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

Donnison v Sharpe [1830] NSWSupC 43

trespass to land, trespass to goods, pigs, shooting of, land law, title, damages, assessment of, fences, law of

Supreme Court of New South Wales

Forbes C.J. 16 June 1830

Source: Sydney Gazette, 17 June 1830[1 ]

This was an action of trespass brought to recover damages for the loss of some pigs, the property of the plaintiff, which the declaration alledged [sic] had been shot by the defendant.

The plaintiff in this case, was Henry Donnison Esq. a Merchant of Sydney, and the defendant, a person named Sharpe, residing on the North Shore, in the district of Hunter's Hill.  It appeared in evidence for the plaintiff that he was in possession of a certain piece of land on the North Shore, on which he had made considerable improvements, and that amongst other profitable speculations which were there carried on by him, he had introduced a number of New Zealand pigs, for the purpose of breeding.

The defendant is a farmer, and occupies about fifty acres of land, in right of his wife, who is the daughter of Mr. Milsom, an old resident in that neighbourhood.  The land occupied by Mr. Donnison adjoins that in the possession of the plaintiff, and the tresspass complained of, was for shooting certain pigs, which had trespassed on the land of the defendant, and, as was alleged, had committed serious damage, at various times, in his garden.  The evidence for the plaintiff, also went to show that he had offered to forego his action if the defendant would make an apology, make compensation for the damage which he had committed, and pay the costs which had been incurred up to that time, but that this proposition was rejected by the defendant.

On the part of the defendant, it was admitted that, in law, he was not justified in shooting the pigs, but, at the same time, it was contended that it was impossible, from their wild nature, to catch, in order to impound them; and also, that the plaintiff was, in fact, a trespasser, as the land which he claimed and occupied under a grant from the present Governor, was part of an allotment chartered out to Mr. Milsom, the defendant's father-in-law, by an order of Sir Thomas Brisbane, registered in the office of the Surveyor General.

Evidence was then called to prove the various acts of trespass by the plaintiff's pigs, and that a notice had been served on him, that they would be impounded or shot in the event of their not being properly secured.

Counsel for the plaintiff replied, contending that the defendant might have had his remedy against the plaintiff for any damage he had sustained, either by impounding the pigs, or by action of trespass, without wantonly destroying his property.

The Learned Judges summoned up the evidence, and told the Jury it was clear law, that when the domesticated animals of one person strayed upon the premises of another, he was not warranted in shooting them, but must resort to his remedy, either by impounding them, or levying his action for any damages he might have sustained.  The plaintiff was therefore entitled to recover, but in estimating the amount of damage they would award, they should also take into consideration the evidence adduced in mitigation by the defendant.

Verdict for the plaintiff, damages forty shillings.

Counsel for the plaintiff, Mr. Norton; for the defendant, Mr. Wentworth.

 

Notes

[1 ] See also Australian, 18 June 1830.

Published by the Division of Law, Macquarie University