SUPREME COURT.—CIVIL BUSINESS.

Otago Witness, Issue 570, 1 November 1862, Page 2

SUPREME COURT.— CIVIL BUSINESS.

Monday, October 27,

His Honor, Mr Justice Gresson took his seat ni ten o'clock, and the Civil Business was comiiuneed. As it luul been determined on Saturday that the special jury cases should be first taken, the common j urois were released from attending until Thursday, the tith November.

A HOUSE WARRANTY CASH.

M'Kay and Another v. Campbell.- (Special Jurt'.)* The p amtilfs, Donald and John C. M'Kay, nic larmeis, ice, at Wallace Town, near Invereargill ; and tho defendant, Colin N. Campbell, is a merchant, at Invercaigill. The plaintiffs claimed £iOD compensation upon a warranty given with a horse, nnd for loss, &c. ; the defendant pleading that tlie hot «o was as warranted at the time of delivery. Mr Gillies was for the plaintiffs ; and Mr Ha-'gitt for the defendant. on

Donald M'Kny, one of the plaintifij, said that on the 14th October, 1861, he applied to the defendant with respect to the purcha.se of a horse, expressly for carting goods to the digging* at Tuapeka. The defeudant said that the ordinary load for a horse on a good road was two tons, and that he had a horse ( Prince) which would be safe for a ton to Tunpeka. It was a large powerful-looking bay. Upon the defendant's representation, he (the plaintiff) bought the horse, without examining to see whether it was really sound. He gave a three months' aceeptauce for £100, the price agreed for, and the receipt described the horse as " warranted sound nnd staunch in liar ness." The horse was fetched next, momin« without a load, and was turned out with othcis; and the only work he did from the 15th to the 25th October, was dragging a roller over some very level dry land sown with oats the roller being a li-ht one. The first time the horse was yoked was to v sledge at a bridge over a culvert, it being too narrow for two bullocks abreast to pass. There were between 4 cwt nnd 5 cwt on the cledge : but the horse jibbed, and, although repeatedly tried, he would not pull. The trace mare was put

in, and took the sledge across e .'-.'y. At Invercmall, on the 2o'th '.'e'oVr, the hor-' 1 was jvic to a dray loid -d with nnderlse. lvt)l,l vt ) l,h n ]*hiiiitiir>dej-;reb?iiigto make tlu journey to Tiripeka expeditimiiiv. Jaine? bVott, his nrineipal driver, had charge, wifcli diieotions in all difri"i:lt p'aees to lead th.- ho^eteun. and in oa-y parts to take charge of .1 team ot ei';ht b dloeks, ,->.s bdn^ the more diffi-ult to t'.iive. .Ie (the pliintil'n ccrlonk mid passed t.ie teims, hulfnaj ivtv*eii Inveio.ugdl ji'sd .',ollc Bu^h, find reUir'icd v Uie'ii fiom that bush. He led the horse about the third of a mile, fiom the road to a p.iddook,*over level ground. The horso breathe I hi badly that he could not k"ep up with tV> bullock team, and he had to be h iltud thref or feur lime- in guiii',' the third of a mils. Ho Uhepiaintiil! never bt-fi-re had a broken-winded horse, and di I noc know the nature of the cumplaint. ' This wa.s on a Siturday, and the teams were lett in tho p:«Mock during Sunday. Before .staatm^ on Monday, .seveml hundredweights were xemovei' from the hoise to the bullock dray Ffe (the plaintiff 1 ) overtook tho teams ■=i\: miles ftoin Long Biuii, and the horse wns then breathing vcrj b idly. Fifteen miles were done that d iy, and at nisht tho horse was mm-li knocked up and ate veiyspaiingl). The mare w,,t, fuiciiur befoit- hi'ii all day ; and she wa 3 very tired from having to pull hard when the horse halted through bad hrcithing. The road w;is level and good that day ; hut next duy there was a ''pin-h,'' pretty steep, but not long, to b-aco over. It was about 20 miles, from Inyeioaigill. The hor-e jibbed very obstinately ; and he iepeate.l it many times between thereaiul the Mata-n .a. ileiefused constantly to pass where ho ha I once jibbed, and frequently bullocks had to be taken from the other diav to gel along at all. He (the plaintiff) left them after erosbiun the Mataura at the long foi J, and returned to Inve-.cirgill. On the Stli, he say/ tbe defendant there, mid des-ciibed whnt the horoe hid Inen doiusr. The defendant said that he (Ul3 plaintiff; should not be lulilo for the hor^e. He sent his brnthc 1 ' for the hor-o, purpo-eiy remaining at Wallace Town himsjif, so as to return him to the defendant. He did this oa the 20Ui November, but the defendant refused to take him. There was an attempt to arbitrate, which failed about the sth or 6th December. The horvj was at livery at the Albion Hotel stables, Invercaigill, and notice wvs siven to the defendant that it was bo at h.'s cost. Ultimately, after b imr advcitUed, the hoi-se was =old by aw tion and reali^c-l L 29. lie was examined by Mr Thoma-i II uuillou, ot Long Hii'li, and others. For &ho>inj. and Ihery, he j);ti I about L'iii. \t 1 ast, five days wt"'. lo,t to the bullock team, 011 the journey fium Inw eavgill to the diggings, owins» to the staleof the hor-c; and because of the uncxpa^tcd delay, he had to return to Invercarjjiil, pre\ioubly, hiiins: a guide for liii teams, fio n the M^ataura to tlie di'.'i,ii.gs. lie gave f he Lo a'l i his keep ; and the lo^s for the bullock teams and drivers wa» quite Lin day. ThetiM.'iiighoise and dray c mid not be kept at work propu'ly. and there was* a lo.ss on that account of LI a day. 15) Mr Ilaggitt : lie was a farmer, and hid ago->.l many hor.ses. He could not, by insvely loo.i ng, detect .t broken-winded hor-e. The iron chain of the .sledge was broken before it was uot over the point named : hufc he eonsidertd lii.it th; material was bad. He knew that night that somct'iing war, wrong with the horse, hut lie v.m very anxious to complete tlie journey, and he thought a lightened had would enable the horse to get on. Hie bad bre ;t!iing continued, and he was c-i tain, wli.-n only fifteen mi'ea from Invere.aiyill, that the lmreo was unsound. lie tightened the load agiin, n.id um\! the hor>e as leni' ntly as possible, hr.f he did not improve Hut ween 1 cwt. and 2 cwt. was taken oii' the second time, lie could not then return the hoi.-c without expo&iitg tho goods on the road, and incuri ing seiious loss, lie did not lMe Prince hack to Invui3iiv:ill, bejatne h;s own hoc-e wns not fit for draught. There wts at tliis time no form j I load from lii\piTari>ill to Tuapeka, but there n.is a road along v. hu-h other urays ha 1 none. John Scott's evidence <h I not addVuiythki" mater'iil.

