SUPREME COURT

Southland Times, Volume 2, Issue 74, 21 July 1863, Page 2

SUPREME COURT

Thuksdat, 16th July. ,->f; , (Before His Honor Mr Justice Gre^Sf j GAM.OWAT V. CIABKB. 'J | (Continued from our last issue.) ;/] * Mr South requested His Honor to noi^i' i jeetion, and addressed the Jury to tlio ij'M ] effect : It was his intention to confine t)i's|l t within as narrow bounds as possible. VM i leged that this horse — Galloway's horse-M t from over-riding by his client, but & 6 prove not only by the defendant's evid^ * also by that of Mr Petherick, that every a I j been taken. Defendant took two liouwy * I Pelling's; one and a-quarter to Fisher's, «| b stopped an hour. The horse shortly nfm _ n town, seemed du'l and flaggish. He wi C quietly throughout the journey and him ; c rests. From the evidence of :the*exp«f| d - clear the horse did not die of ill.usage. g| J was this : that if you hire a chattel, and^ b your possession, it from any? unavni<&s| -ai say, in the words of JBiNs of Eadinjy, "bjjjS t] tation of God, 3 ' the animal dies, then yoni o are not liable. Mr Galloway had pitfjij the wrong mnn. Another was the py li the matter. He would at once call the|J « By Mr South : George Clarke sa® C chemist, and defendant in th»s act* J Mr Huey on the morning %j h 20th June at 9 o'clock, at his pla<y| & street ; he asked witness to accomp^ j tl WinUm Bush. Told him he could wh ir no horse ; Mr Huey said he troul<o si horse ; went away, .and returned in i|s n Did not know who was then owner of®a r it did not even ask Huey; did notinstrv*s| <]< aii hour with a horse, the subject oifm oi hire the horse ; Mr Huey is now iJjB Messrs Clarke and Co. Mr Huey if^ p< servant of the witness ; never intpn|||| tl; ploy Mr Huey as his ag_ent;||§ tt ceived any account from the plaintiff§|| ])• of the horse. Left town about half f||| >•■ ; tl the morning of the 20th ; rode <J* the Waihopai Bridge at a gentle p|§| ; ,„- tli bridge was joined by M'Neill. '^ ca horse from. that to the Makarewa IR|| <,j 4-^ miles, then to Pelling's, a dista(^ to miles ; was nearlytwo hours doing^^ th remained half an hour at Pelling's ; ' t|? to Fisher's, a distance of six miles anJ "m Cl mained there about an hour and !/'# of from Fisher's went to Barber's, a dif •$* it, miles; got to. Barber's at a quarti'^ nji 6topped atßarber's nearly halfjanlio A ;V C v at -Barber's if they had any oats, <M> to that they hadnot: On the returßjSE V( want on in front ;• the witness's b<>am cv: sluggish after leaving Barber's ; ui^ f r < had hot galloped the; horse at »N;||| lik about the horse on the journey <>KJm cm him to return; returniig called at Fit|| gg tha animal n feed; the horse' woulgp

i, and didnoteat or drink ; during the .orse was in charge is posiit had neither oats, chaff, nor brnn ; it ,-e cropped a" little grass by the way; •as the -only person in the veterinary nvercargill,.. before Mr" Voh Hammer' Jid not practise but used to prescribe, c oats, wore put before the other horse ely ; tried his horse with water, and not drink. Oh the return, Mr Huey a always some distance in front of witness. ie horse from Fisher's to the Makarewa fas then anxious to get tho animal home, back till lie crossed lis Makarowa Riwr. was hot heated when ho got there. The very shallow.- After crossing the river got I the, horse four and a half miles. .Could further than Mr "White's &»*»• « hen fell themwas no extraordinary appeort theeo*toroyei.; The stomach did not h swolkii when at Fisher's. -Waited at rick's whilst Mr, Huey went to town, died about half »n hour after it lay down, rick wns present at the death. The horse lay. down, had no pulse, and was cold 5 Lead; gave it some gin and warm then appeared to be better, and made an o get up but did not succeed, and, ex-j*-the struggle, died in about 20 minutes ; .Any signs of indigestion about it ; Mr examined the horse externally with did riot know who the owner of tbe i till Mr Petberick came out, and he saw he kitchen of Mr Petberick's house ; he lout an hour after the deatb ; when first plaintiff there were present the two :'s ; plaintiff said that it wan a bnd job, he could not afford to lose the horse ; that he (witness) bad done his best for ; plaintiff then became excited, and witined to have anything to do with him ; further said that the horse was lively . i the morning, and bad had a good feed ; ont to town that night, and oh Monday went to & post mortem examination rse; there were present Mr Von Hamiess, Petberick, plaintiff, and in an hour Horton ; Mr Von Hammer took out the heir presence ; tho whole internal parts of appeared to be gorged with black blood, 3 or less inflamed; tbe stomach was ith food; there was water mixed with Mr Galloway said that the horse had do feeds and plenty of water before it o .