Civil Cases.

Southland Times, Issue 751, 18 November 1867, Page 2

Civil Cases.

BA.SSTIAIS" V. EATMOJS'D. This was an action for damages, said to have been incurred by plaintiff to the extent of £5,000. The parties to the suit are adjoining runholders, in the Jacob's Biver district, and it was alleged that the damage was sustained by plaintiff through defendant's carelessness in allowing sheep belonging to him, known to be diseased, to stray upon the run, and mix with the flocks of plaintiff, whereby his (plaintiff's) flocks became also infected with the disease known as scab, to his great loss and injury. Mr Smith of Dunedin, and Mr T. M. MacdoftaJdj appeared on behalf of tfoo

plaintiff. The defendant was represented I by Mr Grarrick of Christchrch, and Mr James Harvey. A special jury was empanneled, composed of the following gentleman: — J. F. Dundass (foreman), Harry Armstrong, Alfred Beaven, Samuel Beaven, T. M. Clerke, James Grarven, Louis Longuet, Duucan Macarthur, Proctor Nicholson, Andrew Toshack, John Kingsland. Mr Grarrick applied to have the declaration, which comprised two issues, amended, by having them joined, which was granted. Mr Macdonald read over to the jury the declaration, which set forth the grounds on which the , action was taken and the items comprising the amount of damages claimed. Mr Smith in opening the case said — The ground of action was that defendant did negligently keep and allow to stray, certain sheep, knowing his flock to be infected, which, mixing with the flock of plaintiff's, they also were contaminated with the disease called scab to his serious loss. The law justly imposed upon everybody the duty of managing their own affairs so as not to inflict injury on their neighbors. Plaiutiff and defendant were owners of adjoining runs, the boundary between them, it would be shown, was well known not to be sheep proof. It consisted simply of a river, Jacob's Eiver, which was in fact generally easily crossed by sheep. It therefore became the imperative duty of the defendant, knowing his sheep to be scabby, to guard that boundary with the greatest vigilance, and if he did not use sufficient precautions, he was liable fer the consequences of such negligence. He believed that he could show that proper care had not been exercised, as it would be seen from the evidence to be adduced, that on at least three distinct occasions sheep belonging to him (defendant) had been allowed to stray across the river and mix ■with plaintiff's sheep. The first occasion was on the first of June, 1865, when sheep belonodnff to defendant were found on plaintiff's run, and were taken away by his men. It was just possible that those sheep were then clean, but on the second occasion, 23rd October following, a lamb actually diseased was found, which died on the tether while waiting the the arrival of the inspector. On the third occasion a wether and two lambs were found, bearing the defendant's brands, and actually scabby — badly diseased. These sheep were seen by the inspector, were killed by his orders, and plaintiff's run was in consequence declared unclean. It would be shown that Mr Basstain's run had been perfectly healthy from 1859 till this time, the close of 1565, when for the first time, scab was discovered in Mr Basstian's own sheep at shearing, in December of that year. He (Mr S.) would have to show, however, that this j mingling of the flocks was the result of negligence on the part of the defendant, and he believed he could prove beyond a doubt that it was so. The river boundary extended between the two runs for a distance of six miles. The country on both sides was one difficult to shepherd, (maps of the locality were here produced) consisting of spurs runniug down towards the river from hilld iv the rear, making the boundary all the more difficult to guard. It would also be shown that defendent had not taken sufficient precaution to cleanse his own sheep, in consequence of which the flock had become, between August and November, excessively diseased. Whatever instructions might have been given to shepherds had not evidently been carried out, and it was defendant's duty to have seen they were carried out. Plaintiff, it would be shown, had used every precaution on his part to prevent the sheep from mixing, by having the boundary patrolled by competent men every day, and driving the sheep on both sides of the river back, while during some three or four months the men performing that duty had only seen four times one man keeping the boundary for defendant on the opposite side of the river ; whereas, his sheep were seen on the river's brink every day. It would be .further shown that it would have sufficiently employed one man and horse to watch the boundary for defendant ; in fact, a man anxious to prevent his sheep from mixing with and infecting his neighbors, would have employed two men for the purpose. The evidence would show that only two shepherds were kept by him' altogether, to a flock of 8000 sheep, with the disease, and a bad boundary besides. The sheep were also crowded on a particular part of the run, called the Upper Eun. With reference to the question of damages, the jury would have to take into their consideration — first, the expense of cleaning, extending over eleven months, the decrease in the wool, and also in the lambs. There was also the general deterioration of the whole flock, and £215 los, fines paid by plaintiff on account of his run being diseased. • The first witness called was — • Charles Dean, sworn, deposed — I am plaintiff's manager on Dunrobin Station. Have been five years in that employment. Had experience in sheep before, seven years, " in Tasmania. I had experience of scab for the whole of the seven years in Tasmania. Scab is prevalent there. I had experience among sheep at home also. I _ have been continually going about among Mr Bastian's sheep, round the "boundaries, &c. They became affected (Mr B.s sheep) in December, 1865. At shearing I saw it. That was the first time I had seen scab in his flock. I examined them previous to that time by getting them in occasionally. There was no scab before that time. Mr Fielder T/as there frequently. I found several scabby sheep of Mr Eaymoud's among ours. First, on 7th June, '65. These sheep were branded JWE and S. The first is Eaymond's brand. S indicates scab. Notice was sent to Mr Eaymond. He took them away. The notice was in writing. They were kept on tether till geot for, Mr Raymond sent his

