Manawaiu Standard (PUBLISHED DAILY.) Suivant la verite. MONDAY, JANUARY 14, 1884. IMPORTANT JUDGMENT.

Manawatu Standard, Volume IV, Issue 39, 14 January 1884, Page 2

Manawaiu Standard (PUBLISHED DAILY.) Suivant la verite. MONDAY, JANUARY 14, 1884. IMPORTANT JUDGMENT.

The following appears m a contemporary's recent issue which should be of interest to many. The point al issue was whether a man whose land is trespassed upon could impound the trespasers, claim damages irrespective of the Impounding Ordinance, and without suing m o Court of law. .The decision as given by the Magistrate is ax follows.;— This is- a claim- of, £6, ot. which" £3 is money paid under protest to obtain the release of some cattle of plaintiff's, alleged to liave been illegally impounded by defendant on his own land, and £3 ; damages for losa of time, &c. 10 appears by the evidence that on the 10th August the defendant found three head of cattle of plaintiff's on his land, that- he impounded them m his own stockyard and claimed 20s per head damages, and that the plaintiff paid the amount under protest to obtain the release of his animals, which the defendant refused to give up unless the money was paid to him. Tt also-, appeara that the damage alleged to have been done by the cattle -wns mainly the destruction of flower bulbs m a box, the other damage being of small consequence. These bulbs, were not, however, m the paddock on the 10th, the defendant having removed tho, hgx on the evening of the 9th to try ftTsave k'lich of them an were not too much injured. It is admitted that the fence was not a " substantial fence", within the meaning of the Impounding Ordinance and Fencing Act ; but the defendant, on impounding, did not rely "upon the Impounding Ordinance, but upon his conimon'law right to impound cattle damage feasant, For plaintiff it was argued that the Impounding Ordinance applied, arid? th^fc d'ejfendanthad no right tcrimpound the^cattlc, as his fence was not " substantial," and tho damageß claimed, were excessive. I have given the matter some consideration, and have come to the conclusion. — 1. That defendant had a common law* right to impound damage feasant,' which is not taken away by the Impounding Ordinance. 2. That as the impounding was not not under the Impounding Ordinance the defendant' was not restricted tjo the damages claimable under that Ordinanpe. 3; That as the plaintiff has paid tlje damage claimed he cannot, even though the payment was under protest, recover back the money so paid. The case of Gulliver v. Crozens, 1 C.B. 380, 436, is entirely m point. In that case the defendant had iuipoundod some sheep damage feasant, and claimed £2 15a :. 9d damages, which plaintiff paid under protest to obtain possession of his animail?. It was estimated by a jury that tfie damage dpne. by the shepp w v as §8, The case was heard before Baron Alderson, who directed a nonsuit j and on argument before a full court it was Jfeard that tfop plaintiff could not re? coyer. The onus lay upon h.im' tp liavp tendered sufficient amends, and if thpse sufficient amends were refused to bring

detenue. There was no duress m this case, and the taking was not unlawful. Judgment for defendant, with costs £1 Is.