1866. NEWTON V. WEBSTER. that the process has not come to his knowledge. In England the plaintiff is bound to satisfy the Court of the existence of certain facts before he can obtain a certain indulgence; and in the cases referred to, the Courts were not so satisfied. But here the applicant is the defendant; and the principle to be deduced from all the cases is that, at his instance, the Courts will not interfere unless he avers that the process has not come to his knowledge. STEPHEN, C. J. The question which has been discussed at great length on this motion, is whether the defendant, to whose hands the summons has come, and in due time, can take advantage of the objection, that he was not personally served, and that efforts were not made to effect personal service. And secondly, if so, whether the order may not be simply to stay proceedings till personal service shall have been effected; and I am with the defendant on both these points. I think that the plaintiff has not complied with the rule of practice established by the Legislature, and that therefore the Court cannot assist him. It is a rule of practice, and we have no power to alter it, however hard it may be on the plaintiff. Neither can the plaintiff be allowed to take advantage of this declaration, nor of the affidavit filed by him. How can we deprive the defendant of his right to take advantage of the rule of practice. The Judge might, in my opinion, have gone further, and set all the proceedings aside with costs. But he simply orders proceedings to be stayed; and as the plaintiff has nothing to complain of, he must pay the costs of this application. HARGRAVE, J. I think the order was right, and that this application should be dismissed with costs. CHEEKE, J., concurred. Order accordingly. Ex parte BOWMAN (a). SIR W. Manning, Q. C. (Butler with him), moved to 1866. December 7. The 6th make absolute a rule for a prohibition to restrain section of the Cattle Stealing further proceedings upon a conviction of having unlaw- Act, 17 Vic., fully used a cow, the property of R. H. Oakes and No. 3, enacts, that, "if any others, under the 6th section of the Cattle Stealing person shall Act (b), wherein the applicant was fined £5, with 19s. take, use, or in costs, and £2 10s. for witnesses' expenses. This fine work any had been paid and distributed. any manner cattle, the property of any without the person in lawful person "shall misdemeanor." The cow in question, which was said to be a re- other person, markable looking animal, wild in habits and difficult to consent of the catch, appeared to have been lost two years before from owner or other a herd which was being tailed at the prosecutors' station. possession She found her way among and mixed with the herds of thereof," such the applicant on his run (such run being in the charge be guilty of a of his servants); and he retained her without enquiry. Held, that the In course of time she had a calf, and the applicant offence can only allowed his stockman to milk her. It is submitted that by the person there was not sufficient evidence of the cow having been taking, using, used by applicant's order or consent. But assuming that the evidence might justify civil proceedings, it does not warrant this conviction of the applicant as a criminal. possession; and There is nothing to show that he had notice of what ment did not was done by his stockmen. be committed &c., the animal, while in the owner's or some third person's that the enact extend to merely milking Under this 6th section wil- a cow, which strayed into or the accused's with. Stephen showed cause. fulness is immaterial. The offence is taking, using, or was found upon in any manner working any cattle, the property of any land, and was other person, without the consent of the owner or other there so dealt person in lawful possession thereof. The cow was milked, and there was the tacit acquiescence of Bowman. The justices were justified in finding that he so acted, knowing that the cow did not belong to him. The present application is at all events too late, as the fine has been paid and distributed. There is nothing to prohibit; In re Poe (c). STEPHEN, C.J. The offence can only be committed by the party taking or using the animal while in the owner's or some third person's possession. The animal (a) Before Stephen, C. J., Cheeke, J., and Faucett, J. (b) 17 Vic., No. 3. (c) 5 B. & Ad. 681. 1866. Ex parte BOWMAN. must be in the possession of the owner or some third person, and in that state it must be taken. And the enactment does not extend to merely milking a cow, straying into or found upon the accused's land, and there so dealt with. The enactment is highly penal in character, and, evidently, with the other portions of the statute mainly directed against cattle stealers. It therefore punishes persons wilfully taking (whether temporarily or permanently, if for some dishonest object) an animal of the cow, horse, or sheep kind, or using it in any way wilfully, without any bona fide claim, to the owner's injury. But here, however remiss-culpably remiss the conduct of the appellant may have been in retaining the cow in question, without enquiry-without any efforts being made to find the owner-and allowing her to be milked with his other cattle, as if she were his own (though it is not perfectly clear that he was more than permissively connected with the operation), he had not been shown to have done anything against the enactment. Owners of stations are, it may be, willing to keep cattle on them which do not belong to them, but which, if not claimed, may fall ultimately