Thoma.s Hamilton, veteunary surgeon, said tliat on the 28th November, he wa.s called i;i by Mr M'Kay to ex."iii>inc a, l.'.r^e biy li"i&_'. At bis request", Mr M'Kay rode the horse gently for ab ut 100 yaids, and when he got l>ack lie (tie defen lant), from they luptoius showiwid tliathe hclieiod the hoi sc was broken- winded, lie tuen had the lior&e properly haiTifj-scd, and put him ii ;i ligliudiay with <i load of from 12cwl to 15 cw*. He stretelud lii:>iS2if at it, jiblte'l, and backed the wheels into a swamp. The U/ad was then iemo\ed, the dr.iy being on hard ground, and he Ibeked the wheels. Thero was a Slight a'cent. The horsa would pu'l for a short distance, and thou &too to breathe. He believ* d this wvs fiom want of bjttom. The wheels being unlocked, a light load was put on, which the horse took 011 a short distance, anil then f.topjjin<r, he would not move it, again. When it was attempted to force him, ho reireil. lie (the witness) considered that at that time the hoi>e was neither .souud nor staunch. The uusoundness was a cause of the unstaiinchness ; but lie could not say that it was the only cai'be. A horde's wind might be br-uken iv various wsiyss. Sometimes it was done by giving a drink of watei" too quick. He could not iay whethci biukcu windediie«s could be suddenly caused, or whether it rcqui'ed time to develope itself. He did not believe that taming out a hoise on .1 run, after he had been star din" in a stable, and giving him a feed of oats and hfiy, would be nkely to i'.jme his wind ; nor would putting a horse u-ed to a Ur.:y to draw a sledge be at all likely to cause. 1111sbuinehiieKJ. Refusing to pull 4 cwt or 5 cwt on a sledge would he a .sign of unstamifhiie'-s. A good sound horse ought to take a ton on a sledge, supposing it to be at all a fair road.

By Mr Hag^itt : lie never heaid of a horse's wind being broken in two hours, without ill us.iye. Iv Seofand, a warumty of soundness was suppo.ed to extend over mx weeks. lie considered that a s-tauuch horse ought to pull a fair load upon any hard ground, it would be a Mjm ot' staunehne-.s if a hor&e could take two tons from the whaif at Invercu-gill to Clarke Brothms' .-tores. He did not think that unstaunchness would neiesaarily follow soon after a hoise's wind was broken.

By the Judge : He <!id not think that turning a hor&e out of a warm stable into a paddock dining severe weather would le likely to have any effect towards breaking his wind.

Win. Ilutcl i son said that ho tnv the horse Prince when landed at Imercargill from Melbourne. He tiicjuht of bujini,' him ; but, not likimclus looks, he went three time-. aid examined him. Hu saw that thc:e was something wrong about the horse's winO ; and the diiver told him (the witness) that the horse was "a screw." Of con 1 *v he did not buy him. He saw the same hoi se near 'he Molyneux ; hewascoufatunlly angling iicicls the Mill and stopping. By Mr Htigsuti: He know a good deal of horf.ee, and was sine that he could, by 'oo'.\ir.g, find out if one was broken winded. He had known two horses take \>o cwt. from Invercargill to the diiigiugs. A sound liGide ou»ht to take 4 cwL on a bullcvk ;.ledge. A. gooJ many horses lrd had to go to the Uunstan witliout any corn at all.