<*. .^ ~*i the 20th j there was'inilammation of the whole system ; there was no. foam or sweat aboul the horse belore it died. Cross-examined by Mr Harvey: Have never offered to nay any bs>dv hire for that horse ; om acquainted with Geo. Scott ; only know him by seeing him in court; on my oath did not offer to pav tbe hire to Scott or any other person ; I sent tho saddle and the harness which were on tbe horse buck ts> the Victoria stables where I heard they hnd been got; lam pot-itive I did not say to Mr Galloway in any shop, that I would pay the time and nothing • more, or words to that effect; bave no recollection of seeing Mr Giilloway in any shnn alter tho Monday on which tbe inquest was held ; I swear I did not see the plaintiff in my shop on the following Saturday; on leaving town with tbe horse observed it'was a littlo stiff : did not notice if it wan hide bound or not. The horse did not canter between Invercargill and Waihonai Bridge. Recollect crossing the M:»karewa River. The horse in crossing: the river plunged his head into thewate-, and I drew his head out immediately. Mr Pelling lms a shed. Did not offer tho horse a feed at Fisher's, because I meant to give it a feed at Harber's. At Fisher's nn the return the horse wns offered a feed and a drink, bolh of which it refused. Have had experie-sce in horses. When a horse refuses to eat or drink after goinsr twentyfive miles, I dike it as a sign of a surfeit. Remained at Fisher's nn hour on tin way home. It wns then getting rather culd. During that hour the horses Were standing in the open air tied to a bulloek dray. At this time thought the horse was unwell I After leaving Fisher's the horse travelled with difficulty. Passed Pellinjj's house on the way buck j It was rather off the road. When I found the hor*e growing ill thought it best to return to the place where it had been taken from. The signs ot inflammation are, that the horse would refuse to wilk easily, and tbe eye would le bright. C 'nlinued motion is the very worst thiriL' tor a horse which has the inflammatissn. I prefs-rrcd to goon to town instead of calling al Pi llinsi-'s, which is a quarter hour's journey csff the road, because Polling's is only a shed and I chose rather to get it good quarters. Did not think il worth while to go up to Pelling's anil examine the horse with a light. Havin r dismounted, 1 continucsl advancing towards the town till my llorse lay down. By the Bench : I was aware before the death of (he horse that he had been hired ; I knew that he bad been hired by Mr Huey for me to ri--e; I intended to p*\y for the horse myself; I was (join" on Mr lfuey's business, and he said, "Oh, we won'f. trouble about the paving;" to this I made' no reply, still I should have paid for it; I sent the saddle and bridle to the Victoria Stables bjMr Stewart, and told him to get a receipt from the groom ; the first time I knew who was the owner of the horse was at Pet heric-k's house on the night of the 20lh. By Mr Soulh: Jamns Petberick knows Mr C'lssrke. the chemist. Is a carpenter by trade. Ks-colli-cts a horse lying down in the road, on 2oth .funs', in front of the hotel where he resisted. The horse did not appear to have been hard ridden. Looked nt the horse attentively, and assisted in trying to raise him. There were no marks of ill — u<n;;c about the horse. Was not in a foam or sweat. Henry M'Neill— Knows Mr Clarke, the chemist. Remembers ridimr with Mi'ssrs. Huey and OJarke, about the 20th June, Found then abssut theWnihopai Brid»e. The horse of the defendant was one that he had known to have been sold n few days previously for ,-t2» or £27* Asked Mr Cla.'ke if it was his. He said no; he thought thait helonued to Mr Smith, ot the livery stables There was nothing on the road which could render a discontinuance of the journey advisable. The only remarks made by tho witness on the journey about defendant's horse was, that it did not seem so e<iod a pony ns he thought. Cross-examined by Mr Harvey : Did