 1890. Section 27. W See note to sec. 24. The Pounds (e) As to ousting the jurisdiction of justices by raising a question Ouesf ' f °^ '''''^ controlling the right to impound, see Depraves v. Bennett, 2 title. w. & VV. (L.) 191 ; O'Keefe v. Behan, 2 V.R. (L.) 16 ; 2 A. J.R. 19 ; Boive V. Middleton, 2 V.R. (L.) 59; 2 A. J.R. 54. This section, however, authorizes justices to hear and determine complaints not- withstanding the question of title may be involved. The decisions in the above cases are therefore not applical^le to the present law ; see MIcLaurin v. Griffin, supra. They are, however, referred to here as bearing on the law of impounding generally, and to avoid errors in quoting cases which have been over-ruled or superseded. The vague wording and apparent inconsistency of sections 25 and 26 are discussed in the "Introduction." ■a^fi Government 27. A copv of tlio Govemment Guzette con- Gazette prima ^ ^^ /riso^™" taining a notification of the establishment or abolition of any pound or of the appointment suspension or removal of any poundkeeper, or of the fixing of any rates fees (a) or charges under this Act, or of any matter or thing re- quired to be done by or under this Act, shall be prima facie evidence that such pound was duly established or abolished, and that such pound- keeper was duly appointed suspended or removed and that such matter or thing has been duly done and performed. [a) See note [a) to sec. 9. Appointment of In cases where the pound is under the control of a municipal poun p , gounoil the appointment or i-emoval of a poundkeeper is made by the council ; see sec. 5. Need not be A poundkeeper is not bound to produce his appointment to a per- son impounding cattle. The fact tliat he is so acting is sulBcient ; and a poundkeeper's statement if not objected to at the time is sufficient evidence of his appointment ; lioss v. Costdlo, 13 A.L.T. 215. See notes to sec. 4. OFFENCES BY POUNUKEEPER. 69 28. If any poundkeeper commit any of the section 28. next following^ offences he shall on conviction ™f ,^°«™*'„, » Act 1887 ». 31. forfeit and pay a penalty not exceeding: Fifty Penalty for ' «^ 1 ./ o J offences by pounds or be imprisoned for any period not '^™°'*'''''''"' exceeding six months or both in the discretion of the justices before whom the complaint shall be heard : — (i ) Impounding or assisting or inciting or employing any person to impound any cattle (a) : (ii.) Purchasing in person or by his agent cattle sold by auction at a pound of which he is at the time of such sale the poundkeeper : (hi.) Demanding or receiving any sums for pound notices sustenance and other fees and charges not authorized by or under this Act (&) : (iv.) Failing to pay over any money held by him under the provisions of this Act for any person after payment of the same has been demanded by or on behalf of such person (c) : (v.) Neglecting to provide sustenance for cattle impounded, or losing such cattle through- negligence (d) or using the same in any manner while so im- pounded : 70 THE POUNDS ACT 1890. Section 29. The Pounds Act 1887. (vi.) Omitting or neglecting to keep books and to make entries therein as required by this Act, or wilfully making any incorrect or untrue entry in such books (e) : (vii.) Or failing to comply with or committing any offence against the provisions of this Act not hereinbefore provided for. • (a) This section is not retrospective. Under the Pounds Statute 1865 (No. 249), sec. 20, it was not an offence for a poundkeeper to assist in driving cattle to the pound. It is created an offence by this section ; Anderson v. Deasy, 5 A.J.R. 14. Sustenance fees. (5) See notes to sec. 9. Sustenance fees are chargeable even though the poundkeeper has not been at any expense for the sustenance of animals impounded ; Lamont v. Bennett, 28 V.L.R. 438; 8 A.L.R. 177. The Pounds Act 1874. Act No. 249. Enforcing other remedj'. Liabilit.y of poundkeeper Burden of proof in certain cases to be on poundkeeper. lb. s. 82. (c) See notes to sec. 24. (d) The performance of the obligation created by the Act can be enforced otherwise than by the remedy provided by the Act ; Harney v. Kean, Argus Rep. 25 Nov. 1857. See the Animals Protectipn Act 1890 (No. 1064), sec. 7, as to care of captive animals; and see sec. 14 of same Act, and note (a) to sec. 29. A poundkeeper is not liable for cattle wrongfully distrained unless he exceeds his duty and assents to the trespass ; Badkin v. Powell, Cowp. 476. See notes to sec. 9. (e) See notes to sec. IS. 29. When any poundkeeper is charged with neglecting to provide sustenance for cattle im- pounded the burden of proving that proper sustenance (a) was provided for such cattle shall be on such poundkeeper, and when any OFFENCES. 71 poundkeeper is charged with losing any im- Section so. pounded cattle through negligence if it be ^'^[^^l™^" proved that any cattle were impounded in the custody of such poundkeeper such cattle shall be deemed to have been lost through his negligence unless such poundkeeper shall prove the contrary. And every poundkeeper shall for the purposes of this section be allowed to give evidence on his own behalf. A poundkeeper would be liable at common law for keeping cattle Liability at in an untit pound or neglecting to properly sustain them ; Wilder v. Speer, 8 A. & E. 547 ; 3 N. & P. 536 ; Bignell v. Clark, 5 H. & N. 485 ; 29 L.J, Ex. 257 ; see Lodge v. Rowe, 1 V.L.K. (L.) 65. This woald also apply to a distrainor who detains cattle in his private pound under see. 13. See note (d) to sec. 28 ; Harney v. Kean, supra ; and notes to sec. 9. (a) Under the Animals Protection Act 1890 (No. 1064) see. 14, if -Animals ProieenonAci. any animal be impounded and shall be confined without sufficient food and water for more than twenty-four hour.