MAGISTERIAL.

Ashburton Guardian, Volume XIV, Issue 2894, 9 February 1893, Page 3

MAGISTERIAL.

ASHBURTON -THURSDAY.

(Before Mr 0, A. Wray. R. M.) Drunkenness.--Two first offenders were fined 5s each with the usual alternative, md Albert Murphy, reported by the police to be a hard working man, but who was frequently drunk, and was now before the Court for the third time within sis months, was fined gOs and lectured severely, Cjvil Casks.—John Newman v James McDonald, £4 18s, livery and paddocking for entire horse j A.. J. Kelly v C. li, Parker £4 16s, amount of dishonored cheque': Crow v Ennis, £3.—Judgment in each case for Plaintiff Several cuaes were withdrawn or held over. The Sheep Worrying Case.—ln this case, which was heard last Cou;t day, his Worship delivered -hhe following judgment :—The plaintiff occupies. s<»m.e. unfenced land near the town, on Tufcriverbed), in tussock, and on which hares

are running. This seem* to be a kind or" hunting ground Uiod by townspeople of sporting proclivities anci their logs, and tin defendant Mi *>i , ii irf said, soes the a occasionally with his dog. About December 29, the plaintiff saw a collie dog and a greyhound amongst his aheep ; he caught the greyhound which he took he «ne and shot. The defendant O'Loghlin's boy recognised the dog, and took away the ropa and chain found upon him The plaintiff cannot distinguish the damage done by this doj?, but seeks to make his master partly liable with Minnis f r all damage done between December 29 and the second muster*on January 20. On January 6 two other dogs were there, a retriever and a spaniel, and the olaintiff Bwore he shot the spaniel, which was afterwards astcuowledged by Minnis, the other defendant, to be his dog. He says that this dog was there half an hour in his view, that he saw him attack two sheep, and with the other dog drove the sheep about and worried them, but does not furcher connect him with the damage sued for. For the defendants It was urged that they could not be joined in an action for distinct acts of trespass on different days by different owners of dogs.—l reserved this point for consideration, in the m«antime taking the evidence of both of the alleged trespasses. —His Worship quoted the common law of actions ex delicto from Addison on Torts, page 736-1860 edition. "When an action has been brought against several j jint-trespassers, the evidence must he confined to the joint offence in wh'ch all are implicated. Tlie plaintiff cannot recover for what was done by one or more before or after the j"i!it act; and when an action is -brought for one joint-trespass, and the pi iintiff elects to go for a trespass committed at any particular time, he must confino himself to that period ; and it all the defendants were not then concerned in the trespass then committed, the plaintiff cannot have recourse to & trespass committed at a future time, when some of the defendants were concerned who were not implicated in the first transaction, for some of the defendehts might be thereby subjected to damages for a trespass wherein they had no part or concern ; but if he fails in proving a joinf-treftpciss by all on the day he at first selects, lie is al liberty to abandon that trespass and to prove a joint-trespass af. another period. When the plaintiffs evidence discloses no jointtrespass commuted by all the defendants, but only separate trespasses by eac<i, the plaintiff may be put to his election against which of the several defendants ho will proceed." The counsel for the plaintiff having then elected in the event of my ruling against him on this point to proceed against the defendant Minnis. I have to consider the evidence adduced against him only. This is contradictory, but on the facts I have come to the conclusion that his spaniel dog was s-hot by the plaintiff whilst trespassing on his land and w:.th another dog, i retriever, was pursuirg the sheep. The difficulty is to determine what damage, if any, the plainHff has suffered by this particular dog. Although the plaintiff has undoubtedly suffered considerable damage from dogs, it has been shown with tolerable clearness that the damage was occasioned by a good number of different animals, and it sseming probable that on the occasion in question the greater damage was inflicted by the retriever who was in company 'vith the spaniel, I think it was incumbent on fche plaintiff to bring evidence to show the Court what ravages were committed if nob by the spaniel alone, an anyrate by the two dogs in company. This ifc seems he cannot do, so that i am quite unabla to arrive at any estimate in assessment of damages. The plaintiff only saw the spaniel molest two sheep (as he says) on January 6, and he stated to Mr Zander that the black reretriever dog did the damage to the shesp. The spaniel was evidently a comparative y harmless dog, and considering the surrounding circumstances, and the fact that so many other dogs, and amongst th m one or two greyhounds, resorctd there, is. would be manifestly unfair in the absence of any direct evidence to make his master liable for damage insufficiently connected with that particular trespass. I hold therefore that the plaintiff has failed to prove his case beyond the fact that Minnis' dog was there trespassing amongst the sheep when he was shot, and that there is not sufficient e^jdance to show what damage was occasioned thereby. I am therefore not able to allow more than nominal damages—say 5s against Minnis with costs of court on lowest scale, and witnesses and solicitors' fees 21s, striking out the defendant" O'JLoghlen frojm the plaint.