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

Boyd v. McLean [1847] NSWSupC 7

trespass to squatting run

Supreme Court of New South Wales

Stephen C.J., 7 December 1847

Source: Sydney Morning Herald, 8 December 1847, in Supreme Court Collection, Vol. 1, p. 36

This was an action of trespass to a run or station called "Capertree," the defendant pleaded first not guilty; secondly, that the plaintiff was not possessed of the said station; and, thirdly, that the run or station, &c., was the close of the defendant. The cause was tried before His Honor Mr. Justice Dickinson at the last Assizes holden at Bathurst . The Jury found for the defendant on the plea of not guilty, and on the others for the plaintiff. There had been another count, applicable to the same; but by consent a verdict, on the issues raised on the pleas to this count, was given for the defendant.

The ATTORNEY-GENERAL, (with whom was Mr. DARVALL), now moved for a new trial on the following grounds, amongst others, viz., that His Honor misdirected the Jury in telling them, that as the plaintiff's run or sheep station was called and described as known by the name of Capertree, but the particular part of it, where the trespasses were committed, was known by the name of "Jameson's Swamp," therefore the trespasses were not proved as laid in the declaration; and further, that no owner of sheep in law would be answerable for any trespass committed by his sheep, unless the owner were himself present at the time with the sheep, or were proved to have expressly ordered his shepherds to take them on to the close in question, and that there could not be any adoption by the master of a trespass to realty committed by his servant, except in a case where the servant having cut and carried away grass, the master afterwards made use of it; because the master when an ordinary trespass to realty had been committed by his servant had no opportunity of renouncing, and therefore could not adopt it. It was contended that though Capertree was a larger district, yet the plaintiff's run or station was known by that name, and trespasses were proved as having been committed in "Jameson's Swamp," which was part of the plaintiff's run; that the description set out in the declaration would be sufficient to cover any trespasses committed on the "Jameson's Swamp;" and the particulars given by the plaintiff of the spot where the trespasses had been committed and complained of, and which must be taken as part of the record, would amply show to the defendant that the plaintiff intended to rely upon the trespasses committed to the "swamp;" at any rate it ought to have been left to the Jury, that although the part was known by the name of the "Jameson's Swamp," whether it was not equally known as Capertree run, or a part of the same. And on the other point it was contended, that if that ruling were to be held good, it would be impossible, in almost every case, where the owner of a sheep station did not reside on it, and did not take an active part in its management, to maintain this form of action against a trespasser.

Mr. MICHIE and Mr. LOWE for the defendant, contended that as the plaintiff had only stated the name of the run or station where the trespasses had been committed, and as his proof at the trial showed not only that "Capertree" comprehended an immense tract of country, which included stations of numerous persons, but that the place where the trespasses were really committed was known by the name of "Jameson's Swamp," and therefore there was a fatal variance between the declaration and the proof, and the verdict therefore was right. And on the other point of misdirection, supposing that His Honor did misdirect them, yet, as the misdirection, if any, did not affect the issue which had been found against the plaintiff, but was found for the defendant on grounds independent of it; therefore, no new trial ought to be granted.

The ATTORNEY-GENERAL replied: and

His Honor the CHIEF JUSTICE delivered the judgment of the Court, granting a new trial, subject to certain conditions, on the last ground taken in the notice; and as the ground on which the Court entertained this application was not specifically taken at the trial, he intimated that there ought to be a new trial upon payment by the plaintiff to the defendant of his costs of trial and this motion; leave being granted to the plaintiff to amend the declaration, and the pleadings if necessary; and the plaintiff to go to trial at the next assizes.


Stephen C.J., 10 December 1847

Source: Sydney Morning Herald, 11 December 1847, in Supreme Court Collection, Vol. 1, p. 39

In this case, in which on a former day a new trial was granted on certain conditions, His Honor the Chief Justice said, that in actions of a similar nature, this being trespass to a run, the following questions ought to be propounded to a jury, with a view of facilitating the correct finding of their verdict.

1st. Was the driving of the sheep on the station in question, by the wilfulness of the shepherds? The defendant would not be liable in that case. 2nd. Was it by negligence? Then the defendant would be liable in case only. 3rd. Was it the natural and probable consequence of their (the shepherd's) employment in the particular locality, and under the circumstances of the employment? Then the defendant is liable. 4th. Can the Jury under all the circumstances infer actual authority for his particular act? His Honor further said, that the cases that had influenced the question for a new trial were, Gregory v. Piper, 9 B. and C.; ----- v. -----, 1 Crom. and Jer. 224; ----- v. -----, 5 M. and W. 594; Chapman v. Broughton, 2 Cr. and Mee.; ----- v. -----, 4 M. and Gr. 850; and ----- v. -----, 8 A. and E.512.


December 1847

Source: Sydney Morning Herald, 14 December 1847, in Supreme Court Collection, Vol. 1, p. 39

Mr. LOWE, on behalf of the defendant, moved upon notice, to vary and alter the rule drawn up in this case, granting a new trial. An affidavit was about to be made use of in support of the motion, when

Mr. DARVALL, on behalf of the plaintiff, took a preliminary objection to the use of it, on the ground, that the affidavit had been altered, and re-sworn, since a copy of the original had been served upon the defendant, and no notice or copy of the amended affidavit had been served. The Court entertained the objection, and Mr. LOWE then proposed---independent of the affidavit, to proceed with the motion, by availing himself of his notice to refer to the proceedings in the cause, (Stephen's Prac. P. 179,) and in fact, began to refer to the postea , with a view of showing the state of the action; when Mr. DARVALL, under the practice of the Court, objected, and said that the postea did not come within the rule. The Court were of that opinion also, and the motion was dismissed with costs,--- leave being granted to make a similar application another time.

Published by the Division of Law, Macquarie University