York, Wednesday, August 4...
Mlr. F. POT.LOCK opened the pleadings. Alr. WIL LAMs stated the case to the jutry. The plaintiflfin this action was a qeDdneman of respectability, residing at Thorneutmbold, in theEastRiding ofthis county.and the defendant was a merchant, carrying on business at Hull, ald residing in the neighbourhond. On the 17th of last Mtarch the defendant, having heard a high cla- racter of a black horse belonging to the plaintiff, role over to his residence, and, after somn conversation, agreed to give him, in ex- change for it, 45 guineas and the hay horse on wvhich he had ridden to Thorngum-/lsold. The defendant, after receiving a warraity from the plaintiff, went homne, having given directions that thp black horse should e sent to Hull the same day. It was accordingly sent. The defendant hunted him a few days afterwards ia that neighbour- hood, and then took him, in Aiprit, into Lincolnshire, where he hunted him for some timre alona with Lord Yarborough's fox. hounds. In the month of May, tne defendant wrote a letter to the plaintiff, stating that he must return the horse, as it was defective in wind, though in every other respect it pleased him extremelr. 'Ihe plaintiff', however, refused to rescind the bargain into wnich the defendant had'entered; and he now brought this action to recover the 45 guineas which the defendant had undertaken to pay. He would prove, bv most indisputable evidence, that the hiorse was un- questionably sound in vwind at the time at which the plaimiff parted with him, and that if it was now broken-winded, it had become so in consequence of the treatment whicha it had received wlhilst in the defendant's keepinc. Under suck circumstances, he contenided that his client was entitled to thei' verdict. .Mr. Anthoniy Bower describe(d the conditions upon which the plaintifand the defendant agreed to exchange their horses. The plaintiff was to receive a bay horse, and 40 guincaz certain, for a black horse, which he gave to the defendant ; if the black horse suitetl the defenthnt, the plaintiff was to receive five guineas more. The plaintiffgave a warranty for his horse. Betore the bargain was concluded, the plaintiff tc )k the horse into Isis paddock, rode himn round it, and leaped him twice over the rails. In his cross-exami- nation he stated that Afr. Cox was no jadge of horses, and that he was generally a loser if he bought them on his own jadgment. The hind leg of this black horse was swelled at the time ; it was not in- Cuded in the warranty. All Mr. Cox's horses were lame. He had three or four. In his re-examinatioti he stated that the rails in the plaintiff's paddocks were about a vard high ; that the horse refused them at first, but afterwards went 'Over them. Mr. Cox's horse was a bleznished horse: it was vworth 301. or 351. William Barl6er, a farrier knew the black- horse which the plain- tiffhad exchanged with the defendant. It was a tine dashing showv horse; it was a regular hunter, which the plaintiff had purchased three years ago of a !\Ir. Tomlin. Witness saw the horse about the 16th or 17th of February last there was nothing then amiss with him. A horse in hunting might soon contract a broken wind. 0 day's hunting might do it. It would depend chiefly on the tre ment which the horse received before he was hunted. In) cross-ex- amination, lie observed that a man af the name of Harrison was the person who took care of the plaintiff's horses: he had looked after that horse for more than three years. Re-examined.-Re admitted tlhat Harrison had come to ork along with the witnesses on the other side. He had himself seen him ins York. Mlatthew Hutchinson, a farmer, residing in the neighbourhoo3 of the plaintiff, deposedl that he knew thc black horse in question he was a horse of great value. Witsess saw him two davs before he was sent to Mr. Cox; and also galloping about a fortoigat befort. The horse was then in as good wind as ever any horse he had teen. I,eonard Johnson, studt-groom to Mir. Hombler, also knew this black horse of the plaintiff. He had seen the llaintiff hunt hin re- gularly during the season, once a week,and sometimes oftener. Wit- ness had oftenr ridden against him with fox hounds. The horse car- ried the plaintiff uncommon well, and was