RESIDENT MAGISTRATE'S COURT.

Cromwell Argus, Volume III, Issue 149, 17 September 1872, Page 6

RESIDENT MAGISTRATE'S COURT.

Thursday, September 12. (Before E. 11. Curve, Esq., R.M.; and His Worship the Mayor.) BREACH OF WARRANTY. The Bench gave the following judgment in the case of John Marsh v. Charles Clarke, hoard j on the sth inst. ; This is an action by plaintiff to recover from do- ■ fendantupon an alleged breach of warranty on sale 1 of a horse. The plaintiff 's case is that on the i 19th May, he purchased a horse and harness from defendant for t‘47 55,, and that during some liargaining which preceded the purchase he told the defendant the work for which the horse was re- ! quired was that of drawing a tipdray in carrying quartz on the Garrick Bunge ; that in answer to this, defendant told him he was the very horse to suit that purpose, and further said that he was a good poor man’s horse, which plaintilf says he understood to mean that he would suit a man who had but one. The horse was delivered to plaintiff, who then gave his cheque for the purchase money, and obtained a receipt in his own name from defendant, which embodied a guarantee that the horse was staunch. The evidence of Lawrence, Kerr, and Partridge has proved to the satisfaction of the Court that the horse was put into a dray on the 20th May, and on other days, to cart quartz, and that he refused the work of drawing the empty dray into a position for loading, and also that on several occasions with two horses harnessed in front of him he refused the work. It appears that considerable trouble was taken by the driver, Kerr, to make him work, but without effect, and that Kerr ultimately refused to attempt to drive him. Both this witness and Partridge, who is also a driver, swear that the horse is not staunch, but a “ jib,’’ and that the work to which he was put and refused, other horses did easily. It is admitted by defendant that ho received notice on the third May that the horse was not according to guarantee. The plaint iff ke.it the horse some time aft or giving notice, and subsequently he was advertised and sold by public auction, the sum of AS 3s. being realised as the nett proceeds of sale. T ie evidence for defendant goes to show that the horse had been worked in a waggon for some five yews. and worked well, but hat never up to the time of sale t « plaintilf, been worked single or in any other vehicle but a waggon, and that both defendant and Muirhca 1 consider him staunch. For the defence, it has been urged that the plaintiff in making the purchase was the agent of Lawrence, uid that therefore he cannot maintain this action ; and that the warranty that the horse was staunch meant that ho would work in a similar position to that to which he had been accustomed, in a waggon with a strong team. With regard to the first question, the evidence shows that if Marsh was acting as agent, it was for an undisclosed principal; that the transaction throughout was with Marsh in his own name : he bought the horse, paid for it with his own

cheque, ami obtained a receipt and warranty in his own name, and therefore in contemplation of law he was the real contracting party. The second question is whether the warranty that the horse was staunch carries only the restricted meaning put upon it for the defence. There is a rule upon the construction of instruments of this desciiption that they shall be taken most strongly against the contractor, but this is a rule of stricness and rigour not necessary to be resorted to in this case. We consider that the plaintiff understood, and that the defendant induced him to understand, that he was purchasing a horse suited to the description of work to which he was afterwards put, when he proved to be not staunch. Judgment for plaintiff for £4O 12s. Cd., made up as follows Difference between purchase and sale, £3B 2s. ; paddocking horse after notice given of breach of warranty, £1 7s. 6d.; stabling on road to auction, Bs. ; other expenses in sending horse to auction, 15s. Together with costs of Court, 335. ; costs of four witnesses, £3 Bs.; professional costs, £3 3s. G. M‘LACHLAN V. EDWARD BRACEGIRDLE. An action to recover £l6, the amount of a dishonoured acceptance. Defendant admitted his indebtedness, and expressed his willingness to pay if allowed time to do so. Mr Allanby, who represented the plaintiff, stated that the defendant had already been allowed ample time to pay the money. Judgment was given for the amount claimed, together with 19s. costs of Court, and £1 Is. solicitor’s fee. ALLANBY V. COLCLOUGII AND SIIERRTN. This was an action brought by Alfred Wilkins Allanby, solicitor, to recover from the defendants, Charles Colclough and Richard A. A. Sherriii, the sum of £l6 18s., —£4 4s. of the amount being for services rendered in drawing an information for perjury, and £lO 10s being claimed by the plaintiff (in addition to 25s for buggy hire) for attending at Clyde as a witness in the case of Francis v. Kidd.

Mr F. J. Wilson, for plaintiff, stated that only one of the defendants had been served with a summons in the case ; the other (Sherrin) having left the district for parts unknown. Mr Colclough, on his own behalf, pleaded not indebted.

