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

Lees v. Henderson [1839] NSWSupC 9

animal, damage to - self defence, against animal - Punchbowl

Supreme Court of New South Wales

Dowling C.J., 12 March 1839

Source: Sydney Herald, 13 March 1839[1] 

Lees v. Henderson. -- This was an action on the case to recover compensation for injury done to a bull.  The declaration set forth, that on the 16th of August, the defendant shot at the plaintiff's bull which was worth £50; by which the bull lost an eye, and was otherwise much injured.  The defendant's first plea was son assault des mesne, or, that the bull committed the first assault, and would have chased, worried, ill-treated and gored the defendant, upon which he necessarily shot him with a little gunpowder and a little shot, and inflicted a little wound as in the first count stated.  A second plea stated that the bull, without having first obtained the defendant's permission, attempted to get into his garden; upon which, he shot him in defence of his possession.  To this the plaintiff replied, that if the fact were so, the defendant had used more violence than was necessary.  Damages were laid at £50.

It appeared that the defendant was living near the Punchbowl, in the neighbourhood of the plaintiff, whose bull was in the habit of trespassing on his garden.  The bull had been repeatedly driven away, and in August, the defendant shot at it three times with small shot.  The shot struck him in the eye and body, and injured him so much, that he was unable to work for three or four months.

His Honor left it to the jury to say whether or not the defendant used excessive violence in repelling the trespass.  Verdict for the plaintiff, damages £5.

Counsel for the plaintiff, Messrs. a'Beckett and Foster; attorney, Mr. J. Stephenson Clark.  For the defendant, Mr. Windeyer; attorney, Mr. Norton.

 

Notes

[1] See also Sydney Gazette, 14 March 1839; Australian, 14 March 1839.

Published by the Division of Law, Macquarie University