 |
|
 |
|
|
|
|
|
|
||||
|
Decisions of the Superior Courts of New South Wales, 1788-1899 |
|||||||||
|
Published by the Division of Law Macquarie University |
|||||||||
|
|||||||||
|
|
 |
|
|
|
||||||||||||||||||||||||||||||||||||||||||||||||
|
|
[negligence - animals - inn keeper's liability - bailment - common carriers] McLean v. Blackett Supreme Court of New South Wales Dowling and Burton JJ, 19 April 1834 Source: Australian, 21 April 1834[1]
McLean v. Blackett. - This was an action brought to recover the value of a mare delivered to defendant for agistment, at 1s. 6d. per week, when a verdict was returned for plaintiff, damages £30, with leave for defendant to move to set aside the verdict, and enter a nonsuit, if the Court should be of opinion that no proof of negligence on the part of the defendant had been proved. Judge Dowling delivered the opinion of the Court. After duly considering the arguments used upon the motion to set aside the verdict, and enter a nonsuit, the Court had arrived at the conclusion that such was the proper course to adopt. It appeared on the trial that the mare and foal had been delivered to defendant at Bungarrabee for agistment, and on being applied to for it, he stated that unfortunately it had been lost, and since then it had never been found. The learned Judge directed a verdict to be found for plaintiff, subject to the present motion. The Judges considered this case to come within the meaning of the one cited in Holt's Nisi Prius Reports, where Sir Vicary Gibbs laid it down that a party was not liable unless negligence could be proved, and if a person took in horses to agist, he was not like an inn keeper, liable for the delivery of the goods, except negligence could be proved. In this case no negligence had been proved by the evidence it was a bailment without consideration, and not like the case of a carrier, wharnger [sic], &c. In the arguments used a case had been relied upon tried in this Colony about two years since (McLeod v. Moore) but there was evidence in that case of a promise to redeliver. The Court was therefore of opinion that the verdict ought to be set aside, and a nonsuit entered, there being no proof of negligence.
Forbes C.J., 19 April 1834 Source: Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277
[p. 61] Minutes of the Chief Justice's opinions in the following cases:-[2] [McLean v Blackett.] The law, as laid down by Gibbs C.J. in Broadwater v Blott Holt 548[3] is the general law of bailments to persons not within the description of known public trades, bound by common usuage to keep things deposited with them at all events, - and to be answerable for all losses. The deft was only liable for gross general negligence, from with the loss might be presumed, or particular negligence, by which it was occasioned.[4] [p. 62] The point saved was whether the deft was liable at all events, without proof of negligence. We should say he was not liable at all events, as a carrier would be. But here, as there was evidence to support the verdict, we think the case should rest where it is. Rule refused.[5]
Notes [1] See also Sydney Gazette, 22 April 1834; and see Dowling, Proceedings of the Supreme Court, Supreme Court of New South Wales, 2/3278, vol. 95, p. 79. [2] These notes were apparently prepared by Forbes C.J., but not delivered. He was out of town at the time the judgment was delivered. [3] Marginal note: vide. 2d Ld Raym. 918. 5. T.R. 149. [4] This was followed by several sentences which were crossed through. [5] Marginal note: This is not like the case of McLeod v Moore decided in this court in 1832. where there was an express undertaking at all events to be responsible. vol. 78 p. 215. |
|
|||||
|