Mr Moorhouse said that he had for twelve years been a veterinary sur^'-n. Over exertion, bad hoding, sudden change of v mperature, and bad ventilation in a stable, were, ail causes of l>rok< n wind ; and inflammation of the lung--, or distemper, might leave it. Over-e-vrtion w s, the only thing that would suddenly bring on broken- windcdnc&sr If a ho:- a c was sound, turning him into a jjaddoek as d(sc ibed in thib case, would do him good lather than harm. A. sound horse could not become broki-n-wi >dcd in ten da.\s, unless there wa.s &oiue very sevoie exertion or some sickness.

Mr Hnggitt said that the defence was that at the time of sale the hors>e was " sound and staunch in harness," which was the only warranty giv n by the defendant. The hois^ with two others, was consigned to the defendant, a merchant at Tnvercarfiill, by a correspondent in, Melbourne ; and the man who brought him over luivi ig stated that the horse had frequently taken a load of two tons from Sandridge to Melbourne, the statement was reaeated by the defendant to the plaintiff Foity-s,ix days, elapsed from the time of sale to the formal tei.dcr back of the horse ; and it was fair to assume, that having used the horse to haul to the diggings, and brutally ill-used him on the road, the plaintiffs simply dccited to get back tho acceptance for LI OO. Moiris Curran said that he was .1 groom. For nine months he worked the horse Prince in Melbourne. It belonged to Mr Dowling. On the moming of embarkation at fciandridge, the horse took down two tons of flour frum Melbourne; and not long before he took from the Victorian Railway Station" Spencer-street, to a place in Eliz-ibeth-street, 53 cwt without turning a hair. Ho never showed the s'igbte-t sign of broken-windedues3 or unstauiu-hnp.ss, dor did he ever jib. He did not suffer much on the voyage, and he #>t a f O w days' rest before being lauded. He (the witness) worked the horse in Invereargill, and frequently rook two tons of flour from th" wharf to Clark Brothers' fully half a mile, and loo^e gravel all the way. Wheu delivered to the plaintiff, the hoiv,e was sound and htaunch, " any way you like to take him." He (the witness) saw the hor.se again eleven days after, in Invereargill ; he was then iv bad condition and when he came back from the ''iggings, he couldn't have ben worse. He appeared to have been illused. Thcic were maiks from the whip extending two feet, both on tbo shoulders aud quarters. Tho shoes put on in Melbourne had never been removed and had b-en diirai ri»ht into his feet ; and he would not allow his head to be touched. Ho had never been touchy before, but was as nice a horse as you could speak to in the street. -'(Laughter.) Certainly he was not worth nearly so much as when he started for the diggings. If a horse was once swamped, and severely beaten while so, he would be 11 jibber ever afterwards. He (the witness) rather thought that by looking at a horse lie conld decide whether a horse s wind was broken. He knew Black Bill • that Was the mnn (pointing to Hutchinsou). Bill never came to look at, Prince ; he conld not possibly have seen the hon-e without his (witness's-) knowing }t— that was lie lljousHt mi. He saw the hor.-e at fnvereargill in a dray loaded with 14 bags of flour and two bags ot oats, for the diggings. When Scott returned to Invereargill, he told him (witness) that he thought the young fellow that drove Prince had over-worked him and broken his heirt— that the young huvc that led never pulled a pound up to the Long Ford, which was 36 miles from Invereargill. JJy Mr (Hllies ; He never told any one that Prince

w"s "a littlT touched in tho wind." They wore 2 cut bi<^ of flmir, of which lie saw 1-4 bai;s in ths duty, w.iich Prince was drawing. Coin N. Campbi.'l, flip defendant, said he was authorised by his .Melbourne agent to warrant Priuce ;'.s " soun lan 1 st'iuneh in hanusf.'* He never gave any oth^r warranty. He first proposed arbitration, but in the end he declined to <$o on with it, )wau- v> th's plaintifls wodd not a!?rse to wli it he iusi->ti:il u])0:i — thai Lh" arbiLiatoia fhuuld dt cide upon tin twfiiuonv of the former owner and diivtr, and that tharo should be no trial, as the time for that wa* bvifore ])iircha c. Ho had no intereso in the horse or the s.i'c, beyond five per ceut commission on the £100.

By Ah- Gillies: He declared positively that he did not receive instructions not t-> warrant "Prince sound and st-uneh in ham >s--. The same instructions iv-fun-od to all three of the hor.«ea sent over, excopr that one was t borough-bred, and the others draught. William Robeitson, auctioneer, stated that he had frequency seen Prince drawing a load of twenty sacks of fl mi", to Clark Brother ■' store? ; the road ami the load formed a good te^t of the strength and soundness of a horse.

By Mr (Tillies : Ho only «aw the load, and heard tint they consiste I of twenty bags each. He had no recollection of ever .seeing a letter from Mr !""•(•■ ,vi;n 4 to the defendant. No such thing was produced during the attempt to arbitrate 0 this in \.t >r.

