SUPREME COURT.

Auckland Chronicle and New Zealand Colonist, Volume 2, Issue 5, 6 September 1843, Page 3

SUPREME COURT.

On Friday last, the Supreme Court .opened for the trial of civil eases. Notwithstanding the scarcity of cash, and dulness of business for thb last six months, it was gratifying to know there were so few cases, although occupying the court two days. The cases, generally, excited very little interest, with the exception of Best v. Hargrave, which we give at length. The first case called was

Dacre, r Thomson. This was an aciioa brought against John Hnwii ilton Thomson, "ho was alleged to be a partner ii the film ot Dalziel and Co. and therefore liable to the Plaintiff m the sum of £526 4s 7d ; balance of, account, for goods consigned to Defendants’ for sale and returns. The Defendants* Dalziel, Brown te Conmbes, confessed judgment, the Defeiidam Thomson , pleaded that lie was not a paiuier in the firm ot Dalziel and ( 0., against whom the action wag. brought, when the goods comprised in tire Plain I iff s particulars of demand were consigner) to ihessid Company, and dial lie had not at any time been a partner with the said Daliiel, Brown and Coombes, in their business as mei chants. The q ieetiou was put to the Jury whether Thomson bad ever been a partnerjin the firm ot Dulzitl and Co. and if so from what da e ?

Alter retiring a short time, the Jury found that the Defendant was a partner from the 16th April 1812. Mr. D’Oyly, for Plaintiff, Mr. Brewer for Dts feudant Williamson and others, v Wood. An action to recover *he amount of a protniss so>y note, drawu by ADe P/utipslhal. Mo dts fence. Veidict for Plaintiffs’ £ SO, Interest and Costs, Plaintiff.’Solid tor, Mr. D’Oyly. Lewis, v Heate and Sinclair. This was action brought bv Mr. Wm. Lewis, merchant, agaiust Messrs. Heate, 'and Sinclair, lo recover the sum ot £43 lis. value of Goods alleged by Plaintiff to have been sold to Defendants’ and delivered by their order to Messrs. Sturgeon and Has well, of Karangahape. The Defendants denied that the Goods were sold to them, and that they were delivered by their order to Messrs. Sturgeon aud Haswell. The Goods were obtained, it appeared upon the Dial, by Mr bloule, wln> was managing the business ot Messrs. Heule and Sinclair. The Jury found a verdict for the Plaintiff, for the amount sought to be .^covered. Plaintiff’s Solicitor, Mr. D’Oyly ; for the Defendant, The Honourable the Attorney Gtueral, as Counsel, and Mr. Berrey, as Solicitor., Wilson, v Wood. An action to recover the amount of a promissory note, diawn by Defendant, in favour of Plaintiff. No defence. Verdict for Plaintiff, £IOO, Interest and Costs. Plaintiffs Solicitor, Mr. Bartley. Brown and others, v Wood. This action was brought to recover the amount of a promissory note. Verdict for Plaintiff £63 10s. lOd., Interest aud Costs. Plaintiffs Solicitor, Mr, Bartley. Mair, v Wilson. An action to recover the amount of Defers dant’s promissory note. Verdict for Plaintiff, £l7O, Interest and Costs. Plaiutiffs Solicitor, Mr. Bartley. Emsley, v Cruikshank. An action to recover the amount of a promissory note. Dated Bth April, 1841. No defence. Verdict for Plaintiff, £llß 7s, Sd. Plaintiffs Solicitor, Mr. Whitaker.

Best v Hargreaves,

This was action to recover £79 4*. 6d. viz . £73 10s. Pd., as damages sustained by the Plaintiff by reason of injury done to Plaintiff’s hoise, Monops, by the negligence of the Defendant, whilst the same was under his protection, having been lent to him by Plaintiff, in November 1842, and £o I 4«. 6d. paid by Plains tiff for attendance and medicine supplied to the said horse, whilst suffering from the aforesaid injury.

Defendant pleaded that the horse was not lent to him for Ilia own nse or benefit and that th< injurv was not caused by bis negligence. Mr. Bartley, with Mr. Whitaker, as Solicitors for Hie Plaintiffs’, and the Honourable the Attorney Gem eral, with Mr. Berrey, for the Defendant. Mr, Bartley, opened the case by addressing the Court and Jury at considerable length, as to the rules of Law regarding horses, The learned Gentleman then called

