The British Press; or, Morning Literary Advertiser.
London, England, 1826-08-21 00:00:00

COURT OF CHANCERY

The Lord Chsneellor will attend In his Private• Room, Lincoln's Inn
Hall, this day. at Eleven o'clock In the forenoon; sod ti is *spotted his
Lordship will sit during this week al the sane hour.

WESTERN CIRCUIT.

BRISTOL. Auo. I&
(Before Mr. JusticsLITTLtDAI.6.)
MALRENZIE V. 114NCOCK.

Mr. IV/LT.IANS (with whom sou Mr. Ca; TEM stated, that
this was an action brought to recover the value of • mare, gig, and
harness, and 101. in money, which the plaintiff had given to the
defendant for a mare which the defendant had warranted mound,
but which was afterwards discovered to be unsound. It would ap-
pear that the plaintiff was • lieutettannt in the army, and finding
it necessary to gn from Bristol to Witrminster on regimental bun. '
ness in January last, he travelled down in his own horse and gig.
He 'topped at the house of the defendant, who is an innkeeper at
Warminster, and seeing a mare belonging to the defendant that !
he conceived would suit him better titan his own, he entered into
negotiations with the defendant with a view to the purchase of the
mare. Fifty or sixty guineas was named by Hancock as the price
of the mare; but the plaintiff, like other gentlemen of hit pules-
skin, was not overstocked wilt money, and alter some little COll4l.
deration, he bargained with Hancock to give him his mare, for 101.
with the mare, gig, and harness which belonged to Lieutenant
Mackenzie. A regular exchange was agreed to, and effected upon
these terms' Mackenzie stating that lie was nu judge of horse*,
but that he depended on Hancock's warranty ; ice reply to which
Hancock wteired the plaintiff that the mare was perfectly sound.
Mr. Mackenzie was a tot soldier, and not at all conversant with
horses: the horse had the general appearance of soundness, and
Mr. Mackenzie was deceived in him, fur upon bringing the horse
to Briatul he was found to be decidedly unsound, and it would be
proved that he must have been unsound for many atontha before
the warranty given by the defendant. Mr. Mackenzie immedi.
ately returned the horse to the defendant, wit() refused to reecire
him or to break the bargain, unless 3lr. Mackenzie allowed him to
retain the 101. given as part of the purchase. Under these circum-
stances Mr. Mackenzie came into Court, and what defence he in-
tended to make was unknown to die plaintiff. The only circum-
stance which threw any difficulty upon the plaintiff in proving his
case was, that no angle person was present doting the whole of the
negotiations hetwean him and the defendant. There were, fortu-
nately, however, a number of coincident circumstances which would
be given in evidence, and would fully support the elite. It seemed
the mare had a disease in her fore feet, which rendered her if not
completely. at least comparatively useless. The fact of emu .1 and
distinct warranty would be ;vowed by three separate witnesses, and
there could be no doubt that it was unsound when sold, as the
plaintiff bought it tin the 2611 January, and actually returned it as
unsound on the 27th of January. twolliy4 atter.
James Cary sworn—Said he knew Hancock, who keeps the
Angel Inn, at Warminster. Was In his service ; saw Mr. Mac-
kenzie at the Angel, on the 24th January last. Mr. Mackenzie
came with a horse and gig. After being some time in the house
Mackenzie and Hancock came into a ambit where Mr. Hancock's
mare was. Witness heard Mackenzie say, " I'll give you that if
you like." Iles-'cock answered. " Veit well." Mr. Mackenzie
then drew forth his purse, and took from it a note, which he handed
to Hancock, saying, " you warrant the mare sound and Han.
cock replied, " Yes, I do, and more than than, I'll give you the
address where I got her." Next day Mr. Mackenzie took away
the mare, bridle, sod saddle, and left the horse, gig, mild harness he
had brought the day preceding.
Cross.examined-31ackentie had the mare out before he bought
her. There was nothing said about a warranty of :Mackenzie%
mare. Hancock had the mare he sold for several weeks. and used
her as a post horse. Witness and his master twice quarrelled.
Witness did not like his master's manners, and told hint if he slid
not conduct himself bi tter he should leave in. There was a person
named Edward-. present, when witness overheard the conversation
between 31ackenz:e and Hancock. Witness quarrelled with Han-
cock about his wife.

