F. C. HERBERT V. cattle, should not be quashed. The law relating to impounding is now governed by the provisions of The Local Authorities Act RANGE, Ex parte of 1902. See Part VII., Subdivision X., ss. 96 to 134. Section 103 contains the authority to impound. That section authorises any owner or occupier of land upon which any animal is found trespassing to take the same to the pound (therein described), and at the time therein mentioned deliver the same to the poundkeeper to be impounded. The impounder has, at the same time, to deliver to the poundkeeper a written memorandum stating, amongst other things, the place where the animal was trespassing and the amount of damage claimed. Range delivered to the poundkeeper at Dalby 44 head of the respondent's cattle. Range, in his evidence, speaking of the land from which the cattle were impounded, said, “I know portions 14 and 15, Kogan, County of Derby. They comprise an occupation license, and the licensee is Philip Hoffman. I have leased the grazing right of that land from him. I had that right on the 13th May." In cross-examination, he said, “Hoffman had the occupation license since March last. I leased it from him about the 20th March. I have not the lease with me." Section 96 of The Local Authorities Act of 1902 extends the meaning of owner or occupier for the purposes of that Act relating to impounding so as to include the superintendent, overseer, or other duly authorised person acting for and on behalf of any owner or occupier. Section 7 defines "owner" and "occupier." The term "owner does not include a lessee from the Crown holding under a tenure not longer than from year to year. An occupation license is from year to year, and therefore if such an interest could be considered as equal to a lease, such a title would not constitute the holder an owner within the meaning of The Local Authorities Act of 1902, and therefore Range could not, in respect of the land from which respondent's cattle were impounded, exercise the right to impound as owner. The word "occupier " is defined thus: "The person in actual occupation of any land, or if there is no person in actual occupation, the person entitled to possession thereof." There was not any evidence before the Magistrate that Range was in actual occupation of the land, and even if the burden RANGE. Real J. F. C. HERBERT V. RANGE, Ex parte RANGE. Real J. of proof was not on the person impounding, I think there was evidence upon which the Magistrate could find that Range was not in actual occupation of the land from which the cattle were impounded. It remains to be considered whether there was evidence upon which the Magistrate could hold that he was not a person entitled to the posesssion thereof. Range claimed through the person who held the occupation license. The respondent, by his counsel, contended that Philip Hoffman could not, in any way other than as provided by The Land Act, 1897, confer a title to the possession of the land comprised in his occupation license. It is not necessary to determine that question in the view I take of the evidence, and I do not desire at present to express any opinion on that question, as I think that, assuming the power of Philip Hoffman, occupation licensee, to confer such right upon Range, otherwise than by a transfer of the license as provided by The Land Act, 1897, the evidence given by Range as to the nature of his right entitled the Magistrate to find that Range had only a grazing right (if any interest) in or over the land, and was not within the mearing of The Local Authorities Act of 1902 an owner or occupier of the land from which respondent's cattie were impounded. I therefore think the Magistrate was entitled to adjudge that the impounding was unlawful, and to give the respondent all the relief to which, upon such a decision, he was entitled under s. 126 of The Local Authorities Act of 1902. I have considered this case as to the evidence upon which the Magistrate could decide in favour of the respondent, as if upon a proceeding under s. 126 of The Local Authorities Act of 1902 the burden of proving the facts necessary to show that the impounding was lawful was not upon the person impounding, but I do not wish to be understood as so holding. I am of opinion that the burden of proving such facts is upon the person impounding. They are each and every of them affirmative issues, and are facts peculiarly within the knowledge of the person impounding. Taylor on Evidence, s. 337. The relief to which a complainant is entitled under s. 126 as against the impounder is limited as therein provided, and the compensation awarded cannot exceed "the amount of the damages are demanded." The respondent's counsel contended that the words, The Impounding Act of 1855 (19 Vic., No. 36), placed no limit upon the amount