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Decisions of the Superior Courts of New South Wales, 1788-1899

Rosetta Marsh v. Esther Julian [1810] NSWKR 2; [1810] NSWSupC 2

negligence - horse, neglect of

Court of Civil Jurisdiction
Bent J.A., 20 March 1810
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 5/1103 (case no. 33)[1]

[12] Action on the case against the defendant for the negligence of her servant James Hooper, in improperly putting a mare to a horse, by which the mare died. G. Johnson, appears for the defendant. Plea not guilty. John Winch says, being sworn, that on the 12th September last he was servant to the plaintiff. Says that by his order he took a mare on Saturday in September last to Annandale farm, where Mrs Julian the defendant lives. It was a dark bay mare. She had had a foal or two before. Mrs Julian is admitted to be agent to Colonel Johnson, but she lives upon the farm, receives the rents and profits of it and has the management of the servants. Colonel Johnson was out of the country. He was ordered to deliver the mare to Mrs Julian's groom, for the purpose of being put to a stallion of the defendant. When witness got to the farm, he saw the groom and young Mr Johnson who ordered a bridle to be put on the mare. He brought to the stable and shewn to the horse. The horse was brought out, and put to the mare. Mr Johnson, James Hooper, the groom and witness were present. Witness held the mare's head. Fetters were put by Mr Johnson's orders on the hind legs of the mare and the horse was brought out. The groom said "the horse is ready". "Stop a little" says Mr Johnson. The horse then leaped on the mare. The groom's duty is to see every thing purposely done. The groom appeared very much confused. The groom was endeavouring to assist the horse. Witness thought something was going wrong. The groom gave the horse several checks, and called out for assistance from a man coming by. Mr Johnson said "hold your tongue". About a minute after the horse got off the mare. Witness did not at the time see any thing the [13] matter with the mare. Witness led her away and observed shortly afterwards before she got home, that she shivered much. She seemed very dull all the way home. She trembled very much before she was put in the stable, and would not eat. The doctor came to her but she died about 12 o'clock that night. She was a lively mare fit to run in a chaise. Says he is sure she was sound and in health before she was put to the horse. Says the mare might be worth ¿100. But he says he is not a competent judge. Says he does not know whether it is usual to fetter mares when given to the horse. Two servants are generally employed to take of the stallion, one to hold him and the other to attend the stallion and direct him. He does not think one sufficient. Defendant's horse was very large powerful and vigorous. It was more than the groom could do to manage him.

Jesse Mulcock sworn, says he has always had the care of cattle and been used to them. Says that going by Mr Marsh's, he saw the mare in the street, believes it to have been the day she came from the horse. He observed she was very ill, it was about dusk. Says he afterwards examined the mare all over. She was trembling very much. In consequence of having been told that she had been put to the horse, he thought the horse had hurt her. He could not tell from his own observation the cause of the mare's illness. The mare was afterwards opened. Witness was present. On being opened witness saw that the rectum was burst. The dung was thrust forward among the liver and thinks it must have proceeded from something being introduced externally. Says he knows James Hooper, and believes him to have been a proper person to attend the horse. Some of Mrs Julian's servants attended at the opening. He would have trusted Hooper in the same kind of an employ. He has since taken mares to Annandale for the same purpose and Hooper was employed. Says the horse is remarkably quiet and Hooper is sufficient to manage him. He thinks it must be owing to very great carelessness, if the penis of the horse were introduced into the anus of the mare. Says he thinks the mare was worth ¿100.

James Flavell sworn, says he has been a farmer near 13 years. Says he attended a mare of Mr Marsh's in September last before the mare died. The mare could neither eat or drink. She trembled and shivered very much; did not examine the vagina or anus. The mare did not dung while he was with her. He was present when she was opened. The dung was scattered about her liver... There was little dung in the rectum, it appeared to be thrust forward. The rectum was burst. He thinks that was the cause of the death. He never saw any thing of the kind before. He thinks it must have [14] proceeded from something hard forcibly introduced externally, for he knows no disease productive of that effect. It was not in the nature of a rupture. Says he knew the mare from a foal. He thinks the mare was worth ¿50 sterling money, he would have taken that for her. Says he knows the horse the mare was put to, that he was quiet and free from vice. Says it is not customary to have more than one person to attend the horse and one the mare.

George Johnson sworn, says that for ten years he has been a groom in England attending stallion horses in England. He never saw more than one person to attend the horse. That it happened to him once to have an accident happen to him, to introduce the penis of a horse into the anus of the mare. But he did not see her opened after her death, which was in 24 hours. He thinks the mare in question worth ¿100.

Simon Fuller sworn, says he is a butcher, who was buyer when Mr Marsh's one was opened. She was opened with great care. Says the dung gut was burst. It was not done by the opening knife.

Payment of the money to the groom and the covering of the mare and that the horse was employed and kept for that purpose, admitted by Mr Johnson.

On the part of the defendant.

Robert Gardener was called and sworn, says, that he is a servant of the defendants, that he was about 20 yards from the mare when she was covering. Says he did not perceive any thing improper or negligent. He did not hear the groom cry for assistance, did not hear Mr Johnson cry "hold your tongue". He thought that Hooper was capable of taking a horse to a mare. It was a quiet horse. Says that Winch rode out of the yard on the mare in question. Says he has seen Hooper employed several times in managing horses while covering. Saw no appearance of the mare being ill when she left the yard.

Verdict for the plaintiff.

Damages ¿80 and costs

Eight days allowed defendant on execution.


[1] This is one of the earliest references in Australian case law to the term "negligence", which had not yet developed as a separate tort.

Published by the Division of Law, Macquarie University