-! (or in case of ruminants for more than thirty-six hours) any person whomsoever may without being liable for trespass enter the pound or enclosure and supply such animal with fit and sufficient food and water, and the cost of such sustenance is recoverable from the owner of the animal. And see sec. 7 of the same Act. Under the English Act, 12 & 13 Vict. u. 92 sec. 5, a person im- pounding cattle in a private pound was required to properly sustain them ; see Dargan v. Davies, 2 Q.B.D. 118 ; 46 L.J.M.C. 122. 30. If any other person commit any of theP^^^ity^'^o'' next following offences he shall on conviction for- feit and pay a penalty not exceeding Fifty pounds g^^Vyj^^j or be imprisoned for any period not exceeding "' ^° ^' ^' six months or both in the discretion of the justices before whom the complaint shall be heard : other persons. The Pounds Act 72 THE POUNDS ACT 1890. Section 30. (i.) Rescuing (a) or attempting to rescue TAePoMjKjs or interfering with cattle impounded or seized for the purpose of being im- pounded : (ii.) Destroying or injuring or attempting to destroy or injure any pound (b) : (hi.) Illegally impounding any cattle (c) : (iv.) Removing cattle from any one place to any other place for the purpose of impounding such cattle from such last- mentioned place : (v.) Being in charge of or assisting in driv- ing cattle and refusing to disclose or stating untruly the name and address of the owner ot such cattle his agent or overseer on demand by any member of the police force or by or on behalf of any person upon whose land such cattle are trespassing : (vi.) Driving cattle not his own without pro- per authority from the land of any other person without previous notice to such person his agent or overseer : (vii.) Wilfully leaving open any gate or slip- panel or making a gap in any fence for the purpose of permitting or causing any cattle to trespass or otherwise RESCUE. 73 wilfully causing any cattle to tres- section 30. pass (d) : TkePounds (viii ) Failing to comply with or committing any offence against the provisions of this Act not hereinbefore provided for (e). (a) Rescue. — Rescue is also an offence at common law. Under Eesoue. the Act rescue must be interpreted as at common law. It is the forcible taking of cattle distrained before they are impounded out of the possession of some individual in whose actual custody they are by law ; Bui. N.P. 84 ; Co. Litt. 1606 ; Lodge v. Roive, 1 V.L.R. (L.) 65. Rescue must be made by the owner or his agent ; Bro. Abr. By whom made. " Rescous," pi. 7, 12; and not by a stranger who has no right to dispute the distress ; 7 Roll. Abr. 673. But qiuei-e whether rescue under the Act would not apply to a person other than the owner pr his agent. There may be rescue at law as well as in deed. If, however, the At law. distrainor has never been in possession there can be no rescue ; Co. Litt. 1606. And where a distrainor quits possession of the cattle the retaking of them by the owner is not a rescue ; Dod v. Monqtr, Possession by distrainor. 6. Mod. 216 ; Brad. 282. Where the distress is altogether contrary to law they may be re-taken ; see Bro. Abr. "Rescous," pi. 14, 18 ; Bullen on Distress, 207. If the distress be taken wrongfully and without cause they may be rescued by the owner. But if thev are „. , J J J •' Distress illegal. once impounded, even though taken without any cause, the owner may not break the pound and take them out, for they are then in the custody of the law ; Co. Litt. 47. If cattle stray from the custody of the distrainor he may retake them wherever he finds them, and again impound them ; but he must not break the peace; Co. Litt. 476, 1606. To constitute rescue there must be something amounting to a Breach of peace, breach of the peace or likely to provoke a breach of the peace, and a taking in the presence of the keeper [see Rex v. Bradshaw, 7 C. & P. 233] ; Lodge v. Rome, 1 V.L.R. (L.) 65. If a, distrainor takes a distress out of the place where it was Unlawful use of p , . , r , ,. distress, originally impounded for the purpose of makmg an unlawful use of 74 THE POUNDS ACT 1890. Section 30. i*" the owner may interfere and take it out of his possession without rendering himself liable either for rescue or for pound breach ; Smith V. WrUfht, 6 H. & N. 821 ; 30 L.J. Ex. 313. T}ie Pounds Act 1874. Taking cattle from paddock. Where the owner of an impounded horse having notice of the im- pounding took the horse out of a paddock belonging to the pound- keeper but at some distance from the proclaimed pound, in which paddock it had been placed by the poundkeeper after the impounding, it was held that this did not constitute the offence of rescuing ; Lodge v. Eoioe, supra. Abandonment of trespass. The plaintiff distrained defendant's cattle damage feasant, and went to apprise the defendant. During his absence the cattle escaped for half-an-hour into the defendant's ground, whence the plaintiflf on his return drove them to his own yard. The defendant having taken them thence, it was held that it was no rescue, as the leaving the cattle in the defendant's ground was an abandonment of the trespass ; Knowles v. Blake, 5 Bing. 499. Prohibition. Where there is no evidence of an element to constitute the offence it was held that prohibition would lie in the case of a conviction. Where prohibition would lie that was the only statutory remedy which could be applied, and an order to quash would not lie ; Beg. v. Hare, ex parte Haljord, 7 A.L.T. 142 ; see Justices Act 1890, sees. 150-15.5. Injuring pound. (6) The offence under this part of the section is for destroying or injuring a pound, irrespective of any release or rescue of cattle therefrom. This does not comprise the offence of pound breach, which is an offence at common law. Pound breacli. Pound Breach.