QUESTION OF IMPOUNDING.

Patea Mail, 19 August 1880, Page 2

QUESTION OF IMPOUNDING.

The R.M. at Patea has been called upon to exercise magisterial discretion in the matter of impounding horses. Five persons were summoned on Tuesday for allowing horses to wander in the town, A defence was set up that there had been no negligence. This applied particularly to the case of Mr Haase, whose horses (ho says) get out of the Hospital paddock because the public negligently leave the gate open. The road to the Hospital is not yet madc> but there is a track across the paddock to the building, and anybody taking that track can leave the gate open, there bainff no penalty ; and he can let out all the horses grazing on about 25 acres, part occupied by Mr Haase, part by Mr W. Williams. This has happened frequently to the extent of letting out a few horses at a time. Now there must come a time when the occupiers of those paddocks will get tired of paying fines for horses impounded through no fault of the tenants, but caused by careless members of that great irresponsible body, the public. Ought those tenants to be fined time after time ? Assuming that laws arc made to check negligence or wilful disobedience, ought the letter of the law to be strained, and strained repeatedly, to punish persons for breaches which they have had no hand in, and which they are helpless to prevent ? The Magistrate has a discretionary power, and this would not have been given if it had not been intended for use in preventing hardship in exceptional cases. The discretionary power may be inconvenient to this extent, that it involves a Magistrate in the trouble of discriminating between the conditions of one offence and another. It imposes

on a Magistrate the Jirksome duty of regulating a penalty according to varying circumstances. It is a much simpler plan to say, as Captain Wray did on this occasion ; “It would be an endless matter to draw any line: I have always gone on the plain statement of the case: I take no excuse: I take the fact that a horse was wandering, and inflict a penalty for that.” We submit that Captain Wray has here laid down a new principle of law. It is this: “ I take the fact of a defendant being in a particular position, and I do not enquire how ho got into that position, but punish him for the fact that he is in it.” Wo question the Magistrate’s right to adjudicate upon that line. There is no principle of law, so far as we know, which justifies the Magistrate’s ruling. The law as expounded by the highest authorities is not designed to punish without discriminating between wilful or accidental error. The circumstances of an offence are to be enquired into as an indispensable preliminary to pronouncing a conviction. Captain Wray’s plan would reduce judicial procedure to this : Constable: This horse was wandering within the town on a certain date. I impounded it, and the defendant is the owner. Magistrate to defendant: Arc you the owner ? Defendant ; I am. Magistrate: Three shillings fine, and

seven shillings costs. Defendant: But, your Worship, ray gate was broken down by the police, for a purpose of their own, and ray horse got out that way wit lout my knowledge. Magistrate : All I have to ascertain is that a horse was wandering, and that it is your horse. Pay the fine, sir. Such is Captain Wray’s ruling. He also gave advice which is so uumagisterial that we would suggest its reconsideration. Speaking of the Hospital paddock, into which the gate opens, he asked: “Is there a fight of way for the butcher and baker to go through ?” Defendant said there is. Captain Wray added : “ If the public will not consider your interest and shut the gate, you should look it in order to protect yourself.” Now observe the course of magisterial reasoning. He first ascertains that there is a right of way, for which reason the gate has to be used by the public. And because there is a right of way, ho advises the tenant to lock the gate, “in order to protect yourself. ” Thus the public, who have a right of way to the Hospital, arc to have the gate locked against them, upon the advice of a Magistrate. Is it necessary to point out that to lock the gate would be contrary to the conditions of tenancy, and therefore illegal ? Is it necessary to point out also that this advice to assert an illegal monopoly is bad as a moral principle ? Hero we have a decision against the spirit of the common law; and here we have advice to do an illegal act, and to do it in a manner calculated to provoke a breach of the peace ; compelling the public to assert their right by breaking down that gate every time they find it locked !