14. Except goats pigs entire horses bulls or rams no cattle 37 VICTORIA, shall be liable to be impounded by any person for trespass if the No. 478. owner of the cattle his agent or overseer be resident within five miles Cattle may be of the place trespassed upon until forty-eight hours after notice to impounded. remove the said cattle shall have been given to such owner his agent or overseer by such person or by some other person acting on his behalf and to whom such owner agent or overseer and his residence be known, unless the land trespassed upon be under tillage and enclosed with a substantial fence, or the cattle have been found trespassing a second time within twelve months. on restoring tres their owner. 15. The occupier of any land trespassed on by cattle may oceupler entitled whether such cattle be liable to be impounded) or not restore the to trespass rates same to the owner thereof, and in such case such occupier may passing cattle to demand and in case of non-payment recover in a summary way before any two justices from the owner of such cattle the amount of any trespass rates that would be payable under the provisions of this Act if such cattle were impounded in respect of the trespass thereof, and when no trespass rates have been provided for or fixed then such compensation as such justices may deem reasonable. 16. No trespass rates or other damages for trespass shall be No trespass rates payable to or recoverable by any person in respect of the trespass of coverable for any cattle who shall impound or detain such cattle for upwards of cattle detained three days in any place not being a pound within the meaning of days unim this Act. more than three pounded. on payment or pass rates. 17. Whenever any cattle have been seized for trespass by any Cattle to be reoccupier for the purpose of impounding the same if the owner of the stored to owner cattle or some person on his behalf pay or tender to the person tender of tresseizing or having charge of such cattle before the same have been actually impounded 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 his behalf. goats pigs and geese trespas 18. The occupier of any land and a Crown lands bailiff upon Power to destroy 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 sing. goats or pigs or geese fail to remove their carcasses within twelve hours after the destruction of them, the person destroying such goats or pigs or geese shall cause such carcass to be buried.) 19. No cattle shall be impounded under the provisions of this Cattle to be imAct except in the nearest accessible pound to the place where such nearest pound. (a) The liability referred to is the liability mentioned in the preceding section, which depends on whether the owner resides within five miles. If he does, there can be no "impounding" unless the land trespassed on is under tillage and fenced. But although there can be no "impounding," it is quite competent to the occupier to drive the trespassing cattle from the land.McMillan v. Gove, and Reg. v. Puckle, A.R., 17 July 1875. (b) No demand is necessary. The effect of this section is simply to turn the claim for damages into a "demand" cognizable by justices. The acts of trespass and restoration give rise at once to a present claim or "demand," which the restorer of the animals may proceed to enforce without any preliminary steps, the making of the complaint being sufficient.— Ibid. It is not necessary to deliver the cattle to the owner personally. The delivery to an overseer or other agent is sufficient.-Ibid. (c) This section does not impose any obligation to kill the animal instantaneously, or any liability for injuring the animals.-Bagshaw v. Willis, 5 A.J.R., 115. (d) A person driving cattle along a public way adjoining unfenced land must have a reasonable time for driving them off if they stray. Adjoining owners not having a fence between their No. 478. 37 VICTORIA, 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, (a) 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 such cattle; and such animals may be either led conveyed or driven to such pound. Occupier of adjoining land may impound off road. Poundkeeper to keep poundbooks. Third Schedule. Notice of impounded cattle to be posted on of pound. 20. The occupier of any land adjoining a public road which road shall be fenced on both sides by a substantial fence 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 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. 21. Every poundkeeper shall keep a pound-book in the form in the Third Schedule to this Act and shall make all entries therein as soon after the doing of the several things required to be entered therein as possible, and shall not make any entry after any dispute as to the subject-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. 22. On the gate or some other conspicuous part of every pound there shall be erected and maintained a board having painted thereon conspicuous part in white letters on a black ground the name of the poundkeeper and Second Schedule. a table in the form in the Second Schedule to this Act of all fees charges and rates which he is authorized by this Act to receive: And whenever any cattle are impounded the poundkeeper shall forthwith post a written notice on the gate or other conspicuous part of the pound giving the number particulars brands or apparent brands and marks of the cattle so impounded; and such notice shall remain so posted until such cattle have been claimed or disposed of in due course of law. Poundkeeper to detain impounded 23. Every poundkeeper shall receive and detain in his custody cattle in custody, any cattle lodged in such pound until the trespass rates for which the same were impounded and all lawful fees and charges shall be lands must keep their cattle within their boundaries. The words "nearest pound," in the analogous section of 28 Vict. No. 249, "The Pounds Statute 1865" (section 11), were directory not mandatory, the language used in that section being affirmative, not negative.-Butcher V. Smith, A.R., 10 Dec. 1868. (a) A memorandum delivered with impounded cattle to a poundkeeper, headed like a letter, did not, within the analogous section of 28 Vict. No. 249, "The Pounds Statute 1865" (section 11), sufficiently "specify the place where the cattle were trespassing."- Wingfield v. Glass, 6 W. W. & a'B. (L.), 4. A notice of impounding given at the time of impounding sheep, in the words "Impounded by the managers of the Ledcourt and Warra Warra farmers' common," was a sufficient compliance with 28 Vict. No. 249 s. 11, "The Pounds Statute 1865," as stating the place where the sheep were trespassing.