This being the casa for the defence,

Mr Gdlu-s recalled D .nald MMvay. He said that when he was returning from the diggings to Invercarjill, he met Curran ju>.t by tie town. He c'ta'lenguii Cunan for not telling Him before starting that tiie hoise was broken winded; and iv reply, Cvi ran . bniited that he knew that Prince was touched \ i the wind. During tho time that arbitration was utoot, lie was in the defendant's house with Hainil t>n and Robertson, trying to discus* the matter. A letter wm<s then read as from Dowling to the defendant; andlu-j (the plaintiff's) leeollection was clear us to that letter. Id was that Dowli.ig hal sent over th-ec horses, a brown, a black, and a bay ; the two former were stated to bo " sound and staunch," tlie bay to be "staur.ch." Robeitsou. baid, upju th.it letter bein^ read, that no person was authorised to fccll the Iv.y as sound, because Ihe fjrmpr owner had not given fciuh an authority. Jl.uni'ton, re-alled, confinnod the plai-itiff's statenit i;t as to the substance of tho letter.

Auifus Cameron, l.indlor.l of the Albion Hotel, fn\crcarKill, said that Morris Curran wps in hi^, service about Novfinber List. Whon Prince was brought back to hi.* .stablns, lie (the witnpss) spoke to Curran alout tlu lu.i"e's coivHtion, and Curran sa ; d Iv knew tli it Prince wd-- cracked in the wind, but it did not injure him in his work.

Affc'T Mr flfigsritt Ind summed up the evidence for tlie defence, Me Gillies replied upon the whole caso, commenting strongly upon the non-production of Dowliim's letter, ns to which the defeiilant said that ho had not it in his possesbiou when the notice to proluce un; served.

His Honor summed up in f.ivor of the plaintiffs ; and at 7 o'clock, after consulting for a quarter of an hour, tlu Jury -eturned a verdict for the plaintiffs: damages, L 76 Qs Gl.

Tuesday, 28th October. (Bef)re Tlis Honor, Mr Justice Gres&on.)" The J udge took his scat at ten o'clock. MAIiICIOUS FRnSKCUTION.

_ Hasskt.lv Brown-.— {Special Juri/).— The plaintiff Hd.vaul Has-ell, sought to recover damages (settlown at 1,500), from the defendant, for that on the llth Felinaiy he " f.ils°ly and maliciously, and without any re. tunable or probable c.iu^e," swore an inf>rmatiuii befoie tiic U-sMcnt Magistrate in Dunedin, charging the plaintiff with stealing certain sheep skins, a-id upon tint information, obtained a wavrant, by virtue of which the plaintiff was arrested and imprisoned, and taken before the said Mauistnto The defendant pleaded the general issue, that he ha'J not acted falsely, &c. Mr Gillies wasf.ir the plaintiff; and Mr Howorth, senior, for the defendant.

In .-ouiiii; the ca.se, Mr Gillies pointed out, to the jury that the mere facts of arre-t, &c., conl I not supply ground of action ; that must come from the maliciousness of tho prosecution, - the want of reasonable or piobahlecau-.e for laying the original information. But tlie jury were at liberty to inter malice, if the defendant failed to show that he had reasonable or probib'e cause. If there was nothing in the ca«e but a s-erie<. of unconteatwl facts, it was for the Judge to say whether they amounted to reasonable and probable cause : but where thero was doubt or dispute — wh'M'o the law aud the facts wore mixed— then the question of cause, was strictly one for the jury. The luil.nving witnesses were called : -

Alfied Clieth.un StioddsaiJ that he was Resident Mii»istnie. He prodiuvd tlie information sworn before him on the llth February by Alexander Brown, th- defendant. Con&equent upon that information lulwar.l Hassell, the plaintiff, wa-s brought befo-ehim (the witness) on the llth, and aarain upon the lotii February, on remand. Ho dismissed the ohaige, believing that fiero was no prima fade case of stealing the .sheepskins as alleged ; and he told Brown that he thought he w;is not warranted in bring'ng auch a case before the court.

By Mr Iloworth : There was nothing in tie case as it caiuß out at the Police Court to warrant his sending Ha»->el! for trial. He knew Mr Musgrove , a magistrate ; but ho did not remember whether Mr ivfugiove sat on tho bench with him on the 13th February. If Mr Mus»r>>ve was oi the bench, he "ertainly look no part in tho proceedings. Mr Musgrove did sit on tlie bench several day-;, to watch the proceedings before assuming oiiice at Tokomaiiiro as Ite.sitle it Miic;.^tr,'i[e.

