Carlisle Patriot, 04 Mar 1826 - Cumberland Lent Assizes (9)

[petra.mi...@doctors.org.uk]

Saturday 04 Mar 1826   (p. 2, col. 4 - p. 3, col. 5)

 

CUMBERLAND LENT ASSIZES, 1826.

 

NISI PRIUS BAR.

 

HOLLIDAY v. MESSENGER, JUN.

 

[continued]

 

William MANDALL, of Lesson Hall, miller, (the place where defendant lives,) heard CLAPPERTON say that he never had a worse horse; but could not assert that MESSENGER heard the observation.

 

The Judge said this was not the way to bring in evidence—the questions should have been differently put.

 

By Mr. PATTESON.—Mr. MESSENGER, sen. is above 90 years old; his son manages.

 

Elizabeth SPARKS saw CLAPPERTON riding a bay-horse on the Monday before the accident, on the high-road between Wigton and Waverbridge; and as she passed, it struck out with its feet several times.

 

Elizabeth HOLLIDAY.—I am the daughter of the plaintiff. My mother is still lame from the accident.

 

By Mr. COURTENAY.—She lately walked two miles to and from a funeral; but she walked lame all the way.

 

This was Mr. ALDERSON's case.

 

Mr. COURTENAY.—Then I submit that the plaintiff must be nonsuited.

 

Mr. Baron HULLOCK.—I think the action is not maintainable. I understood from the opening that the man was "sent" to Wigton market with the horse. Suppose a breaker chose to go ten miles off, it would be too much to make an employer responsible. But I shall not stop the cause.

 

Mr. COURTENAY also submitted that the defendant was not the employer. Mr. DIXON had bought the horse, and both employed and paid the breaker.

 

Mr. Baron HULLOCK.—In point of law, I don't think the property of the horse altered. But he was the servant of DIXON. I will reserve these points and let the facts go to the jury.

 

Mr. COURTENAY.—|I shall prove that the horse was the property of the father, and not the son's.

 

Mr. Baron HULLOCK.—Do that, and I shall nonsuit.

 

Mr. COURTENAY then addressed the Jury. To support this action, it was necessary that the horse should be "unruly," "accustomed to kick," "vicious and ungovernable," "unbroken and unmanageable." These were the allegations, and they must be proved before the action could be maintained. He submitted, however, that none of these bad qualities had been proved. He would not trouble the jury with the point of law whether or not Mr. John MESSENGER were responsible for the breaker. But if even so, it must be shewn that the accident resulted from misconduct. He had a right, by evidence, to assert that the woman herself ran against the horse, and broke her limb in falling down. If the fracture was caused by a kick, there must have been a bruise on the spot, but none had been proved. His client had been kind to the poor woman; he had done all he could to make the matter up. But no, that would not do. Not that he felt bound in law to do this, but he did it out of humanity. He should call witnesses who would shew that the farm at Lesson Hall belonged to the old gentleman, and that the young one, the defendant, is merely the manager, having no property of his own. The old woman, at the time of the accident, acquitted the man of blame—of the negligence charged: he should shew that she afterwards did the same to another witness. If any one, in short, were liable, Mr. DIXON was the man.

 

Miss MESSENGER, sister of the defendant, Mr. John MESSENGER, lived with her father at Lesson Hall, as well as her brother. The estate, stock, cattle, &c. were all her father's property; and the horse was his also before it was sold to Mr. DIXON, having been bred upon the farm. Her mother, brother, and self, managed the farm, on account of her father's great age. Her brother had no property there; and never had the means of acquiring any.

 

Cross-examined by Mr. ALDERSON.—She answered a variety of questions to the effect, that "my brother, my mother, and myself" managed the property for her father, who is upwards of 90; her brother more than 40.

 

By Mr. COURTENAY.—My brother has not an allotment of common, but he bought some for my father on Oulton common. He has lived all his life with his father.

 

Wm. CRAIGAN saw the horse coming down Wigton-street. The woman ran against the horse, though CLAPPERTON had "shouted" to warn her; she was coming up street with a cloak over her head, as the horse was coming down. When she was getting out of the way, the horse turned round and struck with both hind feet.

 

Wm. WOOD had known the horse betwixt two and three years, and it was quiet and good-tempered when at home; he was rising four years old.

 

By Mr. ALDERSON.—Did not see him after they had cut his tail. He was a bay horse. The horse belonged to old Mr. MESSENGER. "Mother, brother, and sister" hired people on the farm.

 

Joseph NELSON, one of the churchwardens of the parish of Bromfield, went to see the old woman after the accident, to give her some of the communion money, and she then said she did not blame the man nor the horse either. The horse was a quiet one.

 

Mr. ALDERSON.—After the gallant opening, the "humanity" of Mr. MESSENGER turns out to be a little communion money only. My friends' opening was great; his proof nothing at all. A great deal has been said about the property of the horse. But there is one person who might have been called who could have given some information on that point; and if he had been called, he would have proved that young MESSENGER sold the horse, received the money for the horse, and was also the owner of it. Who employed CLAPPERTON? Young MESSENGER. And if it be young MESSENGER's horse, was it "unbroke and ungovernable," was the only remaining question to satisfy. That it was unbroken is proved by the breaking gear seen about it, for it had not completed its education; that it was ungovernable, might be inferred from the fact. It is not enough, continued Mr. ALDERSON, to tell me that it was quiet generally. Every body was pleased if you let them have their own way. His tail had just then been cut; he was irritated, for as soon as touched he wheeled round, and threw out both his hind feet in the air. Is that a governable horse? We must have stronger proof that he is a manageable horse than this. I don't blame CLAPPERTON for wilfully causing the accident; I don't charge him with so devilish a disposition; but what was done was negligently done, in a legal sense, and MESSENGER is liable. Mr. ALDERSON concluded by again referring to the case cited in his opening speech.

 

The Learned Baron went over the evidence with great care and impartiality. Setting aside the question of law, which came not within the province of the jury, they would turn their attention to three points: Was the horse unruly? Did the accident arise from negligence? Was the horse the property of young MESSENGER? If they adopted the negative of either of these propositions, they must give a verdict for the defendant.

 

The Jury turned round, laid their heads together in the box for a few seconds, and then gave a—Verdict for the Defendant.

 

 

[to be continued]