Burke v. Parker. - This was an action of assault; damages laid at £200.  Mr. Windeyer opened the pleadings, and Mr. a'Beckett addressed the jury.  The plaintiff is a medical gentleman residing in George-street, Sydney, and the defendant a captain in the 28th regt.; on the 10th of March last, the plaintiff with his wife and child had been to Botany Bay, and were returning past the race-course just as the steeple chase had terminated; the road, or rather track, was very sandy and full of ruts, which rendered driving very difficult, and there were a great many people about; the defendant and some other gentlemen were on the edge of the road, and as the plaintiff passed him the wheel of his gig touched the hind part of the defendant's horse, upon which he turned round and struck the plaintiff several violent blows across his back with a hand whip.

The first witness called was

Mr. James Kay, brewer, who being sworn, said - I recollect going to the hurdle race in March last; I saw Mr. Burke with his lady and child in a gig by the road side on the Botany sands; he was not driving fast; the track is very sandy; I saw an officer and another gentleman standing in the road; the hind part of the officer's horse was in the track; the wheel of the gig either touched the horse or frightened him; the officer pulled his horse round and struck Mr. Burke with his whip; it was done instantly; there were three or four blows struck; the gentleman that was talking with the officer took him away; there was a crowd round, and I heard a cry of shame; Mr. Burke wanted to get out of the gig; there was a child in Mrs. Burke's arms.

Cross-examined - It was a bush track; with a good horse a person might have got out of the track, but not with such a horse as Mr. Burke had; the race was done; the horses had come in; the officer was not looking towards the course; I did not hear Mr. Bourke give him any warning to get out of the way; Mr. Burke's horse was nigh knocked up; the officer had a common whip in his hand; Mr. Burke struck at the officer three or four times with a gig whip; I did not hear the officer say he would not strike any more as there was a woman in the gig; it appeared to me to be entirely accidental; I did not hear Mr. Burke call out; I did not see the wheel touch the officer's leg.

[His Honor here suggested that if this was the whole case, a verdict must go for the plaintiff, as the driving against the defendant being accidental, he was not justified in committing the assault; but still under the circumstances, the whole affair having taken place in the heat of the moment, and the plaintiff having given blow for blow, it was not a case where he could come before a jury for exemplary damages.  The suggestion of His Honor the learned counsel on either side did not seem inclined to attend to, and the case proceeded.]

Mr. S. A. Bryant - I remember being at the Hurdle Race; I saw an officer on horseback striking a gentleman in a gig, who had a lady with him, with a child in her arms; I said the lady ought to have been a protection, and the officer said he felt he was doing wrong, and desisted; I did not see the gig before that minute; the lady appeared to be very much alarmed; I do not think Mr. Burke struck the officer; it only lasted a moment; the officer struck as often as he could - while the horse, which was very spirited, would remain close to the gig - two or three blows.

Cross-examined - The races were all over; I do not think Mr. Burke struck Captain Parker, he struck at him; I think a gentleman on horseback should be on the alert to keep out of the way of vehicles on a race course; the officer said he was sorry he had not waited for another opportunity; the officer was at the back of the gig, and before Mr. Burke had turned round he was out of the reach of the whip.

Mr. S. A. Wood - I saw a scuffle between the plaintiff and an officer; I saw the whips going very fast; I rode up and heard several people cry ``shame;" the race was coming in at the time; I saw the blows reach Mr. Burke.

Cross-examined - I was from twenty to forty yards off; I cannot say how many cuts there were given on either side, the officer had a small punishing whip in his hand; Mr. Burke's was a gig whip.

Re-examined - The whip of Mr. Burke reached the person of the officer.

H. C. Wilson, Esq., First Police Magistrate - I was at the hurdle race; I saw Mr. Burke there; I did not see Captain Parker; I saw a crowd about two hundred yards off; I saw a gig whip stirring in the crowd, as if some one was suffering a whipping; I went up and heard that a gentleman had been horsewhipping another for riding against him; Mr. Burke was standing in his gig, and told me that he had been whipped, and gave me to understand there was great resentment in his mind, and I bound him on his honor to take no further steps; I could not find Captain Parker, or I would have bound him too.

Cross-examined - I was told Captain Parker had gone away; I think from the road Burke could have driven a little on one side; I could have done so with my own horse, but Mr. Burke might not have been able; the horses had just come in.