Edwai-.l H:i-hell, the plaintiff, sai 1 that in Septenihor last, he was keeping a store on tho Liu-lis digging, iv the VWinaka I/ike dis.ricfc. He first went to tho Tntvpcka diggings on the -29th November. HU brother, at Oamaru, w.is n ft ll monger, and in the h.ibii of lurs iuq skins. A fe»v days after a'Tians; at Tuapeka, he -v.is offered|soiue skins by Thomas Rolls and Wm M f Murray, both of whom he knew as having worked for his brother. Kelk was a ahoejii'ikeit Th -re were 200 skins, more or less, and he save L3O U\ them. The hkins were lyinj; at the hick of W i sh's Morr, neai .in old sheep yard, said to have bci-ii Mtirrav and Musgrove's. When he bought the t-k,iis, Ibej were l^iii"- in an unoccupied tent belon;»in^ to Ke'ls. Ili^ object w«b to ma'.te money. lie lvi pt the skins till thu 27th January, when he sold them to Patrick Nolan, at 2i each, they h.uing h\\e-itcvl a good deal, and sj Uetej ioviUt-d in value. His original intenfoa was to have sent the skin's ii his brother at Oanuru, but he found that the freight w.ts higher than he luid expocted. lie t-old to Nol.m precisely the aiuie skins he ha I bought. OntheOth February he arrived in town, and on the llth he was apprehended by Detet'tive Tuckwell. under a warrant, an I taken before Mr St oie. He (the pkiintiff) whs in the Commercial Sale Yard, purchasing a horse when he was arrested. IL- was first taken to tho lojk up, and then to tho Resident Magistrate's C'wrt, where he waa liberated on bail, havinsj been in cu>tolyan hour and a h.ilf. On tho 18th, the defendant made a charge against him, but the case was dismissed. He (tuc plaint'lV) wns put to an expense of L(i iv defrndiug huu^elf; he was detained three or ionrdnvsin town. Tlie Kc-vlont Magistrate's Court was crowded on the 13th instant. He (the plaintift) saw teveral ] 'rsoiisi pie.ent who knew him on the diggings; and h s name appeared in the newspapers. By Mr Iloworth : He did not know how lon^ Kellb and M'Murray had been at the divings. Kells^ he thought, had uoi b.en there moie than v month or five'jwe «k-, II« (tlie plaintiff) was not surprised to find two men who were digrams, in possession of 200 sheepskins The men snid that they bought the skin* from Mr Aim ray, of Murray and Musgrove; but it was after they made the purchase thai they --.aid they gave only Ll2 for them. Ue believed the skins to be worth L3O ; but he d ; d not suspect that the men ha>l comu dishonestly by them, whon they said they gave but LI 2 for the lot, because men often picked up bargains, and he thought that Murray might lmvj had a special reason f.>r the •sale. Ho forgot whether it was Cl or Is each that wa.-, asked for taking the skins to Oamaru. He kuew that skins were bought and sold at the diggings, but he did not know any particular buyer, nor ilid he inquire for any. He sold to Nolan because he wanted to «et down to town, not because he wanted to have the skins out of the way. A gentleman sat with Mr btrode when he (the plaintiff) was in the Magistrate's Cinn-b. lie did not know that that gentleman was Mr Musgrove, nor had he ever hoard it state 1.

Mr Gillies : I admit that Mx Alusgrovo was on tho bench, but he took no p.irt in the c ise. Patriclc Nolan said that, in January he was a carrier between Tusip^ka and DuneJiu. About the cud of January he bought a lot of sh .»pskius, 200 more or loss, from the plaintiff, at 2s eich. There had been to his knowledge n sheep yaul near the tent in which the .skins were, hut no shtwp had been killed there for a month. He sold the sheepskins to the defendant; he called at the defendant's place on hid way to Duncilin and offered the fcldns. The defendant bought them at 4* each. The price of carting skins from Tuapeka to Dunedin was at that tiino 9u each. The defendant's place was some nine milra from town. The defendant "pulljd him very hanl" to know where he t?ot the skius, and he sai.l tint he young man at Gabriel's from whom he bought, slid that ho had. a brother a fullmongcr at Osuuaru. to whom he originally meant to send the skins. The defendant thena*ked. *' Was hisnHine Hasboll?"an(?he (the witness) said that it was, adain^that Hassell had come to town to buy land at Onmaru. By Mr Iloworth : The defendant said that he had had many skins stolen at the diggings, and after examining this lot, he pointed out a mark which he said was his on one of the skins. The defendant's brother first e.\'imined the skins, ami then called the defendant. Tho mirk was like two cuts of a knife inside the skin, about the neck part. A great proportion of the loE &m9Hteri of pieces, not of whole skins. Only three marked whole skins were found, The skins producad bore such a mark as was pointed out to him ; He oflered to the defendant to leave the marked skins on being paid cost price. The defendant paid him 4s each for 150 skins, that being all i the whole skins there were, whea he

(the witness) came U count with the plaintiff. The pieaos .and wool hi bouclit from the plaintiff at 21 per lb. He sold the defendant all he got from the plaintiff, and fourteen bullock hides in addition, for L 52 Us ; the hides were taken at 6s 6d each. The defendant gave him a cheque for the amount ; but when he was goinsr to the bank with it he met, the defend inN quite ronvenienc, in Princes-soiv-t, v.-it'i a detej iwi. He was taken by the officer to the Pulioe Station, find as those there thought they d liavo to take him into custody, he pulled out a receipt for L 5, which he had paid to the plaintiiF on a-coimt of the skins. He was afterwards examined before the magistrate aa a witness.

