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

King v. Kemp [1834] NSWSupC 23

assumpsit - negligence - maltreatment of animal

Supreme Court of New South Wales

Dowling J., 14 March 1834

Source: Sydney Herald, 17 March 1834[1 ]

King and another, v. Kemp. - Mr. F. Stephen said this was an action of assumpsit, brought to recover the sum of £12, the value of a horse sold to defendant.  Plea general issue and non-assumpsit.

The facts were as follow - Defendant employed a man by the name of Lewis, to purchase of plaintiff a certain horse, remarking at the time, that he could make three or four pounds more of him, and they would go shares, whatever the horse produced above the purchase money.  The horse was purchased for £12, and delivered by Lewis to Kemp, who put him into a gig, and in driving through the street, defendant drove against a timber carriage, and threw the horse, doing him serious injury, and rendering him perfectly useless for the term of his natural life; to recover the value of which, this action was brought.

George Lewis, groom and farrier, deposed that he knew the parties in question, and was employed by defendant on the 25th of January last, to go to the plaintiffs and bargain for one of their horses; he did so accordingly, and purchased the horse for £12, and then led him with a halter to Kemp's stables; the horse was then put into a gig, and drove towards the Barracks, defendant intending to shew him to Serjeant Martin, with a design to sell him; witness saw him again about two hours after, and observed that it had been thrown down and very much injured about the legs; witness understood that the horse had run away, and struck himself by coming in contact with a timber carriage; witness then refused to have any thing to do with the horse.  This was the case for the plaintiffs.

Mr. Therry, for the defendant, contended, to maintain this action, positive negligence must be proved; in support of which, not one tittle of evidence had been adduced to render it necessary that the case should go to the Assessors.  The accident which had occurred, was one of those casualties which are now and then unavoidable to persons of the most safe and cautious nature.  He considered that the plaintiff could not recover, as all due care had been taken to preserve the horse from injury.  This the learned Judge over-ruled, and Mr. Therry then proceeded to call witnesses to prove the bad disposition of the horse.

Thomas Cooper, formerly in the employment of Kemp, stated that the horse was brought by Lewis to his master's, on the 25th of January last, to be shewn about the town in a gig, and positively heard Lewis say so at the stable door; he saw the horse after the accident, and considered that the horse was not seriously injured, and was, in fact, £4 better than he was when first brought to defendant; in witness' opinion, the horse was not worth more than £8 when first purchased; witness left Kemp's employ immediately after the occurrence, and stated that the regular price for keeping a horse at a livery-stable would be 15s. per week, and the horse in question had been kept by Kemp up to the bringing of this action.

Thomas Hayton, a publican, deposed that he saw the horse in question at Kemp's stables, and Lewis told him that he had purchased him of King.  He saw the horse again after the accident, and heard Lewis tell Kemp to put him into the stable and he would be answerable for the injury the horse had sustained.  Lewis appeared to consider all along that the horse was his own.

Charles Henly, a baker, stated that he had hired the horse on one occasion, of Kemp, to try whether he would go quietly in a gig; but he could do nothing with him, and considered that he was a very dangerous animal, subject to starting and jibbing, and was in very respect what is termed a rogue.

Mr. Therry here observed, that the whole of the evidence went to prove a special contract, and again claimed a non-suit.

This was opposed by Mr. F. Stephen, on the ground that evidence had been called for defence, and, therefore, it was consequently irregular.

Mr. Nichols then called Mr. Frederick Stanard, who stated that he was at King's at the time that Hayton called to borrow the horse, and he advised King not to let Hayton have it, as he considered him incompetent, and was also rather fresh.  Mr. Standard stated that he had driven the horse repeatedly, and would not wish to ride behind a more tractable creature.

Mr. Therry observed, this witness was manifestly called to contradict the evidence of the two witnesses for the defence, who had been called to prove the bad disposition of the horse.  The contract, if any, was to show the horse for sale, and is, therefore, contrary to every allegation contained in the declaration.  It would be for the assessors to decide to which evidence they would give credibility.

Here the case closed, and the learned Judge summed up the evidence, observing that this action was brought on two counts.  The first, for goods sold and delivered, and the second, to recover back property delivered for a specific purpose.  The evidence was then recapitulated, and a verdict given for the plaintiff.



[1 ] See also Australian, 17 March 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277, p. 1.

Published by the Division of Law, Macquarie University