The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-04-03 00:00:00

WILSON V. MARSON.

This was an undefended action to recover two sums of
£lOO each, the amount of two bills of exchange. The jury
found a verdict for the plaintiff for £2OO, and £3 12s. for in-
terest.

SMITH V. HOWARTH AND ANOTHER

This was an action to recover the sum of £lOO lent to the
defendants on a promissory note.
Mr. CRESSWELL and Mr. WIGIITMAN appeared for the
plaintiff, and Mr. ALEXANDER and Mr. TIMLINSON for
the defendants.
Mr. WIGHTMAN opened the pleadings. The plaintiff was
Joseph Smith, and the defendants John and Samuel
Haworth ; and the declaration stated that the plaintiff had
lent £lOO to the defendants on the 16th November, 1829,
on a promissory note, and that they were indebted to him
that sum with lawful interest. To this the defendant Samuel
pleaded the statute of limitations ; and the defendant John,
that he had been a bankrupt, and also the statute of limita-
tions. The plaintiff withdrew his plea as to John Howarth.
Mr. CRESSWELL stated the case. This was an action
upon an old promissory note, in which the defendants,
Samuel and John Howarth, joined many years ago, for money
lent by the plaintiff. Down to the year 1831 the defendant
John paid £5 a year for interest ; he afterwards became
bankrupt, and the following year, 1832, the defendant Samuel
paid the interest. After that John recommenced business,
and continued to pay the interest from year to year, as it be-
came due, but he became bankrupt again. At last the plain-
tiff wished to have his principal, and his attorney wrote to
and met Samuel Howarth, who said, " I hope you will not
press for your principal at present, as you have had your in-
terest punctually, and I have ordered my brother John to
attend to that." He now said the cause of action had accrued
more than six years ago, and two questions would arise. One
of them was, whether Samuel Howarth, having suffered and
directed his brother to pay the interest did not prove the
payment of interest by his authority sufficient to prevent the
application of the statute of limitations. But if that were not
sufficient, he should say that the payment by one of two joint
contractors, although after a bankruptcy, was a payment by
both, and that kept up the liability of Samuel.
Samuel Smith, brother of the plaintiff, proved the lending
of the money, and the payment of the interest, as described
by the learned counsel.
Mr. John Alcock Dixon, the plaintiff's solicitor, proved
that he had applied to Samuel Howarth for the payment of
the promissory note, and that he gave the reply stated above.
This was the plaintiff's case.
Mr. ALEXANDER then addressed the jury, and said this
was an attempt to fasten upon the defendant, Samuel
Howarth, the payment of this note, for which interest had
been regularly paid by John Howarth, except in 1831, and
subsequently, except in 1838, when he became bankrupt
again. The only payment of interest by Samuel Howarth
was when his brother was unable to pay. He would take his
lordship's opinion upon the point—that any payment of in-
terest by a party who had ceased to be liable was not admis-
sible against the co-maker of a promissory note ; therefore
anything done by Joint since 1832 was no act that could
compromise Samuel. •
John Howarth, the bankrupt, was called, and he proved
'his two bankruptcies, and the certificateS'were produced.
Mr. ALuxiiNntn, in support of his point, referred the
learned judge to three cases—Mai tin v. Bridges, 3d. Car-
rington. and Payne, 83; Grave v. Edmondson, 4 Payne,
622; and to. Slater v. Lawson, 1 Barnewell and Adolphus,
396. He also referred to Craven and Anderson, 6th Moore
and Payne.
Mr. TOMLINSON contended on the authority of a number
of cases that the parochial statements of Samuel ought not
to be presented to the jury.
Mr. CRESSWELL replied, and contended that all the cases
cited applied to a totally different state of things, and did
not refer to the circumstances of the present case. He sub-
mitted that the payments by John Howarth were made as
the agent of Samuel.
The Learned JUDGE briefly summed up. If the jury
were satisfied that the interest was paid by the authority of
Samuel, they would find for the plaintiff; but if not, for the
defendant.
The jury found a verdict for the plaintiff for £lOO, with
interest.for 3 years, £l5 ; total, Xll5.
SMITH V. HAavorern AND ANOTHER.
This was an action between the Caine parties to recover
£lOO under another promissory note. The circumstances
were exactly similar to' those in the last action, and a verdict
was returned for the plaintiff for the amount claimed, with
£l7 for interest.

