Court Of King's Bench, We...
LAVV RPORT. j.AEuJJ Yusn a: UsTIf; ana a contmwn Jurv. Alr. F. POLLOCX opened the pleadings. The declaration clharged the defendant -7itk having committed an assault upoh the plaintiff and his son. The defendant had pLaeedon theTecorids-vcral differ. entpleas of which the first was thegeneral issue "Notruilty;'* the second, tbat the plaintiff had committed a prior assault upon him, and that he had only acted in self-defence; and tbe third, that he had committed the assault complained ef ins his endeavours to pre- serve the, peace, which bad been broken by the plaintiffs children creating an affray, disturbance, and riot before his doors, to his great terror tnd alarm. There were sevemal ther pleas to the same ek~ct, but varied in form. The plaintiff's replication was, soft assault demene; and upon this issue was joined. Mr. SCARLETT stated the case for the pintiff. The plaintiff and defendant were both residents in Burlingto Arcade, Picca- dilly, the former being a jeweLer. and the latter a tailor. n Sun, day, the 20th of July last, the defendant being annoyed by a noise which he charged some children with making, rushedi from his houise into the Arcade, seized upon a child of the Plaintiff's about seven or eight years old, shook him with great violence by the arm, and afterwards beat him very severely. In consequence of the screams which the child made upon receiving this extraordinary chas- tisement, the plaintiff ran out into the avenue, and on discovering how matters were, said to the defendant. " If you strike my child again, I will strike you." 'nTe reply of the defendant to this ad- dress was first a kick at the plaintiff's body, and then a couple of blows at his head. The defendant was proceeding to further outrage, when lie was stopped by the arrival of one of the porters to the Burlington Arcade. The jury had heard the different defences which had that day been act up to the pre- sent action; but lie would show them that the assault upon the plaitiff was most unprovoked, by proving to them that at the time it wasx committed, not only had there been no noise made by the plaintiff's children in the Arcade, but also that no insulting language had been used by the plaintiff to the defendant to'justify any such violence as he hbl resorted to. He therefore confldentlv isubmitted to the jury that they must find a verdict for his client, 'and' accom- pany it with such damages as would prevent this quarrelsome tailor from venting his spleen in similar ontrages in future. Thelearned Counsel then put into the box ten witnesses, of whom the majority were females resident in the Arcade. They fully es. tablished the case of the plaintiff, as they sworemost positively to the absenceofall riotand disturbance inthe Arcadeon the dayin question, to the punishment inflicted on the plaintiff's son, and also to the beating finally inflicted without any provocation on the ?laintiff him- self. The plaintiff's maid-servsnt provei that the boyzs arms were black forten days afterwards, and .Air. Mlarshall, the Plaintiff's surgeon, said, that his bill for curing the black eye and cut lip, which the plaintiffhad sustained in consequence of thedefendantlA battery, amounted to no less a sum than_Ss, Mir. DENHAS, who was for the defence, contended that the pre- sent was one of those trumpery actions, from which nobody hut the lawyers engaged in it could receive the slightest benefit. It was a petty scuffle, which ought never to have come into a court of justice ; but as it had unfortunately been permitted to take up so much of their time, he was compelled to take up a little more of it, in order to detail to them certaini facts which .ould give a very different colour to it. le then stated that he should prove to them that a great noise had been made in the Arcade on the afternoon in question by several young boys; that the defendant's wife was considerably annpyed by it, in consequence of her recent confinement, that the defendant, wishing to put a stop to it, went into the Arcade, seized one of the boys who was making it, and after shaking him gently; warned him not to re- peat the improper conduct of which he liad been guiltyg that as he was returning to his own residence the-plaintiff came up to him, and after doubling his fist in his face, and calling him a d_d scoundrel, struck him violently; that be retoTted thp blow, and that out of the scuffle which then ensued the present action had ori. ginated. He maintained, that if he made this out in evidence, the jury must fild a verdict for the defendant. At any rate, if they should feel themselves bound to fiud a verdict for the plaintiff, they would fill meet the justice of the case by not giving him more than a fartUg's damage. Eight witresses were called from the Arcade to substantiate the statements made by the defendant's counsel. Thev spoke with great precision as to the noise aqd hallooing madp orq' the Sundav in question by the chilren, who wrere playing at "touchwood ;' and declared positively that the plaintiff was the first assailant, he having struck thc defendant, and put his hand into his face, whilst the defendant was walking back to his house with his hands in his breecbes-pockets. 