allowed to be a very sa- perior horse. WVitness never wee'd him but as a sound good horse; never heard him breathe hard whilst running; nor saw any appar- ance which led him to believe that the horseailedany thing. Wit.. ness rode against the horse on the 10th of March last, after ir. Hill't foxhounds. They had a good run that day for seven or eight miles, and had 70 or 80 leaps in the course of it. WitnesA came home with the horse; nothing ailed it then. His coat always looked superior to that of any other horse in the field. In cross-examination he said-I have neither taken nor offered any bets about the events of this cause. I know a farmer of the name of Vickerman. I have seen him in York. I never thrcatened to expose him to his friends if he came here to speak for the defen. dant; but I said that I would expose him if he did not speak the truth. I was informned that he was to come here to say tilat hlr. Sheldon's hiorse ivas not sound' when it was sent to Mr. Cox. I told him that he had bet-er not come. The price of a good hunter in fine condition, good figure, and active make, is at least 100 gaineas. AMr. Sheldon's horse had very good action, but was not of a good figare. I do not know what made Mir. Sleldon part with this horse. . saw the horse yesterday: his wind was not right then. Re-examnined.-l am not in Mr. Sheldon's service; I have no- thing to do wvith him. John Aletcalfe.-I saw the horse, on the lith of AIarch, run- ning after the hounds; nothing was then the matter with his wind. I had often seen him before during the hurating season. I have riddeh by him for miles whilst the hounds were in full cry. If any thing had been the matter with the horse's v6ind, it woul d have appearea then. I never saw any appearance ot that kind. I believe him to have been sound. After Air. Sheldon parted with the horse, I saw him; it was on Saturday, the 20th of March; a servant of Air. Cox then rode him. The hoangs threw off that morning, about 10 o'clock, at Bentley, about nine miles from Mr. Cox's hou&se. We ran two foxes that morning, one foar miles, another as much more. I toak great notice of the manne: in which this black horse did cis. work that morning. He kept up with the hounds as wel as moist: no. thing was then the matter with his wvind. WJ. EHarlandl amt a farmer, and am in the habit of hunting. I lah Bothe 20th of M s last, with. Mr. IIli1'8 hou%nds, at Bentley. I know Mir. SheldIon't, black horge; I saw him outi that day; -he was ridden by a, bOY Of Mr. Coe's, who now lives with Mr. Newmarchi, of hsle.We The fiist ran 'we had Wras 'at- very brisk pace Thistblack horse performed it ery. wall. The countr in which we rdod was pretty strnong, up and down, and fallo affcnr-es. We had aboat 70 or 80 leaps in it. I saLw the .boy icap it several time. 'We had a second ran for three or four miles;- that was not sG sharp a run. TLhe courtry over which we went va's rather hilly.. I saw the horse at the cad of it; nothing then ntied,his wind. Francis Sowerby.-1 hunt with Lord Yarborough's -hounds1, ins Lincolinshire. On the 7th of April I saw Alr. Cor'.w4th them; he was riding hiis black horse, whichi, thiough .1 ddI~ ad dturing4she chase, I savw at tile evud of a very isharp run of 10 orj~ Vpiles.. I'saw no dAifference at that timie between him and a!syipa)er hunters. It did not appea' at all distressed in the wind. T-he *Dantry hrhoagli which we ran was, a level country. Anothecr witness, who had hunted vrith Loard Yarburough's hiounds in Lincolisahire for the lest l2,or 14 y'ears, said that he knew this black hoarse wall. Hle ha nKwe. undrn tels season whben they hatd ran for two miles at the rate of a mire in four minuttes. A broken-winded horse would have st"sed during zuch a run. Vitkness did not see tbis horse stop, nor did he heLar that it had stopped. He had seen Mr. C(Lo-ridingat in that country; it was partly ploughed rourd and 'partly sward; the black. horse ecould not have been ridden in thiat country if its wind hiad not been souxnd. A letter from the defendant to the plaintiff was then put in. It was dated the 10th of Miay, 1824, and stated that as the horse was decidedly defective in wind, he had returned it, though it pleased hifm very much in *vary other respect. The letter likewise desired