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Cambridge Chronicle and Journal - Saturday 7 June 1856 p7. Rev Smith - sale of unsound horse

CAMBRIDGE COUNTY COURT, Monday, June 3. 1856. (Before John Collyer, Exq., Judge.) FOSTER V. SMITH.

 

A special County Court was held at the Guildhall, on Monday last, for the third trial of this almost interminable case. This fresh trial was moved for on the part of the plaintiff in the Court of Pleas last mouth. We need scarcely state that the action was brought tor £44, the price given by Mr. Foster, miller, of Whittlesford, to the defendant, the Rev William Smith, Rector of Dry Drayton, through his agent, Mr. Sparrow, the veterinary surgeon, in August last or in the beginning of September, for a mare, which, it was alleged by the plaintiff, was afterwards found to be totally unsound and unfit for the purpose for which he bought her, she being subject to fits of tumbling down suddenly. The following gentlemen were sworn as a special jury Mr. John Parsons, Elsworth. Mr. Thomas Tofts, Barton. Mr. Thomas Hayse, Harston. Mr. Wm. Coxall, Haslingfield. Mr. W. Watson, Harston. Mr. Field, instructed Mr. E Foster, appeared for the plaintiff; Mr. Mills, instructed by Mr. Barlow, for the defendant.

Mr. Field opened the case for the plaintiff. Of all the horse causes the jury had heard, it was seldom they had heard of one being tried three times. This case was a very simple one in its circumstances and facts; and, had it not been complicated by the points of law raised by his learned friend at the suggestion of the defendant, one trial would have answered all the purposes of justice. The learned counsel proceeded to detail the facts of the case to the jury, which will be found in the evidence below; and undertook to prove that the mare was unfit for work and unsound,— that a warranty was given, and that the mare had actually been taken back by Sparrow on behalf of Mr. Smith. He thought it was unnecessary for him to go into the findings at the two previous trials, in order that the present jury might decide upon the facts which came before them unbiased by any previous verdict. Mr. John Foster, the plaintiff, said be was a miller at Whittlesford, and had also mills at Swaffham. In August last he saw Mr. Sparrow, having previously told him he wanted a horse. He said he had a mare, the property of a reverend gentleman. Witness saw the mare: Mr. Sparrow said the price would be high, but it was just such a one he should recommend for a miller’s cart; she was to be sold for one fault only: she walked too fast for the man on the farm: there was no other horse that would match her. Witness noticed two scars - one on each of the mare’s fetlocks, and asked what they were. Sparrow said they were no consequence, the mare had been turned into a barn place and rubbed and knocked herself about. He then said the mare was the property of the Rev. Mr. Smith, of Drayton. Witness asked the price, and Sparrow replied £44. Witness asked if she was sound, and Sparrow replied, if she’s not right she’s not your's:” he was quite sure Mr. Smith would not do anything wrong: on those conditions witness bought the mare.

 

Soon after the mare was in his possession, he was informed by his man that she was in the habit of falling down as if shot: she never did it when working, but only when standing. Witness complained to Sparrow, and he gave her some physic, which said would put her to rights. After the physic had been worked off, the mare was tried again; but there was no difference in her. Witness afterwards saw Sparrow and told him there was no improvement in the mare: she would have to come back. Sparrow said, Well, if you can’t get on with her she must come back; she will make her money right enough: besides, if there is a pound or two to be lost the Rev. Mr. Smith will make it good. You must not mind a pound or two for her keep: make her big as you can.” Witness asked him to appoint a day for sending back the mare, and Sparrow promised to see him for the purpose of appointing a day on the following Saturday. A day was then appointed and the mare was returned. Witness saw Sparrow two or three weeks after, and promised to see Mr. Smith. He had tried to sell the mare, but had failed. Witness saw him several times after that; and Sparrow still said he had not seen Mr. Smith: Witness said it was a strange thing if he could not help himself having bought the mare for £44, when she was no use. Sparrow told him if had given £40,000 it would make no difference; he could not help himself. Witness said he had consulted his solicitor about it, and was of a different opinion. Sparrow said he was not aware witness had gone so far; he had taken the matter out of his hands and had stepped over his head: he, therefore, declined to have any more to do with it. Cross examined: he had brought the collar which was made to fit the mare. Since she had gone it had been made less to fit another horse. Witness had never applied to Mr. Smith, of Drayton, about the mare. He returned the mare to Mr. Sparrow as Mr. Smith’s agent. He did not know whether Smith had had the money or not. When he asked Sparrow if he had sold the mare, witness did not understand that he was to sell it on his account. He recollected Sparrow suggesting to him to take her again, and get her info a farm yard. He never asked Mr. Sparrow to sell the mare for him; he did not recollect Sparrow advising him to sell her.