William (lift is a coach master, and resides at Bristol. Knows
the defendant, who called at witnes.'s house, 'ome months ago.
Ile asked witness where bee, a veterinary surgeon, lived. Witness
said he was just going to him, and defendant accompanied him. As
they walked along, defendant told witness that he had a dispute
with Mr. Mackenzie, about a mare which he had chopp. d with
Mackenzie fur another mare, a gig, harness, and a ten pound note.
Witness said nothing at that time about a bridle and saddle. sub-
aequently witness bad another conver:,alon with Hancock, who
said he did not want to go to law, and would take bark the mare,
and return Mackenzie's gig and mare, it Mackenzie would let hint
Ir.'e the It)!. he had recetved from him. At the subsequent con-
venation Hancock mentioned having given the saddle and bridle
with the mare. Hancock said they were worth aka+ et a pound.
Cross-examined—Defendant did not say any thing to witness
about warranting the mare sound.. He talked of keeping the Itlf.
to pay for putting the mare in condition again.
Robert Harshaw, a sergeant in the Eighth Regiment of Foot.—
Knows Mr. Mackenzie, who is in the 61st regiment. Witness was
quartered at Warminster in January last. Saw Mr. Mackenzie at
the Angel Inn widt Hancock on the twenty-fourth of January
last. They were In the inn yard. Witne.s was there on duty. Ile
heard plaintiff and Hancock bargaining al- ut a mare. The former
said he was no judge of either a mare or horse, and was only taking
it on Hancock's word. Hancock then said, " I warrant her a
sound mare."