— Pound breach is the breaking of the pound or any part thereof, and re-taking cattle distrained after they are im- pounded. As soon as they are impounded in a lawful pound they are in the custody of the law, and cannot be re-taken without the party being guilty of pound breach ; F.N.B. 100 ; Ahvays v. Broom, 2 Lutw. 1262. At common law. Pound breach was always an ofifenoe at common law. It is a mis- demeanour punishable bj' fine or imprisonment, or both ; Rex v. Bradnhaiu, 7 C. & P. 233. At common law pound breach is a higher offence than an unlawful rescue, for if a man break a pound or look or any part of the enclosure in which animals are detained in the POUND BREACH. 75 custody of the law, he offends against tlie peace : 1 Russ. 363 ; Section 30. Bullen on Distress, 210. Tke Pounds Act 1874. There is a marked distinction between rescuing cattle under dis- Rescue and traint and pound breach. A pound breach may take place without ''°"" "^'^'^ ' any breach of the peace against any individual. It is an insult to the majesty of the law to take an animal out. of a proclaimed en- closure, and it is not necessary that any person should be present in custody of the cattle at the time, as the walls or fences are a sufficient protection ; per Barry, J., in Lodge v. Rowe, 1 V.L.R. (L.) 65. To constitute pound breach there must be a criminal intention ; Ciiroinal intention. Lodge v. Rowe, aupra ; and actual force is not necessary ; Trevanion's case, 11 Mod. 132. Where cattle which had been impounded were placed by the pound- Cattle taken keeper in a paddock belonging to him and kept there, and the owner of the cattle removed tlie slip rails and took the cattle out, it was held that this was not pound breach ; Lodge v. Rowe, supra. (c) The Offen'Ce OF Illegally Impounding. — See notes to sees. Illesral jmpound'fng. 25 and 26. The offence of illegally impounding is created for the first time by Offence of. this sub-section. Under the old Acts illegal impounding was not an offence ; it merely gave a civil remedy, as under sees. 25 and 26. Here it is a penal offence; Robertson v. Main, 1 V.L.R. (L. ) 5. Illegally impounding means impounding without colour of right. Sections 25 and 26 deal with irregularities in impounding. Though the word " complaint" and not " information " is used, the proceed- ing imdor this section is for an offence. That under sections 25 and 26 is for a civil remedy, in which case notice to the poundkeeper under section 25 is a condition precedent ; Ttirner v. Williamson, 11 V.L.R. 432; 7 A.L.T. 49. But not under this section; Reg. v. Littleton, ex parte Kirh, 6 A.L.T. 21. There must be a violation of the express provisions of the Act to Violation of Act. constitute illegal impounding ; Re.g v. Edwards, ex parte Marrinan, 13 V.L.R. 50; 8 A.L.T. 148. The words "illegally impounding" in this sub-section bear the same meaning as the words " such impounding was illegal" do in section 26; the offence of illegally impounding applies only to impounding cattle elsewhere than in the nearest accessible pound; McLaurin v. Origin, 13 V.L.R. 76 THE POUNDS ACT 1890. Section 30. The Pounds Act 1874. Memo, to poutidkesper. Abandonment of distress. Impounding: after damage paid. 140 ; 8 A.L.T. 192. See note (a) to section 16 as to meaning of nearest accessible pound. Non-compliance with the direction in sec. 16 as to the memo- randum to be given to the poundkeeper is not within the offence of illegally impounding created by this section ; liohertson v. Main, 1 V.L.R. (L. ) 5 ; though it miiy constitute an offence under sec. 30 (viii) ; McLaurin v. Griffin, nupra. And a person seizing cattle with the in- tention of impounding them and afterwards abandoning his intention and letting them go cannot be convicted of the offence of illegally im- pounding ; In re HaicUvun, ex parte Mahoney, 1 W.W. & a'B. (L.) 22. And the detention of cattle and the lodgment of them in the pound by the defendant after payment of a demand by the distrainor, though it might be a wrongful detention and a wrongful and even an illegal impounding at common law, giving a right of action to the owner of the cattle, is not an illegal impounding under the Act con- stituting an offence under this section ; Beg. v. Edwards, ex parte ilarrinan, 13 V.L.R. 50; 8 A.L.T. 148. Onus of proof. A defendant cannot plead generally a common law right of im- pounding, and thus cast upon the plaintiff the burden of alleging and proving that the defendant has not oomplied with the require- ments of the Act ; Sanderson v. Folheringham, 10 V.L.R. (L.) 17 ; o A.L.T. 17"2 ; per Higinbothani; J. Damage and penalty. Justices cannot in one proceeding order payment of damages for trespass under sec. 26, and also impose a penalty for illegally im- pounding under this section ; Beg. v. Heron, ex parte Jones, 8 V.L.R. (L.) 140; 4 A.L.T. 6. Making gap in fence. (d) By agreement under section 6 of the Fences Act 1890 between adjoining land-owners whose natural boundary was a creek, a dividing fence was so erected as to give one of them occupation of land on the side of the creek opposite his holding, and included in his neighbour's certificate of title. After a lapse of fifteen years the tenant of the neighbour made a gap in the dividing fence in order to obtain access to a dam in the creek for the use of his stock. It was held that the tenant was liable under this sub-section, notwithstanding the pro- visions of section 6 of the Fences Act relative to possession of land under such circumstances ; Paterson v. Qoode, 8 A.L.R. 156. "Wilfully." (e) The word "wilfully " [i.e., intentionally] is not inserted in this section except in sub-section vii ; and wilfulness or intention to LESSEES AND LICENSEES. 