1 shepherd for them. Ther 9 were three sheep. I Another lalhb was found on 23rd October, '65. It was Esmond's. I knew it by the ear mark — a slit. It was scabby. It was also tethered. It died. On 10th November, same year, three more were found among Mr 'Bastian's flock, on the river flat, on Mr Bastian's side, a wether and two lambs. The wether was very scabby, so was alao one of the lambs, the other not so bad. "We knew them by ear mark, and by what part of the pitch brand was visible. JIJ and half of the W was. visible. ..The_WQol_was. off the rest. We also knew them by the fire brand on the nose, resembling a circle. These are Mr Kaymond's marka. The lambs bore no pitch brand, but ear marks, the same as the wether. Mr Steven, Mr Barnhill, and Mr M' Alpine, are also our neighbors. Their floqks were all clean. These runs, with Mr Eayinond's, entirely surround Mr Bastian's run. ! They are all extensive. The boundary between Bastian and Eaymond, is far from sheep proof. They can cross easily at several places when the river is in its ordinary state. The river bounds us for six miles. I knew Mr Eaymond's sheep were scabby as early as October, '65. I had seen 'them. I took consequently extra precautions to guard our sheep from crossing. Two men and myself, and one man, Lyon3, constantly for the last six weeks, had to range the boundary every alternate day. "We also were on it every day. I drove our own flock back, and also crossed and drove away Mr Eaymond's sheep. They were on the river side on every occasion. I saw on one occasion, during these three months, a man on Mr. Eayinond's run. He was going up the middle of their own run. That was the only time I saw any one. Mr Eaymond has put up a hut on the river boundary. In my opinion it would require one man constantly to look after that boundary. There was a breeding ffock on each side at the time. It required more care consequently. Motherless lambs, or ewes 6 without lambs, are apt to wander and cross the river seeking their dams or lambs. I kept the strange sheep on the tether when I found them, for Mr Fielder to see them. One died before he came. He came on the 24th of Oct. The sheep were killed and skinned by his orders. In December 1865 I saw for the first time scab on Mr Bastian's own sheep. Mr Fielder pronounced the run unclean before that, On the occasion of his seeing the sheep he ordered it to be killed. When I first saw the scale on Mr Bastian's sheep, it was quite young, or new, not more than ten days commenced. Scab makes rapid progress. The sheep were dipped at shearing, and once evwy two moncns up tiii List xlpril' Mr Bastian's run is very hilly and Droken. It is difficult to get the sheep mustered. The dipping cose £13(5 for labor only. Tae otner material required fur dipping cost over £LLOO. We hai over llyjOJ sheep to dip. There has been a reduction in the number of sheep, by death, from dipping during winter months. By clipping 1 consider we have lost 50UU sheep. The dipping also decreased the growth of wool. Scab also decreases the wool. Scab also decreases the bearing capacity of ewes. The kuocking about causes a number of lambs to die. In my opinion there should have been, but for the disease, 5000 more sheep on the run then there are. I sent notice in writing to Mr Eaymond when I found the diseased sheep in October. In November when scabby sheep were found I also sent notice. (Notice produced and read. Eeply also put in and read as evidence on the part of plaintiff.) Cross-examined by Mr Grarrick — I recollect receiving this letter from Mr Eaymond. (Letter put in and read.) September 1865. The weather from August to December 1865 was bad. It was continually bad. It was a bad season. It was not difficult to muster during the whole of the time. It was not raining or snowing during the whole of that time. I will not swear there were three fine days consecutively during that time. I did dot keep a diary. I have a book ii? which I took down particular circumstances. I have not brought it down. I brought down extracts from it. Mr Eaymond's station is called Avondale. It is not a very nice station. I never heard Mr Bastain express a desire to have it. Sheep farming is different in Tasmania. I did not come over with Mr Bastian. Mr Bastian had the station about six years before I came. During the five years I have been with him, I never saw or heard of a scabby sheep of Bastian's on his own run, or on the other neighboring runs, previous to the time in question. We mustered two or three times every year, tne whole flock ; oftener during the last two years, and continually since November, '65, to dip them. I was generally present during shearing. I never saw scab at those times. I heard of it. I examined the sheep when they were in. 1 never mustered them for the purpose. There are two kinds of scab, dry and green. I have experience of both. The practice for cleaning is different in Tasmania. They only spot them there. We had conveniences for dipping, but not for mustering. We mustered for cutting and tailing, in small lots. We mustered in larger lots for dipping — 1500 to 2000. Ours were not bad when first discovered ; just breaking out. 1 don't know how long in such a case it should have taken to clean them. This was the first experience 1 had had in cleaning a run. We mustered and dipped the whole of the sheep, and dipped them again within six weeks. I don't know whether two dips should have been sufficient to clean them. There were 14,500 on our run then. There were 6500 ewes. We use tobacco, sulphur, and soda. We allow four pounds tobacco to the gallon, and it requires half a gallon to a sheep, at each dipping — more after the wool begins to grow. Two dippings should have cured them. No doubt it would had we got all the sheep in,, It's very common for sheep to

