Saturday 04 Sep 1819 (p. 1, col. 5-6 and p. 4, col. 1-6) CARLISLE ASSIZES, 1819. BEFORE MR. JUSTICE BAYLEY. HORSE CAUSE. SCARROW v. M'ANNALLY.—The plaintiff in this cause, is Mr. Thomas SCARROW, the younger, wine and spirit merchant, of Carlisle, and the defendant, a regular dealer in horses, residing near Antrim, in Ireland. The action was brought to recover the value of a horse which the defendant had sold to plaintiff under warranty, but which turned out to be lame. The plaintiff denied both the warranty and the lameness. Mr. Sergeant HULLOCK, in his address to the Jury, merely detailed the substance of the following evidence. Mr. Isaac BOWES, of Carlisle, was present with the plaintiff and defendant on the 15th August, 1818, at the Lion and Lamb. Plaintiff said to M'ANNALLY that he had bought a horse of him, and wished to return it. In the course of conversation which ensued, the defendant said he had a horse then in the stable which would suit the plaintiff well. They all went into the stable to look at the animal, a saddle was put on, the plaintiff mounted, rode him down the horse-market, and up the Swifts lane, in order to try him. Witness and defendant followed, and, overtaking plaintiff, M'ANNALLY asked how he liked the horse. Mr. SCARROW replied, "Extremely well, provided he is sound and right." The defendant said he would warrant him as "sound and good a horse as any in England." They then returned to the Lion and Lamb, and finally bargained for £62, considering the returned horse as £43 in part payment; the defendant saying it would be £19 to boot. The plaintiff said he would not give a farthing for the horse if not warranted, and the defendant repeated his warranty. In January last, witness was again present with plaintiff and defendant. Mr. SCARROW said the horse was not according contract—was unsound—and he wished to return him and have his money back, which defendant refused compliance with, declaring that he never warranted the animal. Mr. SCARROW then said he would bring an action for the recovery of the value: M'ANNALLY replied that it was a swap and the money could not be returned. Cross-examined, witness said the plaintiff tried the horse at leaping, and was much pleased with him. Thomas WILSON, farrier, of Carlisle, sworn. He was applied to by plaintiff, on Monday the 17th August, 1818 (two days after the purchase had been made) to examine the horse bought of M'ANNALLY. He rode him a short way out of town: he found him lame when he first got upon his back, but it subsided after a little exercise. Witness believes the lameness to be occasioned by a contraction of the the [sic] foot, and thinks it not of recent date. Has seen the horse several times since, he is still lame, and witness believes him to be unsound. Cross-examined by Mr. RAINE.—Is it not improper to ride a lame horse a hunting severely?—I cannot say that it is quite proper, but it only makes him a little more lame and stiff the next day.—Witness recollects seeing the off-knee of the horse damaged in November—the skin was not actually divided, but the hair was gone. Joseph HENRY, butcher, of Carlisle, accompanied the plaintiff in greyhound coursing upon Broadfield, about a month after he had bought the horse. They rode together four miles out of Carlisle. Witness observed the horse to be lame, and the plaintiff had great difficulty in keeping him up. They put their horses into a stable during the day, and only rode them on their return home at night—they never went faster than a walk. Witness knows the defendant well; has frequently seen him, and wished him to settle this business. Defendant declined doing so, and said he did not know what Messrs. SCARROW meant; certainly they wanted him to find them in horses. Witness replied, "you warranted the horse." M'ANNALLY denied this, saying he never used such an expression as warranted—he merely said the horse was sound. Cross-examined, Mr. HENRY said that the defendant always stops at the Lion and Lamb, when in Carlisle, and, no doubt, may be heard of there generally, as he is a very respectable man. Witness thinks the defendant stayed in Carlisle some days after the sale—as late as Monday or Tuesday. Re-examined.—Sometime after the greyhound coursing above-mentioned, Mr. SCARROW asked witness to enquire after M'ANNALLY, which he did at the Lion and Lamb. The Landlord told him that he did not know when the defendant would be over from Ireland. Joseph SAUL, of Allonby, was present at the Lion and Lamb in the latter end of December, or the beginning of January last, when plaintiff told defendant the horse was not sound according to contract, and that he wished to return him. The defendant first said that he should have returned him sooner, and afterwards refused to take him back, because it was an exchange with plaintiff. Mr. RAINE here submitted to his Lordship that the plaintiff should be nonsuited, as, according to the amended declaration upon the record, the transaction is called an exchange, whereas this witness had just proved that the plaintiff himself had denied it was so. Mr. Justice BAYLEY dissented—the plaintiff might be ignorant of the phraseology of the law, and such ignorance, assuredly, could not be thought sufficient grounds for a nonsuit. James SCOTT, innkeeper, of Carlisle, tried the horse on the Brampton road in August, and had great difficulty in keeping him upon his legs. He rode altogether about four miles, and never caused him to leap. John BARNES, keeps the Lion and Lamb, in Carlisle. The defendant puts up at his house; was there on the 27th of August last, and remained there two or three days after the 27th. The defendant lives near Antrim, in Ireland; Mr. SCARROW made frequent inquiries after him. Cross-examined.