77 commit an offence is not to be taken as a necessary ingredient in the Section 31. ofifence unless the statute creating the offence so provides ; Perane v. « . T . TT T -r^ ,-r . The Poitnds Smith, 4 V.L.R. (L.) 201. Actwu. A refusal to release cattle seized on tender of the legal rate is an Refusal to offence under this sub-section ; Persse v. Smith, supra. And neglect- ing to give the memorandum required to be given by sec. 16 may also constitute an offence under this sub-section ; McLaurin v. Griffin, 13 V.L.R. 140; 8 A.L.T. 192. 81. Nothing herein contained shall be deemed f °5i°Aots'"'' to alFect The Land Act 1869, the Land Acf^^-'-^^- 1890, or any Act thereby repealed. As to impounding from commons, see notes to sec. 16. The Land Act 1901 (No. 1749), sec. 165, provides :—" Sec. 16o. LandActwoi The lessee and his assigns of a pastoral allotment or grazing area under this Part, and the licensee of an agricultural or grazing allot- ment under tliis Part and his assigns, and the person or persons in whom the interest or anj' part thereof of any such lessee or licensee may at anj' time under this Part become vested, and the purchaser of any land imder any Act in force before the commencement of this when land to Act, shall have all the rights as against persons trespassing with any ^ ™ced. cattle or swine (but not against other mere trespassers) which at law belong to the owner in possession of any land as against trespassers thereon, except the right of impounding suoli cattle or swine ; and shall have the said las); mentioned right when and so soon as the pastoral allotment grazing area or agricultural or grazing allotments, or sucli part of the pastoral allotment grazing area or agricultural or grazing allotment or of any land purchased under any Act heretofore in force as may be trespassed upon has been enclosed either alone or with any adjoining land in the occupation of the same person with a substantial fence, but not before." Compare the Land Act 1869 (No. 360), sec. 30. Under the Land Act 1865 (No. 237) pigs could not be impounded, Land Act 1866. the Act referring only to cattle, sheep and goats ; Geoghegan v . Talbot, 5 W. W. & a'B. (L.) 187. 78 THK POUNDS ACT 1890. Section 31. Hie Pounds Act 1874. It lies upon the defendant to show under which Act the com- plainant's purchase falls, if he would oust his common law right of impounding; McMillan v. Gove., 1 V.L.R. (L.) 142. Unfenced land. McMillan V. Gove. Under an analogous provision in the Land Act 1865 a selector had no right to impound cattle trespassing upon his land until it had been fenced, but he might drive them ofi or restore them to the owner and recover trespass damage ; McMillans. Gove, nupra. However, under the Pounds Act 1874 then in force, sec. 15, cattle might be restored and trespass rates recovered "whether such cattle were liable to be im- jiounded or not, ' and the decision in McMillan v. (?oyewas given on this section. The above words were repealed by section 3 of the Act No. 905. Section 12 of the present Act (analogous to the above sec- tion 15 of the Act of 1874) applies only where the cattle are liable to be impounded ; see judgment of Holroyd, J. in Allan v. Mclnlyrc, 8 V.L.R. (L.) 133 ; 4 A.L.T. 4. A licensee under section 19 of the Land Act 1869 had no right to recover trespass rates or damage under Wie Pounds Act un%i\ he had enclosed his land with a substantial fence. In fact an unfenced licensee does not come within the pro- visions or purview of the Pounds Act ; Allan v. Mclntyre, supra. Kights ot licensee. Substantial fence. In order to entitle a licensee of an agricultural allotment under the Land Act 1884, sec. 1^0 (almost identical with section 165 of the Land Act 1901, supra), to impomid sheep trespassing on his allot- ment, the fence must have been a sheep-proof fence. The term " substantial fence " in sec. 120 of the Land Act 1884 (sec. 165 of Act No. 1749) means a, substantial fence having regard to the cliaracter of the animal trespassing. A fence which may keep out cattle and horses may hot keep out sheep ; Bourchier v. Mitchell, 16 V.L.R. 415. And if the land is imfenced he could not impound at all ; Ibid. It will be observed, however, that sheep and goats (in- cluded in the Land Act 1890) have been omitted from the present Land Act, so tliat as to these animals the ordinarj' rule of im- pounding will apply. See notes to sec. 9. Trai elliag sheep. Travelling sheep may be driven across land under grazing licence for the purpose of gaining access to a road, provided that at no part of the crossing are the sheep outside the statutory distance under section 131 of the Land Act 1890 ; Richetson v. Bourchier, 12 A.L.T. 36. Compare Land Act 1901 (No. 1749), sees. 195, 196. SCHEDULES. SCHEDULES. 79 FIRST SCHEDULE. Section 2. Date of Act. Title of Act. Extent of Repeal. 21 Vi-ct. No. 17 " An Actio direct the pay- ment of certain moneys into the Consolidated Revenue" ... Section 4. 37 Viet. No. 478 " The Pounds Act 1874" So much as is not al- ready repealed. 48 Vict. No. 8'24 " An Act to amend ' The Poundu Act ISli'" ... The whole. 50 Viet. No. 903 " The Pounds Act 1S86" The whole, except sec- tion 4 (a). {a) This section was repealed by the Lahd Act 1890 (No. 1106). SECOND SCHEDULE. Sections. For every sheep the sura of one penny. For every head of other cattle the sura of threepence. For writing and delivering or .sending by post any notice the sum of two shillings and sixpence. For inserting any notice in the Government Gazette and a news- paper in addition to the actual cost of such insertion the sum of two shillings and sixpence. THIRD SCHEDULE. Section 19. Tables of Rates to be charged for the trespass of Cattle and their sustenance while impounded fixed by His Excellency the Governor in Council [or by the council of the shire city or as the case may Je]. Description of Cattle Trespassing. Upon Land other than tillage Land enclosed by a substantial Fence. Upon tillage Land enclosed by a substantial Fence. Amount to be charged daily for sustenance while impounded. For every sheep - For every goat - For every pig - For every head of other cattle - £ s. d. £ =. d. £ s. ,1. Signed Chief Secretary. or By order of the Council Town Clerk or Secretary. 