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

Merritt v Galloway (1830) NSW Sel Cas (Dowling) 22; [1830] NSWSupC 62

impounded animals

Supreme Court of New South Wales

Dowling J., 8 September 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466[ 1]

[p.14]

Where sheep accidentally got out of a paddock into the Streets of Sydney, and had no driver with them  Held that they were not within the meaning of the N.S.W. Impounding Act 9 G 4. No 11. s.11.

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 44, Archives Office of New South Wales, 2/3227

[p. 69]

Wm Merritt v Edward Galloway

Replevin taking on 24th Sept 1829 80 wether sheep of plf. in Sydney.  - Deft avows taking for being at large in public Street and nobody to take care of them under local ordinance pounding act

Wardell

Justification under a local act.  They were taken not at large contemplated.  - Deft proves justification.

Norton begins:

Deft keeper of Sydney Pound. - Sheep deled[2 ] to deft. & he defends on ground that were liable when taken in the street without a driver - They were seen wandering abt the streets at Sydney. They had been 20 minutes & half an hour & demanded [p. 70] in charge.  - Instead of poundage being pd. - acted upon their representation to cover their misconduct.

Deft himself accuses - not aware of the impounding.

John Kelly:

I am a conductor in the Sydney Police.  In Sept 25 - 1829 I was standing in George St & being wardsman of the district. I saw a lot of sheep 79 - or 80 - coming along. There was nobody after them. It was between 12 & one in the day.  I stopped for about a quarter of an hour to see if there was anybody along with the sheep.  I went along & saw another Constable & he drove them to the pound.  Galloway [p. 71] was renter of the pound & he had a man named Filly & Wife as the actual poundkeepers.  We began counting them into the point, & did so as near as we cd & we counted 79 or 80.  It is difficult to count sheep because they run backwards & forwards.  I went to Mr. Galloway & reported the circes - Guide & Bowers assisted me.  Bowers stood by while I counted them.  On next day there were taken out.  We stopped some time before any one came.  After they were in we met a man who came & asked if we had seen any sheep, & we told him we had put them into the pound.  The dues [p. 72] wd be 8 pound.  That is what I understood is allowed for them.

XX[3 ] Wardell

If there be anything allowed for them I expect my part of 8 £ of course.  The sheep were grazing along the street part on George St & part of Bathurst Street.  It was facing Mr Grous.  They were making their way down the hill. I waited for a quarter of an hour before I touched them.  The man I did see was not running very fast.  He met me & he asked me if I had seen some sheep.  - It was close to the Woolpack.  The woolpack is at the bottom, & the sheep were on the Hill. [p. 73] We were as good as 20 minutes before any body came.

Re xd[4 ] Mr. Bowers was coming along with me.  No part of the poundage goes to Galloway.

Mr. Bowers

I was with Kelly at the time he pounded some sheep of Merrits.  They were in George Street & part up Bathurst Street.  They were scattered about.  No one was near them - only people passing backwards & forwards.  Kelly & me were talking at he end of Bathurst St - saw the sheep come up - scattered - several carts & people stopped.  I spoke to Kelly & told him to get a constable & take them to the pound.  I had nothing to do with the pounding - I heard afterwards they were [p. 74] impounded.

XX -.  I don't expect anything for impounding these sheep.  I don't expect to receive a part of the money: -

John Guider

I am a labouring man  - I know Kelly impounding sheep.  I was constable at that time.  I was coming home from Watchhouse when Kelly called me to drive the sheep to pound & I did so.  I saw nobody with sheep or apparently belonging to them.  I did afterwards in 1/2 hour & a man came and asked Kelly abt the sheep & we told him he had impounded them.  He appeared not to know where they were & Kelly told [p. 75] him.

XX - I expected my [?] about that time.  I expected my share of the 2/ - a head at that time.  I suppose Kelly wd expect his share - I did not see Bowers.  I don't know whether he is to have share.

re xd -  There were 80 or 79.

Mr. Collins

I was in a shop when the Sheep went past.  I saw them.  There was an assigned servant of mine told me they were Merrits sheep. They were going along the street, but whether astray or not I did not see.

Local ordinance. -

public annoyance injury & inconvenience of ind [p. 76] term act &c or in case found at large without being under - demand for every horse - 5/ - sheep 2/ -.

