1 sold the brown horse to the Marquis of Blandford for one hundred and fifty guineas, and the other to Milton, the horse-dealer, for one hundred. His brother did not proceed in the action because he had an opportunity of selling the horses. Cross-examined by Mr Gurney. He is not a partner with his brother; neither does he receive any commission for the sale of horses. Not a syllable was said in the yard about leaping the horses in the field. Mr Bartlett, defendant's attorney, again examined. The declaration was delivered before the horses were sold, and they were sold by his advice. Cross-examined by Mr Gurney.Messrs Kearsey and Spurr desired him to take measures for going to trial in the first sittings in Michaelmas term. This, it was proved by his own letter, had been declined; he also wished to know from them whether M. d'Aoust would pay thirty guineas and the costs to be released from his bargain. Mr Charles Savigniac was present at Elmore's livery stables while the Marquis and the interpreter were there looking at the two horses in question. Mr John Elmore told him that the Marquis d'Aoust had agreed to purchase both for two hundred and twenty guineas. He believed they were sold. Elmore asked one hundred and fifty guineas for the brown horse. They were certainly cheap for two hundred and twenty guineas. David Gibson was at the stables all the time that Mr Savigniac, Mr Bradley, and the Marquis were. He considered that the horses were sold, and heard nothing about leaping them. Bradley said, "We will take these horses without trial, on condition that you warrant them sound." Elmore said, that he would give a stamped receipt to that effect. He then heard the conversation (previously detailed by Elmore) about the livery. Cross-examined by Mr Gurney.He is a journeyman stationer, in Thames-street, and does not trade for himself; is intimate with John Elmore, but not with his brother George; and is not often at their stables, though he happened to call on that day. The Lord Chief-Justice here interposed, and asked Mr Gurney, whether this had not more the look of a misunderstanding than a malicious arrest, without any reasonable or probable cause. Mr Gurney submitted, that nothing had yet appeared, as he would shortly prove, inconsistent with the case which he had previously stated. Thomas Clark was next called, and corroborated the testimony which Mr John Elmore and Mr Gibson had given, regarding the pretended warranty, and the price per week for the horses standing at livery. As it appeared from some evidence which had been given at an early period of the trial, and which was not in other points very material, that this witness understood French, and had been sent into a stable by Mr John Elmore to listen to the conversation between Mr Bradley and the Marquis, he was severely crossexamined upon the point, especially as he swore positively that he heard the bargain made for two hundred and twenty guineas between the Marquis and Mr Bradley. The defendant's case being now closed, Mr Gurney rose in reply. He said, that on a review of evidence, and on a comparison of testimony, the jury could have no difficulty in determining which of the two parties they ought to believe. If they recollected all the circumstances of his case, they must infer the malice from the want of all probable cause for the arrest. The transaction occurred on the 24th of September, and the arrest took place on the 27th. On the 7th of November, the attorney of the Marquis desired to bring on the trial in the Sittings for Michaelmas Term; but to this the defendant in this, and the plaintiff in that action, refused to accede. In January, the declaration was delivered; and in the Easter term following, the Marquis was obliged to rule them to join issue. This they also declined, and in consequence the Marquis signed judgment of non-pros. What What defence then does Mr Elmore now set up for this discontinuance? Why, that he had sold the horses very advantageously, and yet he refuses to produce either the buyer or the receipt for the money. Mr Gurney then proceeded to comment upon the evidence of the different witnesses, and expressed himself in very strong terms regarding that of Mr John Elmore, whom he called a dandy horse-dealer," a most finished representative of all horse-dealers whatsoever, and a fit character for the stage of either Drury-lane or Covent-garden. He contrasted the story which he had told with that told by Mr Bradley, who had very often in the course of the trial been scoffingly styled the interpreter, though in fact he was no interpreter, but a gentleman of independent for tune. He said that it had a very suspicious look with it, that the defendant had not produced the boy who was on the field with him, and whose testimony must have ma. terially corroborated his own, had it been correct. He also showed, that though Mr John Elmore had sworn that he had never asked one hundred and fifty pounds for the brown horse, the testimony of his own witness, Mr Savigniac, proved that he had. The story of leading the horses over the stones for the Marquis and Mr Bradley to mount, was also very improbable: if it were true, they must have returned immediately after that measure was effected. Was that the case? No; and he might infer from that proceeding, that the horses were taken out to try their leaping, and that no contract for their sale had been made. Mr Gurney then finished a very long and animated speech, by informing the jury that witnesses were