that the plaintiff would think of some plan for adjustinig this affair between themr.. The case for the plaintilfthen closed. Mr. SCARtLETT, for the defendant, commenced his address ts the jury, by infornning them that hiis client, thoughi he appeared to hiave had great experience in unsound horses,had not so far benefitted by it as to becomie a competent judvze of sound horses. He wouald not tire themn by repeating the conditions; of thie bargain whlich had been made between the plaintiff and his client : he would Only reemind themi, that one of them was that the homre wlas warranted to be perfectly sound. It was very extraordinary thtat among thie numerous witnesses which had. been called by the plainthif, fiomi L ncoinshire as well asi Yorkahiire, to p rove the sound- ness of this hiorse, not one person had been called who had ever rid- den I1dn. 'le was sure! that th&y would form their judgment, not onlv froni the evidence whichi lad been called, btitt fromn tiat which hail not been called, and which isiight anidoughit to) have been called. It wa% in evidence that a man of the nanie of' Harrison, who had look-ed after this horse for three years, was now in Iork. 'sVhy, he would aLsk, had not that person been examined ? H-e was above all ot,her personas acqutainted with the mnerits of t-his horse, frons havn both' seen and ridden hjim at all times. T'he othier witnesses a never ridden hiirn; and ats they lieLd only s~een hiim wphen he wat in fall ra)ndition. could not speak wIth the utmost accuracy as to Isis quiali. Cications. The absence, therefore, of the groom was a fact 'Which made more azainst the plaintiff' than the depostitions of aill hiis other witnesses imade lor himi. After reviewing tte testietrny' whichi they hiad -'-.ven to the Court, aoni pointing out various circumr;stances which were calculated to invlildate it, the learned counsel said that he would lprove that thie wind of this hiorse was affict.cd a-, the time it wit in the plaintiff's possession, and that that circumstance had been dis. covered, not only by the livery-stable-keeper wvith whon ithe de- fetidart placed it. but also by the defendant's servant, who had car. ried it to his stabIles. If'he should make these pioints out in evidence, thr es ant end at once to the plaintiff's righit of action. Thomas Remmington, a livery..stable-keeper att Hull, recollected the defendant's sendin g this black horse to hsiFs tables. He had knowim this horse, before the defendant botught him, from having been host- ler at tho~ Neptune Inn, I-lull, to wliceh th& plaintiff had often brottght hiim. At thtat time, the horse had. a dry hrtgk cough. In the early part of the last season witniess had been o-t with thefZounds- whet, this horse was ridden in the ficld by the plaaintiff. -He observed to the plaintiff' that the horse blow,,d bard. TIhe ulaintiff ga-e himri no answer. Witness had once taken this horse froni Hul to lUt. coluishire for 'Mr. Sheldon. On arriving there, yelaintifF asked wit.. ness whether he had heard the horse cough. Wiit-ness replied, that the horse had coughed once or twice in crossing thie Humber, btitt haid not coughed after it landed from tilie 1packet. That was in. 1822. The horse had always had dlie same cough whenever witness had seen- it since. The first night that ithe horse came to hies sables, he thought that it was tainted in its wind. To try it, he struick the horse on, tie fi irk in the side. lHe itnisiepdiately gave that -kind of answer to the blow, wliich convinced witnecss rh'at he was a grunter. Gruxnting artses lroai a.i obstruction of the wind. In his, cross-examination, hie stated that he had been twO years inl busitiess, andti tat thte defendatit was his customer. The horse whiich the defendritezmzopped for this, bla ck horse was a very good horse. butrtithes basty'etnmpered. It was sound for any thing he knew. In re-examination, he deposes' titat the defendant liked tite blackc horse veryv well. Defendant told wi,tne,ss that he had given the horsse his fling -as he brought him over the; Cart-thiat he coughed once or twice, but titat lie trusted that it would soori recover. WI'itriers told defendiant that he hoped it 'niighlt be so. It midght be a month or five weeks after the liorse had been at