Jeremiah M CarTiiy, was swum, and said I am a private in the 80th Regiment, aud Groom to Captain Best; the Plaintiff. The Plaintiff had in November last, a horse called Mouops, I know the Defendant ; I recollect on the morning of the day on which the horse was injured —On the morning pf that day f saw the Defendant, and Major Bun = bury, talking together, I went up ode or two days before tins happened, to see if Mr. Hargreaves wanted the ho.rse to look at some land, — Mr Uar greaves, and Major Burtbury, Were talking together in the Square, I went up to Mv Hargreaves, —l asked him whether lie wanted thehotse that mornrig? He said yes lie would go out and look at the land tliai mo ni'ig. There was a Government sah of land and hors -s that day, I was Groom to Plain tiff, I was accustomed to eXercise the horse, —It did not save me trouble, I had nothing else to do He was a very fast horse in trotting—lt might be about 10 o’t lock when the horse left the Barrack yaid,—he was sound and well, It might he about one o’Clock when the horse returned, —he was jumping on threfe legs, the fourth leg was injured. He was rieyer eapable of doing anything after, —he was shot after I fetched the horse out. Mr. Har. greaves got on him near the Major’s gate, there is a niiall drain neiar the gate,—the horse was making a leap over the drain, and Mr. Hargreaves was like to foil off, —He rode with a slack rein, I was not accustomed to ride the horse with so loose a rein'hs he did,—He rode if) a careless manner,-w-He had ridden the horse once before, by the ATroRNEF=GeNERAL.— Monops was a spirited horse; 1 have tidden the horse frequently, he was a quiet easy horse lo ride if you hold him tight l he has not throw u any one to my knowledge, except one; fie threw me once only,* I was going up uear the church, and there were tluee or four of our men going down; they said, to me, you rannot half ride that horse ; I looked and the telris had got loose in my" hand, and he capsized me off his back; 1 let tire reins loose; he was just going on a trot, and he threw tne off. He should he ridden with a tig l *! hand, because he Was a spirited horse ; I did not see Mr. Hargreaves ride; that once before; I would not sweat it; 1 did not say anything to Mr. Har greare's horse; be should ride the horse; Ii was not safe to ride Mo oops with a loose rein ; I din; not tell him so;

Be:£xaMinmC"~ftTr. Hargreaves had seen the hors* after; a inau wtio knew bow to ride a spirited horse would hold a tight rein. When I was thro wo, ii was nty own carelessness.

The next witness called was William Miles, who on being swofn, sdid, 1 am a private in the SCfTb Regiment, and groom to Major Bunbnry ; I saw Monops on the day of the accident, and Mr, Hargreaves riding him when lie started; wheu lie mounted (be horse the reins were hpnging about the horse’s neck ; be was riding carelessly -j lie was buttoning himself «p ; lemafaer) to the Groom that if he did not mind, he would 'be thrown. He was a horse of lively spirits; I saw the boi.se return. led in by Mr. Hargreaves; the horse was then unable to put bis foot to the ground ; I saw the horse shot after—he was utterly useless.

C rossx-eamined by ike Attorney General— I have been accustomed to horses—l have been acquainted with flu- horse Monops In the stable, anu have seen him frequently exercised. The horse was very well if be was ridden with care— I never s»w anything dangerous about him in riding. He required a tight band because he was lively and spirited. If I had lent the horse to a friend, l should have thought it necessary to cans tionhira to ride with a tight hand.

Be- eramiued. —lf a man had ordinary skill, I should not have thought it necessary to caution him, unless I saw him frightened at it. William Ha rrison was then called and swotn. I am a private in the 80th Regimen t, and have been groom to Dr. Gammie; I recollect seeing the horse Mouops on the day of the accident, coming in. He appeared to me to have his leg broken Mr. Hargreaves was leading the horse in the gentlemen round ashed how it occuted?—he said he was riding with a loose rein at the corner of a fence, and lie shyed and threw him. Cross-examined■ —ls accustomed to horses—bas been groom to Dr Gaumie about twelve months— Monops was a spiiited horse ; if a man rode with care, he was a horse that required light reins; I should say it would not be safe to ride him with louse rems.

Re-examined,—- I should think it proper to ride horse with tight reins.

Mr Bartley then called John Cowley, who on being sworn, said, I am a private in the B»th litgfiment; I have been acquainted with horses from my childhood ; Isaw Captain Best's lioise I saw a gentleman riding him out Oi the barracks on the day of Ihe accident ; he seemed to ride very loose on the saddle; the reins were loose he seemed to gatli v them up in his hand; he was very near off at the drain, and it took a good deal of shuffling to get on the saddle again ; he did not bold the reins as a prudent man should have done getting on a strange horse; I saw the same gentleman coming in with the horse ; the horse was nobbling on threp legs. Cross-examined. —l should not say the gentle • man was a good rider, or a bad rider ; sometimes good riders are careless going away from the stable. The horse was a strange) to me.