 

Mr. James Foster, plaintiffs brother, said: On one occasion in October last whilst the mare was in the cart she fell down and appeared to be senseless. Witness went for assistance, and after a time the mare was got up. By Juryman: There was a little straw in the cart at the time the mare fell down. She was standing still at the time. Re-examined ; The mare refused to draw for some time after, when put into the cart again, and at last made a run down the road and broke the shafts. Witness detailed the conversation held between his brother and Sparrow with reference to the mare's unsoundness. Cross-examined: It took about twenty minutes before the mare could be got up. She was standing still just before she fell. Henry Lawrence, carter, in Mr. Foster’s employ, fetched the mare from Mr. Sparrow’s. He recollected going to Cambridge two or three days after his master had the mare. He put her at the Black Swan, and left her in the care of the ostler. Three or four days after that she fell down against the mill door. She fell very suddenly on her fetlocks, and then recovered herself. He had often seen her ruck at the knees and fall down. On one occasion she ran away and bolted through a hedge, leaving the cart behind her. Witness went with the mare to Swaffham, and saw her fall down there: afterwards, when put into the cart again, she jibbed and started off down the yard. John Millard, ostler at the Black Swan, recollected Mr. Foster’s man bringing the mare there in September. She was left in the cart, and was pawing and kicking. Witness hit her with a broomstick and then left her: shortly after he returned to her and she fell down all of a lump. She struggled a little when she was down. Witness took her out of the cart and put her in the stable. She fell down two or three times in the stable. Witness thought the mare had the meagrams. When she first came into the yard she looked sleek and well. The collar was large for her.

Cross examined: She was an hour in the stable. He never saw three attacks of meagrams within an hour. In this instance the meagrams were never off her. When she was in the cart she had a nosebag on. He told Mr. Foster’s servant of this affair at the time. Her flesh was "all of a twitter." Had known horses to go down through pressing against the collar, but not when they were standing still. Mr. Richard Ellam, farmer, of Swaffham. recollected being fetched by Mr. James Foster, at Swaffham on Old Michaelmas Day. Saw the mare lying down in the yard; she was then senseless. Witness helped to get her up. George Gilson, horse clipper, of Great Swaffham, knew the mare in question whilst in Mr. Foster’s possession. Had seen her drop down and "ascend" up. Had seen her drop down in the stable when she had no harness on her. Mr. Wallis, veterinary surgeon, had been in practice thirteen years. Was called in to examine this mare in January. There were two scars on the fetlock joints, which appeared caused by repeated falls. There was a certain amount of weakness in the ligaments of the fetlock joints, and a shelly sort of foot. He saw nothing at that time to account for the symptoms spoken of to-day. His opinion was that there was an organic disease of the brain, which doubtless existed when the mare was sold. Cross-examined: He said that on the first examination he could detect no unsoundness. He did not attribute these symptoms meagrams. Possibly a tumour might have existed. In the latter case there might be intermissions in the symptoms of disease if the mare were kept quiet, or if she were kept at hard work. The symptoms need not always exhibit themselves. Mr Jonathan Jones, member of the Veterinary College of Surgeons, saw the mare on the morning of the last trial: had no doubt, from the evidence had heard, that the animal was affected with chronic disease of the brain. That disease was in existence on the 25th of August. His opinion coincided with that of Mr. Wallis. Mr. Rowell, veterinary surgeon, of St. Ives, agreed with the other medical witnesses who had been called. Some letters which passed between the plaintiff and defendant having been put in, the case for the plaintiff closed.

