Derby, Monday, August 9.
CLe commission was opened nere on Saturdlay by Ulhief Justice REST and Mr. Justice Ho,- noYD. The calendar was cxceedingly light. The cause-list contained 17 causes for trial. NISI rtRIUS COURT.-TtTESDAy. PARII V. SAVILLE, CLERK. This was an action in OSStempsit for 200 guineas, the price of a hunter sold by theplaintifr to the reverend defendant. Mir. C LARKiE (With whemn was Mr. Reader) stated thecase to the jury (a special one.) The plaintiff was Major Park, a gentleman of great respectability, of lightield-house, near Liverpool, and better known to his learned friends about him as the brether of a gentleman of great cminence at the bar, Mr. James Park. The defendant was the Hon. and Rev. Lumley.Saville, a clerFyman ofsporting celebrity in this neighbourhood. The period to which the transaction to whic'h the present proceeditg referred was in February, last year, when Major Park happened to be in these parts on a visit to his nephiew, Sir (George Sitwell. It would appear that the Major had at this time with hin a very valuable browii hunter, which he had no in- lisposition to part with. The an'imal wVas at great favourite, and he had but a short time before refused 16i guineas for it. The defendant coming to thc knowledge of there being such a horse to be disposed of, and being at the time iu want of a strong horse to carry his hitntsnian (for he keeps a pack of fox-hounds), made overtures to Major Park on the subject, and came limself to Sir George Sitwell's for the pUrpesc of seeing the hunter. lie was accordaiigly indulged with the fullest trial, and after riding him him. self, and seeing the plaintiff's groom put the horse through liis paces, heptofessed hi mself willing to conclude a bargain.The horsehad shied at some of tite leaps with the groom, but the Reveret.d gentleman said, *he did not mintl that forifany of Iis whippers.in liad hni, they would soon make him Ao his business." Atter some negoti- ation, the price agreed upon was 200 guineas; and at the defend- ant's desire, the horse was sent to "Worksop, to be exa, tined by a farrier, after whicl the bargain was understood to be concluled. M71ajor Park had, in the meantime, gone in a carriage to Spanker. hill, where the defendant's hounds were to dravy cover, and where lie was to have touched the cash. Btut for some cause or other, the money was not fortltcoining, anct Major Park, who was about to leave for France, commissioned Sir George Sitwell to act upon this occasion as his receiver. As the approbation of the farrier was the only stay to the payment of tite two hundred guineas, it was unnecessary to say that Major Park never gave a war- ranty of the horse. It hiad been since said, that tlte horse hact corns in his feet, and upon this gron(d it vwas that paymiient was resisted ; butt if this objectioti really existeil, it ought to lhave been niade in mte tirst instance, and tnot atter seven weeks, which wasl the time the defendant thought proper to keep the horse. It would be shown that lie bought himt early in February, butnever madle the ob- jection until the end of' M larch, lull seven weeks, emiibracing the greater part of the hunting seavoti. lie was then returned to Sir George Sitwell's in so miserable a condition, that Sir G(eorge, seeing Itim pass the window, was unable to recognize him, but thought he was a hoise for his hiunds. He was quitelame, his knees broken, and altogether out ofcondition. The horse was eventually sent to a hivety-stable in Liverpool, after iiving notice to the detendantthat he must be maintained there at his cost. Such was the case which wouldl be proved; and after it had been showR that the defendant took the horse relying tipon the skill of his farrierX there could be no doubt as to the legality andtjustice of the plaintitt' a claim. Sir George Sitwell said lie lived in this county, and was the plain. tihfs nephew. Recollects in February last iMlr. Lumh y Saville, on a mlorning visit at his house, proposing to buy Major Park's brown huntcr. At his request a grooni trotted hint out, but the horsc re- fused to take some of the leaps. 4Mr. Saville attributed the failure to the bad adidressof the rider and expressed his confidence that one ot his whippersin would makc him Ao lii business. He subsc- quently remarked that he was a slow gallopper. lritness bas seen the horse hunted, and thouglht lie performed well. When he stated to .M r. Saville Ehat he was commissioned to receive the monicy, the latter replied, that he believed the horse had corns in his feet. H e, however, thouglht proper to keep him unitil the end of Alarch, when he sent hinii to witness's stables in a sad condition. AVitness had him brought to airs. Patrk's (ithe plaintiff's motlher), and he was ;ubsequently sent to a livery.stable. The money had never been m~id. Cross-examnined..-Witness had kinown the horse upwards of threce years. lie was at this t[ime too fat for hunting, anid Major Park hiluiself proposeie to subject hinm to a course to bring him down. The sMajor had recoimineded the horse as a perfect hlunter, but witness had no recollection of any thing beiiig said about soundness. NM r. Sztville said1 he wantecl Iiiun for hii hiuntasnan. Nothinzg vas said ot hisslopping short. No other objectisn was made than that his shoes were too hea,vy. Tue bar over whiclh thc trial of his leaping wda madle was very low. Witness does not tliink it was a good test for a hunter. Re.examined.-.le was a large horse, anid had just come off a journey. A horse upon a jourstey will reqllire larger shoes thlait when upon the turf. Tie defendatit never offired to return thel horse on account of the coms. .John F'idler, a servant of Major Park's, tool, thc horse, by Mr. Saville's dlesire, to 1 is farrier at WoelVokop. Ar. Saville himself was thert, and saiul tle would meet the plaintiff in a day or two, and give hiln a check for tie nioney. No objection was nmade respecting liis corsts. Mitnes lhal attended the liorse for three years, anid never observed hin to be affected with corns. Cromssexamined.