The Express.
London, England, 1864-11-04 00:00:00

COURT OF EXCEIEQUER.—Nov. 3.

Sittings in Basco in Michaelmas Term.—(Before Lord Chief
Baron Pollock sod Berms, Bramwell, Chappell, and Pigott.)

SMITH C. 88TA.1.-90858 WARKANTT.

Mr. Temple, 14. C., said this was an action on a warranty
for a horse tried at the Manchester Anita before Chief
Justice Cockburn, when the juty found a verdict for the
plaintiff—damages 211. By leave of the learned judge he
moved for a rule to set aside the verdict., sod enter a verdict
for the defendant. The defendant had given a general war-
rarity of soundness, soil the uneoundoesa alleged by the plain-
tiff consisted of a certain splint and some injuries in the
leg. The case for the defendant, which was not affected by
the evidence for the plaintiff, was that at the time of the
sale the defendant called attention to the splint. The horse
was returned on the ground of lameness, and the plaintiff
wrotea letter to the defendant, in which he made DO refe-
rence to this count defect. bet complained of the animal
being a " whistler." That the horse wsa a " whistler" was,
boweveg, not proved to the satisfaction of the jury, but
they found for the plaintiff on the ground of its being lame,
and in reply to the learned judge they stated that the horse
was lame in consequence of the splint. The learned counsel
referred to a horse use in which Chief Justice Tindal had
held that defects apparent at the time of the bargain were
not included in a warranty, however general, and contended
that as in the present case the splint was pointed out to the
plaintiff when he bought the horse, the defendant wee not
ble.

The Lord Chief Baron said the learned counsel sought to
qualify • written contract by something which passed
between the parties at the time it was entered into.
Mr. Temple said the plaintiff purchased the horse after
he had been made aware of the splint, and the lameness
arose from the splint. It might or might not happen that
a splint would 411111141 lameness.
The Lord Chief Baron said they were all of opinion that
thine should be no new trial. The warranty wu in writing,
and said that the horse was perfectl► sound. What did
that mean Aecordiog to all the decisions it meant that
the horse was Dot only free from disease, but from anything
which would produce disease. The horse soon became
lame, and the jury found that the lameness was caused b►
the splint. It was now contended that se the splint was
pointed out at the sale it ought to be excepted from the
warranty. It might be that an absolute, visible defect
might be pointed out and excepted from the warranty,
but hero the defendant might be supposed to have drawn
attention to the splint in order to allow his good faith,and said,
" I warrant thorium notwithstanding the splint—l vernal
that it will not grow into lameness." To say that the
'idiot was excepted would seem contrary to the bargain
fairly made between the parties. Often • man bought •
horse who vow no judge of it, and it the seller pointed out
soy patent defects he might very natursll► say. " Don't tell
me of this or that—what I want is • warranty." Upon these
grounds I think there should be no rule.
The other judges being of the same opinion,
The rule was refused.
_ COSR r. BAILEY.- - ALICTOCS PRORECUTION.

This was an action for a malicious prosecution. It was
tried at the last sittings in Middlesex before Mr. Baron
Marti°, when a verdict was returned for the plaintiff, da-
mages 201. . . .

Rellantine moved for a rale to enter anon-
Suit or fora new trial, on the ground that the verdict wee
agsiast the evidence. The plaintiff was Roht. Allen Cash,
who. with a person named Sayers, whom he represented as
his groom. went to the defendant, • farmer, to look at •
horse he had for sale. Cosh agreed to buy it for 201., to par
5/. down, and the remainder within a certain period. Cosh
obtained possession of the bone without paying the 5/. and
took it away. Afterwards it turned out that Cosh's real
surname was Allen, and that Sayers, though called his
groom, was really not so, and was in the habit of sleeping in
the same bed with Cosh. Sayers afterwards got into gaol
for swindling, end the defendant went to see him, when he
made in substance the following revelations, Ile said, " I
am no groom of Cosh. We are old friends and work these
things together, and this is by no means the first swindle we
have been engaged in. I would have gone on doing this, but
luckily I have been caught et last. In point of fact we have
nothing else to live upon." According to Cosh's account
he was • farmer possessing • piece of lead and
some cows; but, on investigation, it appeared that
the skin of a cow was the only pcuesaion in
the way of cattle that he had. Sayers also told the defend-
ant that they bad both planted upon him, and had get the
horse by false pretences. Afterwards the defendant, in e 01)
sequenoe of this story, brought the plaintiff by warrant be-
fore magistrates for obtaining the horse upon false pre-
tences, but he wee ultimately dismissed. The learned coon-
eel said at the trial be submitted that there was evidence of
reasonable and probable cause for 111Clingtheebarge against
the plaintiff. Yr. Baru Martin said be thought there wee
no case, but be left the matter to the jury, who found a
verdict for the plaintiff, and pee the defendant leave to
move.

Mr. Harm Marlin, who took his seat on the beach when
the rootioo cants on, said he though► the evideoce quit*
wrong, but whether there wee evidence to go to the jury eir
not he was sot prepared to say. It was one of those came
in which it was almost impossible to get a right refill.* The
law was so complicated on the sebjeet lo coesequeeee of a
decision of the Court of Exchequer Chamber, so much being
left fur the judge mad so much for the jury, the line being