not return to town with defendant. Mr South then addressed the Jury. He could easily understand the plaintiffs desire, having lost a hoTse, to bring its price home to some one ; but this he had utterly failed to do. The evidence as to the state of the horse when examined gave ample proof that the animal bad not died from over-ridin£r. There was no lather or foam — scarcely a hair turned. The learned gentleman then entered into the matter of the hiring, contending that Mr Huey was the actual hirer — Clarke had nothing to do with it. As to his client having experience in the medical treatment of horses, he objected to the counsel for the plaintiff terming him one skilled in veterinary. But even so, he bad done the very best for the horse under the circumstances. In regard to Mr Von Hammer's evidence, he had the highest confidence in it. From it there ccsuld be no doubt as to the cause of death— that its immediate cause was its being gorged before even Mr Clarke mounted it. It is the habit of a horse when over-fed and inflamed to rush for water. It had done so on the 20th, and Mr Harkc checked it. Again, he repeated that Mr. Clarke bad done the best for the horse that he could under the circumstances, and submitted that there was no hiring — there was no agensy, and the horse had not been over-ridden, or in any way ill-treated. Mr Harvey fniil there were two charges which he hnd to prove in regard to this cose— -tho hiring and the ill usage. His learned friend dwelt on Clarke going on Huey's business. It was not so, Huey bad simply asked him to accompany him on « ride. Besides Mr Clarke said in his evidence that he intended to pay for the hire of the horse ; and from Mr Clarke's whole proceeding after the death of the horse, he seemed to consider himself the only man concerned in the matter. As to the improper usage, he would rest it solely and wholly upon Mr Clarke's own evidence, he knowing the horse to be unwell, rides on until tbe animal drops under him. His Honor said the case resolved itself into three points — the first was, whether the defendant hired the horse, and second, whether when he hired it, the horse was well, and the third was. whether it had received ill usage from the defendant. As to tbe hiring, it did not follow that because defendant did not with his own mouth hire the animal, that he was not responsible. This point of the case was not free from difficulty. Still his own opinion wns that there was not sufficient evidence to make Clarke legally responsible. His Honor then read defendant's evidence on this point, as to tho state of the horse before it came into Mr Clarke's charge, and said that the evidence of the experts was very conclusive. From it, it was dear, that the horse, on the morning of the 20th, was unsound before even it left the stables. He then proceeded to read the evidence upon this point of Messrs. Von Hammer nnd Horton. The gist of their evidence was to the effect that the horse had died from repletion, chill, and their results. In a case like this the jury ehould ieceive with a certain caution the evidence of the plaintiff nnd defendant, as (hey could not but have a strong bias for their i

respective interests. Such evidence must only bo safely considered when borne out by corroboraI lion. His Honor then went into an elaborate recapitulation of the evidence, commenting upon the salient point?. JNs Honor thought it wan clear from the whole evidence, thnt the defendant had not overfed the horse, but rather did the overfeeding come from the plaintiff. The only real point for the consideration of the jury was, whether the horse had been overidden or in any way ill treated by the defendant. The jury withdrew for consultation, and after half* an hour's deliberation, returned a verdict for the defendant, negativing the three issues. DAMAGES FOB BBEACH OF ,CONTBACT. George Huleiy v John Cheyne and Leslie Cheyne. The following were the issues in this case as duly adjusted : — 1. Djd the defendants, or ono or other of them, agree with the plaintiff (o carry for biin a transit j theodolite and stand, the property of plaintiff, from Campbelltown to Invercargill, by the steamer Aphrasin. | 2. Did the defendants or any one of them receive delivery of said theodolite and stand, or was the same delivered to defendants or any one of them. i 3. Have the defendants failed to deliver the said theodolite and stand to the plaintiff at Invercargill or elsewhere. 