WEDNESDAY, 15TH JULY.

Southland Times, Volume 2, Issue 73, 17 July 1863, Page 3

WEDNESDAY, 15TH JULY.

.;'■■. CIVIL BIXTIMGB. jfiie Court met at eleven o'clock, and at once fMeeded with the first case on ihe civil list. <Ke following jury was empannelled:—Messrs. Mamwond, W. Boyd, T. Carswell, W. Corns, tlms Cunningham, Charles Gardiner, John Lindfß^john Ludett, Hugh M'lntosh, Roderick v4»te, John Mathieson, James T. Meadows. ■'^Bfendows was chosen fore Tan. RaMAOBS FOB IXJUBY TO AND LOSS OF W PKOPEBTY. v. A. T. Clarke and J. and J. Clarke. -Be plaintiff's case was, that Ibe defendants Bck bad by goring caused tho death of bis iße; and that he was therefore entitled to reSr general and special damages. ?Br S'JUth appeared for the plaintiff; Mr HarJBl'or the defendant. Mr. South, in opening the case, said that this ■an action brought by Thos. Harrison against 'fft. Clarke and Sons, butchers. The jury had <>JW the issues read, as settled by the respective itors, yesterday before his Honor. The main ts to-day were, whether the plaintiff was enlito damages ? and, if 60, to what damages ? rould read the declaration, and state circum•es. The declaration was to the effect, that on iout the 22nd January, on a public road near jewa, a bullock belonging to the defendants shed upon and injured a horse of the plainthat the animal died. It was sought to rer damages for the actual value of the horse, to mount of L 45, and also special damages for Forking loss. r Harvey appeared for the defendant, ler hearing evidence for the plaintiff, the case nonsuited. _ . ie issues, as arranged by the solicitors, were II Was the bullock of the defendants a vicious 'dangeoous bullock within the knowledge of defendants ? and did the said bullock, whilst g driven by the defendants, or some or one of i, rush upon and cause tho death of the plaini horse, us in the declaration alleged? Is the plaintiff entitled to recover from the • adonis any and what damages ? Horse Case. w. cassels galloway v g. k. clahk, . ithis case an additional jury was impaned, consisting of Messrs John Murdoch, n Patterson, Solomon Shepherd, G. Smith, itDas Swale, John Thorns >n, Kenneth, vor, James T. Meaaows, Thomas Allan Ham Boyd, John Ludett. His Honor ed that all the other jurors would be disrged tiil ten o'clock to-morrow, and he led that would be their last attendance. [r Harvey for the plaintiff, Mr South for defendant. x Harvey, on the part of the plaintiff, aed to make an amendment in the declaim, to the effect that £10 should be added mount sought to be recovered. He would c the law. When a man hires a horse, he able for improper usage, such as neglectto feed it, and farther, if the horse is m ill on the road, unless he call in an lirienced veterinary surgeon, he is liable amages. is Honor thought that if it were wished rely upon [the medical point of view, ught to have stated it in the declaration c specifically. i Harvey said it was not material. The was this : Defendant overrode a horse jh he had hired, gave it water, inflamma- , ensued, and it died, 'illiam Cassels Galloway said that he d out horses and lived in Invercargill. •ws the defendant in the action. On the ning of the 20th June, defendant hired a -, ie from him to go to Winton Bush ; or 1 ter a man naraed George Scott came and he was sent by Mr Clarke to see if he (1 hire a horse to go to Winton Bush. He iit to Scott. Did not see Scott give the He to Mr Clarke. About 10.30 same .At got a message that the horse was nearly .Ml. Jumped upon another horse and proled two miles to Mr White's gate. Found g horse lying in the middle of the road ■ dead. Examined it carefully. Found tad. Then went to a house near where -Bhorse was lying. Asked for Clarke, and re could see him. After some time saw I sitting by the fireside. Asked him how 1 occurred, telling him at the same k that tha horse was dead. He 9 he did not know exactly. Witness H said to him that he had overheated the Be, given it a gorge of cold water, and so aramation had ensued, and the animal m ; also asked him if he had treated the Be with anything. He said when he found Bhorse getting ill, that he offered it a feed .fiats, but that the horse would not eat. led him did he give it anything else. He wed yes, when the horse was getting cold, Rit about half a bottle of gin. Witness ft said that by giving it gin, and one fire gbg against another, death had ensued. Bsaid that he had done everything for the j§- Witness said that he had done the . H for him at last. Defendant said that he goffered it water, but did not know whemit had drunk it or not. Witness then Btohim that the distance he had travelled Bed that he had overrode the horse, and Hif he had told him in the morning that was going to return from Winton Bush Hsarne day, he should not have had the Wb- Winton Bush is about twenty-three §» frem Invercargill. A great deal of Bond abcut that