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SHEEP WORRYING CASE. AT WAITAHUNA. At the Magistrate's Court Lawrence, on Tuesday, before B. J. Achcson, Esq., the sheep worrying case John Kirby v. John Dath was heard. The statement of claim was as follows: "The plaintiff claims to recover from the defendant, the sum of £l0, being loss and damage sustained by the plaintiff through the defendant so negligently keeping his dog that on the 9th of July, 1917, it worried a flock of sheep, the property of the plaintiff, then depasturing on land in occupation of the plaintiff at Waitahuna whereby eight sheep were killed and the flock otherwise injured. Mr Finlayson, in opening his case, said the action was to recover £l0 damages caused to plaintiff's flock of sheep through being worried by defendant's dog on the 9th July. The plaintiff is a farmer at Waitahuna and had a flock of 40 ewes and wethers depasturing on a section of 30 acres situated on the Havelock Commonage, which he occupied under a yearly tenancy. This section was enclosed with a sheep-proof fence. Evidence, he said, would be led to prove than on the morning of the 9th July a neighbouring farmer when going out to plough on an adjoining section, noticed a dog chasing plaintiff's sheep, that he saw the dog cut one of the flock and chase it into the gully; that this man on going into plaintiff's section came upon the dog, which he recognised as defendant's, in the act of worrying a sheep; that in following the dog, which made off on his appearance, he came upon another sheep which was freshly worried, and that he followed the dog down towards the defendant's house where he saw two people whom he took to be defendant and his wife, and called out to them to tie the dog up as he had been caught worrying sheep. On the following day, said counsel, the plaintiff, on going to work on his section, found eight of his sheep worried — seven dead and one almost dead — and the remainder of the flock considerably knocked about. After the steps taken by plaintiff to obtain payment for the damage done from defendant counsel quoted a number of authorities in regard to the liability of owners for damage done by their dogs, etc., he then called evidence in support of the claim. John Kirby, farmer and mail contractor (plaintiff), deposed that he occupied a section of about 30 acres on the Havelock Commonage. He had held it for four years under a yearly tenancy from the Havelock Commonage Trustees. The area was fenced and wirenetted. He was bringing the action for the loss of eight sheep. To Mr Moore: Had a yearly lease, and the Trustees said he could put whatever stock he chose on the land. He had the sheep a couple of months before they were worried. They were bought from different people and were mostly young sheep. He thought he inspected them on Saturday, 7th July, but would not swear to this date, but would to having counted them on the 5th July when he found there were forty. He usually worked on the section on the days he was not engaged in carrying the mails, The flock was a healthy one. He got 50 per cent of lambs — a small average. A short time before this two sheep had died and as they had wounds about the legs he suspected they had been worried and he left them for a good time to see if the dog that worried them would come back. He had never heard that there were a couple of wild dogs on Ronnie Sutherland's run. At this stage Mr Finlayson put in a letter from the secretary of the Havelock Commonage confirming plaintiff's statement that any class of stock might be grazed on the section leased from the trustees. John Wallace, farmer, Waitahuna, deposed that on the morning of 9th July last he was yoking up to plough on his farm near Kirby's when he heard a dog barking among plaintiff's sheep. Saw the dog single out one and chase it into the gully. He ran over to plaintiff's section and caught the dog in the act of worrying the sheep. The sheep was lying down but not dead. It was bleeding about the body and was apparently badly torn. He got to within ten yards of the dog before he ran away. Knew the dog was Mr Dath's. To Mr Moore ; Was just yoking up when he heard the barking and noticed the dog about 100 yards away. It was amongst the mob where he first saw it. It singled out one chased it away from the rest of the flock. As soon as the dog saw him (witness) it bolted, and after examining the sheep he followed the dog. He knew the dog well. There is a dog at Waitahuna something like him as to colour. He knew this other dog well. Was positive the dog that worried the sheep was not this dog. He simply followed it to tell Mrs Dath lo tie the dog up. He did not see the dog arrive at Dath's. The second sheep, he saw was about 100 yards away on the track. It was torn open and warm. Took the two people he saw at Dath's as defendant and his wife. Had a clear view. To Mr Finlayson: There was no doubt whatever about the two sheep he saw having been worried by a dog. Thomas Kirby, miner, Waitahuna (a nephew of plaintiff) deposed that he was talking to Mrs Dath at her gate on the morning of the 9th when the previous witness called out from the hillside some distance away telling her to tie up her dog as it had been worrying sheep. Mrs Dath, owing to deafness, could not make out the message and he had to tell her what Wallace was saying. Mrs Dath asked him if he would shoot the dog for her and he said he would. He noticed the dog standing near Mrs Dath but could not say how long it