RESIDENT MAGISTRATE'S COURT

Nelson Evening Mail, Volume XIV, Issue 222, 30 September 1879, Page 2

RESIDENT MAGISTRATE'S COURT

[Before L. Broad, Esq., R.M.] Fogden v. Frederick Ellis. Action to recover £20 damages for the wilful destruction of two dogs. Mr Percy Adams appeared for the plaintiff, and Mr Buiny for the defendant. W. F. Fogden, accommodation house keeper in Moiueka Valley, stated that he had two dogs in March last, for one of which he had paid £5, the other had been lent to him, and the owner had since claimed £15 for it, and would have asked more but that he was a friend of the plaintiff. On "the 24th March the dogs were missing. "Mr Kicbard Ellis called at the accommodation house |and complained that his sheep had been hunted about and were lying all over the place, and said that he had' the dogs in custody. Next morning plaintiff went to Mr Ellis' man who was tailing the sheep and asked him about it, and he said it wa3 no such thing. He afterwards met Mr Ellis and told him he could not find any of the sheep that were said to be injured, and asked him to give up the dogs. The next day he sent his man to Ellis' station for the dogs but he refused to give them up. Plaintiff then himself asked for them and he said he would not give them up, but that he intended to destroy them. George Wood was then called as a witness, but did not answer. Service of the summons was proved. John Bateman was working for Ellis Brothers in March last. They arrived at the station with a mob of sheep from the Amuri. They had several dogs with them including two strange ones, which he was ordered to tie up. They did not look like sheep-worrying dogs. He believed they were Fogden's dogs. They were tied up a week or ten days, and at the end of that time the defendant told him to go and bury the two dogs which he had destroyed. He went to bury them and found one hanging by the neck and the other lying dead. Peter Paul stated that he had sold a dog to Fogden for £5. It was worth double that amount. About four months ago he was at Ellis' station when the defendant mentioned that he had hung two dogs. The other do<* which had been lent by Gibbons to Fogden' was worth £20. He had heard Gibbons say that he had claimed £15 from Fogden for it This closed the case for the plaintiff. Mr Bunny in opening the case for the defence admitted the destruction of the dogs but relied upon the "Injuries by Dogs Act' 1865," in justification of the act. His Worship said that the Act only provided for a summary remedy, and that dog 3 found worrying sheep must be destroyed at the time, but that they must not tie up dogs for a week and then calmly kill them. Mr Bunny thought that was a very narrow construction to place upon the Act. K. C. Ellis stated that he had brought a mob of sheep from the Amuri. They were very tired and he had left them just within the boundary of his run, and he and his brother went out to them the next morning wheu they found them scattered all over the country, and the dogs in questiou standing by two of the sheep, off one of which the shoulder was torn, and off another a hind leg, and the dogs were gnawing them at the time. They had no knife or anything to kill the dogs with and so they took tbem home , and let Fogdeu know where they were He j thought Fogden would have come down tt ud ' pleaded for the dogs but he did nothing of I the kind, arid eventually he had the dogs killed. If the dogs had been ever so valu able previously they would have been worthless after taking to sheep worrying. The solicitors for the .defendant and plaintiff haying addressed the Bench Hi 3 Worship said that the case was one of some importance, and it was desirable that owners of sbpep should If now exactly what their powers were under such circumstances The Act upon which the defendant relied provided two remedies, one by which the offending dog might be destroyed, and the other which provided for an action being laid for damages, the owner of the sheep destroyed or injured being allowed an advantage that did not exist in the English Act, namely, that he was exempted from proving that the owner of the dog was aware of its mischievous propensities. The present action had arisen out of the defendant misuuderstiuidinji his legal position. He (Mr Broad) was perfectly clear that, where the owner of the iujured sheep chose to kill the dog that worried them, the remedy must be adopted there ami then, and that by taking the dog and tying it up for some time he waived his right to kill it, and was left with only the a ttnmttve remedy, namely, to bring a civil action for damages. The case, as he had said before, was one of great importance to those similarly circumstanced, and he should like toseeau appeal to the Supreme Court, although he felt conviuced that his reading

of the Act was the correct one, and that in slaying the dogs after a considerable lapse of time from the date of the injury the defendant had committed a wrong for which he was liable. Judgment would be for the plaintiff, and as there had been no contradictory evidence adduced as to the value of the dogs, it must be for the full amount claimed, £20, and costs £3 ss. Mr Buuny said that Messrs Ellis Brothers would bring an action against Fogden for damages eauaed by his dogs killing the sheep