Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (27)

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Saturday 20 Aug 1825 (p. 4, col. 1-5)

CUMBERLAND SUMMER ASSIZES

(Continued from p. 3.)

STALKER v. RICHARDSON.

Mr. SOWERBY opened the pleadings. Mr. Sergeant CROSS stated the plaintiff's case. This was an action brought to recover the sum of six or seven pounds, the price of a cow, which the defendant refused to pay on very novel grounds, and therefore it was his duty to go a little more into the birth, parentage, and education of the said cow, than would otherwise be necessary. The plaintiff had a sale of farming stock, and at that sale, the defendant, RICHARDSON, purchased a heifer and a cow; he fetched them away next day, the heifer he had since paid for, but the cow he would not pay for, under the plea that it belonged, not to the plaintiff, but to his father-in-law, old Isaac TODHUNTER, who, he alleged, owed him money. The Learned Sergeant then entered, at great length, into the important history of the cow, which he said was "of the breed of old Isaac," hence it was called "Old Isaac's quey," while in STALKER's possession, and because so called, RICHARDSON had assumed it to belong to the old man.

John HEWER, auctioneer, made a sale of plaintiff's stock, on the 17th Nov. 1823, and sold the cow in question to the defendant for £5 1s. He bought a heifer at the same time for £2 10s. Old Isaac TODHUNTER was there, and neither he nor any other person laid claim to the cow.

Cross-examined by Mr. SCARLETT for the defendant.—I was employed by STALKER, but I don't know who received the money. I also sold a cow of my own. We gave credit till the 5th of April following.

Geo. BEWLEY acted as clerk at the sale: old Isaac made no claim to the cow.

Geo. TODHUNTER.—I am the son of old Isaac (a laugh). About six years ago my father had the misfortune to be sold up and sent to prison, and has never since had any live stock of his own. At that time, I occupied a small farm, and had a calf of the breed of an old cow that had long been a favourite in the family—this calf, in 1821, I gave to my sister, the wife of STALKER, who then lived upon the farm of Pasture Lane. My brother-in-law kept this heifer along with his other cattle. In 1822, a year after I had given the calf, my father went to live at STALKER's; and the heifer, on account of the breed, went by the name of "Old Isaac's quey." Witness also stated that his father's debts had been subsequently paid by him in full, after public notice, and RICHARDSON made no claim.

Cross-examined.—I had a horse sold at STALKER's sale. My father does not employ the attorney to bring this action. I know that my father owed money to Mr. RICHARDSON; at least, I know that Mr. RICHARDSON sent him a summons. I never heard my brother-in-law say that he had first applied to Mr. PRESTON of Penrith, and that he would have nothing to do with it. The sale was made to pay STALKER's rent; a Mr. FINDLAY and a Mr. JAMES had given security for the amount, and they were present at the sale to receive the money in order to be repaid.

By the Judge.—I have heard my brother say that FINDLAY and JAMES had received the money—and I believe they had as much as would pay the rent, and that there was some over.

Mr. SCARLETT said that his learned Friend's case was any thing but a good one. He was not quite sure that he ought not to be nonsuited; for if FINDLAY and JAMES received the money, he did not see what business the plaintiff had with the price of the cow. The fact was, that Mr. Isaac TODHUNTER, or "old Isaac," as his learned Friend called him, was a near neighbour to Mr. RICHARDSON, and received from that gentleman loans of money at various times, in order to keep him upon his legs; but his kind hopes were not realized, for the old man ultimately went to ruin, largely in Mr. RICHARDSON's debt. Now that the cow was really "old Isaac's quey," he should prove out of the mouth of the plaintiff himself, and having done that, a verdict must go for the defendant.

Mr. John JAMES, one of the bondsmen for the rent, deposed that the cow was put into the sale professedly as old Isaac's, and that he came to draw the money. He was sent by RICHARDSON to STALKER, before the cow was put into the ring, to inquire if that was old Isaac's heifer coming in, and he answered that it was. And as one of the receivers of the money, he claimed nothing for this animal.