Mr. Mills submitted that the plaintiff must be nonsuited, because the horse had not been actually taken back, and the other side had proved no authority to the agent, Sparrow, to take her back. His Honour declined to entertain these points, and Mr. Mills addressed the jury for the defence. He said he had made an offer to the other side to abide simply the question of soundness or unsoundness — if the mare was sound, then Mr. Foster should have her; but if she were unsound, then Mr. Smith would take her back : but his friend, knowing full well that the horse was sound at the time of sale, said no, he would not take the horse back, give him some point to fall back upon so that he might go to a superior court; so that the verdict of the jury to-day would not absolutely decide this case. The other side had failed to prove unsoundness, but he would undertake to prove to them to-day that this horse was sound as any in existence. He would prove also that Mr. Smith never, on any condition, warranted a horse, which he would prove that Sparrow told the plaintiff when he bought the mare. The real secret of this trial was to force his client to come to some arrangement; for the other side were well aware of the objections Mr. Smith had to having his name mixed with horse-dealing transactions. He would prove, however, that the horse was perfectly sound when she was sold and that she was perfectly sound now — and that the symptoms which had been described, if they had actually existed, were attributable to some peculiar way in which the mare was fed at the miller’s, or that the collar in which she was put to work was so tight as to cause some temporary obstruction of the blood.

Joseph Dace, foreman to Mr. Peter Grain, Great Shelford, recalled the mare being born. His master sold her, unbroke, to Mr. P. Grain, jun. During the time his master had her, he never heard of her having any fit or any illness. Mr. Sparrow attended his master’s horses. Cross examined: The mare was sold when she was a foal, she was now seven yearn old. Mr. Peter Grain, farmer, Great Shelford, said he bought the mare of his father in Michaelmas, 1849, and fold her in August, 1854. He worked her three years and never heard of her having fits. He sold her for £40 to Mr Jennings. She was never attended for unsoundness but for a wound in the foot. She had a slight humour on the fetlocks. Cross examined: Parted with the mare because she was too high spirited for farming work. She once ran away with a cart.

Rowlinson, horsekeeper, to last witness, recollected his master having this mare, up to the time of her sale she had been regularly worked and was frequently left. Never had fits. Recollected her running away once, when the boy pulled her halter off. Cross-examined: The mare ran away twice whilst they had her. She was not particularly free, and did not walk too fast for the other horses. When she ran away the second time she was frightened by the jolting of the cart. William Andrews, foreman to Mr. Grain, recollected the mare. Worked her whilst his master had her. She had no fits; never fell down. She had marks on the fetlocks. -Cross-examined: - The mare did not walk too fast for the other horses. Frederic Jennings, horse dealer, purchased the mare of Mr. Grain, for £4O, and sold her to Sparrow for £43, who said he bought her for Mr. Smith. Mr. Grain gave a verbal warrant that the mare was sound. He told Mr. Sparrow she was sound, which, to the best of his belief, she was. She had scars on the fetlocks. In August, 1855, he heard that she was for sale and went over to Drayton to look at her. £5O was then asked for the mare; witness offered £4O. In November last, witness saw the mare again; she was in low condition, and not saleable.— Cross examined Bought the mare in August, 1354, and sold her in the same month. Rev. William Smith, the defendant, said, the mare was bought for £43, in August 1854. This was the first cart horse Sparrow ever sold for witness. He never warranted a horse in his life, and be never would on any consideration: gave no authority to Mr. Sparrow to warrant the horse. Sparrow had sold several riding-horses for witness. There was nothing said about this particular horse. Mr. Foster never made any communication to witness as to the soundness or of the horse, until the plaintiff's attorney wrote to him. Never gave any instructions to Sparrow to receive back the mare. The mare was not the sort of mare be liked. She had the finest shoulders of any mare he ever saw, and required a large collar. Cross-examined; he had had dealings with Mr. Sparrow thirteen or fourteen years: could not say what horses Sparrow had bought or sold for him: he might have sold a dozen. Never authorized Sparrow to say the mare should be received back if she was not sound.

