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Decisions of the Superior Courts of New South Wales, 1788-1899

Hynds v. Byrne [1811] NSWKR 3; [1811] NSWSupC 3

cattle - negligence - incomplete contract

Court of Civil Jurisdiction
Bent J.A., 11 April 1811
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1105 (case no. 142)[1]

[88] Thomas Hynds against Andrew Byrne

Writ to recover the sum of £80, being damages sustained by plaintiff by reason of the loss of two bullocks, the property of plaintiff and by him entrusted to the care of the defendant.

Defendant pleads the general issue. Plaintiff puts in a written statement of his case [following two words crossed out: which is] filed and read.

[89] Michael Byrne sworn, says, I was present some time in December last but I do not exactly know the day when Hynds delivered to Andrew Byrne four working bullocks. I delivered three cows to him at the same time. I do not know whether Byrne was to have the charge and care of them. I did not hear any agreement. With regard to my cows he said he would not engage to follow them. He would take them where there was grass and see them now and then. He said he would put them into a place that was nearly inclosed by water except one spot across which he would put a bar.

William Smith, sworn, says, I am plaintiff's servant. My master had before this time sent out bullocks to Byrnes' farm at Botany Bay . Some time before Xmas Byrnes came to my master and asked him to let the bullocks go out again. My master said he was afraid the cattle was dying there. He said no, if anything happened to them he would be answerable for them. My master said he would consider it for a day or two. My master let him have the bullocks. He said he would take care of them, and follow his bullocks as a stock keeper, and attend them while grazing and be responsible for their loss. My master was to give three shillings a week for the whole of the four bullocks. No rations or slops.

John Davis sworn, says I was going out a fowling one day and I saw two bullocks lying dead in a swamp near Mud Bank. I don't know whose they were. I think they had been dead some days. They were putrid.

[90] William Smith, being called again, says hearing that two of my master's bullocks were swamped I went with him to see. We found there two dead in a swamp Mud Bank, and putrid. They were two of my master's bullocks which were delivered to Byrne.

For the defendant.

The defendant says he never had such charge of these bullocks or any other so as to become responsible for them. That he never was a stock keeper, and that he has a farm at [Mud] Bank, and obtains his livelihood by fishing and cultivation. That he received the bullocks at a price for allowing them to graze where they did, which was close upon his person, and never engaged to follow them. The price he said he would give him was only three shillings a week, but that defendant never received any part thereof.

Samuel Hockley sworn, says I sent a bullock out to Byrnes' farm. He charged me a shilling a week for the bullock's grass. He was not to follow the bullock nor did I consider him responsible for them. I know Byrne. He gets his livelihood by tilling the ground and fishing.

Daniel McCullum sworn says, I have two cows at defendant's farm. He agreed to take them at the same time he was taking Michael Byrnes' cows and plaintiff's bullocks. He said he would not follow them but should charge a shilling per head [91] for grass. He told me he would not be answerable for any accident to them.

The court having maturely deliberated do adjudge that the defendant never undertook to become responsible for the loss of the bullocks, nor ever had such charge of them as to throw that responsibility upon himself by law and therefore give judgment for the defendant.


[1] There were several cases of this kind. When one person paid another to look after cattle or sheep, what were the rights between them when the stock went missing or died?

See also Nokes v. Hayes, 1821; and see Sydney Gazette, 17 December 1809, 2, the latter reporting a case before the magistrates on the same point. Magistrates often heard small civil actions.

Published by the Division of Law, Macquarie University