Mr. E. D. O'Reilly, Plaintiff's Attorney - I have had several communications with Mr. Fisher, the Crown Solicitor, endeavouring to settle the action; he admitted that Captain Parker had committed the assault, and wished to endeavour to settle it; Mr. Fisher said that Mr. Burke had driven intentionally against Captain Parker, which I denied; Mr. Fisher said that if Mr. Burke would say that he had done it unintentionally, Captain Parker would apologise; I mentioned it to Mr. Burke, and he said he had been wantonly attacked, and would expose Captain Parker; it was proposed to refer the matter to Mr. Manning, but Mr. Burke did not think it was a matter to be settled privately.

Cross-examined - I was anxious that the matter should be settled out of Court; Mr. Fisher said that if Mr. Burke would admit that he had ran against Captain Parker, he would make any apology that should be dictated by two Magistrates, but Mr. Burke denied that he had driven against him at all; Mr. Burke told me that he had defended himself as well as he could, and that if he had been alone he would have given him a good thrashing.

Re-examined - Mr. Burke has always said that he would punish and expose Captain Parker for taking an undue advantage of him.

This was the plaintiff's case.

Mr. Attorney General addressed the Jury for the defendant, contending, that from the evidence it was quite clear that the case never should have been brought before the Court.  That the driving against the defendant, if not intentional, was through gross negligence, and the striking, was the mere act of the moment, which was instantly returned by the plaintiff; and as soon as the defendant observed there was a woman in the gig, he desisted, and said he was acting wrong.  The conduct of the defendant had been highly honorable; he had said that if the plaintiff would state that he had accidentally driven against him, he would submit to the award of any two gentlemen, but the plaintiff wanted to make money of the defendant, and would bring the matter before the Court, and therefore he was sure the Jury would scout it.

The following witnesses were then called:

Captain Adams. - I recollect Captain Parker getting into an affray at the Hurdle Race; soon after the race a person in a gig came upon Captain Parker with his gig, and grazed his side and his leg, and the horse plunged forward and nearly knocked me over; the person went on in his gig and Captain Parker rode after him, and the affray took place; the person gave no notice of his approach, nor made any apology; there were ten or twelve officers standing together; he must have seen us; it appeared to me to be intentional, there was plenty of room; this is the whip Captain Parker had in his hand (a common hand-whip); Mr. Burke struck Captain Parker several times; the wheel touched the saddle.

Cross-examined. - No notice was given of his approach; there was a great concourse of persons; it is possible that he might have called out, but I did not hear him; Mr. Burke did not take any notice of what he had done; the gig was going very slow: the horse received no injury; I saw the mark of the wheel on the horse; the first blow that hit either party was given by Mr. Burke; the first blow made by Captain Parker appeared to me to miss Mr. Burke; I only saw two blows strike Mr. Burke; Mr. Burke struck Captain Parker at least three times.

By the Court. --- I am sure Captain Parker did not see the gig coming.

Lieutenant Smart. --- I was standing next to Captain Parker when the gig came; I saw it coming and touched him to get out of the way, and moved my horse, but before Captain P. could get out of the way the gig drove against him; Captain P. was nearer to the gig than I was, with his back towards it, and could not get out of the way as soon as I did; had the person in the gig called out I must have heard him.

Cross-examined. --- The gig was a few yards from us when I touched Parker; there were several wheel tracks about there but I did not remark any particular track where we stood; I should say it was impossible that the gig could have passed without touching the horse if it continued the same course and the horse had not moved; the effect of Captain Parker's moving his horse was not to put him more into the road.

Mr. H. C. Butler. --- I was riding towards the party, meeting the gig; I saw the gig drive against Captain Parker, who was standing with his back to the gig; there was plenty of space for the gig to have avoided Captain Parker.

Mr. a'Beckett briefly replied; he contended that the evidence for the defence, notwithstanding the bias of the witnesses, strengthened the case so much that the jury would not consider he was using too strong language when he designated the conduct of the defendant as unmanly and outrageous, and he considered that his client deserved great credit for the forbearance he had evinced.

In putting the case to the Jury, His Honor told them, that if they considered that the plaintiff had wilfully and wantonly driven his gig against the plaintiff, they must return a verdict for the defendant; if, on the other hand, they considered that it was accidental, they must find for the plaintiff.  In awarding damages, they must take all the circumstances into consideration; and as the defendant and his friends thought that the act of the plaintiff had been intentional, and the assault had taken place in the heat of the moment, and the plaintiff had retaliated, they would not consider it a case for exemplary damages.  The Jury retired for half an hour, and returned a verdict for the plaintiff, damages £30.

Counsel for the plaintiff, Messrs. a'Becket and Windeyer; for the defendant, Mr. Attorney General.