XX - Those were walking - some running. - They make way to place whence they came.  They were going in a straight direction.  They did not stand still at all.  My [?] sd they are old Merrits - & he wd go for a constable.

Elizabeth Tilly

I was at the pound when the sheep came.  It was an hour afterwards that they came up abt the sheep.  That Mr Merrit & his men.  We did not know whos they were for a full hour.

XX I saw no one.  We did not know whos they were. -

[p. 77] I t was not Mr Merrit who came.

John Collins

I am govt man[5 ] to Mr Galloway.  I remember some of Merrit's sheep being impounded.  I recollect his coming to Galloway abt them.  He demanded the sheep.  My master sd if he cd settle with the constable - he had no claim himself. Galloway is entitled to 2d a head a day for the sheep. - Mr Galloway sd he wd forgive him the 2d if he settled with the Constable - that he was satisfied.

XX.  Galloway went to the Constable I can't say where he got the twopences.

Dr Wardell

Mischievous operation of act.

[p. 78] Intent of act - to put at [?] a practice - of [?] act horse, goat & graze by the side of the road.  No clearly to visit with a penalty.  Might for a moment escape from them.

To be & remain.

Evidence

Henry Dorman

On the 23d or 24 Sept last, these sheep left a paddock opposite one place.  I am in Mr Merrits employment.  Mr. Levy's man had the key of the gate abt 10 minutes before.  He opened the gate & went down to the paddock.  The sheep came out. He did not close the gate.[6 ]

Just [p. 79] as the sheep got out I saw them. I called the shepherd who was in the back place, & he went immediately after the sheep.  I saw him pass in front.  He is about 40.  He had no shoes on. The stones wd cut his feet, & he cd not run so fast.

Thos Hardy.  I am a gardener by trade.  In Sept last I was shepherd to Mr Merrit.  The sheep were in  Levy's paddock & the gate was left open & immdey [sic] after I had orders to run after them.  They were going along the road down George St - they ran too fast me.  But I cd track them by their footsteps.  They got out of my sight.  When I got [p. 80] to the bottom of Brickfield Hill, I met two constables coming away from the pound & they told me they had put them in.  I found them half - I found them not far from the pound.  Mr Dorman told me the sheep had got out of the pound.  I saw them at first & I came after them as fast as I cd but I cd not overtake them.  I had no shoes.

John Ralph

I am a landholder - I remember seeing the sheep near the [?] Brickfield Hill.  They were running [p. 81] smartish.  I saw the shepherd running after the sheep.  At that time they were in the custody of the two constables.  The shepherd was a good bit behind running after the sheep.

Reply

Norton

Dowling. -  This ordinance to have a reasonable construction.  Being a penal act it is to be constructed strictly.-

Should be construed with reference to the objects & policy of the act, & the mischiefs to be remedied.

Qn is whether sheep escaping out of a paddock accidentally, & prompt steps taken o pursue them & recover them comes within [p. 82] the act.

If as a matter of fact the assessors believe that these were accidentally let out & not turned out the Plfs servants promptly pursued them then I hold in point of law that this is not a case within the local act.[7 ]

Witnesses for the Deft have some interest.

The act contemplates a wilful turning out [?] to depasture in the public streets.  To the destruction of the highway. -  Mere accidental escape of the sheep or a horse or a sheep, & the owner promptly runs after them.

The common law wd give a remedy for any injury done within the public,.

[p. 83] Assessors find for Plf.

Subject to a motion whether it was necessary to prove that the sheep were turned out in order to bring the case within the local ordinance.

The assessors negativing a turning out +

- If any person shall turn out into the public streets &c any times & c or in case any such horse &c shall be found at large in any

``I thought the word such ties up the act to horse &c turned out"

 

Notes

[ 1] See also Clarke v. Robertson, 1831, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 65.

[2 ] "Delivered."

[3 ] Cross examined.

[4 ] Re-examined.

[5 ] Assigned convict.

[6 ] Marginal note in manuscript: " If a bona fide case of driving sheep to market, & not a [?]out, Not within the penalties of the act which must be construed strictly.  An acting escape.  cd not overtake them."

[7 ] Marginal note:  "9G4 No 11 s.11"

Published by the Division of Law, Macquarie University