A. W. Allauby, sworn ; Tama solicitor of the Supreme Court, practising in Cromwell. Know the defendant Colclnngh. Was retained (verbally,) by him and Sherrin, in May last, in the case Hegina v. Kidd. In the months of April and May last, an arbitration case between' Cancel and Kidd was heard, chiefly in my oltiee. The arbitrators were unable to agree, and acting upon a suggestion made by the umpire, the parties finally settled the dispute between themselves. After the settlement, —some time in May,—l happened to he in Marsh’s hotel, when (Jolclough and Sherrin came and called me out, and I went with them to Harding’s. I believe it was Sherrin who stated to me the nature of the business : it was in connection with one Francis’ claim on Kidd for a share in the Star of the Cast. We went into a p.ivate parlour in Harding’s, and the door was shut, as the business was to be stiictly private. Sherrin had pen, ink, and paper to enable him to take notes. Sherrin was chief spokesman. Colclough sat by, and ''id nut take much pa t in the conversation, which was about the result of the eases, Francis r. Kidd and F uivcl v. Kidd. It was staled by Sherrin tint they wishe.l to learn what 1 knew, or what had c ime to my knowledge, through the arbitration ; t lat they wished to make money out of the cas •, Francis r. Kidd, and that therefore I would understand the necessity for secresy. They naked me to disclo-m the nature of a document a sale-note from Kidd to Fauvel. I gave them the information asked for. The substance of "hat followed was. that if Kidd would not transfer tiie share churned by Francis, they would lay an information against him for perjury. I objected, saving I should be sorry to see a man of Kidd s age and in his position involved in such a- charge. I understood distinctly that there was to bo some division of the spoil between Slierrni, Colclough, and Francis. Sherrin never stated to me that he was acting as agent for Francis, He insisted upon my drawing out the information, and said, “ We’ll “pay you for what you do.” 'They decided, during the interview i have mentioned, to proceed against Kidd for perjury. drands was not present, but it was understood lie was to sign the information. Colclough did not in any way dissent from what Sherrin said. 1 drew the information, ami the matter was subsequently put into the hands of W. W. Wilson. I attended with Fiaucis before a -I. F. to get the information sworn. On or about the 4th June, I posted a copy of the bill now sued for to Sherrin, and one to Colclough. The charge for drawing the information is C 4 4s. I have made a charge for attending as a witness at this Court, in compliance with a suhpama from Francis ; and have charged til) 10s for going to Clyde under subpiena. That is a fair charge for a professional man to make, as a witness, for a journey to Clyde. There is also an item in the bill of ’ids for buggy-hire. This was the ease for plain till. For the defence. Charles Colclough made on oath the following statement ;—About the time the plaintiff refers to (May), Francis came to me and asked mo in my capacity as a writer, to write out for him some matters concerning the evidence that had previously been given in the arbitration case between Kidd and Fauvel. 1 wrote about two pages of matter at his dictation. 1 recollect telling Allauby that Francis wanted to see him. I never, to my knowledge, sat in the same mom with Sherrin and Allauby. On the day referred to, i went into Harding's parlour, knowing there were three or four people in there ; bad a gl ass ot sherry, and then walked out ot the room. Allauby was not at that time in a tit state to give any information about anything whatever, or to do any business. Some time after this, I supposed that Allauby bad got possession of the paper which was in my handwriting, and inferred from the handwriting that 1 had something to do with Francis’ prosecution of Kidd, but beyond telling Allauby that

Francis wanted to see him, I had no interest, henclicially or otherwise, in the matter. I expected pavment of I Os. (! 1. for writing the document. When Allanhy gave mean account in the first instance, I simply laughed at him and regarded it as a joke. Allanhy told me he must got some money out of some one, as .Smithani i was threatening to imprison him for debt. He j afterwards wanted to borrow some money from | me. The persons present in the room at Hard-

ing’s on the occasion mentioned by plaintiff were Francis, Sherrin, and, I believe, Allanby. Ido not recollect any others, but 1 think there were about six in the room altogether, and I believe they were all standing while 1 remained. I didn’t see Sherrin taking notes. I didn’t stay more than two or three minutes. Francis wanted Allanby to relate what he knew in reference to the arbitration case between Fauvel and Kidd.

Cross-examined by Mr Wilson I swear that I never met Allanby in Marsh’s about that time in reference to anything bearing on the arbitration matter. I deny retaining Allanby directly or indirectly. I took no part in any way in getting up the prosecution against Kidd, although I certainly thought Francis hid been wronged. I do not recollect ever having been in Marsh’s with Sherrin and Allanby together. The conversation that took place in Harding’s parlour while I was there was not about the prosecution for perjury, but referred to Allanby’s unlitness for business.

(Mr Loughnan, J.P., here entered the Court and took his seat on the Bench.)

_ The plaintiff, recalled : —1 swear most positively that I was not incapable of doing business at the time referred to. I was not in any sense of the word intoxicated. In proof of this assertion, I may state that 1 repeated from memory, to Sherrin, who took them down in writing, the words of the sale-note from Kidd to Fauvel.

The Resident Magistrate :—The evidence is so flatly contradictory that it is evident a great mistake has been made, or else that very gross perjury has been committed by one of the parties. Defendant’s evidence continued :—At the time Allanby first presented his bill to me, Sherrin was about, and I then repudiated any connection with the matter. I referred him to Sherrin, and told him Sherrin would exonerate me from any share in the transaction. The Resident Magistrate :—The Bench are of opinion there is not sufficient weight of evidence regarding the facts of the case "to enable the plaintiff to prove his case. Mr Wil son intimated that his client would accept a nonsuit ; and The Bench ordered a nonsuit accordingly.