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

Keyes v. Smith [1839] NSWSupC 77

land law, title of squatters - squatter's run, trespass on - Wellington Valley - agency - vicarious liability

Supreme Court of New South Wales

Dowling C.J., 17 October 1839

Source: Sydney Gazette, 19 October 1839[1] 

This was an action of trespass to recover compensation in damages for the injury sustained by the defendant's sheep depasturing on the plaintiff's run at Obela, Wellington Valley. -- Nonsuit.


Dowling C.J., Willis and Stephen JJ, 28 October 1839

Source: Sydney Herald, 30 October 1839 [2]

Keyes v. Smith. -- This was an action to recover compensation for a trespass upon a sheep station, called Obelah, tried during the term before the Chief Justice.  The plaintiff proved his possession of the station, and that the defendant's sheep were driven upon the land, whereby the plaintiff's cattle were scattered.  There was no proof that the defendant commanded his servants to commit the trespass, nor was there any proof of their subsequent assent to it, except that notice of it was given to them; and it was contended that as the trespass was continued after the notice was given, it must be considered as an assent to the trespass the Chief Justice, however, thought otherwise, and directed a nonsuit on the ground that there was no proof that the defendants either commanded or subsequently assented to the trespass.

The Attorney-General now moved for a new trial on the ground that there was evidence that the trespass was committed by the previous authority of the defendants, or that they subsequently adopted it.  He contended that the sufficiency of proof was a question for the jury, not for the judge.  There was evidence that the [trespass was committed in March -- that the sheep remained there until] twelve days before the trial -- that a stockyard and huts had been erected, and the plaintiff's cattle dispersed through the country; and as the trespass was continued, the defendants must be looked upon as adopting the original trespass and, in fact, committing a new one.  Lord Denman, in a case in --, said, that he for whom a trespass is committed is no trespasser himself unless he commands it to be done; but if it be done for his benefit, and he assents, the assent is equivalent to a command.  He contended that it was evident feeding the defendants' sheep was for their benefit; and if the conduct of the defendants in this case was not sufficient proof of subsequent assent to go to a jury, it will be impossible with a cautious defendant, who sends his sheep out with convict servants, to maintain an action of trespass. If the question were left to the jury, they would have been enabled to judge whether from the returns sent to him of a trespass having been committed; and if he was not ignorant of it, and allowed it to continue, he must be looked upon as having adopted it.

Mr. Broadhurst on the same side contended that without any notice the defendants were liable for the acts of their servants, that under the general authority given by masters to their servants they were liable.  If the servants were in posses[s]ion of the master's cattle when the trespass was committed, the master is clearly liable, unless he shows that it is the wilful act of his servants.  In the case of Barker v. Berkeley it was laid down that if a person sends his servant out with his hounds, and invites others to go with them, he is [answerable for] all the injury they do, although he does not himself accompany them, and on the same principle he contended that if the defendants sent their cattle out they were liable for any tresspass they might commit.  If the Honors held otherwise, he contended that the result would be most mischievous, for a person would have nothing to do but send his sheep out on a roving commission taking care not to give orders to them to commit a trespass, and he is not answerable for any trespass they may commit.

The Court refused the motion without calling on the other side for a reply, on the ground that there was no proof of either subsequent assent or previous command, on the part of the defendants, and without that a master is not liable for the wrongful acts of his servants.



[1] See also Australian, 19 October 1839; Sydney Herald, 18 October 1839; and see Hallen v. King, 1839; Dangar v. Mann, Sydney Gazette, 19 October, 2 November 1839; Sydney Herald, 18 October 1839; Australian, 19 October, 2 November 1839; Bailey v. Busby, Sydney Gazette, 19 October 1839; Sydney Herald, 21 October 1839; Dangar v. Swayne, Australian, 24 October 1839; Sydney Herald, 25 October 1839.

[2] Australian, 31 October 1839.

Published by the Division of Law, Macquarie University