By-laws as to Pounds and cruelty to animals,

Pounds to be provided.

Animals

large.

POUNDS AND POUND-KEEPERS.

337.-The Council of every township, town, city, and incorporated village (o), may respectively pass by-laws (p) (not being inconsistent with any statute relating to pounds or cruelty to animals) (9):

PROVIDING POUNDS.

1. For providing sufficient yards and enclosures for the safe keeping of such animals as it may be the duty of the Pound-keeper to impound. (r).

ANIMALS RUNNING AT LARGE.

2. For restraining or regulating the running at large of any running at animals, and providing for impounding them, and for causing them to be sold in case they are not claimed within a reasonable time, or in case the damages, fines and expenses are not paid according to law. (s)

Appraising damages

done by.

3. For appraising the damages to be paid by the owners of animals impounded for trespassing contrary to the laws of Upper Canada or of the municipality. (1)

the court to impose conditions or do whatever right and justice demand.

(0) Counties not included, and yet County Councils are authorized to appoint pound-keepers. (Sec. 242, subsec. 2.)

(p) By-laws.-See note v to sec. 186.

(9) The two statutes referring to pounds and cruelty to animals are 1 Vic. cap. 21, sec. 85, and 20 Vic. cap. 31; both of which are in subsequent notes to this section more fully noticed.

(r) It was by statute 1 Vic. cap. 21, sec. 32 (now repealed), enacted that it should be the duty of any Pound-keeper appointed under the provisions of that act to provide himself with sufficient works or enclosures for the safe keeping of all such animals as might be his duty to impound. By the clause under consideration, the Municipal Council of the several municipalities described is empowered to pass by-laws for providing such yards or enclosures.

(s) The 1 Vic. cap. 21, sec. 32 (now repealed), made it the duty of the Pound-keeper to impound all animals running at large, trespassing and doing damage, that might be delivered to him by any person resident within his division; and if not claimed or redeemed by the owners within periods limited for the purpose, to sell the same. Such is still the duty of the Pound-keeper. (Sec. 338, subsec. 1.)

(t) The 35th section of 1 Vic. cap. 21, which is still unrepealed, enacts that it shall be the duty of the Pound-keeper, when the owner of any animal impounded shall object to the amount of damages claimed, within forty-eight hours after the same has been impounded, to notify three disinterested resident freeholders or householders, farmers in the township, to appraise the damages, and also to judge of the sufficiency of the fence enclosing the grounds wherein such animals were found doing damage, &c.;-Qu., if not superseded by sec. 338, subsec. 17, 18 and 19.

4. For determining the compensation to be allowed for services rendered, in carrying out the provisions of this Act with respect to animals impounded or distrained and detained in the possession of the distrainor. (u)

GENERAL PROVISIONS.

338.-Until varied or other provisions are made by Act Regulations of Parliament, or by By-laws of the Municipality, (v) the fol- for the lowing regulations shall be in force :

government

of Pound

mals to be

1. If not previously replevied, the Pound Keeper shall im- keepers. pound any horse, bull, ox, cow, sheep, goat, pig, or other What anicattle, or any poultry, distrained for unlawfully running at impounded. large, or for trespassing and doing damage, delivered to him for that purpose by any person resident within his division who has distrained the same; (w)

Pound is

2. When the common Pound of the Municipality or place when the wherein distress has been made is not secure, the Pound Keep- common er may confine the animal in any inclosed place within the not safe. limits of the Pound-keeper's division, within which the distress was made; (x).

(u) As to the duty of every Pound-keeper to supply animals impounded with food, &c., and the provision made for reimbursing him the cost thereof, see 20 Vic. cap. 31, sec. 2.