80 Section 18. THE POUNDS ACT 1890. Section 21. o o -A JO ajr.iiiuSis FOURTH SCHEDULE. o o 1 Net ount of sale. ID » cS =fl 1 13 » =« ip ■6 » qj ■aasuqojnd JO amy|»j •p[os .10 pasi3ai -9J uaq.tt. arnix •JO pasocls:p .woh aoigoii SuiAii^ jo apbni puB a'uiix •papunodiui asni30 qui[M JOjf •papunodmi -.lauA^o JO spuB.ig ■papunodmi SJUinoiiJUd •^unx ■a^v(i Maqtuuu OAissaaSoJct FIFTH SCHP:DULE. Form of Notice to bk sent or inserted in the " Government Gazette" and Newspaper. Impounded at \)itre, slate, the place and the number and kind of cattle and where and how branded and the particular sex colour and descriptive marks of each and by whom impoiinded.'] If not claimed and expenses paid to be sold on A.B., Poundkeeper. INDEX. ABOLITION : of pound, 34. evidence of, 34, 68. ACT: title and commencement, 31. can only be enforced by remedy provided, 70. ACTION : See Tender of Amends. AGENT : See Servant. AMENDS : See Tender oe Amends. ANIMAL : not distrainable if under control of its owner, 52. See Impounding. APPLICATION : of proceeds of pound sales, 60, 61. if not claimed vi'ithin fourteen days after sale, 61 . APPOINTMENT : of poundkeeper, 35. by vfliom made, 35. evidence of, 35. poundkeeper not bound to produce, 36. AUCTION : cattle not released to be sold by, 58. mode of sale, 58. poundkeeper to act as auctioneer, 58. need not be licensed, 58. IMP. — 6 82 INDEX. BOARD : to be kept erected at pound, 56. notice of impounded cattle to be posted on, 56. evidence of trespass rates from, 57. BRANDS : to be specified in memorandum to poundkeeper, 48. to be taken when cattle impounded, 57. may be registered, 57. notice to be given to owner of, 58. fee for, 58. BULL: trespass rates for, 41. additional to trespass rates fixed under the Act, 41. CATTLE : meaning of, 32. great, meaning of, 32. restoration of trespassing, 44. distrained, not be worked, 53. milch kine may be milked, 53. brands of, to be taken when impounded, 57. may be registered, 57. not released from pound, to be sold by auction, 58. mode of sale, 58. COMMON : managers are occupiers for purpose of impounding, 42, 53. under former Land Acts, 53, 54. impounding from, 53. COMPLAINT : for illegally impounding, &c., to be made within ten days, 64, 65. DAMAGES : on restoration, where trespass rates insufficient, 45. where excessive damages demanded and paid, 47. —-See Tender of Amends. one beast taken, not liable for damage of others, 53. action for damages may be had, 53. for illegally impounding, &c., 64. DEMAND OE TRESPASS RATES : not a condition precedent, 43. complaint is a aufiicient, 43. owner to assess damage, 44. INDEX. 83 DETENTION : of cattle seized for impounding, 44. for upwards of three days without impounding, 45, 46. after tender of amends, 47. DISTRESS : irregularity does not vitiate, 65. — See Resche, IjiPO0NDixr., Trespass. abandonment of, not illes;al impounding, 76. DOGS : not named in the Act, 4S. ENTIRE HORSE : trespass rates for, 41. additional to trespass rates fixed under the Act, 41. ESTABLISHMENT : of pounds, 34. evidence of, 34, 68. EVIDENCE : of estaLlishment of pound, 34, 68. abolition of, 34. limits of pound need not be proclaimed, 34. poundkeeper not bound to produce his appointment, 36. of entries in pound book, 56. of trespass rates from pound board, 57. of appointment of poundkeeper, 68. poundkeeper's statement sufficient, 68. of suspension or removal of poundkeeper, 68. of fixing of trespass rates, 68. burden of proof on poundkeeper in certain cases, 70. that proper sustenance supplied, 70. on loss of impounded cattle, 71. poundkeeper may give evidence on his own behalf, 71. on information for illegally impounding, 76. necessary to oust common law right, 78. EXCESSIVE TRESPASS RATES : notice of, to be given, 62. complaint for, when made, 64. — See Tkespass Rates. PEES: poundkeeper not to be paid by, 35. — See Table of Fees. to be demanded and received by poundkeeper, 37. how applied, 37. — See Sustenance Fees. 84 INDEX. FEE.S—cu7itinued. for registration of brands, 58. for notice to owner of brands, 58. PENCE : when land must be enclosed by substantial, 38. not governed by Fences Act, 39. under Land Act, 39. as between adjoining owners, 39, 40. obligation to repair, 40. obligation to fence, 55. cattle straying from unfenced road, 55. as to land held under lease or licence, 77. meaning of substantial fence, 39, 78. FORMS : memorandum to poundkeeper on impounding, 50. notice to poundkeeper on illegal impounding, &c. , 63. FOWLS : not named in the Act, 48. GEESE : may be destroyed, 48. no obligation to kill instantaneously, 48. GOATS : may be destroyed, 48. no obligation to kill instantaneously, 48. GREAT CATTLE : meaning of, 32. HORSE : in cart cannot be distrained, 52. nor if riddeni 52. riding over crop of another, 52. being led, 52. in actual possession of another, 52. — See Entire Hokse. ILLEGALLY IMPOUNDING : notice of intention to complain of, 62. where cattle not trespassing, 64. complaint for, when to be made, 64. under section 26, what is, 65. of two kinds, 65. not sending cattle to nearest accessible pound, 65. INDEX. 