SHEEP GRAZING CASE.

Stratford Evening Post, Volume XXIX, Issue 128, 22 July 1911, Page 5

SHEEP GRAZING CASE.

AX IXTif if ESTiNG JUDGMENT. At the Magistrate’s Court yesterday, Mr. ivonrick, S.M., gave judgment as follows in the case David ). ticnio;d v. dercy Saxton, which was hoard on June bin, Ititii, and 30th:— ‘ms is a claim for grazing 800 •3uh ]> ii om Match 3rd to April ,15th, -Ui i, at tnree farthings per head (si 1 <-•) and iwo daws’ wages for mustering (Cl). The only defence to the claim is tnat defendant is not liable to pay on thirty sheep which are claimed to be missing, and that the mustering was done free of charge. 1 ho dcloudant filed a counter-claim for ;--30 10s, made up as follows;—To value of 30 sheep at 13s per head, lost through plaintiff’s negligence, -10; to damage in consequence of defendant having to remove ids sheep on one week’s notice instead of one month's, as agreed, £ls; general damages ,05. A great deal of evidence has ore:; called, chiefly as to the state of the fences on plaintiff’s land. The questions to decide arc:—(l) Did the plain till - , us agister of the sheep, exercise reasonable care, and lias any negligence been proved on his part? 1 3) did plaintiff agree to give a month’s notice to remove the sheep? (3) have the sheep been lost through defective fences or other negligence oi plaintiff ? Dealing with the second question first, 1 am of opinion defendant has failed to prove that a month’s notice was agreed upon. The defendant says it was a condition upon which he agreed to graze his sheep, jot when he received a document from plaintiff in the following terms, “December 23, 1810, 800 sheep owned by Mr. Saxton now grazing on rny properly from this date; rate for grazing throe farthings per week per head,” be says he forgot about having the month’s notice mentioned, and only remembered it whoa lie was three miles away. Tie did not return or

write on the subject. He calls witness (Chapman,), who says he heard defendant say to plaintiff, “You have treated mo badly in not giving me a month’s notice-,” and plaintiff replied that .he had to look after himself. Plaintiff denies ever premising a month’s notice. Ho says defendant

said: “As yon have no trouble or responsibility, three farthings per head would he a fair thing,” and that lie then_ agreed to that price, he having previously asked a penny per head. The weight of evidence is against defendant as to the month’s notice. It appears from the evidence that although, a week’s notice was given, the defendant did not remove the sheep for eighteen days. As to plaintiff’s liability for the loss of the thirty sheep, the evidence proves that the fences were not sheep-proof in one or two places. It also proves that the defendant knew the land and fences, and had run cattle on the land before, and that whilst the sheep were on it ho frequently visited the land to look at his sheep, so that he was fully aware of the class of land and fences. It is proved that the country in this district is being opened up, and is not settled sheep country. The land is; covered with fern and scrub in parts—it is not country in which sheep could be easily mustered. Defendant employed plaintiff to help to muster his sheep. He says two musters wore made, and that thirty sheep

out of the 800 were missin g. Defendant would not pay plaintiff for grazing until the sheep were found. Since the case commenced plaintiff swears he has seen thirteen of defendant’s sheep with others on his laud, and two dead ones. This accounts for half of the missing sheep. There is no direct evidence that the sheep were lost through defective fauces, and from the nature of the land the balance may yet bo found there. I am of opinion that defendant did not make a sufficiently careful muster. It was his duty to have mart*- a further search when lie found thirty missing, instead of which he appears to have called on the plain* tiff to find the missing ones. I do not tiiink, under the circumstances of the present case, that the plaintiff is called on to do so. The proof that plaintiff had been previously paid for assisting defendant to muster, and there being no evidence that ho was not to bo paid on this occasion, satisfies me that plaintiff is entitled tn payment for his services. I give judgment for plaintiff on his claim for the full amount (£1.6), with costs £2 6s. Defendant fails on his counter-claim, and I allow costs (£25 ,10s 6cl) to- plaintiff. At the hearing Mr. Spence appeared for Hickford and Mr. Sellar (Hau era) for Saxton. This morning Mr. Stanford received judgment on behalf of Mr. Spence, and Mr. Thomson on behalf of Mr. Sellar.