time was cut up. Asked jfrdant if he would remove the horse, and , Bid the people would not let him remain K- did. Witness said that he had nothing c ■> with it, but that he would assist him " mt the horse out of the way. Took a I ■■le to see if the horse had made any x ftgle during the time it was dying; but 1 find no appaarance of the sort. Then .4 'ued to town. Saw Mr Clarke, the deant, on the following morning, and asked if he was going to settle for the horse. -■. aid no, that he thought he had no right i o so. He also said that he could not 3 it, he had done everything for ; best. Witness said that they ought J lave an inquest on the body of the b. and employed Mr Von Hammer P- Horton to bold such an inquest, horse was opened, and its death was said aye resulted from inflammation. In Mr ke's presence, said to Mr Von Hammer not that horse as sound as the day b 38 ;WPe^'' Mr Hammer said that the heart wa >yiA}tiful heart. The liver was taken out. I then'said that the liver was black. Mr ieH Hammer said it resulted from inflamap. ■ Witness turned round to Mr Clarke -■Baid: "What do you think of that?"' A asked Hammer to explain to defendant ; Jfcauße of death. He said that the horse ■ been over-heated, and allowed to get <B water. The market value of the He at the time was L4O or L 44. Expect plwe Lio to pay for the expense of the Hiinations. Kept that horse for hiring. „«iverj -stable keeper. ■8 Honor here asked plaintiff's counsel, in tj he *°e evidence, if he were going in for oB" .^Pon a reply in the affirmative, Mr. ■h objected to the competency of theques--j ■prospective profits, and a short discusna: B ensued. His Honor said that he rather toB-dio the views of the defendant's counsel Kgmfopoint. However, he thought it better jtjfßMr: Harvey should be allowed to pro;i B> and that Mr. South could take a note ■c objection, and in the event of a verdict .■lst him, move for a new trial, or a reduc'\Bof the amount of the damages. WMr Harvey: The horse was wortlj about 4ifl?s a week from its earnings, after de- , iMjrig the cost of keep. Has received no from Mr Clarke. —!J#pss-exarnined by Mr South: Ikeeplivery Uisft 8 ' On tne 20fch June had them. Lent bJtff orse t0 Mr Clarke. Did not see Mr pl|fo on the morning of the 20th. George |» came to me • and said the horse was S»«l- Did not telj Mr Clarke when he

saw him that he had given. ' hint two double feeds of corn and a gorge of; .-Water,-,, I told him that I had given the. Woirsetwo feeds of oats and two mouthfuls of water. 1: Mr Clarke and I and Mr Von Hammer aria Mr Horton were present. Mr HortOTv' was not present at the commencement of the. examination. Told Mr Clarke that I had, given him two feeds of oats and chaff and bran as usual, and that the tyro horses did not take half a bucket between them. I told Mr Von Hammer that also. When I saw Mr Clarke on the evening in question he did not say anything to me about not having taken the horse from me. Have had fourteen years' experience in horses. When I saw the horse dead there was a cold heavy dew upon the body. The effect of over-riding a horse would be that of almost bursting the heart. The liver was discolored from inflammation. Over-riding would cause inflammation of the liver. The death of the horse resulted from over-riding— saw the intestines. A good deal of the oats was not digested. There was a great quantity of water. Clarke did not tell me that he knew about horses. He said that he gave the horse gin because he thought it was "riped Did not tell Mr Hewey that I had Sn the'morningof the 20th given the horse a bushel of oats. I said that the horse was Avell fed and that he would take no more than two mouthsful of water. Said to Mr Hewey before the horse started that it was as lively as a lark, and did not farther say fiat it ate a bushel of corn. Have never made any claim upon Mr Clarke, for the hire of this horse. By the Bench : The heai t at the examination was very sound, but inflamed a little. The heart was all over with blood. The blood from being chilled had caused the inflammation. The heart was partly black. The witness was here asked how the heart could be sound and discolored at the same time. He replied yes. He would call a heart sound, though it was discolored, if it was plump. By Mr Harvey : George Scott, groom at the Victoria Hor3e Bazaar, remembers the 20th June last. Clarke Brothers, the storekeepers, engaged a horse of Mr Smith the night before to go to Winton Bush. The horse was to be ready at six in the morning, and Mr Hewey came for it about 8 o'clock. Went away with the horse and returned shortly afterwards with the same horse, and said that he wanted another one for Clurke the chemist. The above evidence was objected to by Mr South, and his Honor ruled with him. Witness got a horse from plaintiff, and delivered it to Mr Hewey. Mr Hewey took it away Cross-examined: Don't