had been there, and he did not notice whether it had any evidence such as blood about its mouth, of having been among sheep. He then proceeded on his way and met and talked to Mr Wallace who told him what he had seen. Henry Plett, sheep-farmer, Waitahuna, deposed to examining the dead sheep on the Sunday following the worrying and to supplying a valuation of each of the eight sheep. He had made a careful examination and was positive their death was due to worrying by dogs. They were all badly mangled under the fore-leg and on the brisket. He could not say definitely how long previously they had been worried. They were very fresh and he would say not more than six or seven days. The sheep were crossbreds of mixed sexes. To Mr Moore: Had had personal experience of sheep worrying and also of sickness among sheep. When sheep die of disease hawks and seagulls often attack the dead carcase. Mr Moore, before commenting on the evidence tendered for the plaintiff, raised a couple of legal points. The first was as to the form of statement of claim. The claim as drawn up was for the recovery of £l0 for negligently keeping a dog and he submitted the plaintiff's side had not proved negligence aud that the subject of the claim could not now be altered. He called deposed that her husband was a miner. Bridget Dath, wife of defendant, who but, owing to old age and illness, had not done any work for four years. He was too ill to come to court. The dog, which belonged to her son, was used for bringing in the cows. He was generally tied up, but occasionally broke away. To Mr Finlayson : She told Mr Wallace that if there was only one or two sheep they would try to pay something, but could not pay for ten. Nobody had previously complained about her dog. Mr Finlayson having replied to the legal points raised by Mr Moore his Worship said he would reserve judgment till the following morning at 11 o'clock. His Worship on Wednesday morning read his judgment as follows: First, as to legal points. As to the objection to the statement of claim by defendant's solicitor that it is necessary for the plaintiff to prove that the dog was negligently kept, i.e., that the defendant knew the dog was given to destroying sheep and should not have been allowed at liberty. I am of opinion that this contention is sound as the statement of claim is drawn, but in reply to this the plaintiff's solicitor cites sub-section 2 of section 93 of "The Magistrate's Court-Act, 1908," which directs the court to make all amendments that may be necessary for the purpose of determining the real controversy between the parties in the action. By altering the statement of claim so as to make it read "The plaintiff claims to recover from the defendant the sum of £l0, being loss and damage sustained by him through the defendant's dog on the 9th of July, 1917, worrying plaintiff's sheep whereby eight of them were killed and the others injured the defendant will not be prejudiced, and the real question at issue between the parties will be determined. The solicitor for the defendant contends that since the sheep at the time of the worrying are depasturing upon a commonage, as is not disputed by the plaintiff, the provisions of "The Dog Tax Registration Act, 1908" which makes an owner liable for all injury done by his dog does not apply. The section of "The Havelock Commonage Act, 1903" which he relies upon (the sheep having been worried upon the commonage created by "The Havelock Commonage Act, 1905") gives the trustees under the said Act power to manage the land described therein as a commonage for the town of Havelock in such manner as they think most expedient and to issue licenses authorising any of the inhabitants of the said town to depasture cattle thereon upon payment of a fee. He contends that the trustees can only issue licenses for theo grazing of cattle and that although the plaintiff had a lease of a part of the commonage as was proved during the hearing, that the same was ultra vires, and the sheep that were worried being only trespassers no action could be maintained for their destruction. Having thus disposed of legal questions raised by the solicitor for the defendant I next have to determine whether any of the plaintiff's sheep were worried and who was the owner of the dog that worried them. As to the first point the plaintiff deposes that going to his section on the 10th of July last he found a sheep in a dying condition, it having been bitten about the breast and the right foreleg and on looking round found nine others in more or less worried condition. I am of opinion that these sheep were worried by a dog or dogs. As in addition Mr Wallace deposed that he caught a dog worrying the plaintiff's sheep on the 9th of July, the day previous. As to the next question, viz., the ownership of the dog, I think that the dog which did the damage belongs to the defendant. It was of a peculiar colour viz., black and gray or slate and of unusual breed, being a halfbreed commonly denoted a lurcher, that is a cross between a greyhound and another dog and when chased by Mr Wallace ran in the direction of the defendant's, and the defendant's wife admitted the ownership of a similar animal, and also deposed that the dog was at liberty that morning for about half-an-hour, having been sent by her for the cattle. The following costs were allowed the plaintiff: — Solicitor's fee £1 6s; costs of court 16s, and witnesses expenses £2 18s. |
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