Court Of King's Bench, Gu...
Before flie Lonn Cf HIEF JUSTICE antd a Common Jimr. Mlr. GURnEY state d this to be an action in trover brought by the assignees of Thomas Thurtell azainst the def'endant, a livery-stable. keeper, who had permitte(d anotherperson to take away a horse which Thurtell kept at the defendant's stables. The proccedings under the commission were proved, and the de- position of the defendant read in support of the plaintiff"s case. It stated thata brown horse having been sent to the defendant's stable, and kept there at livery, one Cooper camne in the defendant's absence, and rode the horse away; but denied having given any authority for Cooper'sdoing-so, - Thorpe, the det'endant's hostler, rememnbered a brown horse of Thurtell's being brought to his master's stablfe-yard. It was after- wards taken away. He was out when MIr. Cooper came for the horse bult he met him galloping up the Haymarket. Thomas Coram proved that the value of the horse wat between 401. and 601. -kFisher proved the demand of the horse from defentlant, who told him it was in the hai.ds ot Cooper. Upon witnes3'ssemonstrating with himi on the impropriety of his having parted with the possession ofthe horse,lhe replied that heknew all about it, andwasindemnified. Another witness ( eposed to the same effect. The LoanD CIsIEX JUSTICE said, anlesstbe plaintiffcould carry the mcse further, he could not support an action in trover. There was no proof of conversion by the defendant. The a3signees might per. lhaps have sone other remedy, but it must be sought by a diffierent f'orm of action. Dlr. GuRNsEY wished the case to proceed. Mr. MIATRYATT said the defence rested upon the two facts of the horse havinge been taken away without the knowledge or auithArity of thec defendant, sdr that it had been obtained from Cooper by Thomas Thurtell without any intention of paving for it. There could be no doubt that if the latter fact should be sub- stantiate, Thomauf Thurtell had no property in the horse, and of course hi.s fassignees could have none. Threrell and his late brother .Tohn had told Cooper over and ever again that it was neyer intended to pay him4 for the horse, and Thomnase Thlurtell afterwards promised that ft should be returned to him. Hffe tthen called John Coop^.r, who said, " I sold the horse to Thomas Thurtell for 66 guineas, and took a bill at one month, which bill was drawn by Probert, wlho was present at the bargain. I soon found the bill was good for nothing, and I went about it to the Thurtells before it was due. I saw them in the parlour of the Cock in tlhe Haymnarket. John Thurtell burst out laughing as soon as he saw me, and said he tltought I had been too long on the town to let his brother Tom do Int out of a horse. Tom was there too; he biarst out a laughing, and asked me to take a, Rlasfs of wine with him. He bade me not miind what his brother said, for that the bill should be paid when it became due. The biU was dishonouredt. I saw the Thurtells after. wards; John laughed, and saidl I should never get a shilling, as he had told. me before, a= that I was A fool far letting the hor4c go. I waited a week longer, when I saw both of"them again; and Tom told me he would not nav me st all, and added an indecent expres- sion, purporting that tlie bill was of no value. I had Thomas Thur- tell asrested, ar;d saw him after he was bailed. This was in August, last year. Hle asked why I put himn to expense, sa I should never get a shilling; and added, that.if I had been qutiet, he wouild have given me the horse back. He then tetched a bottle of winc, and said " lJet us be friends; do you stay proceedings, and pay your own lawyer, and you shall have your hborge again, provided you'll give a good cacter of me to any one who may inquire; but I want the horse fora week longer." Idi stay the proceedings, and asked him when I should have tbe horse. He said in about a week, and he went and showed me where it was in How's stables. 1 waited a week, and on the Sunday when I dined with him he said 1 should bave the horse on the AMonday or Tues. day following. On the Wednesday I went into the stable, saddled the horse, and rodte hitn away past Thurtell's door. I considered it was as much my own horse as if 1 had bought hin again. Thchorse was in very bad conditien. Thorna6 ThurteU told me half a dozen times in a room full of company-such as it was-thathe.never meant to pay me vfhen he bought the horse. Cross-examinedby Mr. GURNEY.-I told Howsomedays before I took ihe horse that it had been mine, and was to be wineagain. I took my own saddle and bridle. How'sg errants saidniotbing to me, nor did I to them. Re.examined.-I sold thehorse for 181. afterwars. The LoaD CxleEw JttSTICE said, that unlsS the plaintiff'5 counsel could make any atnswer to this evidence, it was quite conclu- sive. The plaintifF was therefore notlsaited. COURT OF KING'S BENCH, GLt1LDr1AT.L. JUTY 24. TH1R ASSIGMEES OF IHURTEL.LV. HOW.