(v) As already explained, the whole of the former act, 1 Vic. cap. 21, with the exception of sec. 35, is repealed. (See notes to sec. 387.). (w) It has been held that a master is liable for the acts of his farm servant in impounding cattle in his absence, the servant acting within the scope of his authority. (Spafford v. Hubble, M. S. Easter Term, 7 Wm. IV.; Robinson & Harrison's Digest, p. 294.) In trespass against two defendants for seizing and taking cattle, one defendant justified as pound-keeper, and because the cattle were in the close of A., wrongfully trespassing in said close, and eating grass and corn therein, A. took the said cattle, and delivered them to the defendant as a pound-keeper within his jurisdiction, and the defendant impounded and afterwards sold them according to law; and the other defendant justified the seizure by the pound-keeper, as in the other plea, and the sale by him, and that the defendant bought the cattle as the highest bidder; to both of which pleas there was a general demurrer. Held that the plea by the pound-keeper was bad, as it did not show that he received the cattle from a person within his division, or that the close was so situate, and that the plea of the purchaser was good, as he could not be held liable to the plaintiff in trespass. (Clarke v. Durham et al, M. S. Easter Term, 3 Vic. Robinson and Harrison's Digest, p. 431.) In a plea of justification by a pound-keeper for taking a pig, when the justification was that the pig contrary to township regulations broke through a lawful fence, it was held necessary to allege that the fence was within that township, and to show the close in which the pig was trespassing at the time. (Carey v. Tate, 6 U. C. O. S. 147.)

(x) It would seem that the animal must be impounded with the

Statement of

demand to be

made to Poundkeeper by

3. The person distraining and impounding the animal shall, at the time or within twenty-four hours thereafter, deliver to the Pound-keeper duplicate statements in writing of his impounder. demands against the owner for damages (if any), not exceeding twenty dollars, done by such animal. (y) And shall at the same time give his written agreement under seal (with a surety if required by the Pound Keeper) which agreement may be after the form following, or in words to the same effect: (z)

Form of agreement

keeper.

I, (or we, as the case may be), do hereby agree that I, (or with Pound- We) will pay to the owner of the (describing the animal) by me (A. B.) this day impounded, all costs to which the said owner may be put in case the distress by me the said A. B. proves to be illegal, or in case the claim for damages now put in by me the said A. B. fails to be established;

If the animal be of a certain kind.

4. In case the animal distrained is a horse, bull, ox, cow, sheep, goat, pig or other cattle, and if the same is distrained by a resident of the Township for straying within his premises such person, instead of delivering the animal to a Pound Keeper, may retain the animal in his own possession, provided he makes no claim for damages done by the animal, and dnly gives the notices hereinafter in that case required of him; (a) 5. If the owner is known to him, he shall forthwith give to the owner notice in writing of having taken up the ani⚫ mal; (b)

If the owner

be known.

If unknown,
notice to
Township
Clerk.

6. If the owner is not known to the person taking up and retaining possession of the animal, such person shall, within forty-eight hours, deliver to the Township Clerk a notice in writing of having taken up the animal, and containing a description of the color, age and natural and artificial marks of the animal, as near as may be; (c)

pound-keeper of the division within which it is distrained, and the Municipal Council may provide sufficient yards and enclosures for the purpose. (Sec. 337, subsec. 1.) If not sufficient, this clause enables the pound-keeper "to confine the animal in any enclosed place within the limits of the pound-keeper's division, &c."

(y) As to the determination of the demand, &c., see subsec. 17 et seq. of this section.

(2) This is to ensure perfect good faith, and to make men cautious when distraining on the property of others.

(a) This is a new provision. It enables the distrainor to impound the animal on his own premises, or elsewhere than in the public pound. This he can only do provided he makes no claim for damage done by the animal, and duly gives the requisite notice.

(b) As to the meaning of the word "forthwith," see note k to sec. 122.

(c) Where the owner is known, notice is forthwith to be given to

thereon.

7. The Township Clerk, on receiving this notice, shall forth- Duty of Clerk with enter a copy thereof in a book to be kept by him for that purpose, and shall post the notice he receives, or a copy thereof, in some conspicuous place on or near the door of his office, and continue the same so posted for at least one week, unless the animal is sooner claimed by the owner; (d)

worth ten

dollars or

over.