James Trevis, horsekeeper to Mr. Smith: the mare came to his master’s in August 1854 and remained till September 1855. Witness attended her during the whole of that time. She was perfectly sound and had no fits during that time. She was quiet in the team and never jibbed or ran away. She was worked till the time she went to Sparrow’s and worked sound and quiet. Her fetlocks were marked when she came, she never went lame upon them. Mr. W. Nice, farming steward to Mr. Smith: never knew the mare to be unsound or to fall down in a fit whilst they had her. She was parted with because Mr. Smith did not like her and because she was two free for the other horses. The mare was very large in the shoulders, and was obliged to have a very large collar. —Cross examined: The mare fell down once when tied to a bough. Nathan Whybrow, harness maker, Girton, made the collar produced (a very large one) for the mare in question. It was two inches deeper than most collars. Mr. Sparrow, veterinary surgeon: bought this mare of Mr.F.Jennings for £43, for the Rev. Mr. Smith. She was perfectly sound then. Received her back on the 1st of September. Previous to that had sent Jennings over to look at her. Witness asked him £5O for her; and he offered £4O. Witness did not observe any scars on the mare’s fetlocks till they were pointed out by Mr. Foster. Had sold horses for Mr. Smith before, but never warranted one. On the afternoon of the 1st September saw Mr. Foster, the plaintiff, and showed him the mare. When witness showed Mr. Foster the horse, he said he bad a horse to sell belonging to the Rev. Mr. Smith, of Drayton. Mr. Foster agreed to come and look at it and did so. Witness showed him the mare and told him her price was £44. Plaintiff said, "1 suppose she’s all right," and witness replied (that it was Mr. Smith’s habit never to warrant a horse sound; but witness had examined the mare, and believed her to perfectly sound. If he had misrepresented her in any way, he was willing to take her back at any moment. Witness gave Mr. Smith’s reason for parting with her, as being that the mare was two fast for the other horses. Witness had examined horses for Mr. Foster: on one occasion he had represented one to be unsound and Mr. Foster did not buy it in consequence. This mare was perfectly sound: he was veterinary surgeon to all the parties in whose possession mare had been up to the first of September, and he had never heard any complaints about her being unsound. About a fortnight after the sale of the horse to Foster, the latter came to him and represented that the mare had fallen down in the cart. Witness advised him to give the mare a dose of physic. Foster did not say that she had broken any shafts or that she was restive. Witness heard from Mr. Foster again on the 29th October, he said the mare did not suit him; she kept pulling down: Witness advised him to sell her, and said he could not lose more than a pound or two and he would be half. Foster replied that he knew no dealers, he was not in the habit of going to horse fairs and wished witness would sell the mare for him. Witness’s stables were then full and he offered to take the mare on the following Wednesday, when he would have room for one. Witness advised Foster to get the mare into straw-yard, where she might improve her condition. Plaintiff said he would look out for a place and try and do so. The mare came back the 31st of October, and he charged Mr. Foster with her keep from that time till Christmas when he sent in the bill. He offered the mare to Jennings, Holmes, and Bradfield, but they all declined to purchase her. Mr Foster called at his yard after that and asked witness if he had sold the mare. Witness told him the mare was so out of condition that he could not get a bid for her. Witness advised him to put her in a straw yard and make her as big as he could. Foster proposed to send two or three quarters of pollard for her : and witness objected to it as it was not calculated to fatten horses. He did not mention Mr. Smith’s name during those proceedings. In December, Foster came to witness: a and made some remark about the trouble he had given him, and said he wished witness would give the thing up. Witness replied did not mind about the trouble; but did not understand what he meant by giving the thing up. Foster then said he had consulted his lawyer; and witness said, as he had gone so far, he would give him his word he’d have nothing more to do with it. Witness might have made a remark about £40,000, and having no claim upon Mr. Smith.

 

Had since, on his own authority, had the mare worked for three weeks on Mr. Saunder’s farm at Impington. He had seen her plough and other agricultural work. He had seen her draw a "two-horse” load. She worked very kindly and quietly. Two days after he saw her worked with Messrs. Spooner, Burton and Gabriel. She went through her work very well and without being restive or tumbling down. He had watched her occasionally since: on Friday last saw her in the stable and she all right and sound. In his opinion, if the mare had had a tumour she would have been dead by this time. He attributed the falling down, which the mare had had whilst in Foster's possession, to a small collar. Had their been either tumour or chronic disease it must have exhibited itself since. Cross-examined:—Had not been in the habit of buying horses for other people. When Mr. Foster pointed out the scars on the fetlocks, witness told him she had been knocking about in a loose barn. It was after the mare’s return that he recommended Foster to send the mare to the straw-yard. He attributed the mare’s falling down to the tightness of her collar; could not account tor her falling down when in the stable without her collar.