JONES V. WILSON.

Mr. CRESSWELL and Mr. CROMPTON appeared for the
plaintiff ; and Mr. Alexander and Mr. Wortley for the de-
fendant.
Mr. CROMPTON said, the declaration was upon the war-
ranty of a horse. To this the defendant had pleaded first
that he had made no promise that the horse was sound, and
secondly, that the horse was sound.
Mr. CRESSWELL, said the plaintiff was Mary Jones, the
widow of Mr. Joseph Jones, formerly a West Indian mer-
chant, to recover damages from the defendant, who lived on
Brougham Terrace, Everton, and was a pro Vision merchant,
for a horse he had sold to her, which proved unsound. In
October last Mrs. Jones wished to have a horse, to draw a
four-wheeled phaeton, put an advertisement in the Mail
newspaper, of the 24th November, for such an animal to be
warranted sound. The same day the defendant called at the
country house, where the business of the late Mr. Jones was
carried on, stated that he had seen the advertisement, and
that he had come to offer a horse of his for sale. Young
Mr. Jones said his mother wanted such a horse, but that she
would not buy one unless she, had a warranty of its sound-
ness. On the 14th November the defendant took the horse
in a gig, where it was exhibited. He represented that he had
refused £BO for the horse a short time ago ; and that nothing
should induce him to part with it, but his intention to leave
Liverpool for Scotland. Mr. Jones again asked him about the
warranty, and he replied he would warrant it sound in every
respect and very quiet. The plaintiff, however, did not like
to give the price, and was rather fearful that it was too high
eouraged ; her son, however, rode it as far as Prescot, and
the horse went very well, still Mrs. Jones refused to pay the
price. On the 18th Nov, the defendant again called at the
counting-house, where he saw Mr. Jones in the presence of
two persons who assisted in the business, one of whom said
to him " You recommend this as a very fin?, animal ; but you
cannot expect Mrs. Jones to buy it without a warranty."
He then came down to £55 ; and being again spoken to as
to the warranty, he said, " I assure you it is very sound—it
would be very wicked for me to attempt to deceive a lady
who wants a horse ;" but he (Mr. Cresswell) should shew
that two months before it had been pronounced unsound by
a veterinary surgeon. Mr. Jones, however, said, " I should
like to shew the horse to a veterinary surgeon—let him go to.
Mr. Bagnall's for examination." The defendant then said,
" What use is that? these veterinary surgeons are always
finding something the matter with horses :' the young man,
however, pressed it, and ultimately the defendant agreed to
let Mr. Bagnall look at it. Then, for the first time, the de-
fendant said—" a horse after standing in a stable two or three
days will often have a swelling about his legs." Mr. Bagnall,
who was a young man, and had but just commenced practice,
thought the horse was sound ; and Mr. Jones, relying upon
the warranty, gave £5O. for the horse. It was taken home,
and used for a fortnight or three weeks, when some person
observed something wrong about the horse's hocks : and
in order to be satisfied about it, the horse was immediately
taken to Mr. Bretherton's, who, on seeing it, exclaimed,
" Oh, here is my old friend again." " What do you
know about him ?" was the answer. "Oh !" replied Mr.
Bretherton. " I had him standing
.here two months ago on
sale, but I could not get the price for him, and 1 told Mr.
Wilson, then, that he had bog spavin in his hocks. Mr.
Bretherton, on the 18th, therefore, wrote a certificate to this
effect, and notice was sent to the defendant, that as the horse
was unsound he would take him back. The reply was that
he had not warranted him. Other people, however, had ex-
amined the horse, and there was not the least doubt of its
being unsound. Mr. Cresswell then called Henry Jones, son
of the plaintiff, who proved that an advertisement was inserted
in the Mail for a good strong horse, warranted sound, to
which the defendant replied, stating that he had a fine animal
answering the description: Witness desired him to take the
animal to his mother's house in Deane-street, near Kensing-
ton. The day but one afterwards he brought the horse in a
gig, and witness saw it, but the plaintiff did not.. Ile drove
witness into the town, and as they were going into Edge-lane,
he asked him whether he could warrant it sound, and he said
he could, and that he asked 60 guineas for it, and that he
could not part with it under £BO, only that he was leaving
town for the North. Witness detailed the other circumstan-
ces mentioned by the learned counsel. Mr. Bagnall's certi-
ficate pronouncing the horse sound was put in and read ; as
were Mrs. Jones's letter to the defendant, arid Mr. Brether-
ton's certificate, of unsoundness, from bog spavin in his
hocks. A letter from the defendant was also put in, in which
he denied having warranted the horse, and said he should
have no more to do with it. The horse was sold afterwards
at Lucas's for £2O, and witness's mother received £l7 10s.,
after having deducted the expenses of sale.
Cross-examined by Mr. ALEXANDER.—Wrote a letter to
the defendant after receiving the defendant's letter, and there
the correspondence terminated.
Mr. ALEXANDER asked the Judge whether his learned
friend might not put in this letter?
The JUDGE replied that Mr. Alexander himself might.