85 ILLEGALLY IMPOUNDING— conimMeti. impounding cattle not liable to lie impounded, 65. what justices have to determine, 66. proceeding for, is a civil remedy, 66. notice to poundkeeper is a condition precedent, 66. driving cattle across the land of another, 66. where no notice given to owner, 66. seizure without impounding, 67. impounding after payment of damage, 67. meaning of, the same as in section 30 (iii), 67. nature of illegality must be set out in order of justices, 67. damages for, 67. order for damages and penalty not to be made, 67. jurisdiction for, at common law, 67. Act must be complied with, 67. poundkeeper not liable for, 70. . under section 30 (iii), offence of, 75. — See Kescue. created for the first time by the Act, 75. meaning of, 75. same as in section 26, 75. must be a violation of the Act, 75. applies only to impounding in nearest accessible pound, 75. not giving memorandum to poundkeeper is not, 76. nor where distress abandoned, 76. nor impounding after damage paid, 76. common law right pleaded, 76. order for damages and penalty cannot be made, 76. IMPOUNDING : Act only regulates common law right of, 31. detention of cattle seized for, 44. tender of amends before, 47. after, is too late, 47. cattle must be placed in nearest accessible pound, 48. particulars to be specified on, 48. cattle to be impounded within reasonable time, 50. tenant holding over cannot impound his landlord's cattle, 51. for breach of grazing licence, 51. as between persons having concurrent possession, 51. ownership immaterial if cattle trespassing, 52. horse in cart not to be distrained, 52. ' nor if ridden, 52. riding over crop of another, 52. 86 INDEX. IMPOUNDING— co)/«!n!(ed. nor if being led, 52. nor if in actual possesssion of another, 52. sheep in charge of a shepherd, 52. distress must be taken in the act of trespassing, 52. cattle driven out to avoid distress, 52. if seized may be rescued, 52. one of a number can be taken only for its own damage, 53. cattle distrained cannot be distrained for rent, 53. distrainor may not vi^ork a distrained beast, 53. may milk milch kine, 53. not answerable if cattle stolen, 53. poundkeeper may not impound, 53. road inspector cannot act as poundkeeper, 53. from commons, 53. — See Common. cattle wandering without control on road, 54. trespass rates for, 54. from roads, 55. poundkeeper to detain impounded cattle, 57. cattle not released to be sold by auction, 58. mode of sale, 58. — See Sale from Pound. illegally impounding, 65, 75. — See Illegally Impounding. seizure without impounding is not, 67. nor after payment of damages, 67, 76. from leased or licensed land, 78. INJURY TO POUND, 72. See Pound, Pound Bbeach. INTERPRETATION : See Words. IRREGULARITY : iu distress does not vitiate, 65. JOINT TENANTS : impounding as between, 51. JURISDICTION : See Justices. JUSTICES : proceedings on restoration of cattle, 39. notice of intention to complain to, 62. INDEX. JUSTICES— continued. jurisdiction of, 64. to award damages, 64. for illegally impounding, 64. not ousted by question of title, 65, 68. what questions to be determined (sec. 56), 66. illegally impounding under the Act, 66. at common law, 66, 67. as to excessive trespass rates, 66. jurisdiction under former Acts, 66. not to make order for damages and penalty, 67, 76. LESSElr] : under Land Act, rights of, 77. LICENSEE : impounding for breach of grazing licence, 51. under Land Act, rights of, 77. of agricultural allotment, 78. substantial fence, meaning of, 78. MANAGERS : See Common. MARKET OVERT : See Sale from Pound. MEMORANDUM TO POUNDKEEPER : to be given on impounding cattle, 48. what to be stated in, 48. non-compliance with Act is an offence, 50. not illegally impounding, 50. description of place trespassed upon, 50, 51. — See Place oe Trespass. name of owner of cattle must be given, 51. — See Owner of Cattle. omission will constitute oflfenoe, 51. as to commons, 53. — See Common. neglecting to give, is not illegally impounding, 76. MUNICIPAL FUND : how formed, 37. See Pound, Poundkeeper. MUNICIPALITY meaning of, 32. NAME OF OWNER : See Owner. INDEX. NEAREST ACCESSIBLE POUND : cattle must be placed in, 48, 49, 50. meaning of, 49. question of fact for justices, 49. impoundine; in, mandatory, 50. offence of illegally impounding is not placing in, 75. NOTICE : of impounded cattle to be posted at pound, 56. to owner of registered brands, 58. object of, 58. of intention to complain of illegality, 62. —See Illkoally Impounding. object of, 62. to poundkeeper under section 25, when essential, 63, 65, 66. effect of want of, 6.3. starting point for time of complaint, 63. must be given when cattle released, 63. constitutes the poundkeeper a stakeholder, 63. not necessary on information for offence, 63. form of, 63. to owner not necessary to make impounding legal, 66. OCCUPIER : meaning of, 33, 42. of common, 33, 42. may restore cattle, and claim trespass rates, 42. — See Rk.stokation of Trespassing Cattle. where no trespass rates fixed, 42. only occupier can take advantage of the Act, 42. owner of land has no rights unless occupier, 42. of adjoining land may impound off road, 54. — See Road. if fenced on both sides, 54. trespass rates for, 54. how applied, 54. OFFENCES : by poundkeeper, 69. impounding or assisting to impound cattle, 69. not an offence under former Acts, 70. purchasing cattle at pound sale, 69. demanding unauthorised fees, 69. failing to pay over money held by him, 69. neglecting to provide sustenance, 69. — See Sustenance Fkes. making false entry in books, 70. failing to comply with the Act, 70. INDEX. 