Aug 31 1819 Carlisle Assizes (Scarrow v. M'Annally [b] )...#19 - Cumberland and Westmorland Newspaper Transcriptions

Aug 31 1819 Carlisle Assizes (Scarrow v. M'Annally [b] )...#19

The Times, Tuesday, Aug 31, 1819; pg. 3; Issue 10712; col A

                                CUMBERLAND ASSIZES.
                            CARLISLE, FRIDAY, AUG. 27.

     WARRANTY OF A HORSE. - SCARROW V. M'ANNALLY.     [continued]

Mr. Joseph SAUL was in the Lion and Lamb with the parties in December last. The
plaintiff said the horse was not sound according to contract, and returned him.
The defendant said, if he was unsound he ought to have returned him before, and
refused to return the money; the plaintiff said, he could not return him till he
came to Carlisle. The defendant said, it had been a swap: the plaintiff said, it
was not an exchange. The horse was now lame.

James SCOTT rode the horse on the Brampton-road, and was afraid he would come
down with him: he returned with him through the fields for the sake of the
softer ground. He was still lame, and threatened to continue so.

John BARNES, an inn-keeper, at the sign of the Lion and Lamb. - Mr. M'ANNALLY
was at his house on the 27th of August, returning from Newcastle-fair: he did
not see him after that time till near Christmas: he was there some days after
the 27th. He did not know where the defendant lived, but it was near Antrim.

Cross-examined. - He had known M'ANNALLY for more than 7 years. Antrim was the
post town. He remained in Carlisle about a fortnight after the 15th August, and
was there constantly during that time. He saw the plaintiff and defendant
drinking together in his house more than once between the 15th and 27th of
August. It was about Martinmas (11th November) that the plaintiff applied to him
for information respecting the defendant, in order to return the horse.

Re-examined in chief. - He did say some time this week that he could not
recollect the time when the application was made; but he recollected since.

Thomas FAWCETT saw his master riding the horse, a fine-looking horse, and
thought him lame. Witness rode him out about a week after; he was dull; he had
coughed, and had a cold. A month or 5 weeks after the cold began to go off.
During the cold he always rode him at a walking pace, and took him out only for
exercise. When cured of the cough and cold, he was cantered up the street, and
was quite lame in the off either shoulder or foot. He had been shod on the
Thursday before. The shoe was taken off, but the lameness had not been
occasioned by the shoeing. He came down with plaintiff's father, on occasion of
going to Scotby, three miles from Carlisle, and brushed one knee. It was about
seven weeks after he was bought.

Cross-examined by Mr. RAINE. - He had over-couped the mail at Brampton, when Mr.
CLAYTON's leg was broken.

James ROBINSON, a horse dealer, at Stanwick, in this county, knew the defendant,
and had seen him at Boyle fair, in the north of Ireland, on the --- of July,
1818. There he saw the horse in question exposed to sale, and observed that he
was lane. He was a good figure, and worth 50L. in Ireland, if sound. Witness
never offered for him, on account of his lameness. The defendant bought him that
day. Witness said he had better have let him alone: defendant replied that
witness knew nothing about it. Witness and defendant sent their horses from
Boyle to Port-patrick. The defendant's nephew, who had been one of those sent
with the horses, returned with this horse, and asked his uncle to return him as
lame. Witness and defendant went to look for the man who had sold him, and not
finding him, the defendant sent his nephew about 20 miles to return him. The
price was 35L. At Belfast he saw the nephew with the horse again, and heard him
say that the man would not take him back. The horse was afterwards exposed to
sale at Newcastle fair. The defendant told him that he had sold the horse, and
added, "You need not say much about him." The horse was now lame. He advised the
defendant to settle this matter; but the defendant said he had not warranted
him; he had only said he was sound.

Cross-examined. - He was sometimes a cock-fighter, and sometimes a horse-racer.
At Annan he made his Golumpus lose the first heat, and won the second, and took
in the flats.

Mr. SCARROW, plaintiff's father, had walked the horse to Scotby. The horse
tumbled down when walked nicely on.

Cross-examined. - The oldest son bought the horse.

John SCARROW, plaintiff's brother, was in partnership with his brother, in the
spirit way. This horse was bought by his brother for himself.

Mr. RAINE. - I submit that the plaintiff must be non-suited, for in their
amended declaration, they state this to have been an exchange, and it is in
evidence that the plaintiff denied it to be an exchange.

Mr. Justice BAYLEY. - The law is, that if the horse was unsound when you sold
him, you are answerable at least for the difference between his value as a sound
and his value as an unsound horse. This was decided in STARKIE and FIELDER,
before Lord LOUGHBOROUGH, when Chief-Justice of the Common Pleas, and uniformly
acted upon since.

Mr. RAINE. - Then, gentlemen, I am disarmed, and it would be idle to waste your
time with evidence upon this point. But the horse has been damaged, and this
must operate in diminution of damages. It would be difficult to coat the hair
over the knee so as to conceal the cut upon it.

Mr. Justice BAYLEY. - It is much better that your client should not be able to
sell the horse again as a sound horse.

Mr. RAINE. - But the horse having been really damaged, and rendered of less
value, the damages ought in consequence to be diminished.

Mr. Justice BAYLEY, in summing up, remarked, that the counsel for the defendant
had very wisely conceded that the plaintiff was entitled to their verdict. There
was a reason why the plaintiff should not be particularly spared, for he had
distinctly known, and had it forced upon his attention, that the horse was
unsound.

The Jury instantly returned a verdict for the plaintiff - Damages 62L.

The two remaining causes were barely announced, when they were settled, and the
assizes were finished at 4 o'clock.

                                                   ________________

End of the 1819 Cumberland Summer Assizes.