4. What damages, if any, is the plaintiff entitled to. A jury having been empannelled, Mr Matbeson was chosen foreman. Mr Harvey appeared for the plaintiff, and Mr McDonald for the defendant. Mr Harvey, in opening the case, said the points to be tried were, whether Messrs Cheyne and Co., as tbe owners of the Aphrnsia, and having taken charge of the theodolite were common carriers, and whether they had failed to deliver the said theodolite in Inverenrgill. The damageswere laid at; the j value of tbe theodolite, L4O. He would call Mr j O'Toole. Christopher Francis do Sales O'Toole, Sub-Col-lector of Customs for the Bluff Harbor. — Was there in September la.*t.. Knows the plaintiff and the defendants, nnd the vessel of the latter, the Aphrasin. The Aphrasia is employed in trading between Campbelltown and Invercnrgill. Tbe owners j are carriers of merchandise and stock. Have seen a theodolite the property of the plaintiff, and a box and stand. About the 15th September last bad ooeasion to go on board the Aphrasia, and there saw John Cheyne with a box he supposed to contain a theodolite, the property of plain'iff, under his care, which he conveyed to \ liis boat. The box was of the 6ame type as i usually contains a theodolite. Is not certain as to the date. Thinks it was upon a Saturday. Cross-examined by Mr McDonald ; It was a mahogany l>ox with brass hands that I sawCheync carrying. The plaintiff had been surveying at the Bluff, and I had seen this box on several occasion?, and am of opinion it was his property ; it was about ten to half-past eleven when I saw this box in the possession of Captain Cheyne; Cheyne brought the box from Hughes' s store; amnotawaie where he took it to; dou't know whether there was any t hing in the box or not ; it was about the lSth Sept. By Mr Harvey : George Hately said ho was the plaintiff: was down at the Bluff in tho month of September; knew the defendants; think it was on tbe 13th that he had a communication with defendant, John Cheyne ; asked him to take charge of a theodolite and 'stand to Invercargill, which he -nid he would do ; left theodolite and stand in Hughes' s stove, in charge of Mus Johnston ; the theodolite was enclosed in a mnhogany box, with a rope round it ; am certain that it was in the box, because be ha I personally put it in tbe box, ana locked it, placing the key m his pocket ; there was a rope tied round it; there were brass handles j attached to tliff box ; the stand, along with the J !>ox, was given in charge to Miss Johnston; witness then proceeded to Invercargill, and waited I for tin 1 Aphrasi-i ; after her arrival saw the defendant, John Chryne, and inquired if he had it, nnd lie said, " Yes, I think I have;" witness went with tho Uefindant to Ihe Apl\rasi:i, and both looked on board the steamer for the theocloli'o, and not having found it, defendant said he thought he bail not jjot it; have frequently sinci! made spplieitrion tor the theodolite to bo h defendants, and they .-aid they had never received charge of it : have to this day seen no part of it except the -tniid, whHi.wns exhibited by Daniel Wilson; understands that the defendants ply for hire. Cross-examined by Mr M'Douald : After a conversation with Captain Cheyne, I was left, under the impression that he was to take charge of theodolite und stand to Invercargill ; nothing was said about freight ; I told Cheyne whero tho theodolite and stand were; I told him they were at Hughes's -tort-; Cheyne simply agreed to take theodolite and t rand j "he did not say that if sent on board lie would inke charge of them ; left theodolite ami tanri at Hmjlies's store on the day previous to my ' conversation with theca tain; Miss Johnston \v:-.s i in the shop al. the time I left theodolite and stand ; i am sure the theodolite was in the box when I left { ' it at the slore : about orin or two days after I put theodolite in Miss Johnston's chargi, ha 1 corners.ilion with Cheyne in Invercargill; oefeudant did , not any when asked if he had the theodolite on board, " Not that I am aware of; " I went on board the j ■ steamer with him : to-day is the first time that I i>nve seen theodolite and stand since I lust saw it lit the ' Bluff; had never offered to pay Messrs Cheyne freightFy the Bench : The value of tho theodolite aDd stand whs L4o. By Mr Harvey : Mary Ann Johnston tsH that in the month of September last she was •n charjre of Mr. Hughes' s store at tbe Bluff; there was a theodolite left by Mr Hutely in the stor*, at the time tho Robert Hen-iler.