Re-examine 1 : Before th- maetf-trate two skins were produced. One of them wss like the whole skin now in court ; the other before him was only a piece. Thoma, K.'Hs, alnpinaker, said that he had worked for tour or five months ntjOamaru, for Mr Has^ell wh.nn he now knew to be the plaintiffs brother He and a mate nannd M'Murray bought some sheepskins in a pile from Murray that has the run there nnd which were then lying alongside the si.-cd ytrd' behind Wash's store. They p ud Murray Hi, wl ich he (the witr.e-s) at the tims considered wu3 tjo much from the stale the skins seemed to b». in. About- a week aftenvaids, the plaintiff came up, and he (the witness) asked him if his brother at Oanuu'U was still buying skins, and would he buy this lot. The plaintiff said he did not know what it would cost to get them to Tuapeka; but ho afterwards aT&id to give L3O for the lot. in December, he (Kells) was coming from the diggings, and when near Gieen Island the defendant stopped him, and spoke. In tho course of ponversati-m, he told the defendant that he had bought some skins ftora Murray ; and the defendant said that he had had a 'otter- about them, tellin°- him not to buy, as the skins were bad, and tlie ivool°ould not be got off. He (the witness) told the defendant th it he bouarht the lot for Ll2, and had sold them to young Uasscli (the p aintilf) for r.30. The defendant as. Ed, was Hass>e!l buying bkins up there, and he (the witness) replied not— only that lor. He addel that the defendant might get the skins yet, as Ha'-sell had declared that he would sell to a carrier or drayman, so as to get rid of them, as they hid been more bother than profit to him. He had told tie defendant that he had done well at the divines • and when tho defendant asked why he was Icavintr' hu replied that he was going to Melbourne with his father-m-law.

By Mr Howorth : He and his mate worked at evenings for a week in sorting the lot, and the skins were put out upon a Hue to dry. Afterwards he bought a tent for 14s for the purpose of putting the sknw 111. When Murray made the sale, lie was in Ih own store, bende Walsh's, and his storeman and M 'Murray were present. Mr Howorth, in addressing the jury, contended that even v] on the plamthPs case there was evidence for grave suspicion— abundantly sufficient to supply probable cause for the defendant's believing that the plaintiff had stolen or improperly obtained the skins ihey were said to have been sold for one-fourth their value to two obscure meu, but the alleged seller had not been produced. Murray and Musgrove weresa'd to nave been tlie sellers throuafh Murray. Mr Musgrove was on tlie beuuh when the Resident; Magistrate dismissed the charge against the plaintiff; a°nd the least that the plaintiff ought to hive done now was to produce Murray before tho jury that it might be tested whether he was the seller of bkins, some of which were undoubtedly the propei ty ot tho defendant. He (Mr Howorth') dedareu th it the ca=-e wa-. the strongest of re;isonablo and probable cause, of which he had ever heard • aud that it was one which ought to have been furl her investigated, the plaintiff being compelled to clear himsolt of the possession of tlie skins. If such actioua. were shown to be maintainable, dishonest Demons would reign triumphant ; for losirs of property would tear to call pos>es>ord of th at property to account lest by a possible failure of justice they might make themselves liable to be sued for extravagant compensation. Alexander Drown, the defendant, said that he was a iebmingpr, at Green Island. He remembered IN olan i offering two loads of skins for sale. He (the defendant) began to examine them, nnd while doin» so, Ins brother came down and identified some a^ beonging to themselves. He picked out three which bjre their private mark, aud he (the defendant) wanted to take them awaj; but Nolan would not leave them without being paid, and he bought the lot at 4s each. He commenced buying skins at the dig^ms in July or Augubt previously, his brother being the buyer. He bought everything they came across • aud he was not aware of any one else being engaged in the trade. The value of skins on the dig^iug's during the period ranged from 2s 6i to 3s 6d each They marked their «.kius with two cuts across th» inside of the neck. They had lost skins at the divings —a considerable quantity during September. The skin and the piece produced each bore their private mark; the whole skin wa,- amongst tho lot obtained from JNoian. In consequence of what he heard from Noian. he the next morning took out a warrant a«aiust the plaintiff; the iniormatin of Nolan was partlygiven m the Detective Office. He laid the information ui'on which the warrant wns issued, because he found that the plaintiff, at the diggings, sold the skins to Iso an a long way under their value. At that time hohiid ne\crsern tho plaintiiF, who was fit-it pointed out to him by Hutchinson. a postman, after the warrant hil been obtained. He had known the plaintift s brother previously, but had never ha I dealings with him. 6

By Mr Gillies : He neither knew anythin" for or against Mr Hassell, of O.un sru ; he knew ho\vas iv business, but nothing more. A. few days befotv ti-e transaction wiUilfolan.he (the defendant) bid against Mr lUsseuat a laud sale— not for more than 500 acres, ho thought There wero only a few section? and he did no I know ihat Ha^sell had previously laid them down m paddock. He knew that Hassell bought a large tract of land, and paid L 3 an acre for some of it. When he laid the information, he kuew that it w.is against Hassell's brother ; but ho knew nothing at all about young Hassell's character. He did not know whether hi* own brother ever bought skins from Murray ; but he did know that Murray had been slaughtering extensively. The private mark was put upon the skins immediately after delivery. After laying the information, he asked Tuckwell what coupe he ha 1 Letter take, and Tuckwell said it would be Ivtcer to take out a warrant. He lost from 150 to 200 skins at the divings, mosfy in September • but he could only identify three in the lot ofieied for salo byNolau. lie made no effort to find the plaintift before taking out. the warrant; but No'au had told him that tho plain Liii" had come doivn to puupdin to buy land He had a reason for suspecting that the plaintiff had stolen skins, bsyo.il finding three in Nolan's possession ; that reason was the sale at so much below their value, and a further reason was that the skins appeared to have been kept in a lump to disfigure them. Ho did say before the Magistrate that he " hal no reason to suspect the accused ot such an offence " as steal ng the skins ; but when the question was put to him there, he did not fully understand it. The 2s G I to 83 6J mentioned was for g.>od, sound skins, tlieru bein* more \IOOI when the higher price was paid. He sol no value on the skin itVlf, so that if the wool was sound, a damaged skin would be worth as much as an undamaged one. Wool was quite as good from a sweated skin, if it was not burned, as if it came from au unsweated skin. Rn-exunined : lie knew Kells, but Kolh did not cal on him during December last, nor did he inert Kells <iurni«- that month. He met him ouce, in con-sequau-'e of some skin* which were sent from Port Chalmers. Kells never spoke to him about having bought skins on the diggings. He was positive that Kells never told him that he had sold skins to young 1 Hassell (the plaintiff). The witness denied all the portions of Kells' evidence as to the alleged interview He was prepared to [have bought 300 acres of the land which Mr Hassell, of Oamaru. obtiiued at auction.