8. If the animal or any number of animals taken up at the If the same time, is or are of the value of ten dollaas or more, the animals are distrainor shall cause a copy of the notice to be published in a Newspaper in the County, if one is published therein, and if not, then in a Newspaper published in an adjointng County, and to be continued therein once a week for three successive weeks; (e)

9. In case an animal is impounded, notices for the sale Notice of thereof shall be given by the Pound Keeper or person who sale. impounded the animal within forty-eight hours afterwards, but When sale no pig or poultry shall be sold till after four clear days, nor made. any horse or other cattle till after eight clear days from the time of impounding the same; (f)

may be

pounded, but

10. In case the animal is not impounded but is retained in If animal is the possession of the party distraining the same, if the animal not imis a pig, goat, or sheep, the notices for the sale thereof shall detained. not be given for one month, and if the animal is a horse or other cattle, the notices shall not be given for two months after the animal is taken up; (g)

him. When not known, the notice is within 48 hours to be delivered for him to the township clerk.

(d) The duty of the Clerk, when he receives the notice, is here well defined. It is

1. To enter a copy thereof in a book to be kept by him for that purpose.

2. To post the notice, or a copy of it, in some conspicuous place, &c.

3. To continue the same so posted for at least one week, &c.

(e) This is to be done by the Clerk, in addition to the duties required of him by the preceding clause.

(f) The notice of sale is to be given within a time limited, but the sale is not to take place sooner than a specified period. No matter of what description the animal impounded is, notice of sale is to be given within forty-eight hours after the impounding; but no pigs or poultry are to be sold in less than four clear days, and no horse or other cattle in less than eight clear days.

(9) Whenever horses, bulls, oxen, cows, sheep, goats, or other cattle, are distrained by a resident of a township for straying in his premises, instead of delivering the animals to a Pound-keeper, such person may retain them in his own possession. (Subsec. 4.) If he does so, the times appointed for sale are to be extended to the periods

Notice of sale, unless redeemed.

Keeper to

feed impounded cattle.

And may recover the value.

In what

manner such value may

11. The notices of sale may be written or printed and shall be affixed and continued for three clear successive days, in three publie places in the Municipality, and shall specify the time and place at which the animal will be publicly sold, if not sooner replevied or redeemed by the owner or some one on his behalf, paying the penalty imposed by law (if any), the amount of the injury (if any) claimed or decided to have been committed by the animal to the property of the person who distrained it, together with the lawful fees and charges of the Pound Keeper, and also of the fence-viewers (if any); and the expenses of the animal's keeping; (h)

12. Every Pound Keeper, and every person who impounds or confines, or causes to be impounded or confined, any animal in any common, open or close Pound, or in any inclosed place, shall daily furnish the animal with good and sufficient food, water and shelter, during the whole time that such animal continues impounded or confined: (i)

13. Every such person who furnishes the animal with food, water, and shelter, may recover the value thereof from the owner of the animal, and also a reasonable allowance for his time, trouble and attendance in the premises; (j)

14. The value or allowance as aforesaid may be recovered with costs, by summary proceeding before any Justice of the be recovered. Peace within whose jurisdiction the animal was impounded, in like manner as fines, penalties or forfeitures for the breach of any by-law of the Municipality may by by-law be recovered and enforced by a single Justice of the Peace; (k) and the Justice shall ascertain and determine the amount of such

mentioned in the clause here annotated. The "months" intended are calendar months. (12 Vic. cap. 10, sec. 5, subsec. 8.)

(h) Before being allowed to redeem, the owner may be required to

pay

1. The penalty imposed by law (if any).

2. The amount of the injury (if any).

3. The lawful fees and charges of the pound-keeper.

4. Also of the fence viewers (if any).

5. The expenses of the animal's keeping.

(i) See also stat. 20 Vic. cap. 81, sec. 2.

(j) It is enacted that not only the pound-keeper, but "every person who impounds or confines, or causes to be impounded or confined, any animal, &c., shall daily furnish the animal with good and sufficient food, &c. (subsec. 12); and, by the clause here annotated, that every such person, &c., may recover the value thereof, and also a reasonable allowance for his time, trouble and attendance in the premises.

(k) See sec. 203 et seq.