034-NLR-NLR-V-36-JAMES-v.-FERNANDO-et-al.pdf
143
DRIEBERG J.—James v. Fernando.
5934Present: Drieberg J.
JAMES v.. FERNANDO et al.
785—6—P. C. Colombo, 7,749.
Cattle—Allowing cattle to stray—Animal under control of keeper—Tied ortethered—Public Thoroughfares Ordinance, No. 10 of 1861, s. 94 (1).
Where an animal is taken to a place by its keeper and kept undercontrol by means of a rope by which it is secured,—
Held, it cannot be said to be “ tied or tethered or straying ona thoroughfare” so as to make its owner liable to a charge undersection 94 (1) of the Public Thoroughfares Ordinance.
A PPEAL from a conviction by the Police Magistrate of Colombo.
S. Alles, for appellants.
Gunasekera, C,C., for respondents.
February 7, 1934. Drieberg J.—
The appellants were convicted of removing a calf from the lawfulcustody of the complainant, a person authorized by law to seize it. Theoffence is provided for by section 94 (2) a of the Public ThoroughfaresOrdinance, No. 10 of 1861. The seizure would have been lawful if thecalf was found “ tied, tethered, or straying on a thoroughfareThecomplainant said that the calf was grazing on the grass by the side of theroad, a rope was attached to the animal but there was no one holding it.When he seized it, the first appellant came up to him and struck himand the second appellant pulled the animal away by the rope.
The case for the defence was that there was a boy holding the rope andthat when the complainant seized the calf the first appellant went upand took it away from him. The learned Police Magistrate dealt withthe case as one of unlawful removal only. There was no charge based onthe violence to the complainant. He did not expressly disbelieve the
144
DRIEBERGIJ.—frames v. Fernando.
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evidence for the defence. He h$ld that even if the calf was in the charge
of a keeper who held the rope, the seizure was unlawful, and he convictedthe appellants. I think that in1 these circumstances the case should beconsidered on the facts presented by the defence, and the question iswhether the calf in these circumstances can be said to have been seizedwhen “ tied, tethered, or straying upon the public thoroughfare Theplace where it was grazing is a public thoroughfare, being land adjoininga road and reserved for its protection or benefit. An animal cannot besaid to be straying on a place to which it has been taken by its keeperwho has it under control, nor can it be said to have been tied or tethered.Both these expressions imply that the animal is secured to some fixedpoint, for example, a stake or post. The word “ tied ” suggests an animalbeing secured in such a manner as to restrain or hinder it from action ormovement, either completely or within very narrow limits. To “ tether ”an animal is to secure it so as to allow it a certain definite and limitedrange of movement. Cattle secured to a post by a rope of a length sufficientto allow of their grazing are said to be tethered. It is the length of thetether which determines the scope allowed. But it appears to me thatthe word is entirely inapplicable where the end of the rope by which theanimal is secured is not attached to some fixed point but is in the handsof some person who can control the movements of the animal.
The seizure not being lawful, the appellants were not guilty of anoffence in removing the calf from the custody of the complainant.
The conviction is set aside and the appellants are acquitted.
Set aside.