It was proved that twenty-five bullocks belonging to the appellant, were on a certain day straying on a certain public highway and by the sides of it, nine of such bullocks being upon the central or gravelled part of the highway, and the remainder of them on the sides of it. None of the bullocks were under the control of a keeper at the time they were so found straying upon the highway and the sides of it; and the respondent, who was driving along the highway, in order to avoid driving against one of the bullocks which was standing across the centre of the highway, had to pull his horse on one side of the highway to pass along it. It was contended, on the part of the appellant, that as he was the occupier of the farm and land on both sides of and adjoining the highway where his twenty-five bullocks were, he had a right, which he and previous occupiers of the same farm and land for fifty years last past had exercised, to the pasturage which existed on the sides of such highway, and that he was in the lawful exercise of such right at the time his bullocks were so found; and the provisions of the Highway Act, 1864, did not extend to take away any such right of pasturage, the same being reserved by the proviso at the end of s. 25. It was further contended, on the part of the appellant, that at the time his bullocks were found by the respondent on the highway they were under the control of a keeper, who had been sent by him with the bullocks in order that they might depasture on the sides of the highway; and that they could not, therefore, be said to have been found straying on the highway within the meaning of s. 25. The justices found, as a fact, upon the evidence that nine of the bullocks were seen by the respondent and another person straying upon the central or gravelled part of the highway, as the respondent was driving towards them along the highway, for from five to ten minutes immediately previous to the time the respondent reached the spot where the bullocks were, and that the respondent had to pull on one side of the highway to avoid running against one of the bullocks; and they were of opinion that the appellant was not, as to those of the bullocks which were then upon the central or gravelled part of the highway, legally exercising the right which he had of the pasturage which existed on the sides of the highway. 1869 GOLDING V. STOCKING. 1869 GOLDING v. STOCKING. The justices also found, as a fact, that the boy under whose control the bullocks were said to be, could not, from the position in which he said he was at the time the bullocks were on the highway, have the control of the bullocks, the boy having deposed, and the justices finding as a fact, that he was at such time in the appellant's field, divided from the highway by a ditch, and forty yards off the nearest of the twenty-five bullocks, where, he deposed, that he had gone to drive some of the bullocks out of the ditches, to prevent their getting into his master's wheat, and that he kept that distance from them in order that they might feed without his disturbing them. The justices were of opinion, upon all the evidence, that, although the appellant was the occupier of the farm and lands on both sides of the highway, and that his boy or keeper was in the field on the other or contrary side of the ditch dividing the highway from such field for the purposes stated by him, and at a distance not less than forty yards from the nearest of such bullocks, the facts proved before them brought the case within the operation of s. 25; and that the proviso did not extend to exempt the appellant from the penalty; they, therefore, convicted the appellant. The question of law for the opinion of the Court was, whether the bullocks, or any one of them, were or was straying on the highway within the meaning of s. 25 of the Highway Act, 1864. Metcalfe, for the appellant. The conviction was wrong; the proviso in s. 25 of 27 & 28 Vict. c. 101, reserves all rights of pasturage; and without this, Fisher v. Prowse and Cooper v. Walker (1) shew that a highway may be dedicated subject to a right or obstructions which would otherwise be a legal nuisance. Lawrence v. King (2) is distinguishable, as there was there no right of pasturage. Morris v. Jefferies (3) is in favour of the appellant. [LUSH, J. The justices here find that the cattle were not under the control of the boy.] The owner cannot be made criminally responsible for the misfeasance of his servant, when the cattle are being depastured in the exercise of a right which is expressly reserved by s. 25. (1) 2 B. & S. 770; 31 L. J. (Q.B.) 212. (2) Law Rep. 3 Q. B. 345. (3) Law Rep. 1 Q. B. 261. [COCKBURN, C.J. The owner of cattle having no right of pasture is liable, if his cattle be found straying or lying on the highway, or by the sides of it; but a person having a right of pasture may turn his cattle on the sides of the highway, and if they are generally kept under proper control, but escape accidentally for a short time, and are found on the gravelled part of the road, that would not be a case for a conviction under the section. But it is a question of fact for the magistrates.] The proviso overrides the whole section, and must apply as well to the sides as to the road itself. [LUSH, J. The effect of the proviso is only to protect the owner in the exercise of his right of pasture, so far as the sides of the highway are concerned. He must take care to keep his cattle from straying or lying on the road itself.] O'Malley, Q.C., for the respondent, was not heard. COCKBURN, C.J. The conviction must be affirmed. On the facts stated the magistrates might very well have found the other way, but we cannot say they were wrong. 