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

Hall v. Scougal [1840] NSWSupC 62

squatting run, trespass on, Namoi River, jury, special

Supreme Court of New South Wales

Willis J., 16 October 1840

Source: Sydney Herald, 19 October 1840

Before Mr. Justice Willis and a special Jury.

            HALL v. SCOUGAL. - The plaintiff in this case was Mr. George Hall, a settler near Pitt water, and the defendant was Mr. Richard Scougal, a flock holder; the action was brought to recover compensation for a trespass alleged to have been committed beyond the boundaries.  The declaration contained three counts; viz., 1st, for having in the year 1836 broken into the plaintiff's close on the Upper Namoi River known as the Curenda Station; 2d, for having about the same time broken into another station about the same period; and 3rd, for having rushed and driven off the plaintiff's cattle by which the plaintiff alleged he had been damaged to the extent of two thousand pounds.  In reply to these counts the defendant pleaded the general issue - also that the plaintiff was not possessed at the time of the alleged trespass.

            The plaintiff's son, Mr. Thomas Hall, proved that in January 1834, he was sent up by his father to form the station, which he did by placing nine hundred head of cattle on the run, which extended from three to ten miles in length, and was about eight miles in breadth; that when he went to form the station there was no person in possession of the run, nor did the defendant come there until about two years after, when he brought several flocks of sheep, which began to overrun the plaintiff's station, and subsequently eat the cattle out, and when remonstrated with about his encroachment, he refused all redress, but on the contrary occupied the station.  At the time when the defendant began to trespass there were about fifteen hundred head of cattle, which he estimated had been depreciated about £1 per head, and also it was the witness's opinion that the station would have been worth £500 had the cattle not been driven from it by the defendant's sheep.

            After the plaintiff had finished his case, the Court adjourned till the following day, when Mr. A'Beckett addressed the jury for the defence, and called witnesses to prove that the plaintiff had only been partially in possession, and that he had received no damage.

            In putting the case to the jury his Honor laid down the law of the case, and stated that the case was extremely like that of Scott and Dight, which had been tried in March, 1839, and in which the jury had returned a merely nominal verdict.

            The jury returned a verdict for the plaintiff, damages Forty Shillings.

The plaintiff's counsel applied to the Judge to certify for a special jury, when his Honor stated he would certify in the present case, but now that the law respecting squatting cases was so well known, he thought that in future they could as well be tried by common as by special juries, and therefore he would not certify in future.

            Counsel for the plaintiff Messrs. Foster and Darvall, Attorney Mr. Norton; Counsel for the defendant Messrs. A'Beckett and Broadhurst, Attorney Mr. Minithorpe.

Published by the Division of Law, Macquarie University