Cross-examination resumed.—As far as witness could see,
the horse appeared to be a very fine, good horse. The horse
underwent a thorough examination by Mr. Bagnall, and wit-
ness pointed out to Mr. Bagnall a swelling in the right hock.
Mr. Bagnall said it was nothing at all against the horse.
Witness, after the examination, asked the defendant for a
warranty, but he refused to give it.
Re-examined.—lt was a written warranty which the de-
fendant refused to give ; but after that he said the horse was
''
Edward Roberts, Managing-clerk to the representatives of
the late Mr. Jones, recollects the defendant calling at the
country house on the 18th November, and assuring Mr. Jones
the horse was a fine animal, and "all right." He afterwards
asked witness, on the stairs, bow far Mr. Jones would go as
to price, as lie was willing to make a great sacrifice, repeat-
ing the good qualities of. the horse, as he had to go to the
north. The defendant added, that he knew the horse to be
sound, because he had never been in any other person's hands
since he was a colt.

Cross-examined.—The defendant did not tell him the
breeding of the horse, or from whom he had had him.
Henry Sage said he was present in Mr. Jones's office
when the defendant was there, and heard him say, in reply
to a question from Mr. Jones, whether he would warrant the
horse?—" Yes; he's all right."
Cross-examined.—The defendant praised the horse very
much, and said it was worth £BO. •

Joseph Brethertou said, he was a veterinary surgeon, in
Liverpool., in extensive practice. On the 17th of June, last
year, the horse was sent to his stables to be sold. He was
then unsound, having. an enlargement and crusting of both
hocks, Pointed this out to Mr. Wilson. • The horse was
taken from his stables on the 15th of July. Saw him again
on the 18th of December, when Mrs. Jones had him, and
found the hocks in the same state as before. He was then
an unsound horse, and worth about £25.
Cross-examined.—If he had not had this unsoundness he
would have been worth £5O. £BO was the price put upon
him. James Kirkman, a veterinary surgeon, said he had
examined the horse, and found him unsound, from bog spa-
yin, on the 24th of December.
Cross-examined.—The ordinary use of a horse, which has
bog spavin, is sure to produce lameness.
John Walton, a veterinary surgeon, examined the horse on
the 4th of January, and found it unsound, from bog spavin,
in both hocks.
Cross-examined.—The horse was not then lame, and wit-
ners had a horse which had worked three years without lame-
ness. if a horse was ill used, and worked hard, bog spavin
would produce lameness.
Re-examined.—A horse with bog spavin does not deserve
the description of sound.
A Juror.-1 suppose you would'nt recommend any one
to buy a hunter with bog spavin.
The witness.—Not unless he gave a small price for him.
Nelson Curia said he was an assistant in Mr. Lucas's
repository, and that the horse was unsound, and that he sold
for X2O. _ _

Cross-examined.—He was sold as a horse in dispute. lie
was in good fair condition.
This was the plaintiffs case. ; :. , •
• Mr. ALEXANDER addressed the jury for the defendant,
_ _

and commented upon the fact that IClr.Bagnall had not been
called to state his opinion of the horse. The question was
two-fold—had there been a warranty, 'and had there been a
violation of it. The whole evidence showed that no war-
ranty was given ; and that the swelling had been pointed out
before the late Mrs. Jones was bound to keep the animist.
The learned JUDGE in summing up, directed the jury to
consider first, whether there was a warranty, and next, whe-
ther that warranty, if there was one, had been broken.
The jury found a verdict for the plaintiff on both points—
damages £25.
The court adjourned at six o'clock.