By Mr GHlh'e3 : He did not believe, indeed he was satisfied in his own mind, that not a word passed of all that Kells had sworn, to as passing between, them.

By a Juror : The pieee3 of skin were not bought from Nolan by weight ; so many were taken as making a skin. Ho c msidered that he bought the pieces at about the same rate as \\\». whole skins.

John Brown corroborated the maia portion of his brother's f-videuce. and identified the skin produced as having b?en bought and marked by him?elf at the diggings. Ke had lost as many as six skins at once ; and he reported the robberies to Major Oroker, but not until after a gooJ many hid been stolen.

Detective Tuckwell was called ; but Mr ftillles objected that the officer's advice to tlie defendant could not be evidence, and the objection was held to 'be good.

Mr Howorth summed up, contending thit the defendant had throughout acted honafide, and that the jury mint conclude that \y had reasonable cause for his suspicion of the p aintiff.

Mr Gillie 3 leplieii at aousidcrablc length. He retorted the question, " Why is not Murray herei" In February last, there was recorded on the depositions that thes '. skins had been sold by Murray. It wis not for tho plaintiff, standing on liis innocan'ce to brin.; Murray into Court, for he had called the mnn from uhom lie himself bought ; apd if Murray could have been useful to any one it was to the defendant if he t-ould provo that he did not soil to Kells. The fact oi Mr Musgrove sitting on tho Bench beside the magistrate, was strongly in favor of the plaintiff; for, himself a magistrate, he could not have sat and heard justice doteated by false statements from Kelk Suppose the defendant did act bona fide ; that was not enough— he must prove that he had reasonable ground for the belief upon which he acted. The Judge, in summing up, said that the jury had been rightly told that the law was justly jo dous of actions of this nature; for if they were lighfy brought they would deter the public from prosecuting criminals If the juiy conoludo-lthat the defendant had no reasonable or probable cause for what he did, they would infer malice. If they believoi Kells, they could have very little doubt that the defendant ,did act causelessly ; but the whole question was in their hands. The jury were absent 35 minutes, and then gave a verdict for tlie plaintiff : damage 3, £20. The Court rose at 80 raimites to sis o'clock

i'iEDSESDAY, 23l 1 H OOTOBBII.

IT'S Honor took his seat at ten o ekek. p.opcted salt! of bottled Ishkr and porter. Fargie an;> another v. Little and another. —(Speria? Jury). — Mr Gillies appeared for the plaintiffs, Messrs Fargie and" Paterson ; and Mr Wilson for the defendants, Messrs Little and Reid. The action nro'O out ofa dispute respectinCT Hip t^nns of «:ilr- of p qu uitiiy. of ..i;ilt i.quorj the following being the pi liut'ti-j' v. r^ioii of tho t \'i isaciion :—: —