Cro e.examined.—Witness was recruiting at this time under the
=pa a endence of Mr. Blackenzie. He saw no one but James
Carey in the yard.
Daniel APClelland, a soldier in the filet regiment, is acting as
servant to the plaintiff. Was sent by his master with a mare from
Bristol to Warminster on the 27th January. His matter hail only
brought the mare to Bristol on the evening of the 25th. Witness
then saw defendant, and told him that he brought back the Mee,
which he understood the defendant had warranted as sound,
hut that it had been proved in Bristol to base been unsound.
Defendant then observed that he had warrun:cd the mare,
and that she was as sound as any mare in England.
Witness then demanded the mare, gig, harness, and a 101.
note, which Mackenzie had given Ilaitcock. Defendant refused
to take in the mare, and witness then informed him that his orders
were to put her at livery. Hancock then desired witness to step at
Warminster until he went to Bristol and saw Mr. Mackenzie, and
witness acquiesced. Defendant soon after set off for Bristol, and
on his return told witneis that Lee, the horse surgeon, would war-
rant the horse sound. Witness asked him if he had brought
any message from Mr. Mackenzie. Defendant answered that lie
had not seen Mr. Mackenzie at all. Witness then s iid he would
put the mare at livery. Sergeant Ilarehaw was; present at the first
conversation witness had with the deter dent.
Hinshaw was then recalled. Ile stated that he had heard almost
all the observations deposed to by the last witness, but did not hear
the defendant say he lia.baarranted the mare, and would warrant
her as sound as any mare in England.
Nathaniel Lee has been twenty years a veterinary surgeon. Ex-
amined the mare sold by Hancock to :Mackenzie on the '26th of Ja-
nuary. She was then extremely lame. He found that both her
fore feet were convex reed the e u.t much broken. The diets,e
must have been on the mare for two or three months, and undoubt-
edly rendered her unsound.
cross-exam:tied—Witness was concerned in a former sale of the
mare, in December last. It was the 2eil of December. Witness
then warranted the mare sound, under the direction of the then
owner. The mare's feet had been pared too clue in shoeing, and
the slightest pressure occasioned her to bum. Her feet required to
be protected with iron, as they were not capable of pressure. Shoeing
would have made the mare go sound, if she had been properly
shod. The mare was kept about a week in witness a stable. It is
part of his businessto sell horses for other persons. The mare in
question had been put up to auction, and was run up and down the
ride. From the state of the roads at present, all horses require pe-
culiar care in shoeing. Macadamizing the roads has made them so
hard that the horses are sure to suffer. The changes in the roads
are beneficial to carriages, but injurious to horses. Witness never
means to erect a statue to !Ir. sCAdain. (A laugh.) If the horse
in question was properly eliod, and attention paid to her, she would
do the fair work of a horse of that description of feet. Witness
conceives that all horses with that description of feet are unsound.
Mr. Mackenzie told witness he would have sonic difficulty in prov-
ing the warranty. Mackenzie rode the mare from Warminster, a
distance of thirty miles. Mackenzie is a heavy man. When he
brought the horse to be examined, he told witness that lie had a
warranty. The Lieutenant's gig, harness, and horse were worth
about 251. The horse was originally sold for 261.
Robert Parry, a veterinary surgeon, saw the mare and examined
her feet on the 20th January ; the Mate wax decidedly unsound, and
still continues so ; she must have been unsound for some months
before witness saw her. Horses with convex feet are usually consi-
sidered unsound; horses of that description generally improve
by rest.
John Turk—Has been conversant with horses for many years ;
he offered Mackenzie 201. for his mere at Christmas last, and thinks
the gig and harness may be worth about 251.
Lee was recalled, and stated that defendant's mare would be
worth about 351., if she was sound ; in her present state she was not
worth above 151. or 20/.
Mr. Sergeant WILDE (with whom was Mr. Girwwilete) then
addres.,e,', ;the. Jury for the defendant. Ile said, there was 110 case
in which a defenaa.:t had inure digit:ill:les to contend with than in
a horse case. The jetetttat,o of warranting a home as sound,
which afterwards prowl to have been !one than the contract, na-
turally and reasonably excited a prejudice. t;es client, however,
could have no such impression to contend against. 71.; mare was
put imp at Lee's on a warranty of service, and was purchaser of the
defaralant as sound, he believing it to be so. It was moat remark-
able, that neither Lee nor his servants had detected this "decided"
unsoundness, although the animal was under their care, and ran op
and down the ride. Ile contended the warranty had not been satis-
factorily proved. Justice would be much advanced if contracts of
this nature were always in writing. Few prudent men wo :Id form
such a contract, without the protection of writing. In deubtful
cases, when the warranty was imperfectly proved, the man
who neglected an obvious security ought to sutler. If a war-
ranty was actually proved, he admitted a man ought not to escape
because the a'eeemeurt wa. verbal ; but inn doubtful case like the
present, the principle ought not to be lost sight of. The Jury could
not depend upon that species of eaves-dropping evidence which was
adduced in support of the plaintiff's case. The plaintiff's wit-
nesses heard just what would tell well for th:nirdnktna-estw nothinger,nin o othti itsng
else. They swore to a solitary expression.
connexion. This kitd of evidence should never be depended rm.
There was once a soleme case, where such evidence was used to
convict two men, wino were afterwards executed at the Old Bailey.
The Jury probaely retnembeted the circumstance, as it was ern-

dered remarkabk by the death of nearly thirty individual*, who
were killed by an accident at the execution of Haggerty and Hallo-
way. the two men to whom he alluded. These men were convicted
on this kind of piece-meal evidence; subsequently, circune.tatics
occurred which threw great doubt nn the propriety of that CallViC•
tion. lie insisted that it was unjust to act mem such evidence M-
any came. That illustrious lawyer, Lord Erskine, had given a
splendid illurration of that kind of evidence. though probably not
an original one. Ile observed, that by taking part of a verse out Of
the Bible. withou, giving the context, you might make the authot
of the book say—.` there in no God;" but how was it changed when
the context was added ? The text then run thus, " the fool Keith
in his been there Is no God." He did not say the witnesam
perjured themselven, but he said the Jury ought not to act
min-. the evidence of such witnesses. Mr. Alackenzie'3 itnpr a.
II!0,11 were no guide to the Jury. Ills client denied that there
had been any warranty, and he contended that the unsoundness
of the mare had not been proved. If lameness was pemianost,
he admitted it constituted unsoundness; but when lameness was
occasioned by the degree in which the feet were pared, it ought not
to be considered unsoundness. flow could this horse be considered

