2

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any damage, injury or spoil to or upon any 1 real or personal property whatsoever (including trees, saplings, shrubs and underwood) either of a public or private nature, for which no punishment is otherwise provided, is liable, on summary conviction, to a penalty not exceeding twenty dollars, and such further sum, not exceeding twenty dollars, as appears to the justice to be a reasonable compensation for the damage, injury or spoil so committed,-which last mentioned sum of money shall, in the case of private property, be paid to the person aggrieved; and if such sums of money, together with the costs, if ordered, are not paid, either immediately after the conviction, or within such period as the justice shall, at the time of the conviction, appoint, the justice may cause the offender to be imprisoned for any term not exceeding two months, with or without hard labor.

Nothing herein extends to

(a.) any case where the person acted under a fair and reasonable supposition that he had a right to do the act complained of; or

(b.) any trespass, not being wilful and malicious, committed in hunting or fishing, or in the pursuit of game.

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3

[These words do not include an incorporeal right, such as the right to depasture cows on a moor; Laws v. Eltringham, L. R. 8. Q. B. D. 283.] A person who gathers mushrooms growing in their natural state in a field, doing no other damage or injury does not thereby" wilfully or maliciously "commit damage, injury or spoil to or upon real or personal property within the meaning of 24 & 25 Vict. c. 97, s. 52; Gardner v. Mansbridge, L. R. 19 Q. B. D. 217. The case would be even clearer under R. S. C. c. 168, s. 59, where the qualifying words are unlawfully and maliciously." One who cuts off a portion of his neighbors's trees to protect his own property from the nuisance caused by boys throwing stones at the blossoms on such trees, and to secure the entrance of air and light to his own dwelling, cannot be said to be acting under a fair and reasonable supposition that he has a right to do the acts complained of; Hamilton v. Bone, 16 Cox, C. C. 437. See R. S. C. c. 43, ss. 23, 26, 27 (as enacted in 50 & 51 Vict. (D.) c. 33, ss. 3, 4) and 32; 27 & 28 Vict. (P.C.) c. 69 as to trespasses committed upon Indian lands. Also R. S. C. c. 54, s. 79, as to trespasses upon Dominion lands.

2 herein before provided."

3 But every such trespass shall be punishable as if R. S. C. c. 168 had not been passed.

CHAPTER XLIX.

CRUELTY TO ANIMALS.

ARTICLE 604.

CRUELTY TO ANIMALS.

1 EVERY one is guilty of a misdemeanor, and liable, on conviction before two justices of the peace, to a penalty not exceeding fifty dollars, or to imprisonment for any term not exceeding three months, with or without hard labor, or to both, who,

(a.) wantonly, cruelly or unnecessarily beats, binds, ill-treats, abuses, overdrives or tortures any cattle, poultry, dog, domestic animal or bird; or

(b.) while driving any cattle or other animal is, by negligence or ill-usage in the driving thereof, the means whereby any mischief, damage or injury is done by any such cattle or other animal; or

(c.) in any manner, encourages, aids or assists at the fighting or baiting of any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic or wild nature.

ARTICLE 605.

KEEPING COCK-PIT.

2 Every one is guilty of a misdemeanor, and liable, on

1 R. S. C. c. 172, s. 2; 12 & 13 Vict. c. 92, ss. 2, 3. The words "wantonly" and "unnecessarily" do not occur in the latter statute; the word "wantonly" was, however, used in the earlier English Statute 5 & 6 Wm. 4, c. 59, s. 2. The cutting of the combs of cocks to fit them for fighting or winning prizes at exhibitions is within the statute: Murphy v. Manning L. R. 2 Ex. D. 307. So, also, is the dishorning of cattle; Ford v. Wiley, L. R. 23 Q. B. D. 203; but the spaying of sows is not; Lewis v. Fermor, L. R. 18 Q. B. D. 532. See, however, the remarks of Hawkins, J., in Ford v. Wiley. The good to be attained must be reasonably proportionate to the suffering caused.

No prosecution for any offence defined in Articles 604 and 605 shall be commenced except within three months next after the commission of the offence: R. S. C. c. 172, s. 6. 2 R. S. C. c. 172, s. 3.

summary conviction before two justices of the peace, to a penalty not exceeding fifty dollars, or to imprisonment for any term not exceeding three months, with or without hard labor, or to both, who builds, makes, maintains or keeps a cock-pit on premises belonging to or occupied by him, or allows a cock-pit to be built, made, maintained or kept on premises belonging to or occupied by him.