into their hands. This is wrong and censurable. Here the animal was on the applicant's land, wild in its habits-difficult to catch-but generally running with his herd, and he made no enquiry, but allowed his stockmen to milk her. To suppose that every person, who makes himself liable as a trespasser, or to an action of trover, for the taking or using of another man's horse or bullock-or still less, for the mere detaining of the animal without authoritybecomes guilty of a misdemeanor indictable at law, and amenable to a heavy fine and imprisonment with hard labor, would be in our opinion to stretch the construction of this enactment to a most intolerable, unprecedented, and unjustifiable extent. In ordinary cases we should give costs against the prosecutor. But considering the remissness of the applicant, we do not think this a case for costs. Neither shall we make any order for the return of the money; but only that a prohibition do issue. The other Judges concurred. Rule absolute. 1866. MANSFIELD, as Secretary to the Australian Gas Company against The MAYOR, ALDERMEN, and CITIZENS of the City of Sydney. TRESPASS for breaking and entering lands of the Gas Light Company. Plea, not guilty by statute. The following statutes were noted:-22 Vic., No. 12, s. 9; 14 Vic., No. 41, ss. 72, 82, 83, 84, 85, 86, 102; 17 Vic., No. 34, ss. 4 to 16; inclusive of both 20 Vic., No. 36, ss. 10, 55. Issue thereon. At the trial before Stephen, C. J., in May 1866, it appeared that the trespass complained of was committed in July 1865. At that time the defendants, for the purpose of making a sewer through the Gas Company's land, forced away a grating, and began to construct a drain. The land was open and vacant up to 1859, when it came into the Company's possession. There never had been a building on it. The plaintiff, in his evidence, said that it was always, he believed, the natural watercourse of the locality, although he did not know where the watercourse was. The levels of the adjacent streets had been altered. It was admitted that if the defendants section of the The seventh authorises the pavements of any public or private streets, highways, roads, ways, footpaths, lanes, passages and places within the city, and to excavate and sink trenches for the purpose of laying down, making, and constructing common sewers or drains therein and to cause had the power claimed, it had been formally and duly such common exercised. sewers or drains to com municate with The that the must mean some place ejusdem generis words used in with the other The defendants contended that they were entitled to do what was done by the Sewerage Act, 17 Vic., No. 34, s. 7, which authorises the Corporation "to break up the soils, pitchings, and pavements of any public or private streets, highways, roads, ways, footpaths, lanes, passages, and places" within the city, for the purpose of making sewers, and "to cause such common sewers or drains to communicate with the sea or any arm thereof, spot or street or with any streams or public watercourses," &c. carrying out this latter power, at all events, the defen- thoroughfare; dants could go over any private property. In The plaintiff contended that the only power given was to construct a sewer in any " place" used as a roadway the section, that is, some used in some way as a and that therefore the corporation could not, not under this section, construct a sewer on the Gas Company's premises, the spot not being used as a thoroughfare. 1866. V. The MAYOR, ALDERMEN, or passage, public or private, but not to enter any MANSFIELD ground not so used. His Honor ruled that the only power conferred on the defendants was to construct a sewer over some place, which is in its nature either a thoroughfare, or a place for passing over; and the jury therefore found a verdict for the plaintiff, damages 40s.; leave being reserved to move, to enter it for the defendants, or for a nonsuit. and CITIZENS of the City of Sydney. June 6. December 13. The Attorney General, for the defendants, having obtained a rule accordingly, Sir W. Manning and Darley now showed cause (a). This sewer was about to be made through private property, through which formerly there was a surface drain made by the defendants. The power contended for is not given by the 7th section of the Sewerage Act (b). The word "places" must mean places of a like character with those before mentioned-that is, places through or over which the public are in the habit of passing, or have a right to pass, and cannot be construed as comprising land the private property of individuals. This is confirmed by section 6, which empowers the Council to make regulations in regard to drainage, the plans, level, surface inclination, and the materials of the pavement and roadway of (using the same words as section 7) public or private streets, highways, roads, ways, footpaths, lanes, passages, and places, &c.; but the Legislature could never have intended to empower the Council to regulate the level of private land. It is remarkable also that in the proviso to section 7, which requires the Corporation to make good the ground, soils, and pavements of any such public or private streets, highways, &c., and public passages, the word "places" is omitted; so that if the word "places" in the first part of the section could be construed as comprising private property, it would follow that the Corporation would not be bound to make good the soil, &c., of private property, through which a sewer had been made. Again, under (a) Before Stephen, C. J., Hargrave, J., and Cheeke, J. (b) 17 Vic., No. 34. |