-Pettett v. Mellies, 1 A.J.R., 164. In a notice of impounding, the description of the land as "Meredith" was held sufficient.O'Keefe v. Behan, 2 V.R. (L.), 16; 2 A.J.R., 19. (b) The non-compliance with this direction does not make the impounding illegal under section 33, sub-section 3.-Robertson v. Main, 1 V.L.R. (L.), 5. No. 478. paid, or until he shall receive notice of the decision or order of 37 VICTORIA, 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. persons register cattle. 24. Every poundkeeper shall upon payment of a fee of Five Poundkeeper to shillings register any brands and marks used in branding and give notice to marking cattle with the name and address of the person causing ing brands of the same to be registered, and when any cattle are impounded the poundkeeper shall forthwith in case such cattle are branded or marked with 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 newspaper published in the district a notice in the form in the Fourth Schedule to this Act. Fourth Schedule. 25. When cattle shall not have been released from the pound Cattle not rewithin twenty-one days after the giving or inserting the notice in leased to be sold the last section mentioned the same shall be sold by public auction, pound. 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 in person nor by his agent purchase any cattle at any such sale or have any interest of any kind in cattle so purchased. by auction at the be destroyed and 26. When any cattle have been offered for sale at any pound If no purchaser sale and no bid has been made at such sale for such cattle and the at sale cattle to same are not worth the sustenance fees that would be payable in sold. respect thereof during the interval between such sale and the next day appointed for holding a sale at such pound, the poundkeeper 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. the proceeds of 27. The proceeds of all sales of impounded cattle sold under Application of the provisions of this Act shall be applicable in payment-Firstly, pounds sales. 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 municipal 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 feme covert of unsound 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. The proceeds of every pound sale shall in case the pound be not within a No. 478. 37 VICTORIA, municipality be 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 poundkeeper, and by him applied as herein before directed. And if within fourteen days after any pound sale any person entitled to any trespass rates or to any residue of the proceeds of such sale, shall not have claimed payment thereof, such poundkeeper 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. Poundkeeper may release cattle and retain damages upon notice of and 28. The owner") of impounded cattle may give notice in writing to the poundkeeper that he intends to complain to a justice against the person impounding such cattle that such impounding was illegal payment of rates under this Act, 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 poundkeeper shall release such cattle and shall retain such trespass rates to abide the order of justices as hereinafter provided. and fees. Complaint of ing or excessive damages to be heard before justices. 29. Every such complaint shall be made within ten days after illegal impound the giving of such notice in writing, 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 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 sustained by the owner in consequence of such illegal impounding or excessive demand and for the amount of all pound and other authorized fees and charges paid by the owner 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: And the said justices may hear and determine the said complaint notwithstanding any question of title to the property or suggestion of right that may be involved therein. The Government Gazelle prima facie evidence. 30. A copy of the Government Gazette containing 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 or charges under this Act, or of any matter or thing (a) A superintendent of a run may take proceedings in his own name, but must not take some in the name of the owner and some in his own name. Reg. v. Taylor, ex parte M'Donald, 3 A.J.R., 31, and 3 V.R. (L.), 13. (b) The word "legality in section 26 of 28 Vict. No. 249, "The Pounds Statute 1865," meant legality under that Act, i.e., that all the requirements of that Act as to impounding had been complied with. The 29th section of that Act afforded instances. Under it, if any of the acts there mentioned were not done the person impounding had not complied with that law, and could not be said to have impounded legally, because he had not complied with the requirements as to the modus operandi prescribed by the Act.-Degraves v. Bennett, 2 W. & W. (L.), 191. See also Rowe v. Middleton, 2 V.R. (L.), 59. required to be done by or under this Act, shall be primâ facie 37 VICTORIA, evidence that such pound was duly established or abolished, and No. 478. that such poundkeeper was duly appointed suspended or removed and that such matter or thing has been duly done and performed. poundkeeper. 31. If any poundkeeper commit any of the next following Penalty for offences he shall on conviction forfeit and pay a penalty not exceed-puny ing Fifty 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: (1.) Impounding or assisting or inciting or employing any (II.) Purchasing in person or by his agent cattle sold by (III.) Demanding or receiving any sums for pound notices (IV.) Failing to pay over any money held by him under the to be on pound 32. When any poundkeeper is charged with neglecting to pro- Burden of proof vide sustenance for cattle impounded the burden of proving that in certain cases proper sustenance was provided for such cattle shall be on such keeper. poundkeeper, and when any poundkeeper is charged with losing any impounded cattle through negligence if it be 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. persons. 33. If any other person commit any of the next following Penalty for offences he shall on conviction forfeit and pay a penalty not exceed- offences by other ing Fifty 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: (1.) Rescuing) or attempting to rescue or interfering with (a) This is a new offence. See Anderson v. Deasey, 5 A.J.R., 14. (b) The performance of the obligation created by this Act can be enforced otherwise than according to the remedy provided by the Act.— Harney v. Kean, A.R., 25 Nov. 1857. (c) Where an animal is placed by the poundkeeper in a paddock belonging to him, but not within the proclaimed limits of the pound, and no person is left in charge, the owner is not guilty of the offence of rescuing if he removes the animal.-Lodge v. Rowe, A.R, 26 June 1875. |