IMPORTANT JUDGMENT.

Inangahua Times, Volume IX, Issue 1348, 14 January 1884, Page 3

IMPORTANT JUDGMENT.

The following important judgment appeared in the Paltnerstou Times of Friday, and. would be read with interest by many many of our country readers. - The point at issue was whether a man. whose land is trespassed npon could impound the trespass, claim damages irrespective of the Impounding .Ordinance, and without suing in a court of law. Mr Fraser, for the defendant, submitted that he could do so, and Mi" Robinson, who reserved his decision, gave judgment as follows :- — This is a claim of £6, of which £3 is money paid under protest to obtain the release of some cattle of plain i^'s, alleged to have been illegally impounded by defendant on his own land, And £H damages for loss of time, <fee. It appears by the evidence that on the 10th August the defendant found three liead of cattlfcjof plaintiff's on his land, that he impounded them in his own stockyard and claimed 20s per head damages, and that the plaintiff paid this amount under protest to obtain the release of his animals, which the •defendant refused to give up unless the money was paid to him. It also appears that the damage alleged ,to have " been done by the cattle was mainly the destruction of flower bulbs in a box, the other damage being of small consequence. These, bulbs wore 1 : not, howevor, in the paddock on the 10th, the defendant having removed the box in the evening of the 9th to try to save such of them as .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 uppo the Impounding Ordinance, but npon his common law right to impound cattle damaye feasaut. For plaintiff it was argued that the Impounding Ordinance applied, and that defendant had no right to impound the cattle, as his fence was not " substantial," and that the damages 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 under the Impounding Ordinance the defendant was not Testricted to the damages claimable under that Ordinance. 8. That as the has paid the damage claimed he Cannot, even though the payment was under protest, recover back the money so paid. The case of GuHiver v, Cozens, 1 C.B. 880, 485, is entirely in poim. In that case the defendant had impounded some sheep damage Jeasant, and claimed £2 15s 9d damages which plaintiff paid under protest to obtain possession of his animals. It was estimated by a jury that the damage •done by the sheep was ss. The case was heard before Baron Alderson, who directed a nonsuit ; and on argument befpre a full Court it was ruled that the plaintiff could not recover. The •onus lay upon him to have tendered sufficient amends, and I£ those safjicient •Amends were refused to bring detdhut. There was no duress in this case, arid the taking was not unlawful. . Judgment for defendant with costs £i. Is.