The next witness railed was James Conies, Esq., and on being sworn, slated, I am Mieriff of AUealand ; a day or two after die accident, I had some conversation with Mr. Hm greaves; I casually isked him how the accident happened ?— he replied (hat he was riding carelessly or loosely. Cross-examined. —( am subpoened in this matter; I know Mouops well; I have ridden a great number of horses in my life; I should cal) Mouops an asvlul brute, and one*that I would never think of purchasing. To mv fcnowUdge he threw MrClarke, the I’rotecor ; there was only one man in be Mounted Police who could ride him; T have <een him ridden by Captainß's servant; 1 have seen Captain Best ride him otten ; I saw Captain Rest ride him in the Government Domain; he bad a trick of .bucking, that is, doubling up hi* back, putting ltis head down aud twisting round; be

wid this in my presence, and had not Captain Best been a superior rider, he would have b'en thrown off; from my own..knovirledge, 1 have Come to the conclusion that Monops was a nrote of a horse, I would not have ridden Mos nops if he bad been offered to me,—l would not have, lent him to » friend without telling him , certainly nc!t a brute of that nature, I should l aw put any person on his guard. Tie-examined, —-[ was not the distance of this roim fr»nt Mr, Clarke, when he was thrown,— 1 oid not see him thrown ; I never saw him throw any body,— Captain Best was talking to me not thinking,about hi- horse, George McElwain, was then called, swoT!. I am Governor of the Gaol at nock, land, l have breu accustomed to horses all nry life; I reckoned Monops always it good I orse ; I hiuk if I were selling the horse 1 should expect ,£61),0r £7O for him. Cross Examined. —l think I would get that for him

The next witness called was C’aASt£S_HEN«Y MoFFiTr, who said I am a veterinary surgeon, f knew the horse Monop. I attended the horse after the accident occurred ; he wan a strong powerful horse ; this paper handed in is my bill these articles were had for the horse aod p .id foi by Captain Best. Cross Examined.— They were not applied under my diiection for tfie first week ; I was not sent lor until a wrek after the accident happened ; 1 ound the knee was shattered and there was no possibility of saving the horse ; in the meantime medicines were obtained from me ; 1 do not know the treatment; I cannot say whether the medicines obtained from me if applied to' the use of the horse were proper without seeing the horse myself, bnf from the nature of the accident no remedy could hare saved him; I shot him; f stf’otHider.d myself to he authorized by C apt. Best ; the horse had been slung, I believe the horse had eot out of the sling upon one occasion. He-eXamM-d. I do not know any thing of my own knowledge about the getting cut of the sling ; the leg was incureable ; one of the bones" had got out Of its p ace about half an inch driven ■ into the joint. This closed the case for the Plaintiff, the following evidence was then gittn on the part of the Defendant. The Hon. the Attorney General then addressed die court atrd jury at some length aud then called I’ercival Berry, Esq,, who on being sworn said, I am Solicitor, I recollect tbe da.yof the ac. cident to Monops; I was present in Capt. Best's stables in the afternoon when the wounded horse was brought in, Captain Best and Mr. Hargreaves were present; Captuai Best remarked that it was a bad job. Mr. Hargreaves remarked that it was— that he would take the horse and pay for if. Capt. Best said‘‘Oh nonsense,’’ it is an accident we will wait Und see I "bat can be done tor it.

Cross examined by Mr. Bmtleu. — Mr Hargreaves did not disst ui, he said I would rather you would name the price. C.apt. Rest avoided the subject; I ccnuot say that Mr Hargreaves has ever paid for the horse.

Thomas Lawson was called and svtmrn, who said l am an Agriculturist, I have had some experieuce- among horses, I knew Monops ; I never rode him or groomed him ; 1 have seen him to be a very spirited horse, I knew nothing ,at to its qnalities, I have bad some experience in tbe management of wounded horses occasionally ; I recollect going to Capt. Best's after the accident, 1 saw tbe liooF, I ought to know something of the value of horses in this colony; 1 have bought and sold some hundreds., The value of the horse at a fair, or for a stranger coming to buy him, would be £4O or *£so.