not to be numbered but weighed; that the amount of damages was much beneath his client's notice, and by conjuring them not to let a foreigner when he came to ask for justice ask for it in vain. The Lord Chief-Justice then summed up the case, and the jury returned a verdict for the plaintiff-Damages L.100. GAMBLING. Court of Common Pleas, Tuesday, Feb. 16. (Before Sir R. Dallas, Chief-Justice.) CHRISTIE v. JONES. This was an action brought by Mr Christie, the auctioneer, to recover from the defendant L. 509, which, being money belonging to him, was, he alleged, won by the defendant at games of cards, of his clerk, at different times and places. Mr Sergeant Copley stated this curious case, which is detailed in the following evidence : William Rickards said, he had been servant to Mr Christie seven years. He was discharged at the end of July last. In his situation as clerk he was in the habit of receiving money due to Mr Christie, as an auctioneer, to a considerable amount. The various sums were paid on account of jewels, pictures, and property, sold in Pallmall. The witness had known the defendant between one and two years. The defendant lived in Pallmall, and kept a billiard table. The witness had played with him on many occasions at cards. He played with him for money about the 22d of April last. The defendant knew he was a clerk, but did not know he received his master's money. The first time he played with him at cards, was at the Star and Garter, Pall-mall. They played at cribbage, and the witness lost L. 30, the money of his employer, Mr James Christie. He met him again about the 30th of April, and playing again with Mr Christie's money, lost L.70. On that occasion they began with L.5 a game, and increased it to L.10 and L.15. He met the defendant also at Bedford's Rooms, in Pall-mall, and played with him till a late hour. Two of the defendant's brothers were present, and he believed Mr Bedford was there, but could not speak positively. The witness also played with a friend of Jones's, who was introduced to him. This friend pretended ignorance of the game, and it was understood that he was from the country. The defendant proposed his friend should play for him, and the witness should give him two holes at cribbage; leaving him at the same time at liberty to instruct him in his play. The witness was a winner on that occasion to the amount of L. 60, part of which remained unpaid, but Jones paid it next day. On the 1st of June he played with the defendant's friend on the same principle he had played before. The stakes were made good by the defendant on that occasion he lost L.125, which was Mr Christie's money. He was unable to pay L. 15 of the lost money that night, but the next day he met the defendant, and paid him L. 15 out of Mr Christie's money. Upon another occasion he played with the defendant's friend, at the sign of the Haunch of Venison, in Brook-street, for L. 150. The defendant put down the stakes. The witness lost L. 80, which was Mr Christie's money. He remembered going with a L. 100 Bank-note, which he had taken at Ransom and Morland's, in payment of a check given by Mr Woodburn, of St. Martin's-lane, for property bought of Mr Christie. He lost the note in question to the defendant. John Langdon, another clerk to Mr Christie, was at the Haunch of Venison, in Brook-street: he went by invitation of Rickards, and met him there, playing with the defendant. A Mr Davidson was also present: Davidson was the friend of the defendant. About 12 o'clock Rickards went out for money, and came back with a supply, which he lost. Mr Sergeant Vaughan addressed the Jury for the defendant, and contended that no credit ought to be given to such a person as Rickards, who came into Court as a witness, to avoid a prosecution for felony. He called no witnesses. The Chief-Justice drew the attention of the jury to the main features of the case; namely, the credit due to the principal witness. It would be dangerous, he said, to the public interest to hold that a person who had been decoyed into a gaminghouse and led to commit crime, was not to be received as a witness. Transactions similar to that before them in general took place at midnight, and persons who became dupes of the designing gamester were, perhaps, the best witnesses to bring of fenders to justice. Independently of all other considerations, the jury would find the witness Rickards confirmed by other witnesses. If the jury had a doubt, they would give the defendant the benefit of it; if they had not, they ought to find a verdict for the plaintiff. If they did find for the plaintiff, they might rest on their pillows with the consolation that they had rendered a service to the public. The Jury, without hesitation, found a verdict for the plaintiff Damages L. 509. LIABILITY OF SURGEONS. Court of King's Bench, Saturday, February 27. (Before Lord ChiefJustice Abbott, at Guildhall.) NEATE V. PETTIGREW. This was an action against the defendant, a surgeon, to recover damages for his negligence and want of skill in the care of the plaintiff, who having dislocated his shoulder, employed the defendant to reduce the dislocation; but in consequence of his want of skill, the plaintiff wholly lost the use of his arm. Mr Scarlett, with whom was Mr Tindal, stated the circumstances of the case. The plaintiff was a respectable artisan, and had been employed as engineer and brass-founder in a large manufactory in the city, and by his industry was enabled to earn about four guineas a-week. On