'AIr. SCARLETT replied upon the evidence, and pointed out seve- ral inconsistendes into which those who had given ithad been be. trayed by a wish to make the defendant's case as strong as possible. By proving too much, they had, in his opinion, proved absolutely nothing. The I,OLID CHIEF JUSTICE left the jury to form their own Judgment upon the conflicting testimony which had been submitted to their consideration. The Jury, after a deliberation of two or three minutes, returned a verdict for the plaintiff-Damages, 40s. IVEtlTESIDES V. WESTON. Alr. BROUGHAM stated, that this was an action brought by Afr. Whitesides, a gentleman of fortune, against the defendant, a horse. dealer, in Park-street, Grosvenor-squ:re, to recover back 1401., the price he had paid for an unsound horse sold him bv the defendant, under a warranty of soundness. It would appear from the evidence, that in June liast ir. Whitesides, wanting a horse, a fast trotter, to go in haruess, applied to the defendant, who recommended the horse in question as a good goer, and one which would suit him, as it would trot fifteen miles an hour in harness. The plaintiff upon seeing the horse expressed his approbation of it, and was in conse- quence desired by the defendant to mackg'kitiil of it. The plaintiff in reply said that he would drive it to lVoolwich the next day, on which the defendait rejoined, that the distance of AVoolwich would har tly serve as a fair trial for a horse that was fit to go a journey of o0 miles in a day. The plaintiffaaid tht, before he took the horse he should like to have it examined, an or that purpnoeit was taken on the 24th of June to Field's stables. Mr. Field, on seeing it, pointed out the cxtreme flatness of its boofs, observing that such flatness was of itself no unsoundness, though it was a predisposition to lameness. Upon this representation, the plain- tiff determined to have a warranty df soundness before he pur- chased the horse, which, after some demur, was given to himn. After the plaintift' had purchased the horse, and had had it a fort- niglht or more, he put it to a curricle, and went with it to Brighton, at the rate of between eight and nine miles an hour-a journey vwhich it performed with case. After remaining at Brighton for three or four days, he tirove it back to town, when his brother, who was with himo, observed he thought the horse at times went lame, and Mr. Whitesides, in consequence, drove it slower back than he did to Brighton. On the following morning the horse was ltme of bouit fore feet, and could scarcely walk--this was on the I11th July. Mr. Field was sent for and remedies applied, annd on the 21st the groom took the horse back to 'Sreston, who, however, refused to re- ceive it. The plaintiff then sent it to Hill's stable', in Oxford- street, on the 23d of July, where it remained till the 15th of Au- gust, when notice was given to the defendant that it would be sold at Tatersall's on the 18th, The defendant paid no attention to this notice, except attending the gale. The horse was sold fQr forty-five guineas, and for that sum the plaintiff' was ready to give the defend- ant credit: a balance would then remain due to him ofIO21., and for thatsum the present action was brought. A witness was called who proved these facts. Messrs. Field, John Field, and Coleman, were examined.-They agreed in opiniion that a flat hoof was not an unsoundness. It certain- ly predisposed a horse to lameness in going a long iourney, but be might have gone journeys without being lame; tie whole was a chance; almost all fast trotting horses were flat-hbofed, and liable either more or less to go lame. lr. SCARLE T T, for the defgndant, contended that there had been no proof whatever given of unsoundnes Theplaintiffhadthehorse for a month in his possession, and drove It during that time to Hoc- lerill, ajourney of 32 miles, and to Brighton, 54 miles, without its goiag lame, atd it was not until it was driven back again on the Tuesday that itshowed symptoms of lameness. In fact, itwentlame because it was too hard worked. It was in evidence, tbat flet trot- tine lorses were mostly flat-hoofed, and that they went lame unless sufficient time was allowed between journey and journey for na- ture to supply the consumption of hom occasioned by a long jour- ney. In this case the plaintiff had not allowed sufcient time, be- tween the journey to and from Bri hton, for the hoof to grow a suf- ficient thickness to keep the freg of the foot from the ground, and that occasioned the la neness; when time was given for the hoof to recover its thickness the horse became perfect again, and was now in the Mlarquis of Cdiandos's stable, as sound as any horse in his Liordship's possession. The LotnD CHIEF JUSTICE summed up. His Lordship said he was decidedlv ofo.Pinion this was not a case of unsoundness or a warranty upon which an action could be maistained. The defend- ant had warranted the horse sound, but he had not warranted him to go such journeys as the plaintiff had put him to; with short jour. neys the horse would never have gone lame at all. The jury found a verdict for the defendant. COURT Ov K[NG'8 BENCE, WEssTMfIl,T A?rti 26. ELSE V. 31VERM.