1869 GOLDING v. STOCKING. LUSH and HANNEN, JJ., concurred. Conviction affirmed. Attorneys for appellant: Meredith & Lucas. FREESTONE, APPELLANT; CASSWELL, RESPONDENT. THIS was a case stated upon a similar conviction by Justices of Lincolnshire. Upon the hearing it was proved that, on the day named in the information, eight horses and one cow of the appellant were grazing upon a lane called Beacon Lane; the animals were loose, and wandered without restraint all over the road, and about it from one side of the metalled or stone part for an hour and a half, being the whole time the witness remained near the spot, and they were still there when he left; a man with a whip in his hand was lying upon the ground at a distance of twenty or thirty yards from the animals, but he did not drive or follow them, but allowed them to FREESTONE roam about at will. 1869 v. CASSWELL. It was admitted on the part of the appellant that Beacon Lane was a highway; but it was suggested that it passed over "waste or uninclosed ground," and that, therefore, animals "straying or lying about it, or on the sides thereof," were removed by this alleged fact from the operation of s. 25 of the Highway Act, 1864; and it was further alleged that the waste or unenclosed ground was the property of the owner of the farm occupied by the appellant; and that this claim of title ousted the jurisdiction of the justices. The case then set out at length the evidence as to the right of property or pasturage, one of the facts being that there were two gates across the lane, so as to cut off the part of the lane in question from the rest of the lane; and proceeded :-As to title, if to land it was admittedly subject to the highway passing over it. If to herbage, to the same incumbrance or easement in the public. The appellant produced no evidence of any unusual or excessive width of road in support of his suggestion of "waste." . . . The justices, having regard to the appellant's admission of a highway, were of opinion that no such bonâ fide question of title was raised as would oust their jurisdiction; and they were further of opinion that the evidence failed to support the suggestion of "waste or uninclosed land"; and they found as fact that the highway dif fered in no respect from an ordinary highway; they were of opinion that the case therefore came within none of the exceptions in s. 25; and they accordingly convicted the appellant. The question for the Court was, whether the conclusion at which the justices arrived to adjudicate was correct. June 5. (1) Cave, for the appellant, argued that a claim of title was raised before the justices, and their jurisdiction was ousted; that the fact of there being gates at each end of the lane where the cattle were shewed it passed over "uninclosed ground;" and that the road was not a highway within the section. [HAYES, J., referred to Golding v. Stocking. (2)] (1) This case was determined in Trinity ing for convenience of reference. (2) Ante, p. 516. 1869 v. CASSWELL. COCKBURN, C.J. I have no doubt whatever that the conviction was right; but the justices seem to have proceeded on a wrong FREESTONE ground. They seem to have thought that the inquiry might be affected by a question of title; but that is not so. The question simply is, whether the appellant comes within the enactment in the Highway Act. [The Lord Chief Justice read s. 25 of 27 & 28 Vict. c. 101.] The first question to be determined was, is this a highway? The justices have found that it is, and there can be no doubt about it. There are, however, pieces of pasturage land on the sides of the road, and I so far agree with the appellant's counsel that, having a right of pasturage the appellant would be entitled to turn his cattle on these pieces of land; but that right does not entitle him to have his cattle straying on the highway itself which the public use. Here the cattle were not found on the side of the highway, but on the road, and I cannot agree that a man having this right of pasture is entitled not only to have his cattle pasturing on the side of the road, but also straying on the road. That was the very thing the statute was intended to prevent. Secondly, this was not the case of a highway passing over uninclosed ground. Where there is an highway passing over uninclosed land, such as a park, it would be a great hardship on the owner to be prevented from enjoying it by depasturing cattle without incurring the risk of a penalty if the cattle were found on the highway. Here the pieces of land, or greensward, are merely part of the highway. The case, therefore, does not come within the exception of a highway passing over waste, common, or uninclosed ground; nor does the fact of having a right to pasture on the sides of the road entitle the appellant to have his cattle on the road itself. The appellant, therefore, failed to bring himself within the exceptions of s. 25, and was rightly convicted. MELLOR, J. I am of the same opinion. The object of placing the gates in the lane was only to determine the extent of pasturage which the appellant was entitled to. The proviso prevents the section from taking away any right of pasture which the appellant may have had; but assuming he had a right of pasture, he must exercise his right in the way the statute requires. Formerly he could have exercised it to the inconvenience of the public; but |