his stables, that witness made any observatiornsto the defendanmtabout isaunsoundness. It was not till theti that witness kneW that thie horse had been warrante'dMsundi. Thorras Hill, the htostler at the inn by the waterside, Barton, k-new this black Isorse front its havitiga been more than a dozen times at lilt niaster's, housec with AMr. Sheldon. the niaiidtiff. He observed at diffe-rent tiunes that it had a dry huirkitsh 'cough. For the most part, horses wvithi that cotighi are touched in the wind. B. Tiavlor, g-roonm to the defendant, ren)embered hist master bring- ing this liorse home. Wi,tness cantered it the dar aftu.rtards, whetn he observed that it rtidier whteezed in its wind. 'Hebelieved that it was~ broken-windted now. in cross-examnination, he stated tht.tabtssr a fortnighit alt'er his maiiter got the horse, he took it to Grimstbv. His master hunted Iitim there, butt hle could nor tell how often, as fie was Tiot present. Th3ougli he discovered this unsoundnes!s on the clay after the horse came, he riad never mentioned it to his master till tin dave afterwards, because be was a mats who kept his servants at a dlistance. IL. Vickerman had known this black horse for three years end a hallf, anti had ridden against it in the feicd. In the back-pert of last February, the only, tite lie had ever takten particular noticee of thie hot'ae.. he observed that a-s he was gaLlopin-g oiver some sward tindl ploughed ground, that he blowecl mote than a horse should lilowv. Witness did tnot ayv so to th.e plaintiff: W'e then went about four miles as fast as 'we could pelt. Hei saw the horse after his return in Mat' to Mr. Sheldon, itt Remmrin 'ron's stables. He belieyed tiini to be unsound in lIis sinid. MIr. Bower, the defendant's attorney, beirig called to prove thiat the defendlant was no great jutdge of hoirfe-flesh,. was cross-examined h;. Mt. WILLIAIMS-..He sama that he had suhpcenaeed thie plan- ti ff's grootm Harrison he had brosugist him to York, but htad zat. terwarcds sent himi awa'y ag!aiti. Ini re-examinazion, he stated that he itadl exanti ned Harrison before ha serve-d him wrids a sub- poaina. He had sent hint sway because he had heard from the plaintiff's attorney that he hail elso subpcenaed himn. He ha;i given the plaintiff's attorniey notice that he had ~senit him awav. Johni Lythe, a veterinars'.surgeon, residing at Beverley, had looked at tbis horse in Ju'ne last, by dlesire of the last witniess .'tr. Bower. The horse was defectfive in wind. Ht could not tell. whethier that defect had come on suddenly, or was a defect of' long standing. Thie dlefect wat qutite visible when he saw the horse, It is a complaint which comes on gradually, especially when it is pre- ceided by acough. A hard dry cougzh indicates a tendency to broken wind ; a loose cough mnay he removed. A horse touched in1 the wind, by, proper management might go through a day's hunting withiout showing it. In cross-examination he admitted thiat a horse might get broken-winded in thecourseofthreeor four hours; for instance, it' lie was trallo-acd hard with water in his belly. In re-examination he stated, tha if the horse hPa had a cough pore- viotisly, anid hail grurited in .May, he should have p reumed, haLd he be-en told of those zircumastances in June when he saw the horse, dwlthett coinplaint htad nor come uran himi suddtenly. T~siwiagth e case on the oart of the defendant. Atr. VItLuAmsS, in replyv, contended Lthat the defendant, upot; his own showing, had acted in direct contradictiots to a principle that was equally clear bothi itt lawr and in honstv.y-that a man whop boughit a horse or any other commolity oundet a warmraty, if he die.. covered a defect in the commodity warrainted, was bound to give no- tice of the defect on the earliest opporturnity to thie person who had giveti the warranty. Now this horse hiad bieen sold to) the defendant 'in the W7th of Alarch. Onl the next day, the defendant's servant discovered, as he said-, its unsoundness; so, tea, did the witness Remmington ; the first added,that he told the defendant of it 10 days, afterwards. and the latter., that he gave the same information to him within a mnonth; tend yet it was not till the lOch of May that the deieendant had thiought fit to communicate this