DISTRICT COURT.

Otago Daily Times, Issue 101, 13 March 1862, Page 4

DISTRICT COURT.

Wednesday, March 12. (Before J. H. Harris, Esq.) Jones v. Banks.—lv this action, plaintiff was a partner in the firm of Jones, Bird ipid Co., and Rot>t.. 'Banks was "the defendant. The causp was brought 'into Court to recover the sum of £51, being bajaiicfi of an account contracted in October, 1861. Mr. South appeared for the plaintiff, and Mr,. Johnstone for the. defendant. The material poiut iv issue related to tbe stauncliness, or otherwise of a grey cart horse, purchased at tlie plaintiff's yards duriug a sale by public auction, about six months ago. A witness named Morrison deposed, that the horse was bought on a Saturday, and tha* on the following Monday or Tuesday, it was so restive when placed in the stable, that it was mund necessary to tie a, large piece of timber to the anuijal 3 tail to prevent it kicking; but to no purpose, i Eweu M'Coll, examined by Mr. Jonnstone; S:v4 that he recollected having been in company with' the defendant, in October last,-at Jones, Bird andCo 's sale yards ; and he remembered tiie deiendant asking the ostler to try a grey horse, but he said hewould not. There was nothing uncivil, insulting, or offensive in defendant's manner towards the ostler. In reply to the Court, the witness said, that the man who wa3 asked by Mr. Banks to try the horse, ami who refused to do so, was tlie same perscm whom ihe deponent saw receiving orders from Jones, Bird ar.A Co., and who'tried the qualities of other horses sent Mr South observed that the most remarkable feature in tliis case was tbat the horse was guaranteed as a staunch horse in harness when sent up for resale by the defendant, who, when purchasing it, nl . the first instance, did not take tlie opportmiiny of making any enquiry into the condition ot tbe animal. Mr Jones, one of the plaintiff), being sworn, deposed, that on Saturday, tlie llth October, 1861, a grey horse was sold by him, as auctioneer, to the defendant for £51, for which a cheek was presented m payment, and that on Monday following, tbe 13tli iuem., the defendant entered tlie horse for resale at the plaintiffs yards. An entry in the books of the farm proved that tlio animal was entered in the name ot one Robert Ellis, and jyras described as staunch, and that it was put up at auction on tl)e 25th Qctpber, when only £35 was bid for it, the .consequence j>™ that the hor»e was bought in for the protection of the defendant, who, however, had stopped payment of the original cheque for Lsl. It was to recover the value of this bank order that the present action was brought. AVhen sold, in the second instance, tlie horse was described as a draught grey horse, but witness could not swear to any warranty being given on that occasion. The plaintiff had received a letter from tlie defendant informing' him that he had stopped payment at the bank, SntHliat the horse would be thrown upon his risk. The court thought it would be prudent to re-

tnand the eire for nn hour for the production of that lett«, Mr Jones, however, stated that hu was coutentfor tlie trial to proceed without any adjournment, .as he had no desire to detain tlie Court. Mr .^outli called Thomas Dickson, importer, who said tluit lie knew Ihe horse in question. He had imported it, and had worked it in Melbourne as well as in Dunciiin. He had known the animal for two years before he purchased it from a carrier. It was a very staunch horse, but grew a little vicious after having been idle for any time. He considered the animal to be as fine a horse as there was in Dunedin. He had never known it fail to pull, when put into harness, nor to kick for two hours, "at a stretch,1' when any person attempted to harness him. Robert Ellis, a livery stable keeper, knew the horse well. He had no hesitation in pronouncing him n staunch horse, but he had never seen him in harness. When he gave instructions to the plaintiff' to re-sell, witness remembered having told Mr Jones to put him up as a staunch horse, but not to say anything about his quietness. It was well capable of pulling. His Honor ruled that was no evidence, for capability implied what could be done, provided any effort •were made. The horse might be capable of pulling, but that was no recommendation, so long as it had no ' will to pull. AVitness had never tried the horse in a . cart. Mr South called another party named Greene, who did not respond, and the case here closed. His Honor said he saw some little difficulty in coming to a decision, when he considered what s should be done with the proceeds ofthe horse, for lie ; was tinder the impression that he should have to take that view. , Mr Johnstone declined to address the Court. J Mr South offered a few observations, after which, His Honor adjourned the Court until Saturday next, at 11 o'clock in the forenoon, when judgment • will be delivered. The Court rose at twenty minutes before two.