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

Kennett v. Cape [1838] NSWSupC 23

bailment - damages, assessment of - animal, damage to

Supreme Court of New South Wales

Dowling C.J., 13 March 1838

Source: Sydney Gazette, 15 March 1838[ 1]

(Before the Chief Justice, and a Common Jury.)

Kennett v. Cape - This was an action brought to recover compensation for an alleged injury done to a horse.  Mr. Cheeke opened the pleadings; the declaration contained six counts, setting forth that the plaintiff Elizabeth Jane Kennett, at the special instance and request of the defendant, lent him a horse, which the defendant promised not to keep out more than two hours, and to take due care of, instead of which, he kept it out for a long time and injured it by over riding, so that the horse for a long time was ill and lame, and the plaintiff was thereby prevented from having the benefit of the use of the horse.  The defendant pleaded the general issue, and paid five shillings into court.

Mr. Windeyer stated the case and called -

James Newman - I am a groom in the employment of Mrs. Kennett; I recollect Mr. Cape's servant coming to hire a horse for his master as he had been in the habit of doing; he came about half-past five in the morning, he had a saddle horse; Mr. Cape used generally to have the horse for two hours, sometimes for half a day; he had a bay horse, a good one; we had only had him for a few days; my mistress purchased it from a horse dealer, named Webb; when he went out he was all right, knees sound; he was brought back about half past one; I asked the man where his master was going, and he said he was going with a lady for two hours; when the horse was brought back, both his knees were very badly broken, one worse than the other; I am certain that with fair riding this would not have happened; I have been acquainted with horses from my childhood; this was the first time the horse had been let out; I attended the cure of the horse; he was useless for seven or eight weeks; he has not been used since; the horse was worth £40 when he went out of the yard, and I should think now that he is not worth more than half the sum; the charge for keeping a horse at livery is fifteen shillings a week; if the horse had not been injured, my mistress would have made from £2 to £3 per week by him.

Cross-examined - This was on the 22nd of December; it was fine in the morning, and then turned out dreadfully wet; I had never tried this horse before; the horse had been used to both riding and driving; I am a good judge of a horse; with the most careful driving an accident may happen; a horse that is sometimes driven is more likely to stumble than a horse that is only used as a saddle horse; nobody doctored the horse but me; I sent a bridle but no saddle with the horse; I cannot swear it was not six o'clock when the horse went away.

Re-examined. - I acted under the direction of Mr. Kennett who is a veterinary surgeon.

Mr. Richard Webb. - When I sold this horse, I warranted him sound, and good in double horse and safe as a saddle horse.

Mr. Foster objected to this witness being examined, as, if the horse were not sound, the plaintiff would have an action against him.

Mr. T. a'Beckett - I sold the horse to Mr. Webb some time since; I always found him an exceedingly good horse; I both rode and drove him; he was some time running in the Windsor coach and I afterwards rode him about the town and hired him out; he never fell down.

Cross-examined - He was an exceedingly good collared horse; he was driven in the Windsor coach some time; he was driven more than he was rode; a horse that has been driven in harness is more likely to fall than a horse that has not; a very good horse may accidentally stumble, especially now that the roads are full of holes.

Re-examined - After he had been in the coach he was used as a saddle horse for a couple of months and was after let to ladies; when I parted with the horse he was worth about £40, for a cart or anything of that kind he is now worth about £25; he can never be trusted to carry a person again.

This was the plaintiff's case.

Mr. Foster submitted on the authority of a case in Mr. Campbell's nisi prius reports, that it was necessary that negligence on the part of the hirer should be proved, and that as that had not been done, the plaintiff must be non-suited.  His Honor considered that as the horse was kept out longer than two hours, there was sufficient proof of non-fulfilment of the contract to go to the jury.

Mr. Foster addressed the jury for the defendant, he said that upon the arrival of Mr. Cape at his father-in-law's, Mr. Jaques, it came on to rain very heavily, and the defendant stayed there three or four hours until the rain was over, which accounted for the delay, and that on his return home the horse stumbled accidentally, but there was no person present - there was no evidence of the way in which the horse fell down, but as His Honor would direct the jury that it was necessary for the plaintiff to prove negligence on the part of the defendant, he relied upon their verdict.

Mr. Jacques - I am the father-in-law to the defendant; I recollect Mr. and Mrs. Cape coming to my house a day or two before Christmas; I reside at Ashfield Lodge, about six miles from the Sydney College; I cannot recollect the particular day, and should not have known it if I had not been told; I recollect their coming a day or two before I heard of the horse falling; I do not recollect how the weather was; they had been there in the rain several times.

Michael Toomey - I am Mr. Cape's butler, I recollect Mr. and Mrs. Cape going out on horseback a few days before Christmas; it rained very heavily when Mr. Cape came back; it had been raining some time when Mr. Cape returned; Mr. Cape never uses spurs, he is a very gentle rider; when he came back one of the horse's knees was cut and the other had the hair off, but nothing to signify; the horse was quite cool.

Cross-examined. - I am not the man that went for the horse; it commenced raining after breakfast; I cannot say whether the Christmas holidays had begun; the horse was not a bit lame; my mistress did not come home with him.

James Miller, servant to Mr. Cape - I recollect getting a horse from Kennett's a day or two before Christmas, wen the horse came back the knees were broken; it did not appear to me to have been hard ridden; I washed his knees and took him home with a note from Mr. Cape; I went with Mr. Cameron the farrier to the stable to see the horse.

Cross-examined - My master came home about eleven o'clock; the horse was taken home between eleven and twelve o'clock; my master said he had a narrow escape for his life; he blamed the horse of course.

Mr. James Cameron - I am a veertnary [sic] surgeon; I went on Christmas day to see a horse with Mr. Cape's servant the horses knees were injured; one had a considerable wound from a fall and the skin of the other was ruffled; the horse was between nine and ten years of age.

Mr. Windeyer in reply contended that the evidence clearly entitled his client to a verdict sufficient to cover the sum of £15, being the difference of the value of the horse when he went out and when he returned; the profit that the plaintiff would probably have made had he the use of the horse, and the value of his keep for eight weeks.

The Chief Justice said, that when a party lent a horse for hire, the implied contract is that he shall find a horse free from vice and sound in every respect, while the rider is bound to use all diligence to take the same care of the horse as if he had been his own, and if any inevitable accident occur by which the horse is injured he is not liable.  The defendant having broken his original contract that he would only keep the horse for two hours, His Honor held that the burthen of proving that the injury occurred to the horse through accident and not from any negligence or unskilfulness laid upon the defendant.  If, as was opened by the Counsel for the defence, it had been proved that the defendant had overstaid the two hours for the purpose of keeping the horse out of the rain for fear he might catch cold, it would have afforded an excuse, but so far from that it was proved that he rode home through the midst of the rain and in his anxiety to get home as soon as possible no doubt the injury was inflicted.  Verdict for the plaintiff.  Damages £23 7s. 6d.

Council for the Plaintiff Messrs. Windeyer and Cheeke; for the defendant Mr. Foster.



[ 1]See also Sydney Herald, 15 March, 1838; Dowling, Proceedings of the Supreme Court, Vol. 148, State Records of New South Wales, 2/3333, p. 50.

Published by the Division of Law, Macquarie University