On the 3 nl January, Mr L ; ttle, and afterwards, Messrs Lirie an 1 It M, called u|>ou the plaintiffs and allied them to pur^ha-ic 120 ca^es or packages of liquor, each coiitniiiiii? four dozen quart bottles, a jout equal qu mtitius of a'e and pjrter. It was ma le a (•onuition that flight and chains should be paid in cash, s.ud that athne n,on f hb' acceptance should be given for t'.io Uilam c ; and upon this condition, nn offer of lls. a dozen was made and nec-ptel. The ale had just arrived from Melbourne, and the defendants siid tint it was in first-rate condition. They produced a pint bottle of ale as sample, but distinctly said that the oases o ntained only quirts of ;ile n>-A porter Mr Farjio at one; pdd £:">, and next day g.ivc a chcq'l3 for aoZ ; and thesj amounts coviring tlu freigh-s, &r\, lie ace 'pted delivery. As th 3 casas were being delivered, it was found that many ofthem ha-l been opened and re-cliM? 1 ; that there was hardly an}tuiu<» but pints instead of quails; and that these was nothing but ale. Wheu complaints were Miade to the defendants, it w.is represented that the proper cases could not be got at for a few days, us (hey were stowed in the ".ffcer part of the ship. 'I he ale was tisted, but ia&tead of being fi«t-r<ite, like t c sample, it -.\as bad— sumo s-our, and some " "o thick that it would hardly run." Out of the 120 eases, there wore osily 15 of quarts. A sale had been made to Scott and Co. before .lulivjry, but the ale was retu'-nrd, a-nl the plaintiffs had to pay 13s 0" 1 a dozen for ■•orae to complete the bargain. The defendant refused to take kick the ale, and with the exception of the fifteen dozen quails and aevjii dozen pints which had b?en sold— on moat of which some allo>\an'c had to be made for b .dness of quality -tho lot wr.s still lvi.ig in (he plaintiff h' yard. The I'efumlauts brought an action against the plaintiffs for refusing 1 to gi\e the acceptance as p.-r agreement, but that cause was entered for trial before a common jury ; ami the prem'iit action, subsequently brought, was to recover back the LlC'3, and i,o obtain as coinppn^ation a s.uu representing the profit that would have been nrid<; in the then bri>k --tate of the market had the deleudanta delivered according to snm-jle. Messi-.s H. Hi-yuo'ds, ti. Miller, and other witnesses, describe.! portions ot the ale m question, which they tasted, as I.eing not saleable or wholly valueless from be ; ug sour or thick. The cas ■ for the defendants was substantially as follows : — When Mr Little first spoke about the ale, Mr Faig-ie ask^d for a sample. Mr Little got five pint bottles out of the only two casks visible in tiie hold of the ship When taking the first bottle Fargie shook his h?ad and said, '" It's not the thi.isr." Little replied, "There it is, that's the sample. You cannot expect first-cl.iss alo to be guaranteed for Us." Ot the five bottles, four were opened at this time, two were <lat, and two came out like singerbeer. /,ftc.T a little consideration, Farjio said lie would have the lot anyhow. Little never made any representation as to the quality; it was nn understood sale of " pricke-l " b<^er; good sound ale was woith l.js 6d or lGs. The bottle bore .-m old label of Byass, which -was called in two or thrte years a<ro— it lexst, a new label was issued then. Seve:al days elapsed before there was any complaint from the plaintiffs as to quality, and he I,h"n replied that ho li.id nothing to do with it— that the plaintiffs had bought th^ invoice, and must take what was in the ship. There was merely a inr-ii or.indum " 120 packages bottled ale and porter," and Little had no instructions beyond that he was to get die best price he could fur the consignment. The consignors were a Melbourne firm ; no nam;s were mentioned, but Fargie knew the linn at the time.

Witnesses were called to show that the ale, although not first-class, was worth 11s. a d-zen. Amongst them was Mr Septimus de Loon, who said that he was formerly partner with Messrs Clew. He had bought and sold a great deal of ale. If he bought a lot which was not sol'l " with all faults," he should presume it to be in good marketable condition. With prudent merchants, especially in dealing with ale and porter which was bought or sold as t;ood, it was customary to^ insert in the contract notes something to this effect—" Ale is of good quality, and packages sound and in good condition." If the ale was not sound, it was usual to insei t. " with all faults." It would depend very much upon the arrangement. If selling, he thould make the best bargain lie could, depending upon probable price ; if buying, and he had doubts, he should certainly insert the words. Mr Wilson, in summing up contended that there was no sale by sample, anil therefore no warranty ; it' the ale had not been sold and bought as a damaged lot, would not the plaintiffs, as prudent men of business, have ssen !hnt the contract note contained the words " with all faults." Indeed, it was laid down that where there was a document such as a sale-note, witl out a reterence to sample, the bale could not be held to have been by simple. The price to he naid confirmed this view ; it was a fair one for damaged ale, but to alege that sound ale could have been got for 11s was absurd. There was no dam ape proved, even if the plaintiffs had not executed acts of ownership (saeb. sis selling portions of the ale) which prevented thuir clai.ninq to return the goods or to a-k for compensation. What the defendants did sell, they got. a profit upon ; and there was no proof that wh,.t they had upon Land did not consist of ale and porter, as was proved to have been tl-e fiot wit'i oue casenmt back tn the defendant's .store ns being ale only. Mr Gillie*, in replying upon the eke urccd that the custom of honest trade was, in selling unsound good*, to state The fact at once. It mattered little, whether the sale was by simple or not, although he contended that it was by sample. The contract had clearly b^en broken in tuo rejects. The sale was expics^ly of "' ale and porter ;" but there was only one case out of 120 that was evrn alleged to contain other than ale. The sale was of 120 cases, and the pleadiims admitted that each was to contain "four doz^ii," meaning quarts, for the defendant Little had said that the ar° raugement was that two pint bottles should be fiken for one quai f. There were only 15 cases contaiuius quarts— so that die quantity contracted for had never been delivered.

The Judge told the jury that, for one reason stated by Mr Wil«on, tliey must dismiss all idea of sale by sample or wan auty ; the rule was rattier technical, but the law was unbending- on the point that parole evidence should not be given to vary the terms of a written document. The sale note did not sustain the point, that the contract was for 120 cases — each containing four dozen bottles ; but the note did wan-ant the conclusion that the bargain was for ordinary marketable ale and porter, and upon the question whether it really was so, and,\if not, what damage had been sustained, the jury must decide from the evidence alone.

I he jury retired at half-past four o'clock, and at five they returned to Court, ami gave a verdict for the plaintiff, damages L 01 16s.

(For later noes see faqt 5.)