 

Mr. Charles Spooner, Lecturer and Professor in the Veterinary College, came down to examine this mare and went over to Impington with Messrs. Sparrow, Barrow,and Gabriel for that purpose. They saw her at plough and dung cart. She did her work satisfactorily being perfectly quiet, and showing no symptoms of disease. She was caused to draw a load of manure for two horses out of the yard herself. The result of the examination led him to the conclusion that the mare was free from disease. Her pulse was healthy in force and number. Having heard the evidence he was of the opinion that it was impossible to attribute the symptoms spoken of to any particular disease. At the time those symptoms were shown, was possible that the mare was suffering from functional disease of the brain. He did not consider that any of those symptoms evidence of any chronic or inflammatory disease of the brain, and judging from the previous and after state of the mare, certainly not from any pressure of a tumour upon it. He believed that all those symptoms were reconcilable to the opinion that the functional disease of the brain was referable to a variety of exciting agents, not the pressure collar, but they attributed change of situation, work or food, operating upon the brain through the digestive system. He believed the mare to be perfectly sound. If she had any chronic disease on the 1st of September, he should have expected it to increase and have shown itself when she was worked. He had seen many cases of tumors existing in the venticals of the brains of horses, some months, without outwardly showing themselves; but never knew a case, where symptoms once show themselves and became developed, to pass off and not recur. He observed the marks on the fetlock; they appeared to be of very old date. Cross examined: - The disposition to functional disease might have existed before the sale of the mare, but it was highly improbable that it did. Had known cases when a horse had done his work properly one day and been afflicted with functional disease the next. Mr. Gabriel, veterinary surgeon, confirmed the evidence of the last witness; was a well known fact that millers horses were more subject to indigestion, reason of their peculiar diet, than any other animal. Mr. Barrow, another veterinary surgeon, was also of the opinion that the mare was perfectly sound. - Cross-examined : —He attributed the symptoms spoken off to an attack of meagrams. A mare might be perfectly well one day and have meagrams the next

Mr.Field addressed the jury at considerable length that it had been proved, beyond question or doubt, that the mare was unsound and utterly unfit tor the purpose for which she was bought. He made the following propositions to the jury:
First: was the mare sound or unsound?
Second: did Mr. Sparrow warrant the mare or not?
Third: did or did he not offer to take her back ?
He contended that all these points had been proved in the affirmative. He dwelt upon the fact of Sparrow’s having taken the mare hack, in pursuance of the alleged contract to do so if she was "not right," and that he took her back on the part of Mr. Smith, and not to sell for Mr. Foster as was asserted on the other side. Mr. Smith might say that he never authorized Sparrow to warrant a horse on his account; but Sparrow, acting on his behalf, had warranted this horse and had made a contract; and the only bargain by which Mr. Smith had received and could hold the £44 the was the bargain made by Sparrow. It Mr. Smith did not wish to blow hot and cold — if he did not recognise the contract — why did he not return the £44 to Mr. Foster? instead of keeping money in his pocket, which he had got by reason of the contract that he never authorized to be made. Mr. Field adverted to the fact of the horse having been returned agreeably to the contract, and to the fact of her tumbling down as described, as a proof of unsoundness.

His Honour, in summing up the evidence, put these four points for the consideration of the jury: in the first place, whether the horse was sound or unsound; secondly, whether warranty was given or not; thirdly, whether or not there was a contract on the part of Sparrow to take back the horse if it was unsound; and, lastly, whether the horse was taken on behalf of Foster or of Smith. After a consultation of about twenty minutes, the jury found for the plaintiff in all four points. The case excited considerable interest, and the court was thronged with horse letters and veterinary surgeons. The proceedings lasted from ten in the forenoon till past eleven at night.

 

 

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