89 OFFENCES— conilMmeti. by persons other than the poundkeeper, 71. rescuing or attempting to rescue, 72. destroying or injuring pound, 72. does not constitute pound breach, 74. illegally impounding, 72. removing cattle for purpose of impounding, 72. refusing to give name of owner of cattle, 72. driving strange cattle through land of another, 72. leaving gate open or making gap in fence, 72, 76. wilfully causing cattle to trespass, 72. wilfulness a necessary ingredient, 77. failing to comply with the Act, 73. refusal to release cattle on tender of damages, 77. neglecting to give memorandum to poundkeeper, 77. OWNER : of land has no rights under the Act unless occupier, 42. accepting amends may sue for further trespass, 46. OWNER OF CATTLE : restoratipn to, 42. meaning of, 42. only owner can be sued for trespass rates, 43. if non-resident, 43. manager of station, 43. where cattle seized by servant, 43. superintendent, 43. impaid vendor in possession, 43. demand of trespass rates, 43. — See Demand of Trespass Rates. memorandum to poundkeeper must contain name of, 51. omission will constitute an offence, 51. ownership immaterial if cattle trespassing, 52. person in charge must give name of, 52. rescue under common law must be made by, 73. under the Act, 73. PARTNERS : impounding as between, 51. PENALTY : See OryENCES. PIGS: trespassing may be destroyed, 48. no obligation to kill instantaneously, 48. 90 INDEX. PLACE TRESPASSED UPON : meaning of, 49. description of, in memorandum to poundkeepor, 50. what held sufficient, 50, 51. what held insuGScient, 50, 51. POUND : establishment and abolition of, 34. evidence of, 34, 68. limits of, need not be proclaimed, 34. evidence of, .34, 68. at common law to be kept in fit state, 34, 71. under the Act, 34. ' no limit to number of pounds, 35. poundkeeper must receive cattle brought to him, 35. — See PodSD- KEEPER. is a public oflficial, 36. must be a poundkeeper for every pound, 36. expenses of, how paid, 36. under control of municipality, 36. removal of, 37. fees and trespass rates to be fixed, 37. — See Sustenance Fees, Tees- pass Rates. what is, at common law, 49. under the Act, 49. notice of impounded cattle to be posted at, 56. any person may provide sustenance tor neglected cattle, 71. pound breach, 74. — See Pound Breach. POUND BOOK: to be kept by poundkeeper, 55. open for inspection, 56. is a public document, 56. may be proved by certified extract, 56. meaning of " extract from," 56. neglect to keep is an offence, 56. POUND BREACH : what is, 74. injuring pound is not, 74. an ofiFenoe at common law, 74. distinction between rescue and, 75. must be a criminal intention, 75. actual force not necessary, 75. taking cattle from paddock after impounding is not, 75. INDEX. 91 POUND FEES : how payable, 32. — See. Fees. POUNDKEEPER -. meaning of, 33. how appointed, 34, 35. appointment, removal and remuneration of, 35. evidence of appointment, 35, 68. not to be paid by fees, 35. acts as a stakeholder, 35. is bound to receive cattle into the pound, 35. — Sen iMPonNDiNG. not responsible if cattle wrongly taken, 35. is an officer of the municipality, 36. is also a pnblic official, 36, 59. not bound to produce appointment, 36. trespass not maintainable against, for receiving cattle, 36. unless he exceeds his diity, 36. salary of, how paid, 36. to demand and receive pound fees, 37. how applied, 37- not trespas.s rates, 37. to receive trespass rates in the first instance, 41. — See Trespass Rates. to be held subject to provisions of the Act, 41. memorandum to, on impounding cattle, 48, 50. — See Memorandum to POUNDKEEPBR. form of, 50. not to impound or assist in impounding, 53. — See Offences. road inspector cannot act as, 53. memorandum to, as to commons, 53. duty of, when cattle impounded from road, 54. to keep pound book, 55. — See. Pound Book. name of, to be on board at pound gate, 56. to post notice of all impoxindings, 56. to detain impounded ca.ttle in custody, 57- to register brands of cattle if required, 57. — >See Brands. to act as auctioneer at pound sale, 58. need not be licensed, 58. not to purchase cattle at sale, 58. duty of, if no purchaser at sale, 60. appropriation of proceeds of sale, 60. on notice of illegal impounding, &c., 62. — See Illegally Impounding. notice when essential, 63. 92 INDEX. POUN DKEEPER— coiriimed. effect of want of, 63. to be given when cattle released, 6-3. constitutes poundkeeper a stakeholder, 63. form of, 63. appointment need not be produced to impounder, 68. evidence of suspension or removal of, 68. offences by, 69. impounding or assisting to ijnpound cattle, 69. not an offence under former Acts, 69. purchasing cattle at pound sale, 69. demanding unauthorised fees, 69. failing to pay over money held by him, 69. neglecting to provide sustenance, 69. making false entry in books, 70. failing to comply with the Act, 70. not liable for cattle wrongfully distrained, 70. burden of proof on, in certain cases, 70. that proper sustenance supplied, 70. on loss ofi cattle impounded, 70. may give evidence on his own behalf, 71. liable at conmion law for unfit pound, 71. remedy under Animals Protection Act, 71. PRACTICE : See Pkoceduke. PRIVATE POUND : when contemplated, 45. — See Pound. tender of amends while cattle are in, 47. PROCEDURE : as to impounding from unenclosed tillage land, 40. distress not illegal, 40. for trespass by entire horse, bull, or ram, 41. by managers of common, 54. notice to poundkeeper of illegal impounding, &c., 62. form of, 63. complaint for illegally impounding, when mode, 64. under section 26 is a civil remedy, 66. nature of illegality must be set out in order of justices, 67. justices not to make an order for penalty and damages, 67. proceedings may be amended, 67. Act can only be enforced by remedy provided, 70. complaint under section 30 (iii) is an information, 75. INDEX. RAM: trespass rates for, 41. additional to trespass rates fixed under the Att, 41. EEMOVAL : of poundkeeper, 35. of pound, S7. REMUNERATION : of poundkeeper, 35. must not be by fees, 35. RENT : cattle distrained damage feasant not to be taken for, 53. REPEAL : of former Acts, 32. RESCUE : penalty for, 72. what is, at common law, 73. meaning of, 73. must be made by owner or agent, 73. as to rescue under the Act, 73. distrainor must have been in possession, 73. retaking where distrainor quits possession, 73. where distress is contrary to law, 73. when cattle impounded, 73. where cattle stray from custody of distrainor, 73. breach of the peace necessary to constitute, 73. where unlawful use made of distress, 73. taking cattle from paddock after impounding, 74. where cattle escape and are retaken, 74. distinction between pound breach and, 75. RESTORATION OF TRESPASSING CATTLE : condition precedent to proceeding under Justices Act, 39. cattle need not be delivered personally, 44. delivery to overseer or agent, 44. must be authorised to reoeive^them, 44. on promise of paying damage, 44. jurisdiction of justices limited to ordinary rates, 44. jurisdiction of County Court not taken away, 44, cattle may be detained a reasonable time, 44. complaint under Justices Act, 45. what is sufficient restoration, 45. — See Tender op Amends. 