DISTRICT COURT HAMILTON.

Waikato Times, Volume X, Issue 716, 18 January 1877, Page 3

DISTRICT COURT HAMILTON.

Before Hia Honor Judge Fenton, Wednesday, January 17. Ed. Hewett v Lloyd—Mr F A Whitaker for plaintiff, Mr Alf Whitaker for defendant. Defendant's counsel applied for an adjournment, which was not grunted. Plaintiff, sworn, said he resided at 'Cambridge. Defendant was indebted to him in the amount claimed, £45 Judgment for plaintiff, with costs, £5 15s. Jury Cases. W Belby v John Runciman, Mr F A and Mr A Whitaker for plaintiff, Mr J B Russell for defendant. The jury consisted of Messrs Carpenter, Clauuo, Clark, and'Coates. William Selby, sworn, said— - 1 . know the plaintiff. His land adjoins mine. I left poisoned meat on my land. It was placed above 60 yards from the fence. I •did bo beoeuse dogs worried my aheep. I don't keep doga of my own. I had a dog at the time I left the poison. I poisoned my own dog with a view to find out the dog that was killing my sheep. »I poisoned my dog on the 15th Nov. By [p4r~Russell -My sheep were wonied before I left the poison. They had been 'Worried on several occasions. » John Runciman, sworn—l am a settler residing in Cambridge district. On the 18th November I was on my farm adjointhat of complainant. I had a dog with me. It was a good sheep or cattle dog, would work either. He was a trailed and obedient dog'. I took him to get some cattle. Going to meet the'caltle, I stopped to hinge a gate on my own farm. 1 tied my Iffifsibfco one of the gate posts. The dog lay down alongside the horse. While at work the dog went across the fence into Mr Selby's. About two yards from the d.toh I saw the dog pick up a piece of meat. I told him to drop it. He ■did, and the meat fell into the ditch of the division fence. Where he lifted the meat was 2 yards from the ditoh, and bout 7 yards from my gate, where I was standing. The dog came through the fenoe, lay down by the horse again, and died inside of ten minutes. I would not have taken £SO for the dog. A dog like that was of more service in a flock of sheep than two men. My dog never worried a •sheep. I oould trust him with sheep and lambs for an hour together. I never knew him to go into Mr Selbys. He was kept tied, unless in charge of someone, and always tied up ab night. To Mr Russell —I dont like a lawsuit. I called twice on Mr Selby about this . cotter of the poison. 1 did not make -any olaim agaiust him, I had no com•muoioation with Mr Selby, himsalf, previous to taking proceedings. Tuere was .a good fence between myae f and Mr ! belby's, puriri posts, and wire and ditch. Where the dog was poisoned; th-.re was a bank, wire fence and double ditch. I could see what happened two yards on the other side. Tue bank wa-s 30 or 36 inches high. I don't know who put the poison close to the fence. It was quite ! possible that the poisoned meat mhjht have been carried,from where Mr Sblby placed it. I paid £(i for the dog. He wjwj tolerably well trained wheu I got him. I think 1 could nave gob £SO for fliim I never offered to sell him for £SO. I have bad some of my shet-p worriel .after this time. I was told that morning by my own man, that Mx Selby told him to tell.me he was going to lay poison. I didnt know where he was going to lay jpoison. I think I used sufficient caution in (stopping with the dog to near the boundary, as'he was under my contral. Charles Crouch, labourer, stated—lam Mr Runoiman's servant and was with him when the dog was poisoned. I beard Mr Runciman shout at the dog, " what had he got there." The dpg was about two or three yards from the ditch on Mr Selby's side the fence. We could see ■Hum easily. The dog was then in the -control of Mr Runci.i.an .} be was a splendid dog with siieep or cattle. He wouldn't coven bite a sheep when yarding them. Mr Russell said he would not call evidence for the defence and nothing had been said to contradict the statement of M Selby that the poison was placed some 60 yards from the fenoe. There had been no wrongful act, nor malice shown. It was justifiable for him to protect his own property. Had he been there he could have shot the dog had he been unaware •of the dog's character and not been actuated by malace. Council then entered into a review oi several cases furnished by the law books during the last half century, arguing that it was defendant's rigiht •to place poison for the protection of his property and that he oould not be held responsible if any animal wrongfully on this land whioh had no right to be there, ate it. He concluded there was no law in existence which rendered it necessary .that notice that poison has been laid must "he given, or that poison must not be laid within a certain distance of a public way 'Or neighbours property. Such notice is only liable in the case of spring traps and •guns placed to injure human trespassers. He quoted a case where a person's dog pasting round the counter in a pastry -cook'3 Bhop ate poisoned food placed there to kill rats andmioe. The rpastry -cook was held guiltless though no notice of poison being there was given,; ilpoause p'adntiff's dog had no business )#&ind the counter. There had been nothing shown that the poisoned -meat placed by Mr Selby on his land was calculated to influence the instinct of dags on attracting them to it. Mr Whitaker, for the plaintiff, argued -that the cases quoted were not analogous to the present one. There were two principles -brought info conflict, —the one, that no .man has a right to use hi* own property so as to become detrimental to his neighbour. He then proceeded to show that this was .done to the injury of a right posseesed by plaintiff. The oaae wsb narrowed to a question of faot. The words "at large" in the Colonial Statute did not apply to plaintiff's dog, which oould not drive sheep if led by a string. The oase of a , spear fixed in a particular spot to which a hare fortuitously attracted a dog was not analogous with a piece of poisoned meat, which could have been moved from the spot at whioh it was placed by any animal or by a hawk. It might, indeed have been carried two yards further into plaintilffs land itself. It would he impossible to keep sheep with a dog, or to work a sheep dog without a string round its neck, and therefore if such aheep dog could not be kept and worked without fear of poisoning, and it was necessary to use such dog to enjoy the full Use of a farm, defendant in perilling plaintiffs dog, was interfering with the rights of property enjoyable by plaintiff. The case of the dog going around the counter of the pastrycooks shop was not analogous with the present case. The dog, then, was a trespasser ab initio. The piople who took the dog into the outer shop themsclvtp, made the

auother persous house as to attract Lis animals, is responsible for damage, even tl ough done without intention to injure the owner of the animal, and only to ide troy veimin. Counsel contended that tl e d >g was not "at large," according to he Colonial Statute of 1865, being \vih his master, though not connected with trim by a fetring. The Couit h-re quoted the Act, to show the interpretation therein put on the words "at large," as meaning not '* *ie 1 up " or ■•* contiued.' The Court then said : Gentlemen ci the jury, if you find this land on which he dog was killed, was the property of Mr Selby, and if you are of opinion that the dog ww killed on it by Mr Selby, or his agent, and if you find there were sheep on it, which, however, does not matter, you must find for defendant. The law is in favour of defendant, and you could not possibly find for plaintiff, inao3 rdance with law.

Alter a short consultation, the jury found a verdict for the defendant.