-on was at the Bluff; it was in a box— a small square box, apparently mahogany; there was a strap round it ; do not know w hether it wns heavy or light; it was taken from out tho store by tho defendant, Mr John Cheyne; asked him to take it, telling him it was Mr Hately's; he took it under his arm and carried it down to the beach ; in addition to tbe box there were the legs, be also took them ; when I gave the box to Cheyne, it w;is in the same state as when received ; have occasionally had goods down by the Aphrasia. Cross-examined by Mr Mncdonald : Have no recollection of the date other than tbepres nee of the Kobert Henderson : don't distinctly recollect the box being left by Mr Hately at the store, but recollect the fact of its being taken away. The said box was taken away four or five days after left in store ; gave the box to John Cheyne ; be asked who the box was for ; 1 told him ; I said it was Mr Hately's theodolite, nnd that it was to go to Invercargill ; be said nothing that 1 remember ; saw him go towards the beach but did not see him go on board ; did not see him stop any where ; did not ask Captain Cheyne for a receipt; I believe it is usual to take receipts in such cases, but our clerk was not in and I don't keep the books ; I did not think of asking for a receipt. By Mr Harvey : Daniel Wilson said he resided at the Bluff; some time ago picked up the legs of an instrument at Bluff Harbor he supposed about eight months ago ; had them with him to-day; have shewn them to Mr Hately; they must have come up with the tide when I found them. Cross-examined by Mr McDonald : I know Hughes's hotel in Campbelltown ; picked the legs up about throe miles from that, inward. This wns the case for the plaintiS. Mr McDonald said that the case was a simple one. He was of opinion that when they heard the evidence for the defendants they would be satisfied with their freedom from liability. He would be able to show by John Cheyne's evidence, that he had never seen the theodolite. By Mr Macdonald: John Cheyne said he was one of the defendants ; remembered the month of September last. Saw Mr Hately then in Invercargill ; did not see him at the Bluff. When he saw him he asked witness to bring up his theodolite from the Bluff, and to take particular care of it. Witness said " yes, provided it was sent on board." He said Mr Furlong would bring it on board. This was about the 15th September. Saw him again upon arrival from the Bluff, saw nothing of the theodolite norjof thejbox atllnvercargiil. Met Mr Hately near the Victoria Hotel on the last occasion. He asked if witness had the theodoke on board ; he replied it might be — had not seen it, but would see on going on board ; the mate gave a receipt for everything. On searching found it was not on board ; returned to Mr Hately and informed him ; Mr Hately never offered to pay freight, Knew all the cargo that had come on board the Aphrasia that trip from the Bluff; there were three boxes on board addressed to other parties. Cross-examined by Mr Harvey : I swear that I never had a conversation wiih Mr Hately at Hughes' Hotel about the theodolite. Do not remember being in Hughes' store before going on board my vessel . Swear that Miss Johnstone did not give me a small mahogany box with Straps round it, and the legs of a theodolite. If Miss Johnbtone has 6worn that such wab" the cate she has sworn untruly.

Know Mr O'Toole the sub-collector, if ho has sworn that he saw me with them under my arm he has sworn" falsely ; Mr O'Toole did not go off in the same boat with me to the Aphrasiii. I never received the box. Neither counsel addressed the jury. His Honor summed up shortly — stating that it was a disagreeable case, for the reason that some of the witness's had sworn in direct contradiction to each other. It was for the jury to decide whether the oath of Captain Cheyne would avail against those of Miss Johnstone and Mr O'Toole. He then read over the evidence of these three witnesses, commenting upon the chief features. After a short consultation the jury found for plaintiff in all the numbers of the issues. This case closed the present sittings of the. Supreme Court ; the proceedings teirainatihg at 6 30 p. m.