know what Mr Hewvey is. Did not see Mr Clarke, the chemist. By Mr Harvey: Beresford Hewey resides inlnvercargill. Remembers 20th June last. On that day went to Victoria Horse Bazaar, and asked for a horse. The groom brought a hor»e, which he brought to defendant, and defendant accompanied him on the horse to Winton Bush. The horse died on the road back. Was with him both going and returning. On his proposition it was that defendant went to the Winton Bush. Clarke not having a horse, he got this one for him. Defendant offered the horse about four miles from Invercargill, at Fisher's Accommodation House, a feed of oats and some water, but the animal would not take it. Previous to that stopped at the Galloway Arms, about eight miles from town. Whilst there, fastened both horses to a fence. When got to Galloway's the horses were perfectly cool Next stoppage was at Fisher's on the way up ; stopped there nearly an hour; gave the hroses nothing there; whilst inside, the horses were outside fastened to the pole of a bullock dray ; the horses were a3 cool as horses could be when driven at a gentle trot; from Invercargill to the Galloway the road was very bad; next stop was at the Winton Bush Accommodation House, about eighteen and a-half miles from town; remained theie for about half-an-hour ; gave the horse 3 nothing theie ; the horses were cool when we got to Winton Bush ; a man held them there, and stayed half-an-hour; stopped next at Fisher's on the way back ; it was then almost dusk, in fact, believe it was later ; remained there i nearly an hour ; ordered a feed of oats for each of the horses, but the one defendant rode refused to gat; was present when the horses were offered the oats ; they were tried also with water, which Mr Clarke's horse refused to drink ; then went on as far as the Galloway River; after crossing the river,, Mr Clarke dismounted and led his horse to the place where it died; previous to approaching the river the horse appeared to lag and, in consequence, defendant dismounted; on ihe way to Winton Bush had crossed one river ; on crossing the Galloway the horses drank butvery little, Mr Clarke's horse about half a gallon; the horses then were very cool; the roads were to bad that th-^ horses had to be ridden at a walking pace from Invercargill to the river; stopped on the way up at Gallovay about 12 o'clock ; after Mr Clarke dismounted, got as far towards town as Mr White's gate ; there is stabling at the Galloway Accommodation House ; a few chains from the river Mr Clarke dismounted. Defendant at that time thought the horse was unwell; at Fisher's Accomodation House, on the way up Mr Clarke first thought his horse was unwell; the horse lay down at Mr White's gates, across the river, and died. Defendant led the horse about six miles ; Mr Clarke, when the horse lay down, tried to get it up; gave the horse nothing and saw Mr Clarke give it nothing; then witness went on to town and told the groom that his horse was very bad and lying on the road; this was about eleven at night; left the town in the morning about nine o'clock — on consideration, not sure whether earlier or later. Cross examined by Mr South: When I returned to town, ascertained that the horse belonged to plaintiff; when I saw Scott in the morning, it was at the Victoria Horse Bazaar, which is Smith's stables; then told Scott , that I wanted a horse; Scott did not tell me I who he was going tohirefrom ; I believed the horse to have been the property of Smith, and only found out that it was Galloway's at midnight on the 20th ; the 20th was a very fine day; the roads were good as far the Waihopai bridge ; I made an arrangement with Scott that I was to pay 30s. a day for the horse I hired for Clarke; first perceived a j peculiarity in the horse arguing illness, at Fisher's on the way up ; it appeard to be puffed and swelled; this was about five hours from the time we left town ; after the first three miles our pace was a walking pace as far as the river; we rested an hour at Fisher's aud about half-an-hour at Winton Bush. There were stables at several places on our route. The horse received no injury from being tied up on the 20th May. Rode back from Barber's to Fisher's at a trotting pace —some five or six miles. Walked the horse after he dismounted about six miles. When the groom took me to Galloway's in the evening, he said to me, that it was as lively as a lark in the morning and had eaten a bushel of corn. I observed the horse during that day very narrowly. I have been accustomed to horses. By Mr. Harvey: My horse was a hired horse. I don't know whether that horse has been laid up since or not, or that it has done a single day's work. By the Court: The 20th was a clear frosty day. It was very cold towards evening. It was cold in the morning going. At this stage of the proceedings, (6 o'clock, p.m.) the Court adjourned to ten to-morrow