—Witness has kept a public house seven years, and knew the defendant several years before that—it is not difficult to get information respecting him. Witness recollects hearing M'ANNALLY say he had made an exchange. During the time he remained in Carlisle, after the bargain, which was about a fortnight, he saw him and Mr. SCARROW drinking in the kitchen together more than once. He never heard the plaintiff say in the defendant's presence, that the horse was unsound. The first time that he heard Mr. SCARROW express a wish to return the horse, was on the 11th of November. A servant of Mr. SCARROW's proved that the horse was incapable of doing work. James ROBINSON is a horse dealer, residing in Stanwix, near Carlisle. He frequently goes into Ireland to purchase horses. On the 25th July, 1818, was at Boyle fair, where he saw the horse in question exposed for sale by a person who lives about 20 miles from Boyle, but does not recollect his name. Witness, struck with the figure of the horse, had him tried, and would have given £50 for him in Ireland, if he had not been lame. In the course of the day, he was in company with the defendant, who told witness he had bought the horse. ROBINSON said, "you had better let him be, he is lame." M'ANNALLY replied, "You know nothing about it." In the evening, witness sent a man with his horses in a string to Belfast; the defendant sent his at the same time in charge of his nephew and a servant. About a quarter of an hour afterwards, the nephew came back with the horse, saying he was very lame, and desired his uncle to return him to the man he had bought him of. The defendant got witness to go with him through the fair to look for the man, but he could not be found: and then sent his nephew with the horse to the person's residence, with instructions to return the horse and get back the purchase money, namely, thirty-five pounds. They again met with the nephew at Belfast, who still had the horse, the person who had sold him refusing to take him back. The horse was then brought to England, exposed for sale at Newcastle, without being disposed of; and the defendant subsequently told witness that the horse was sold, and said that he (witness) need not be speaking about him. Mr. RAINE.—You, being a horse-dealer, knew how to take that hint, I suppose? Witness.—Yes. I took the hint. Witness afterwards saw the defendant at Newton-Airds, in Ireland, since the commencement of this action, and advised him to settle the business. Defendant asserted that he never warranted the horse. Mr. RAINE entered into one of his quizzical cross-examinations, but made no essential impression upon Mr. ROBINSON's evidence. Thomas SCARROW, (father of the defendant) was riding the horse to Scotby, between a walk and a trot, when he fell, and damaged his knee, as before mentioned. Mr. RAINE made an unsuccessful attempt to establish a partnership in the purchase between the plaintiff and his brother John. This was the plaintiff's case. Mr. RAINE addressed the Jury for the defendant. In justice to his client, he thought it necessary to say, that he was a respectable man, of most extensive dealings in cattle, &c., and would not knowingly lend himself to a fraud. Mr. SCARROW, it had been proved, had got Mr. WILSON, a most skilful farrier, to examine the horse, and notwithstanding he pronounced him lame, had thought proper to put him to a trial, which he had no right to do. The animal had been considerably injured by being hard pushed at Drumburgh Hunt. This he could clearly prove by the evidence of Mr. NIXON, who was present, and, though a forward rider, had very little the lead of Mr. SCARROW. Besides, why had not the plaintiff returned the horse to the defendant, who remained in Carlisle quite long enough? Mr. RAINE referred to case, "FIELDING v. STARKIE," and said he should have the concurrence of his Lordship when he stated the law to be, that the plaintiff was bound to return the horse as soon as found him lame, or he could not recover. [His Lordship shook his head.] Mr. RAINE observed that the movement of his Lordship's head was an ill omen to his case; he, however, felt assured that the Jury, if they chose to give damages, would make a deduction for the lasting blemish which the horse had received at the hands of the plaintiff. Mr. Justice BAYLEY being of opinion that the plaintiff was entitled to a verdict, the defendant's counsel did not call any witnesses. His Lordship, in summing up, expressed himself to the same effect, but the amount of damages, he observed, rested with the Jury. One reason why the defendant should not be spared, was his bringing the horse to England and selling him, after he knew of his unsoundness. In law as well as common sense, a general declaration of soundness was decidedly warranty, and a purchaser was not bound always to return a horse, for he might keep the animal if he chose, and bring an action to recover the difference between the price given and the real value. The Jury, after a very short consultation, gave a verdict for the plaintiff, damages £62. *** We understand that the result of this trial has given very great dissatisfaction to the defendant, by reason of his counsel having omitted to examine any of his witnesses. The defendant is allowed to be a very respectable man, and he says, that if the merits of his case, and the detail of facts connected with his cause, had been developed to the Court, he had good grounds to conclude that the verdict would have been in his favour. Whatever may be the ultimate issue of the question between the parties, the defendant informs us that he intends to move for a new trial next term. [to be continued]