94 INDEX. ROAD: occupier of adjoining land may impound from, 54. if fenced on both sides, 54. trespass rates for, 54. how applied, 54. no obligation to fence, 55. distrainor not obliged to fence against trespassers, 55. no commion law right to impound from, 55. municipal council may impound from, 55. cattle straying from unfenced road, 55. damages, to whom paid, 55. SALARY : See Remuneration. SALE FROM POUND : of cattle not released, 58. mode of conducting, 58. poundkeeper to act as auctioneer, 58. — See Poundkeeper. from pound, closest resemblance to sale in market overt, 59. deficiency in, 59. irregularity in, 59. if no purchaser, cattle to be destroyed, 59. proceeds of, how applied, 60, 61. SEIZURE : without impounding, not illegal impounding, 67. SERVANT: seizure by manager of station, 43. superintendent, 43. restoration of trespassing cattle to, when sufficient, 44. tender of amends to wife of owner, 47. — See Tender of Amends. to bailiff, 47. to man in possession, 47. SHEEP : meaning of, 33. in charge of shepherd may be impounded, H'l. travelling, may be driven across land to a road, 78. SUBSTANTIAL FENCE : meaning of, under Laiid Act; 78. — See Fence. SUSTENANCE : See Sustenance Fees. INDEX. SUSTENANCE FEES : not affected by repeal of former Act, 32. to be fixed, 37. on what account payable, 38. chargeable though no sustenance provided, 38. how applied, 38. sustenance must be supplied by poundkeeper, 38. only fees fixed under the Act to be charged, 38. — See. Omences. poundkeeper to prove that proper sustenance given, 70. may give evidence on his own behalf, 71. liable at common law, 71. under Animals Protection Act, 71. any person may provide sustenance for neglected cattle, 71. TABLE OjF FEES : not affected by repeal, 32. — See Fees. to be posted at pound, 56. TENANT : holding over cannot impound his landlord's cattle, 51. TENDER OF AMENDS : common law right, 46. cattle must be seized for impounding, 46. what tender to be made, 46. — See Trespass Rates. no action maintainable after, 47. when made before taking, 47. after taking and before impounding, 47. after impounding, 47. while cattle in private pound, 47. to wife of distrainor, 47. to bailiff, 47. to man in possession, 47. where cattle have trespassed a second time, 47. where excess damage demanded and paid, 47. TILLAGE LAND : meaning of, 33. only includes land as defined by the Act, 34. where not so defined, 40. orchard or garden, 40. procedure, 40. 96 INDEX. TIME: when distress must be made, 52. for complaint for illegally impounding, &c. , 63. for entering 64, 65. how computed, 65. TITLE : question of, does not oust jurisdiction of justices, 65. TRESPASS : does not lie against poundkeeper for receiving cattle, 36. unless he exceeds his duty, 36. TRESPASS BY CATTLE : entire horse, bull or ram, 41. additional to rates fixed by tlie Act, 41. — See Trespass Rates. procedure, 41. does not oust right to sue for damages, 41. by lessee imder the Land Act, 4). to whom payable in first instance, 41. returned if impounding adjudged illegal, 41. otherwise paid to person impounding, 41. on restoration of cattle, where not fixed, 42. demand of, not necessary on restoration, 43. complaint is a sufficient demand, 43. on restoration of cattle, 44. recovery of damages under Justices Act, 45. restoration a condition precedent, 45. what is sufficient, 45. not recoverable if cattle detained more than three days, 45. meaning of " place trespassed upon,'' 49. ownership immaterial if cattle trespassing, 52. person in charge to give name of owner, 52. horse under control of its owner, 52. —See Impocndikc.. distress must be taken in act of trespassing, 52. cattle driven out to avoid distress, 52. wandering without control on road, 54. trespass rates for, 54. from unfenoed road, 55. impounding, if no trespass, is illegal impounding, 64. no rescue when trespass abandoned, 74. as against lessee and licensee under Land Act, 77. when sufficient fence necessary, 78. INDEX. 97 TRESPASS RATES : to be fixed, 3S. on what account payable, 38. on land not tillage land, 38, 40. limit of, 38. jurisdiction of justices as to, 39. on tender of amends, 46. — See Tender or Amends. tender of amends on second trespass, 47. cannot be charged for a number if only one beast taken, 5:]. action for damage by others may Ije had, 53. — 5f,e Trespass. cattle impounded from road, 54. evidence of, from pound board, 57. where no purchaser at pound sale, 61. See Excessive Trespass Rates. WORDS : "cattle," 32. "great cattle," 32. " municipality," 32. " occupier," 33. " poundkeeper," 33. " sheep," 33. "tillage land," 33. " nearest accessible pound," 49. " place trespassed upon,'' 49. "pound " under the common law, 49. under the Act, 49. " land " in Thistle Act, 51. " extract from," 56. "illegally impounding," 65, 67, 75. " illegal" under former Acts, 66. " rescue," 73. " pound breach," 74. "wilfully," 76. " substantial fence," 78. IIARSTON, PAllTRIDGB AND CO., PRIXTKRS, MFXBOURNB,