alleged un- soundiness to the plaintiff. In the interim the horse had been hunted by the defetidarnt in person On the 7th and 12th of April in Lincoln- shiire, andI by the defendant's servant, in Yorkshire, during Mlarch. at a distance of 9 miles from the defendant's residence. Nqow it was in evidence, that if the horse had been broken-winded, no man could hive ridden it a sitngle time after rthe hounds in the country in which the defendant had hunted him,without discovering it. The defend- ant had riddlen it beveral times without discovering any defiect its biin, and he meuttoned thit fact as proof that the horse was hot the uinsound aniimal whiich, his learneel friend had represented him to be.. His learned friend had asked, why had not the plaintiff called the groom Harrison ? He might ask in return, why had not the defend- ant called him-especially after he had served him with a subpoena ? He believed that the real cause why thiz witness had not been called by either party was, that neithier party, thought his testimony worth haviag. But even if that were nut so, and the abisence of the witness (Harrisonl were to he considered as a eircumstance maksing against his client, he had a kind of stet-off to place against it in the absence ofam very material witness, whomn the defendant( ought so have called, and whom he had failed to call. WVhat had become of the groom who litad hunted this horse on the 20th of March-a day which wea& described by one of the witnesses to have been a very harcd dIay, and in which that groom might have btrsrt the horsr'ws wind by a single hour's galloping ? He had not been placed in the witness-box, though the defendant could easily' hate found hint-for one of the witnesses had stated that he was now living withi a gentlemian called Newmatch, at Hessle, in that counety. After conmnieniting upon this point for som-e time he Called the ztet' tenition of th-e jury to this; circumstance-that l~e matter-of-fees- men whorn lic had called had all sworn to their seeiitg this horse per- formn the task, of a sound horse ; whilst, on the other side., there were=nl two witnesses who had swrorn to his uennoandriess (of'whom hewul erely remark, that if the horse were, as they said, unon,and they did not comm-icate it imeltl#oter m.kie) n antersecltiewins ,wo d- ployer, they xvere aves),; an2 another spe v , who dc- ciared the horae to be unsound upon tfe evidence given by the two, former wtnesses There was not the slightest insinuation thatIs client bad put off a bad horse upon the defendent, or that he had parted with a valuable horse, except for a fuil, reasonable, and ade- quate price. Wi1th these observations 'ise should leave the case to the jury, being convinced that they must find a verdict fer bis client. 'I'he learneti JUDGE, in sum=ming Dp the evidence, told the jury that the sigle question whih they hald to try was the soundness of the horse on the 17th of March. It w as varranted to be sound; if It wecre sound, the plaintiff was entitled to recover; if it were not, than the otlia,tiff coustd not recover the residue of the price which the defe'dant lhad contracted to pty, and the whole contract was liable to be rescinded. Writh reg.rd to the conduct of the parties after the discovery of the alleged unsounaness, he vrould merely observe, that in all cases of warrnty, where a de- fect was discovered, it was desirable that' an early intimatian of it sbould be nmade to thle partygiving the warraty, in order that he mig't examino whether the defect was real or not; anid iR all eases where a long interval-tas suffered to elapse between the dlscoveryr of the defaec and the notification of it to the twantor, a h-arier was raised against the party complauaing of the defect, and the strongest evidence was required to prove it. They would apply that observation to the fats of the.present case, and would rettzrr tuch a verlict as thev thought the.Justie of lt required, The Jdry then eietred from the box, and after being asent ftam Court for muore than 20 minutes, returied' verdict for thefliFif Damnages 45 guineas. Thiat case Wappeared to excite great intert in the Oar4 ,4i occupied nu .less. thaa at shoIntrs gi th heusg. YORK, WEDNESDAY, AUGUST 4. lBeforc :Ur. Jdmtice UAYLEY. SHEELDO V. COX.