New Zealand Law Society - Some cases involving sheep

Some cases involving sheep

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The Confederate sheep

Loyal United States citizen Mrs Lee lived in Pennsylvania but owned a flock of 608 sheep in Texas (witnesses later disagreed on the exact number). The American Civil War broke out in April 1861 and Mrs Lee left her sheep in charge of a shepherd. In March 1863 the Confederates deemed the sheep the property of an “alien enemy”. They were confiscated and sold to Mr Knox at $10.87 each in Confederate currency. After the Civil War had ended, Mrs Lee took action against Mr Knox for damages for taking and converting the sheep. She claimed US$15 a head and the jury awarded her $7,368. The case ended up in the Supreme Court. The real issue was the seemingly innocuous instruction to the jury that whatever they awarded could be “discharged by the payment of such amount in legal tender notes of the United States”. To finance the Civil War, the North’s 1862 Legal Tender Act had authorised the creation of paper money which was not redeemable in gold or silver. At issue was whether the Legal Tender Act applied to contracts made before it was passed. On 15 January 1872 judgment was delivered in Knox v Lee 79 US 457, with the court (by 5-4 majority) holding that paper money issued under the Act did not conflict with Article One of the US Constitution (which gives all federal legislative power to Congress).

Sheep in clover

January 1971 was hotter than average in the South Island with little rain and strong northeasterly winds. In the area around Waimate there was talk of a drought. A farmer was well on the way to growing a 24 acre seed crop of delicious white clover. On 4 January a flock of sheep owned by the adjoining farm managed to break down part of the gorse and cyclone netting dividing fence and entered the paddock, with disastrous results for the clover. A claim for damages made the Supreme Court (McKenzie v Risk [1974] 2 NZLR 214). One big problem for the aggrieved clover owner was that the fence hadn’t been very sound before the sheep attack. And the biggest problem was the Impounding Act 1955 and subsequent court decisions which only allowed damages caused by stock trespass if the land was enclosed by a “sufficient fence”. The fence around the clover was not sufficient, White J decided, and the plaintiff’s claim failed.

The Irish sheep safety signs

Mary O’Sullivan, 85, of Hilltop House, Dreenacappara, near Ardgroom (ie, quite remote) in Ireland has farmed sheep since she was six years old. She’s one of 74 shareholders in the mountainous 1,140-acre Kilcatherine commonage – which means she has grazing rights and needs to exercise them to retain them. Ms O’Sullivan actually owns a 14-acre farm down on the flat, but her flock of 37 sheep are a Scotch Black mountain breed which thrives on the mountains. One of her neighbours complained about the sheep wandering on the narrow public road, which draws a lot of tourist traffic in the summer. Ms O’Sullivan didn’t solve the problem, so the neighbour went to the gardai and Ms O’Sullivan ended up in court charged with an offence against the Summary Jurisdiction (Ireland) Act 1851.

The case – in February 2019 – was widely covered in the media. Judge James McNulty asked Ms O’Sullivan if she knew the difference between her farm on the flat and the commonage. “I know the difference between brown bread and sweet cake, and sheep are cleverer than me,” she told him. Reluctantly, Judge McNulty found that she had breached the law. Ms O’Sullivan could erect “three, or preferably four signs – tasteful signage, I don’t want anything garish,” he said. The signs could read: “Caution. My sheep may wander on this road. Take Care. Mary O’Sullivan.”

Judge McNulty said the signage need not be expensive and if Ms O’Sullivan – who has no previous convictions – agreed to erect and maintain them for up to three years, the matter could be dealt with under a conditional discharge. That has happened. If you like Irish accents, check out the YouTube video of a relieved Ms O'Sullivan after the case.

Sorting the sheep from the … sheep

To the uninitiated one sheep looks very much like another. Back in 1886 in Michigan, 34 sheep were peacefully grazing in an unfenced paddock on a farm owned by a farmer called Dunbar. Suddenly a large flock of sheep and shepherds came down a road next to the paddock. The grass looked good so the flock joined Dunbar’s sheep. The shepherds … shepherded them along and the flock continued its journey – increased by 34. An enraged Farmer Dunbar sued McGill, the flock owner, for damages for conversion and the case ended up before a jury. McGill’s counsel demanded proof from Dunbar that the 34 sheep were his. The presiding judge told the jury they had to decide if there was more evidence to show that 34 sheep in the flock belonged to Dunbar than there was to show they did not belong to Dunbar.

The case reached the Supreme Court of Michigan. Ordering a new trial, the Supreme Court said the judge had got it wrong and it gave the legal world a handy statement about the burden of proof: “We think this instruction was misleading. It leaves out of view an important element to be considered in the application of the preponderance of probabilities; and that is, the testimony introduced tending to show that these were plaintiff’s sheep must have been of such character and weight as satisfied the jury that the sheep which mingled with defendant’s, and which it was claimed defendant converted, were the property of the plaintiff. This question did not depend upon whether there was more evidence to show that these were Dunbar’s sheep than that they were not his sheep, but upon the question whether there was sufficient evidence to satisfy the jury that they were his sheep.” (Dunbar v McGill (1887) 64 Mich 676, 31 NW 578).

One sheep is another

Headlines were made in February 1997 when it was announced that a mammal had been cloned from an adult cell by Keith Campbell and Ian Wilmut of the Roslin Institute of the University of Edinburgh. Dolly the sheep (no need to mention how the name was chosen) was born on 5 July 1996 and it would take another 18 years before resulting legal proceedings ended. At issue were patent rights. The Roslin Institute received a United States patent on the process used – somatic cell nuclear transfer (SCNT). Problems arose with its claim for a patent on Dolly herself, and any other animals created with SCNT. The final chapter came in May 2014 when a US Federal Circuit court delivered its decision in In Re Roslin Institute (Edinburgh), 750 F.3d 1333. The court decided that a cloned sheep was not patentable because it was an exact replica of another sheep and so did not have markedly different characteristics than any farm animals found in nature. Various attempts to argue that Dolly was not identical did not succeed. “Dolly’s genetic identity to her donor parent renders her unpatentable,” the court said.

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