-Witie:s had never said that lie was a lumnber- ing horse, anid tthat lie was glad his master bad got rid ot him. atli- not account for his not taking the leaps with witness, as he generally took them well. Cannot speak to his agc, as he never looked into his 1,i0iotit. Joseph WN'eelon, hrs. Palk's coachman, said that the horse was tlgood cOnition when the plaintiff soltd him, but that lie wasa much reduced when he wasl rcturned. lie hal all the appearance of a breken.down horse, and thlere were caps to conceal his broken knees, IIIS shoes lWere sot lieed t> his feet. itness never had asuspicion tat rite horse htad corns. (Cross.examnined.....Vitnea believes the sloes in wliich the horse was returne( were ilie samle lie hadi oii when lIe was bought. Two letters were put in to show that the defendant acquiesced in the demand whtich was made to himii for the nioney immediately after the purchase, and thiat be made ito objection to the state of his feeL. Tlhis was the plaintifft's case. ilr. Sergeant V^Act'ri,{ then opened a case for the defence, which he rested entirely upon a distinct warranty, which lie should prove bact been given with the horse. Lie then called the defendant's t'arrier, who swore that MSaior Park, in lis prcsence, warranted the horse to be " sound, free from vice, ani rising cight." The witness e conJraz hroin his observation insisted that he was unsound, inasmstuch as he had corns whirls lameel him, vicious, because lie balked every leap iand as to his age, there Vwas no accounting for that, as dll the marks were out of hli I1iouti. lie admitted, however, that all these defects, if any such ever existed, were all known to the rev. defendant a day or two after lie bati bought the horse. Ilalf a dozen other witneases, some of them the defendant's ser- vants, *Yere called to speak to the unsoundness of the homse One fellow, unaurre the testimony of Sir George Sitwell, who mistook the horse for a dog horse as he was passing his window, swore that lie was ill a better condition when lie was returned titan when he was bought. Ainother, that the day on which he was employed by his master to try the borse was a Sutiday. The delay in returniing thc horse was not accounted fbr. ir. CLA,RKE. in his reply, warmly avni-adverted iton the sort of defence whichi had been attempted to be set tp, and the learned Ju tge, in charging tllC Jury, regretted that the de(endlanat had beets advilsl to bring the action into Court-Verdict for the plaintif'. Damages 200 guineas. GILaERT V'. ISOUN AND OTHCERS. Thist was an aiction of trespass, for breaking antl entering tde plaintiff's close, and i ialiciously digging up his lands. The case for the plaintiif was conducted by Mllr. CLARXE. The circumstances of the case, although strictly local, derived in- terest from the nature of -he defence which was set up, as well as the liarticular spot to which the trespass referred, it being ito other than that most picturcsque and beautiful part of the Peak of Derbyshire, Matlock Bath. The plaintiff' was a geistlenman of fortune, wvlo by great pains and wit It great taste, had converted one of those sIopes wilich ter- ilnare hoE Ilie preci1itoos crags ihat encircle ard hang over die little village, into a garden adorned with flowerhig shrubs anid rare p.11tit, and had been in quiet possessiont of this romantic allot for manty years, when, about the end ofApril last, the defetidanta, one of whomit was a minier, broke ito his grounds, tore ap his Plantations, lati comnitted great damage to his property, under shelter of tiRCe ininilig laws which exist hi Derbyshire amid 9ther rnimhing countiex2 anil which w,arrant a profeissed aiiier, " being a liege subjectof time Kinig, to enter into any wapentake,otherwise than elisit o'ahout',lmgliwa, achrch agarle,&C.,and diggingtisud lelvin there ofor? a;irls.3 nTIhe drefhe'ndadnts, iii the eRrcise of thts iuhe or pretetidud righlt, seemed to have conducted themselves in a yer' disorderly manner, for they unntecessarily broke down the plain. tiff.s fences, destroyetl his fhower..pots, rooted up a tree of 40 years' landng, and bebaved with great insolencc to himself and family. The trespass was clearly proved, and theease turnedou theissle of w:hether,fr not thin groundj,which was,uavrin,rfrontofgaget tleonu house, came within the description of a " garden," s- as to.niiake it an exemption to tke mining laws. It:si?6 proved by the pliantiff's witnesses to have been enclosed, and adorned with walk, secats, hedges, and louisihing shrubs. On the other hand, the defendants called the Bar Mastems, or offi. cers of the Shining Court, whose business it is to enftoffa miners in soils where they have a right to dig, and from their evidence it ap- peared that this spat had been before worked for mninerals, but that at latterly lecame unproductive, and therefore liad ceased to be worked. These witnesses stated their opinions to be, that the defen- dantN had a right to rnter and dig for minerals, as the stoce, or posts to denote tke ground to be mininig around had been regularly set up. On cross-examination, it aupeareil, however, that the defendants were aware of the unpr(xluctiveness of the mines, r.n. it was hinted that they halt taken possession of the mine, only with a view of pre. vairing upon the plaintilF to give up some rights which he had in othier nmines. Chief Justiee BEST told the jury, that in hiR opinion this ground wias a garden within the meaning of the exceptions of the mining laws; otherwise no gentleman's grounda would be safe, and any ill- disposed mnier might dig for minerals before a nman's door. Al- though the ground might have been originally worked as a mine, yet t e disuse for a certain time. within which the plaintiff' had im- proved the place, left hin in the same condition as it he had con- verted it into a giardlen before it erer began to be worked as a mine. The Jury found for the plaintifr'.-Damaees 101. DERBY. AlIONcDAY. ATTGS-r Q.