unsound. which had borne a heavy man over thirty miles, when
she was in the worst condition ? lie would call two witnesses, who
would prise, that the first witness. Cary, was not present at any of
the conversations of which he had given so imperfect an account.
if he proved that, it was so strong a feature in the case, that he
thought the Jury must find for the defendant. If he failed, it was
necessary for him to make a remark upon the question of damages.
The only damage which the plaintiff could legal) y claim Irma the
actual difference in value between the mare if she had been sound,
as it was alleged the defendant hal warranted, and in her present
state, sit it was described by the witnesses. itir. Lee had stated
that the difiltrence of value between the mare in a sound state, and
her present, dill not exceed 15f. or 201. This, therefore, was the
greatest amount of damages to which the plaintiff was entitled.
even if he had satisfactorily pruv.d his case, which he contended
he had not done.

Won. Hill was under-hostler to defendant on the 25th January.
Mr. 311ackenaie arrived in the evening at the Angel Inn; the day
before this witness heard defendant tell the witness Cary that he
did not wish to see him again in the stalle.yard ; witness did not
see Cary in the yenl tile whole of that evening ; witness um
his master and Mr. Alackenzie. in the stable ; Catty was not there at
that time, nor any where within hearing. Mackenaie said, " I
hope, Mr. Hancock, it Is all right ahnut the horse;" to which
Hancock answered, " I have not had her long, but it sho is out I
shall give you a reference to the person from whom I bnuglit her."
To this observation plaintiff only said, " Thank you." Witness
heard no conversation about money.
John Edwards, a peat-buy in the service of Hancock, heard his
master bargaining with Lieutenant 3lackenaie about a horse.
Hancock offered to sell any horse in his stable. The plainthi. chose
the mare in question, and rode her out. After his return the Lieu-
tenant said lie would have no objectina to take the mare if Mr.
Hancock would warrant her sound. Mr. Hancock said he would
give a reference to the person from whom he bought the horse.
Witness heard no mow, but that his master said he only had the
mare for a few weeks. Witness did not see Cary present at this
conversation.

Wilitant Davis is a coach-maker residing at %Warminster. Heard
the plaintiff and defendant bargaining about the mare. ‘Vitness
valued the gig and harness beloning to Mr. Mackeuxia at 1:11.
Hancock told witness, in plaintiff's presence, that lie offered him
the mare for 201., and witness told plaintiff he need net li.sitate ;
the mare was worth more than that.
Thomas Bolton is hustler at the Horse Bazaar. Tried the mare
in question, to ascertain whether she was lame or net. Did nut
find that she was lame; must have perceived it it she had been.
John Edwards, the hostler of the Red Lion, where the horse now
is, was called to prove that the animal does nut appear lame.
lilt. C. F. WILLIAMS replied.
The !mimed J vnoL then summed up, and the Jury, after a short
deliberation, re7urned a verdict for the plaintiff. Damages 351.—The
Learned Judge said. he was decidedly of opinion that the damages
were excessive. It the Jury reduced the amount it would probably
prevent the necessity of an application above.
The FoitEstAx maid,-3iy Lord, we valued what Mr.
Mackenzie gave, including the lOL note, at 50/., anti we don't think
the mare he has got worth more than 15/.

Mr. Justice LITT LEDALE—WeII, Gentlemen, it is your vet.
diet. not mine.

The verdict was then recorded ; but it was subsequently agreed
between the parties that the damages should be reduced to 251.
There was no ocher cause tried io the coarse of the day of
the slightest public interest.