Mr. FINDLAY, the other security for the rent, said Mr. RICHARDSON bought two cows, one of which he paid for, and no claim was made for the other because it was old Isaac's. He heard the old man say he would give STALKER the getting of the money for the quey, as he never could obtain it of John RICHARDSON.

Thomas RICHARDSON.—The cow bought by the defendant was on my farm grazing a short time before the sale—she was brought and paid for by old Isaac TODHUNTER, and he took her to the sale off my farm. He offered to sell her to me, or to exchange her. I have also heard STALKER, the plaintiff, say that she was his father-in-law's.

Cross-examined by Mr. Sergeant CROSS.—Whenever we were talking about the cow, they always called her "Old Isaac's quey."

John PORTER was present at the sale, and saw old TODHUNTER bring the cow to the sale and put it into it as his own.

Mr. Sergeant CROSS laboured at explaining away this evidence nearly an hour—no man clings to a case more perseveringly. In the first place, they had not given a tittle of proof that Old Isaac was a debtor to RICHARDSON; for the admission as to the summons was nothing, and he had proved that the son had given public notice to his father's creditors and paid all the old man's debts, notwithstanding which the defendant had not sent in any claim. He insisted, that the expression, "Old Isaac's Quey," did not refer to the property of the animal, but to the name or designation alone. With this explanation the jury would readily understand how the defendant's witnesses, as well as the defendant himself, had fallen into the error of supposing the cow the old man's. Their's was merely conjectural conclusion: on the other hand it was shewn from the mouth of the son, that he himself had given the cow, when a calf, to his sister, STALKER's wife. This was so direct and positive, that the jury must believe the young man to be perjured, if they gave the defendant a verdict; whereas by a contrary decision, no impeachment was made upon the veracity of the witnesses for the defence, because they had only drawn their inferences from assumed grounds, or expressions which have a real meaning contrary to the common acceptation of the words.—On the whole, the learned Sergeant's speech was an extraordinary example of zeal in behalf of a client. It embraced every variety of style—argument, sophistry, assertion, insinuation, vituperation, bother, and even the pathetic—yes pathos on a cow!—the old woman's love of the breed—the old man's affection for it because the old woman, his wife, so tenderly loved it—the young man's regard for the calf of the cow that his mother loved—the sister's anxious care of what her brother regarded, her father doated on, and her mother adored—and, finally, the endearing name of "Old Isaac's quey—the last relic of a loved, valued, interesting, and profitable breed! All this was too touching for ordinary natures. The bar, with the exception of the junior counsel for the defendant (Mr. ARMSTRONG), decamped to a wig, and went off to weep or dine; Mr. ARMSTRONG reclined his head upon his arm, and some say, shed 'reluctant tears'—the judge, spite of ermined dignity and legal fortification against the ordinary qualms of nature, fidgetted in his well-cushioned seat—and the audience, 'unused to the melting mood,' rather than exhibit their weakness in public, dropped away one by one, and left the judge, and jury, and the stoical reporters, to sustain the whole weight of the grave and philanthropic Sergeant's touching harangue of and concerning "Old Isaac's Quey."

Mr. Baron HULLOCK summed up as well as his sensations would permit him. But the reader may judge how acutely he felt when he told the jury that he was utterly unable to say where the truth lay, and must leave them to discover it, if possible, by their own unaided sagacity. There was the young man's positive oath of having given the identical cow, when a calf, to the sister: opposed to this, there was the old man's repeated acknowledgment, and the acknowledgment of STALKER himself. The old man appeared to have had no property since his insolvency—yet he puts the cow out to grass, pays for it himself, takes her to the sale himself. But if this animal were only a calf of the old favourite cow, of which they had heard so much, why call it "Old Isaac's quey?": one would think that a proper name for the dam, and not for the calf. There were however so many contradictions, that, as he had said, he must leave the matter entirely to the jury, who were men well versed in rural matters, and the habits and language of country people, not doubting but they would do justice, perplexing and difficult as the case confessedly was.

The Jury laid their heads together for about five minutes, and gave a verdict for the plaintiff, Damages £5 1s., the price of the cow—making it a dear bargain to good Mr. RICHARDSON, the defendant.