Cross Examined. —The price of horses was higher than it is now, but it was declining then. I consider £4O or £SO was his value then, he was a good horse ; nothing very»fine about him ; he was a good usefai horse. Thomas F.dward Coyney, Esq , who sard 1 nm a Solicitor, 1 saw Monops shot, he was shot by my authority ; C apt, Best wrote to me on the 2lst Drcemher directing me to have him shot if there were no chance ot his recovery; the berse was shot bv ray authority, acting on the authority of C apt’Best. s William Young, Esq., who after being sworn said I am landing waiter, I knew Mouops Very well, a lnio<>t since his being brought into the colony, 1 have ridden the hor-e ; I hare seen CaptBest ride h im, and Kleber of the mounted Police ; I should certainly say lie was a dangerous horse j lam aware he had tricks, I found them out in riding; very-often in ironing he would stop suddenly with yoa and swing round which »as very likely to unhorse you ; he would also occasionally walk back on his hind lee* some 10 or 12 yards and perform little feats worthy of ASt ley’s ; he was rather spirited and of a quick temper with a very delicate mouth ; I drew the reins tight ; lie generally got on his hind legs ; I rode him rarherwirb a slack rein than a tight rein ; I d< s cidetLv consider Monops Snell a horse that an accident 1 might happen to the'rider without the riders fanlt; If I- wanted.to break a friends neck [ should lend him the horse without any notice as to Iris character.

Cross Ex nmined. I am brother inlaw to the defendant, I have ridden t|ie horse several times wiihout being thrown ; I never was awate he was going to ride tbe horse; I swear to the best ot id y rt collection C apt. Bst never told me Mr. Hargreaves was going to ride that horse ; I will swear that to Ihe he-t of my recollection 1 was never informed by any person that Mr. Hargreaves was going to ride the horse, I theugbt it very poS'ible Ire miflrt ; I may have spoke" of tire trurits and demerits of tbe horse', very possibly I may ; I have told C apt. Best the tricks the herse pi ayed me. This closed the Defdnrlants case.

His Honor ilie Chief Justice then said, Gentles men of lire Jury at tbe commencement of'his trial reference was made to the Rules of Law by which Ac'ions of rbii kind are governed. It was stated lo von that Ihe liabili'y. of the borrower is measured by the degree of henrfit accruing to him from the loan. It now appeal a by tbe evi-

dence which you hare heard that tbe loan in this case was entirely for the benefit of the borrower. Ihe Defendant was therefore benud to exercise that which the Law calls extraordinary diligence, thet is to say he was bound to a degyee of care and prUdence exceeding that which ipen of business and discretion generally exercise under like circumstances, in request of their own affair*. * He became liable eten for slight care/eisness. Wire, her tf,a*, accident was owihg to any absence of that dfgr<« of and vig lance which the law requites is the question which you have to decide, up your mir d!s on ibis matter -ou will fo all Ihe ciicumstances which have appear'd Jn evidence, as to the nature of ilie animal— knowledge of the Dei feudant—and so lorto. The counsel on both sides have very folly commented on all points of this kind and lam happy to find myJelf free from ihe necessity of making any remarks upon therii which might tmd to create any bias in your mind a . It is particularly a question for Theifc is one observation however, which it becomes my #uiy to make, trials of this kind seems likely to acquire in this Colony something of the character which belongs to horse cahses in England. It is proper therefore to remind you that when tbe amusement, whatever ii may have been, is oter, there remains after all a very serious duty for you to perform, to do justiee between man and nitfn. [ will now read you the whole evidence. If you shall hold tbe conduetof the Defendant to liave been such as to bring him within ihe Rule laid down, yon will be at liberty, indeed it will be proper for yon, to consider tbe circumstances which have been disclosed *n evidence as to the conduct of the Defendant after the accident. Also you will not be bound by th® account produced before vou of payments made by ihe Plain tiff for medicine and attendance. You may look to the reasonableness of the charges and make any deduction which you may think right* Again Gentlemen, I desire to remind you of the seriousness of tire duty which is laid upon you, and to beg yob to give your best attena tion to the evidence, with a view to the inferences which it may suggest either for or against the DeYendant. J he Jary foand. a verdict for Ihe Plaintiff after retiring for some time, damages JE4O. Frew <s• anotleer v. Cretnay. Action brought by Plaintiff, Merchants, a t Adelaide, Soutli Australia, to recover the sum of £BO 10s, 2d. balance of account for goods delivered to Defendant, for sales and returns in the year 1840. Verdict for Plaintiff for full amount. Plaintiffs Solicnor, Mr. Corny, with Mr. Brewer as Cennsel. Defendants Solicitor, Mr. D’Ovly. Polack v. Russell. This was an action brought by Mr. Joel Samuel Potaek against Mr. George Russell of the Bny of Islands, to recover the sum of ClUff for use and occupation of a lions'* at Kororarika, and piece of landj Verdict for Paintiff, 401. 10s. Odr Plaintiffs Solicitor, Mr. Whitaker. Defendants Solicitor, Mr. Berrey. Counsel fo? the Defendant the Hon. the Attorney General. Johnston v Marshall . Action to recover the amount of a Bill otf Exchange. Verdict for Plaintiff, 4€/. 15s. 3d§. Plaintiffs At oruev, Mr. Whitakfcr. The Court tb-n adjourned.