All cocks found in any such cock-pit, or on the premises wherein such cock-pit is, shall be confiscated and sold for the benefit of the municipality in which such cock-pit is situated.

1

ARTICLE 606.

THE CONVEYANCE OF CATTLE.

No railway company within Canada, whose railway forms any part of a line of road over which cattle are conveyed from one Province to another Province, or from the United States to or through any Province, or from any part of a province to another part of the same, or owner or master of any vessel carrying or transporting cattle, from one Province to another Province, or within any Province, or from the United States through or to any Province, shall confine the same in any car, or vessel of any description, for a longer period than twenty-eight consecutive hours, without unlading the same for rest, water and feeding for a period of at least five consecutive

1 R. S. C. c. 172, ss. 8, 11.

2

Cattle so unloaded shall be properly fed and watered during such rest by the owner or person having the custody thereof, or in case of his default in so doing, then by the railway company, or owner or master of the vessel transporting the same, at the expense of the owner or person in custody thereof; and such company, owner or master shall, in such case, have a lien upon such cattle for food, care and custody furnished, and shall not be liable for any detention of such cattle; R. S. C. c. 172, s. 9.

Where cattle are unladen from cars for the purpose of receiving food, water and rest, the railway company then having charge of the cars in which they have been transported shall, except during a period of frost, clear the floors of such cars, and litter the same properly with clean sawdust or sand before reloading them with live stock; R. S. C. c. 172, s. 10.

The proceeding for recovery of any penalty, under Articles 606 and 607, must be commenced within one month after the commission of the offence; R. S. C. c. 172, s. 13.

hours, unless prevented from so unlading and furnishing water and food by storm or other unavoidable cause, or by necessary delay or detention in the crossing of trains.

In reckoning the period of confinement, the time during which the cattle have been confined without such rest and without the furnishing of food and water, on any connecting railways or vessels from which they are received, whether in the United States or in Canada, shall be included.

The foregoing provisions as to cattle being unladen shall not apply when cattle are carried in any car or vessel in which they have proper space and opportunity for rest and proper food and water.

Every railway company, owner or master of a vessel, having cattle in transit, as aforesaid, who knowingly and wilfully fails to comply with the foregoing provisions, is liable for every such failure to a penalty not exceeding one hundred dollars.

ARTICLE 607.

SEARCH OF PREMISES-PENALTY FOR REFUSING ADMISSION TO PEACE OFFICER.

1

Every peace officer and constable may, at all times, enter any premises where he has reasonable grounds for supposing that any car, truck or vehicle, in respect whereof any company or person has failed to comply with the provisions of Article 606, or of the note thereto, is to be found, or enter on board any vessel in respect whereof he has reasonable grounds for supposing that any company or person has, on any occasion, so failed;

Every one who refuses admission to such peace officer or constable, is liable, on summary conviction, to a penalty not exceeding twenty dollars and not less than five dollars, and costs, and in default of payment, to imprisonment for any term not exceeding thirty days.

1 R. S. C. c. 172, s. 12.

CHAPTER L.

OFFENCES CONNECTED WITH TRADE AND BREACHES OF CONTRACT.

ARTICLE 608.

CONSPIRACIES IN RESTRAINT OF TRADE.

[2 A CONSPIRACY in restraint of trade is an agreement between two or more persons to do or procure to be done any unlawful act in restraint of trade.

Illustration.

3 The defendants, a body of shipowners, agreed that if persons in a certain trade would deal exclusively with them, such persons should have certain advantages at their hands; and that if they dealt with any other shipowner, to however small an extent, they should lose all the advantages which otherwise they would derive from dealing with the defendants. Plaintiffs (also shipowners) alleged that this was done for the purpose of injuring them by driving them out of the trade. Defendants said it was done for the protection of their own trade, and it was held that the question would be which of these views was in fact true.

+ ARTICLE 609.

WHAT ACTS DONE IN RESTRAINT OF TRADE ARE NOT UNLAWFUL.

The purposes of a trade union are not, by reason merely that they are in restraint of trade, unlawful within the meaning of Article 608], but they may be unlawful within the meaning of Article 610. "

1 S. D. Art. 390.

[3 Hist. Cr. Law, 202-227.

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3 Mogul Steamship Company v. McGregor, L. R. 15 Q. B. D. 476. The law of conspiracy was much discussed in this case, which was an interlocutory application for an interim injunction.]

+ S. D. Art. 391.

R. S. C. c. 131, s. 22; 34 & 35 Vict. c. 31, s. 2.

652 Vict. (D.) c. 41, s. 6.