Sunday, the 11th of July last, he was returning home about twelve o'clock at night, in a gig with a friend, and by some accident the vehicle was upset on Blackfriars Bridge; in consequence of which the plaintiff's right shoulder was disloeated. He was carried, in great pain, to the house of his friend, who resided in Fleet street. Surgical assistance was immediately sent for, but the messenger having gone to two or three other surgeons, none of whom could be found at home, he went to the house of the defendant, who then kept a surgeon's and apothecary's shop in Fleet-street, at the corner of Shoe-lane, and on inqui ring for him, the answer was, that he was ill in bed, but his assistant undertook to attend the patient. He was immediately conducted to the plaintiff, who was then lying in the greatest agony, and attempted to reduce the dislocation; but appear. ing to bungle the operation, he was asked, whether he had ever set a dislocation before, and he answered, fifty times before. After pulling and dragging the arm for about an hour and three quarters, during which time the plaintiff was under the most excruciating torture, he said the dislocation was reduced, bandaged the shoulder, and then went away for the night. The plaintiff having passed a dreadful night, the next day he was worse, and on the third day the defendant himself paid him a visit, and after looking at the shoulder, appeared quite satisfied that all was right; assured his patient that he would be well enough in ten days to go out, and in three months would recover the perfect use of his arm. He continued to use the defendant's prescriptions for about seven weeks, when finding himself no better, he consulted Mr Gilham, a surgeon in Blackfriars-road, who, on looking at the shoulder, immediately discovered that it had never been set, that all the inflammation had subsided, and that the end of the bone had formed a new bed for itself in the muscles, and had become fixed by the osseous matter which surrounded it. In a case so extraordinary Mr Gilham did not like to act upon his own judgment, and feeling for the reputation of Mr Pettigrew, but still more regarding the life of the plaintiff, he determined to consult Mr Cline; and upon considering the case, with another eminent surgeon, it was determined to attempt the experiment of the pulley, to try, if possible, to reduce the dislocation; but after the plaintiff was again subject ed to the most excruciating pain, the operation wholly failed. Since then the plaintiff's arm had withered, and he had now only the use of the elbow-joint, in underhand motions. The plaintiff was a married man, with three children, who were wholly dependent upon his industry for support. In consequence of this misfortune he was thrown out of employment, and reduced almost to beggary, from having been able to live with comfort and decency. Under these circumstances he appealed to the jury for such damages as his pitiable case seemed to demand, in consequence of the gross ignorance and negligence of the defendant. No money that the jury could give would be an adequate recompence for the loss of a right arm; but the case of the plaintiff was still more deplorable when it was considered, that through the defendant's ignorance he was deprived of the power of maintaining his family. Since this unfortunate occurrence, the defendant had retired from business, and had sold his practice for L.600. It should seem, therefore, that he was in a condition to pay large damages; and if the evidence made out the case so stated, he was persuaded that the jury would feel great pleasure in giving such damages as would operate as a wholesome example, at least, to ignorant practitioners, and afford some compensation for the plaintiff's grievous injuries. Mr Vandenburgh, the plaintiff's friend, who was with him at the time of the accident, proved the circumstances which came under his knowledge. Mr Gilham, the surgeon of Blackfriars-road, also confirmed Mr Scarlett's statement, as to that part of the case which related to the subsequent treatment of the plaintiff. The defendant was a very old man. Mr Cline gave evidence to the same effect. On his cross-examination, he said it was possible, in the case of a lusty patient, and where there was a great deal of inflammation, for a skilful surgeon not to be able to ascertain immediately whether a dislocation of the shoulder was reduced; but with accurate observation, even in such a case, it was easy to ascertain whether the bone was in its proper place. Here, however, the observation could not apply, because the plaintiff was a thin spare man, and it was impossible for any surgeon of competent skill in his profession to be mistaken. He was of opinion, that the plaintiff's dislocation had never been reduced. The plaintiff had completely lost the use of his arm for all purposes in which it was necessary to raise the hand above the chest; he might use it in underhand motions. The foreman in the house in which the plaintiff had been employed stated, that the plaintiff was a most skilful and scientific workman, and could earn four guineas a-week. He had been seventeen years in the house, and his employers had never been able to find a sufficient substitute in his branch of the manufac⚫ ture. He had been an industrious and respectable man, and, in the opinion of witness, would never be able to resume his employment. Mr Gurney addressed the jury in mitigation of damages, and urged, that the defendant was a very old |
