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Colonial Cases

Skelton v. Caldwell, 1874

[trial by jury - negligence]

Skelton v. Caldwell

Local Court, Palmerston
Price SM, 11-12 August 1874
Source: Northern Territory Times and Gazette, 15 August 1874, p 3


(Before Mr. Price, S.M., Hon. Thos. Reynolds, and Mr. Gardiner, J.P.'s.)
Skelton v. Caldwell.-Claim for £100, value of a horse.
Mr. Rudall for the plaintiff, and Mr. Smith for the defendant.
Mr. Smith applied for a jury, which he argued was allowed by the 38th section of the Local Courts Act.
The Special Magistrate said that no jury district had been proclaimed in the Northern Territory, and until that was done there could be no jury. Mr. Smith contended that the right to a Jury was given by the Local Courts Act, and that it could not be taken away merely because the Governor had not proclaimed the district. He should advise his client, not to proceed without a jury.
Mr. Rudall said he wished the case to be tried in the usual way.
The Special Magistrate said the case would stand first for the following day. But there could be no jury in the absence of a jury list; for although the Local Courts Act quoted by Mr. Smith said that a jury might be asked for, yet the Jury Act required that there should be a jury list prepared.
(Before Mr. Price, S.M., Hon. Thos Reynolds and Mr. Gardiner, J. P.'s.)
Skelton v. Caldwell.-Adjourned case.
Mr. Smith said his client would not appear unless a jury could be granted. He would submit that the absolute right to a Jury was given by the Local Courts Act. The words were express, and independent of any other words. They declared in the most positive terms that a suitor may require a jury, and that a jury should be granted when the proper forms were observed, as they had been in the present instance. The Act was most absolute in its provision on this subject, and the provision was not repealed by the Jury Act. It would be opposed to the law of England to attempt such a repeal but any one looking at the Jury Act would see that there was no such repeal. In a previous case he (Mr. Smith) applied for a jury, and Dr. Millner remitted the case to Adelaide, when the answer, after two days, was that it was a matter of doubt, and he must exercise his discretion. He did exercise his discretion, and granted a tales, and thereupon a Jury was impannelled and the trial took place. However, the Acts of the South Australian Legislature provided for the sitting of Juries in out-of-the-way districts, for there was a provision to enable a jury to be formed although there might be no jury list. The words "sufficient number" did not imply merely that there should be some number of jurymen in existence; but also that there might be none. If a tales could be granted where there were some jurymen present, it could equally be granted where there were no jurymen present. The Act said if sufficient jurymen were not in attendance (the word "summoned " was not used) a tales could be obtained. He therefore demanded that a jury should be allowed in the case. He would quote from Broom and Chancellor Kent to show what construction should be put on the words which he had referred to. He thought it was clear that the Legislature intended that a tales should be granted in cases where there were no jurors summoned, the same as was the case under the mining laws of Victoria. He did not, however, ask for a tales in the present case; but contended that he had a right to a jury under the Local Courts Act; and that right had never been repealed, as no repeal could be effected by inference; it must be done by express words. On this point he would quote from Broom and from Dwarris on Statutes. He would submit, then, that the case could not be heard until a jury could be obtained; and if it were necessary to proclaim a Jury district, such district must be proclaimed, in order that a jury might be impannelled. His client was willing to have the case postponed for the purpose of obtaining a jury.
The Special Magistrate said that a new Act of Parliament would be nnecessary to form a jury roll in the Northern Territory, inasmuch as it required the intervention of the Sheriff in a manner which could not be effected at this distance from Adelaide unless the dates were altered.
Mr. Smith said that this did not in the least take away the right of a suitor to ask for a jury-a right which was given to him by the law, and which could even be obtained by a tales where there was no jury list.
Mr. Rudall argued that under the Jury Act the Northern Territory must be proclaimed a jury district; and then there must be a jurors' list prepared. After all this had been done, a tales might be granted in the event of a sufficient number of jurors not being present, but a tales could not be granted in any other case. No man could even be made to act as a juror until there was a jury list This case must therefore go on without a jury; for it would be most unjust to postpone the plaintiff's claim indefinitely in order that this question might be remitted to Adelaide.
The Court were of opinion that the two Acts must be read together, the one being modified by the other, and that the case must go on without a jury, and the defendant would then be able to appeal.
Mr. Smith said that under those circumstances the defendant would not appear; but would appeal as to his right to have a jury.
The case was then proceeded with, and the plaintiff's claim was gone into, and was to the effect that a valuable horse belonging to him was injured and destroyed, through eating some damaged bran which the defendant had spread out to dry on some land near his residence, where the horse was attracted by it.
The evidence given by Mr. Skelton was that in June last the defendant spread some bad, sour-smelling bran on his land, and plaintiff's two mares went to it. He several times saw them eating there; and soon after the grey mare died. For a fortnight previously the mare seemed peculiar, and was very round in the barrel. There was a swelling on the flank, which he noticed on the 13th June. Gave her medicine and otherwise treated her on account of stoppages in the inside but she died on the morning of the 15th. A post-mortem examination was then made in the presence of a number of people, when the paunch was found to contain a large mass of sand, gravel, and shells; the bowels were choked with this stuff. Believed that the gravel, sand, &c , was eaten with the bad bran, as that bran had been brought up from the beach where it was lying for some time. The stuff in the paunch was just like conglomerate. Refused to sell the mare for £100 the week before she died. Considered his loss to be much greater than £100. There was no fence round the place where the bran was; it was a mass of reeking decayed stuff. Never spoke to Mr. Caldwell about it. Another mare of plaintiff's died about seven days afterwards. She had also eaten the bran, and the results were similar. Saw other horses eating there. The stuff was spread close to the public street. Evidence on the same points was given by W. F. Nation, J. Runge, G. C. Colgan, and C. Fry, the latter stating that there was a quantity of gravel mixed with the bran. He saw it there, and found that his own horse had been eating it. There was salt water with the bran, and that attracted the horses.
Another witness (F. G. Simpson) said he had frequently driven the mares away from the bran. He confirmed the previous evidence, as did also E. Sheppard, who said the bran was brought up from the "camp," where people complained of the smell. It got mixed with the gravel there; and then it was brought up to Mr. Caldwell's place, where all the horses in the town came and fed on it. Had driven the mare away from the bran, which was damp with salt water. A. Perkins and one or two others said the mare was worth 50l. or more. Mr. Rudall also spoke as to her value; and Mr. W. C. Sims said he fetched his horse away from the bran once or twice. Sold his horse for less than he gave for it, because of the sand and gravel in the manure. Mr. W. Wright, Sergeant Badman, and Trooper McGuire confirmed previous evidence.
Mr. Rudall submitted that the death of the mare was undoubtedly caused by the bran and stuff which Mr. Caldwell had negligently spread out behind his house; and he was therefore legally responsible.
Verdict for the plaintiff, damages 60/.
Mr. Smith gave notice of appeal on the jury question and went on to say that from observations he had overheard, he was afraid one of the Justices thought he or his client had insulted the Court by not appearing in the last case. But nothing of the sort was intended. He also said that one of the Justices in this case was never known to have an opinion different from the Special Magistrate, and that the other Justice never agreed excepting on the wrong side. These remarks led to some altercation of the usual offensive kind, which the Court cut short by an adjournment.
On the following morning when the Court met, the Special Magistrate called upon Mr. Smith to withdraw his words reflecting upon the two Justices; and he said he was willing to do so; but this was not done until a great deal of recriminatory conversation had been indulged in, to the amusement of the bystanders and to the injury of all who are concerned in the proper administration of justice.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School