stray. Ours did occasionally. It can't always be helped. It might be possible under the best management for the sheep to stray. We exchanged sheep at shearing, &c. We never had Eaymond's amongst ours previous to 1865. We got some of ours from him in 1863, and once since. It is usual to have gathering dogs with ewe flocks. I don'b know of the distinction — " a gathering dog." I remember getting Mr Eaymond's letter in September. At that time E had three persons working the river boundary from the Head Station down. When I got that" notice, I paid the mau (Lyons) who was keeping the boundary between Bastian and Stevens, ertra, and gave him a horae to ride the Jacob's Eiver boundary every alternate day. I believe the sheep mentioned brought the scab into our run. Mr Fielder bought no sheep from Mr Bastian in my time. The wether was the only sheep bearing the pitch brand. I could tell whether it had been diseased three or six months. We mustered the sheep always when Mr Fielder came, except when lambing. We mustered quickly, as clean as we could make it. It took us about a fortnight to muster. On ordinary occasions it took a fortnight to three weeks. It took us five or six weeks to muster to dip. I can't tell the cost of dipping sheep per 100 for two dips. I got the figures quoted from the accounts. 1 did not disburse Mr Bastiau's money. I did not bring the accouuts with me. We used Hood's specific. We cured with tobacco in Tasmania. We have been cleaning for eighteen months ; they are not clean yet. We spotted one or two on two occasions for cuckoo scab. The difference between the diseases is that the one has no insect. The sheep kick and bite when they have the real scab, not with the other. I didnt spot twenty altogether. Mr Eaymond's run was first scabby in August, 1864. Spotting is not usual for cuckoo scab. (To he continued.)