SHEEP WORRYING CASE.

Manawatu Herald, Volume XXXV, Issue 1051, 16 January 1913, Page 2

SHEEP WORRYING CASE.

CLAIM K)R DAMAGES

At the Magistrate’s Court Palmerston North on Tuesday, Kdward and Harold Barber, executors of the estate of Henry Barber, Foxtou, sued Hemara te ros special damages, and £2O general damages, representing the loss sustained through sheep being killed or injured by defendant's dogs. Mr R. Moore, of Foxtou, appeared for plaintiffs, and Mr P. Baldwin for defendant.

James Broome, an employee on the estate, gave evidence as to being awakened by the furious barking of dogs while he was camped on the property. He went out at dawn and saw three dogs and fired at them. He killed one dog and the other two got away. One of the latter was wounded. The dog which was killed was a black and white animal of the build of a spaniel. William Smaill, a shepherd on the estate, stated in his evidence that he went with the manager, Mr Renton, to Hemara’s and there saw the wounded dog. Defendant offered to let him kill it, but he told the Maori he did not like to kill another man’s dog. Hemara said the dog belonged to a man named Lawlor. They saw I,awlor, who lived at the same house, arid he said the dog belonged to the Maoris and had been

about the place for four months.* The dog was afterwards taken away and destroyed. William Renton, manager for Barber’s Estate, corroborated the previous witness’ evidence.

Eruest j. Beale, farmer of Bainesse, aud a neighbour of Wm. Eawlor, stated Hemara had been about the latter’s place for some time past. There were three cattle dogs on Eawlor’s, and they had been there for several months up to the time he last saw them. They were running about the old cottage that Hemara was living in.

Mr Moore intimated that this closed the plaintiff’s case, but reserved the right to call further evidence as to the value of the sheep destroyed. Mr Baldwin moved for a non-suit on the ground that there could be no joint liability for damage done by animals. With regard to two of the dogs, the ownership of which was disputed, the defendant was entitled to a non-suit. The third dog would be the subject of evidence showiag that it did not belong to Reman, but merely “hung about the place.” Hemara was not the “occupier” of the house, aud consequently was not responsible for the dog’s action. If the responsibility was to be placed it should be upon the' four persons living in the house aud thus constituting the “occupier” ; although he submitted that Mr Beale, as the owner, was legally the occupier. The Magistrate refused Mr Baldwin’s application for non-suit. The defendant said he remembered Renton and Smaill coming to the house in September and speaking to him about the dogs. He told them he did not know anything about the matter- It was true that he did not know who the owners of the dogs were. There was a Maori Council which registered the native dogs. Witness was not registered as the owner of the dogs complained of. They came to the kainga and he did not know whom they belonged to.

By Mr Moore; He told Reutou that the dog was not his (witness’s). He had seen the dogs at the kainga at times ; they did not stay there long. He saw Renton and Smail catch the wounded dog, he had nothing to say, as the dog was not his. Witness had been living in the locality since 1893. It had been his land. , Wm. Lawlor gave evidence that f he was occupying the cottage with, Hetnara at the time when the sheep worrying was complained of. He did not know of Hemara owning any dog during the time witness was there. Drovers' dogs might be seen about at times. This concluded the evidence for the defence.

Mr Moore said that his client found that the witnesses he expected to give further evidence as to the value of the sheep were absent from Palmerston.

Mr Baldwin, arguing in favour of a non-suit, said that it had not been proved that the first and second dogs had anything to do with defendant. Counsel did not think that either Renton or Stnaill had been other than reputable in their evidence, but with an old Maori like Hemara, who was deaf and not well learned in the English language, they might readily have mistaken what he said. Eawlor, an equally reputable witness had said that Hemara did not own the dog. Mr Moore said the claim was originally made in respebt of the damage done by one dog, and when it was found that there was another dog which was believed to be the property of Hemara, the claim was made in respect to both of them. No claim was made in respect to any third dog. It was quite clear from the evidence that Hemara admitted the ownership of the dog which was killed, and said the man could shoot it. If the dogs were allowed to remain for a considerable time about the house, Hemara was liable under the Dogs Registration Act as the occupier of the house. They must take the term “occupier,” as stated in the Act, in its ordinary meaning. Counsel explained the legal position as to persons who owned dogs or allowed them to remain about their premises, and their liability for damage done by such dogs, and reviewed at length the evidence given by plaintiff’s witnesses, showing that Hemara was the owner of the dogs, and liable for the damage done by them.

His Worship said that in these cases of sheep-worrying it. was always difficult to prove the ownership of the dog concerned. Jf the animal was registered it was too valuable to be allowed to wander about. The evidence in this case went to show that one 0: the dogs that which was wounded—belonged to Hemara. At the same time he should net be liable for the whole of the damage, which was done by at least two dogs. In that case the evidence justified him in reducing it. The fact that the wounded dog came straight back to Hemara’s showed his ownership. The total damage was £ 25, and judgment would be given for one-third of that amount 6s Bd, with Court costs rßs, solicitor’s fee £1 6s, application /• to lake evidence £1 is, and witnesses’ expenses £2 4s Bd.