SUPREME COURT.—CIVIL BUSINESS.

Otago Daily Times, Issue 292, 26 November 1862, Page 5

SUPREME COURT.—CIVIL BUSINESS.

Tuesday, November 25

(iioforo His Honor, Mr Justice Gresson.) The Uovirt Kit at ten o'clock.

A. HOUSE CASE

Mo:;;u.-jo>i v. EiiKUN-yanoß.— This case was re-Hum-.-l. it will ba remembered that the action was fyl' V' r<.' o.i an I O U., at a month's date; and that tlio iii i-::i'!:!;t pleaded that the horse, in payment for y/hi'.'-.h ib" dr cument was given, was warranted sound, but that il wa- liiuuund. From the nature ofthe ph .-■di- .:-.-;, Mr G'riies, for the defendant, had to comnnaov, 100 burden of proof of unsoundness resting upon :.ka.|- .side. The defendant's ease was completed on MiiU!t..v.

y>: ."v.'u;h now opened the case for the plaintiff. ! llu vii■! hfi should prove that the horse was sound when : -j'il ; and, further, that long afterwards it wii:: tho;-, ugl-.ly s.ound in wind and in limb, also fur aU )n:-eti<;::! j.iirpo.^s, '.! L-- plniiniif-t.-iJcd that when he took the defendant t tv» s; ■ W'.c horse, at Wilson and Wain's, on the 24ii: lif-cc::;')0« >, ill. re was no one else present. He poiulr..! out io the defendant that the horse's near hirui !e:r had been kicked, and told him that it was done 18 months beforo. The defendant said he did not •••::•.'; for the blemish, so long as the hoise did not go iai::o;_and he (the plaintiff)" said (hat there had bcL-p_ ?<.-.' ; ing like lameness from all the work to wHi-; : be had pat the horoe. So far as he (l?;c i■:..iiiiil";') could judge, the horse was well ci mi. li in the wind-rot at all broken winded. The ib ■.-.ndant. said t.hp.t lio waated a good shaft horse, and lie (the •■hhitifi) said that this was used to the shafts of av> ag^rn. A t this time there had been no talk of tii.-v as ail, and payment. was to be made in a fort ni-.Jit; but when the defendant wrote the 10CJ at Trice's, bo (tbi> plaintiff} said, "You may take a liu-af: in.- -.'f<\ of a fortnight, if you like." When he ai.ii ib'^ dctVn.'aiit met on the road to the diggings, t..c (b'fl-iuiant said, " You must think me a tool, to go F-:!!i-.;p;rne a broken-winded bo'-se ;" and he (the phi: :-i tii'i';-it, id, "You must have let him get cold; lie n not brokcn-win^ed." There was a conversation, nnd the dcibndnnt. said that, except ns to the badness iv tlie whid, the h rsc was as good as he could wish. A c/fi'f, named Stewart, who saw the horse on the i-f-tiwn journey from Tuapeka, and several times in '.■rice.< siahles, said that the animal was sound and mht; the blemish on the kg was not the slightest detriiii. ut.

By Mr Gillies : He (the witness) was the plaintiff's brotinr-in law.

Alexander Brown, a carrier, gave r imilar evidence. Air M.!Ovh}itsc, veterinary surgeon, stated that on tbe i~ih iW;:y, lie examined the horse in question, lie was not a broken-winded horse, nor was there Rnvtl.iu:;- peculiar in its breathing, except such as niis'hr !e expected forn a slight cold and nasal discharge from which it was suffering. He tried ihe hoi.'-o in a dray with locked wheels, and pushed it seveiviy, without finding any symptom of broken-w:ii-!e:iii(.;-:;i. There \^ere three cicatrices on the near hind leg, but they would not in any way tend to ni.iki! the horse go lame. There was nothing about tho horse to prevent his giving a certificate of souiidnf-ss. The horse was brought to him again about nine weeks since. He then tried the animal only in running up a 3*ill; he was quite sound, and the colli wiis gone. If the horse had bten only slightly broken-winded on the 24th December, the disease must have become chronic by the 12th of May--it could not possibly have disappeared. It might be eased, but coulel not be cured.- By Mr (iii!lies : Thnkness in the wind would not in the slightest degree interfere with the value of a draught l'oi^e. for slow work, prc-vided he was fairly worked. This horse might have been locally affected in December ; but constitutionally he must have been as pood as in May. iFr VV. Hepburn, veterinary surgeon, gave somewhat similar evidence.

The Ju.lgp, in summing up, told the jury that the efstab.i.shed rule was that when a horse was sold as Bound, the buyer bad, a right to expect that he would be fit to be at once put to any fair work of the kind lor w inch he was sold. What the jury had to do, thvri-foie, was to estimate, as he read the evidence, whether it preponderated for or against the vies-/that, when sold, there was anything that impeded h:s usefulness as a dray horse for drayin<> to the diggings. _ ° '■'he .Jury quitted the box for a few minutes, and then gave a verdict for the defendant, affirming the uiifcouudneK* of the horso when sold. The Court rose shortly after four o'clock.