which the Justices might award as compensation to a person whose animals had been unlawfully impounded. Section 28. But The Impounding Act of 1863 (27 Vic., No. 22), limited the amount in words identical with the words of s. 126 of The Local Authorities Act of 1902, except that the word "claimed " is used in s. 30 of the 1863 Act, and for it, in s. 126 of The Local Authorities Act of 1902, the word "demanded" is substituted. Looking at the various Acts from time to time in force relating to impounding, and now repealed, and at the wording of s. 126 itself, I think the words, "amount of the damages demanded " mean, in s. 126, whenever used, the damages demanded by the impounder. In the preceding Acts relating to impounding, it will be noticed that s. 11 of the Act of 1855 (19 Vic., No. 36) expressly provides for Justices assessing driving expenses, and speaks of such expenses as damages, and authorises the sale of the trespassing animals to pay such damages, etc., and ss. 39 and 40 of the Act of 1863, which was in force up to the passing of The Local Authorities Act of 1902, authorise an owner appealing against the impounding to obtain release of his animals by paying pound fees (which are defined by s. 3), and the "damages demanded," and authorise the Justices if they decide against the appeal to direct the poundkeeper to hand over to the impounding proprietor the damages retained by him as aforesaid. Damages only are mentioned in ss. 39 and 40, yet in that word must have been included, as in the Act of 1855, s. 11, the driving expenses. Section 40 of the Act of 1863 further provides that if the impounding be held illegal, compensation may be awarded to an amount not exceeding damages claimed. The words, "damages demanded," are the words used in s. 39 of the Act of 1863 to describe all that an appealing owner of animals was required to pay, in addition to pound fees, in F. C. HERBERT V. RANGE, Ex parte RANGE. Real J. F. C. HERBERT V. order to release the animals; and the words, “damages retained RANGE, Ex parte by the poundkeeper," are used to describe all that the impounder RANGE. Real J. could claim to receive from the poundkeeper upon a determination in his favour. I think damages in these sections must have included the charges for driving described in s. 11 of the preceding Act (19 Vic., No. 36), as damages, and I think that in s. 126 the words "damages demanded," have a like meaning, and include the driving expenses claimed by the impounder. To hold otherwise would leave an owner of an animal impounded now without a remedy under the Act for an excessive charge for driving expenses, and would be inconsistent with the previous use of the words in previous Acts. I therefore think that the limit of compensation which the Magistrate could award to the respondent against the impounder is the sum claimed by him for injury to the land, plus the sum claimed by him for driving charges, and as these sums taken together amount, in this case, to over £26, the Magistrate's order as to the £22 for compensation is, I think, good. The order as to the £11 I find difficult to understand. Section 126 of The Local Authorities Act of 1902 authorises the Magistrate, when he adjudges the impounding to be unlawful, to order the impounder to pay, in addition to compensation, all rates and charges due in respect of the animal, and unless this order is to be taken as included in the order to pay £11 fees, I do not see any such order in this case. But these fees, exclusive of charges, which would have been payable to the appellant had the impounding been lawful, do not amount to more than £2 12s. 4d. Therefore, the order directing the appellant to make payments beyond the sum of £22, which has been given as compensation, and the amount of fees, £2 12s. 4d., which the appellant would not himself be entitled to receive had the impounding been legal, is in excess of the authority given by s. 126, and should be set aside. The order for imprisonment is also in excess of the power of the Magistrate at the time of his order. We, however, have power to amend an order by striking out the excess. The order must, therefore, be amended by striking out the excess, and except as to such excess, the rule nisi to quash should be discharged. CHUBB J.: I am of the same opinion, and agree with the judgment of my brother Real. SHAND J. I had originally prepared a separate judgment, but since then I have had the advantage of reading the judgment delivered by the President of the Court, and it appears to me sufficient to say that I entirely agree with it. Order of Justices varied by striking out that part ordering Solicitor for appellant: A. H. Pace, for W. Vowles, Dalby. Solicitors for respondent: Roberts & Roberts, for V. Drury, Dalby. F. C. HERBERT V. RANGE, Ex parte RANGE. Shand J. |