[arbitration - detinue - bailment]

King v. De Dassell

Supreme Court of Van Diemen's Land

Montagu J., 14 February 1834

Source: Launceston Advertiser, 20 February 1834[1]

Mr. Gellibrand for the plaintiff, and Solicitor-General for the defendant.

The Solicitor-General rose, before the Assessors were sworn, and said he wished to inform the Court he was willing, on behalf of his client, to refer the case to arbitration, by any gentlemen the plaintiff’s counsel might name.

Mr. Gellibrand, on the part of the plaintiff said he should be perfectly satisfied with the decision of His Honor and the Assessors; and the Assessors were accordingly sworn.

Mr. Gellibrand stated the case. This action was brought by George King, Esq. a commander in the royal navy, against Dr. De Dassell, for the recovery of a bay poney-mare, said to be lent by the plaintiff to defendant, and after, on demand being made, refused to be given up by the plaintiff.

John Cameron sworn: I am acquainted with Captain King; I came in a vessel from Sydney with him, in June 1833, Captain King brought three mares down with him; I had them in my charge; Capt. King paid me; when we arrived at Hobart Town, one of the mares went to Captain Pedder, and the other two were taken to the Macquaire stables, I have seen one of them at the door of the Court house to-day, I had the charge of the mares a fortnight after they arrived at Hobart Town.

Cross-examined -- I first saw the mare no at the court-door on the 4th January, 1833; I did not know Dr. De Dassell

Geo. Hobler -- I am a friend of Captain King; I was once acquainted with Dr. De Dassell; I have heard and seen a great deal of the mare now at the door of the court; the first thing I heard of her was in Feb. last; Captain King was residing at my house; I first saw the mare in March, 1833, (or April); she was ridden to my house by the Doctor; he had been about three weeks in the colony; Captain King called me out to see the pony; he wished me to give an opinion of the animal; I did do; Dr. De Dassell was present; the Dr. frequently came to the house afterwards on the pony; I remember the pony being lame; I recollect Dr. De Dassell being present when Captain King made complaints; Capt. K. on one occasion said that the black servant of Dr. De Dassell had been allowed to ride the pony about, which had caused the lameness; Dr. De Dessall had frequently told me it was not his pony; Dr. De Dassell once told me he had cured the pony’s lameness, and Captain King had no reason to complain; I understood the pony was Capt. King’s by inference, from what the Dr. had said; the first time I heard the defendant lay claim to the pony was once when invited to his house.

Cross-examined -- The commencement of the pony’s lameness was in April last; a fortnight after his arrival I saw the pony in his possession; Captain King introduced the Dr. to me on his arrival; I was, at the time of the first dispute, acquainted with both plaintiff and deft.

Thomas Dutton -- I am acquainted with Capt. King; I was formally acquainted with Dr. De Dassell; I know both the plaintiff and the defendant in this cause; I have seen a pony at the door of the court; I first saw it in the beginning of May last, in the possession of Dr. De Dassell; at that time I admired it; I asked the Doctor if he would dispose of it; he said it was not his, it was Capt. King’s; he said Capt. King had lent it to Mrs. De Dassell; I said I would give £25 if Capt. King would sell it; I think it was worth £25; I would not now give £10 for it; horses have fallen in value to a certain extent, but not so much as the pony in question -- it is bad condition.

Thomas Duel -- I was servant to Capt. King in Aug. last; I was sent by him to Dr. De Dassell with a note some time in that month; I gave it Dr. De Dassell; he said the pony was not Captain King’s, and he should not send it; he the tore up the note and told me to give it to my master again, with his compliments; I gave it to my master, and delivered the message.

Dr. Landale -- My name is Thomas Landale; I know both parties in this cause; I know something of the pony in question; I saw the plaintiff riding it sometime in July last; I had a mare for sale and the Dr. came to look at it; I told him I would exchange it for the one he was riding; he replied she was not his; I recollect again seeing the pony; I was driving at the back of government house, when I met the plaintiff leading it, and several persons around; defendant came up, and mounted the pony, and same person having cut the halter, the pony ran away with the Dr. on her back.

The Solicitor-General submitted that the Plaintiff must be non-suited -- no proof being offered that the pltff. had made demand of the defendant.

The objection was over-ruled; and a verdict returned for the plaintiff -- Damages, £25.

Notes

[1] See also (Launceston) Independent, 15 February 1834, noting that the verdict was for "the value of the pony when it first got into the possession of the defendant". AOT SC26/6 records this case as 'An action of Trover for the recovery of a mare'.