SOMERSET ASSIZES. (Civil Side). BEFORE MR. JUSTICE ERSKINE. 1842. KIDDELL V. BURNARD. ASSUMPSIT to recover back the money paid for the purchase of three bullocks, which had been warranted sound. Pleas, that the plaintiff did not buy in manner and form; and that the bullocks were not unsound as in the declaration alleged. ac The plaintiff employed Adam Bryant to buy bullocks for him at the fair on Lew Down, in the county of Devon, in April, 1841; and he accordingly purchased three, for which he paid £40—a fair price, it was said, had the cattle been sound. Bryant complained that the beasts were of a bad colour, upon which the defendant said, "I will warrant them sound." There was some question on the trial, whether Bryant bought them on his own count and re-sold them to the plaintiff, or whether he bought them as the plaintiff's agent. Two of the bullocks were afterwards re-sold, and turned out to be unsound, and the plaintiff had to pay a compensation of £20 to the purchaser; the other died on its road to Leicestershire. There were witnesses who said that all three of the bullocks appeared to be more or less unsound at the sale at Lew Down fair. the disease or the facility of its cure; for it is not possible to limit the time of cure; though the slightness of the animal's disorder may The plaintiff's drover took eighty-three bullocks for him from Devonshire to Northampton. They all endured the journey well except the three in question. The dis- be a fit subject tance they were driven was between fourteen and twenty miles a day. The beasts were all treated alike on their jury in assessing damages. journey. ration of the for the conside Crowder (Bere and C. Saunders were with him) submitted to the jury, that the dealing was not between the plaintiff and defendant, nor was there sufficient evidence of the warranty given, nor was the unsoundness of the animals established. ERSKINE, J., (in summing up).—The plaintiff must make out three facts: first, the sale to him; secondly, the warranty; and thirdly, the breach. If Bryant bought the oxen for himself and sold them again to the plaintiff, then this action will not lie; but if he bought them as the agent of Kiddell, it does not signify that he did not make use of the name of his principal. Secondly, the question of warranty; That rests on the evidence of Bryant entirely; but when there is evidence of a warranty, the fairness of the price paid is a circumstance tending to confirm that evidence. If you find on these two points for the plaintiff, then the third question is, were the cattle unsound at the time of the sale? The plaintiff must prove that the beasts had some disease or seeds of disease at the time of the sale, which rendered them in some degree unfit or less fit for ordinary use. Thus it is in the case of horses: so with respect to oxen. The defendant warrants they have no disease which would prevent them from being fattened and made fit for sale to a butcher, or render them disqualified for travelling. One of the beasts died on the road from unsoundness. Did the unsoundness come on by any accidental circumstance after the sale, as taking cold or drinking cold water? if so, that is not such unsoundness as to affect this verdict: or were the symptoms referable to antecedent disease? if so, the case is made out as to that animal. For the other two bullocks, you have it in evidence, that the butcher who bought them observed their bad condition; and it is also said that they were unsound at the time of the sale on Lew Down. The question is, are you satisfied that these beasts had the disease upon them at the time of sale? Verdict for the plaintiff: damages £25. Erle and Moody, for the plaintiff. Crowder, Bere and C. Saunders, for the defendant. [Attornies-Clowes & Wedlake, and Kingdon.] Afterwards, in Easter Term, Crowder moved the Court for a new trial, on the ground of mis-direction on the part of the learned Judge, respecting the subject of soundness. But the Court refused to give him a rule to shew cause, and PARKE, B., said-I adhere to the doctrine laid down in Coates v. Stevens (a), though differing from that held in Boldero v. Brogden (b). The word "sound" means that the (a) Coates v. Stevens, 2 M. & R. 157.-Bristol, 18th Aug. 1838, Parke, B., said "I have always considered, that a man who buys a horse warranted sound, must be taken as buying it for immediate use, and he has a right to expect one capable of that use, and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is, that, if at the time of the sale the horse has any disease, which either actually does diminish the natural usefulness of the animal, so as to make him less capable of work of any description; or which in its ordinary progress will diminish the natural usefulness of the animal; or if the horse has, either from disease or accident, undergone any alteration of structure, that either actually does at the time or in its ordinary effects will diminish the natural usefulness of the horse; such a horse is unsound." (b) Boldero v. Brogden, 2 M. & R. 113-Lancaster, 19 Mar. 1838. Coleridge, J., said,-" The question was, whether the horse at the time of the sale had upon him any disease which was calculated permanently to render him unfit for use, or whether the disorder which the horse then had was a mere cold, of such a nature that with ordinary care it would soon have been cured, and so cured as to leave in the animal no tendency to any recurrence of the disorder in its after life. A mere slight cold no more constituted unsoundness in a horse than it did in a human creature; neither was a horse lame within the meaning of a warranty, because at the time of 1842. KIDDELL v. BURNARD. animal is free from disease at the time he is warranted to be sound. If, indeed, the disease were not in ordinary cases of a nature to impede the natural usefulness of the animal in the purpose for which he is used, it would not be unsoundness: as, if a horse had a pimple on his skin; but if the pimple were on some part of him, so as to prevent putting on him a saddle or bridle, or other harness, the case would be different; he would then be unsound. No argument is to be admitted which is adduced from the slightness of the disease or the facility of cure; for it would be impossible to set any limit to the time of cure, though the slightness of the disorder, at the time of sale, may be a fit subject for the jury's consideration in assessing damages. ALDERSON, B.-The only qualification of which the word "sound" is susceptible is, that the animal is sound for the purposes for which it is sold. If a horse be sold to be used in a certain way, and should be affected with any disorder which will impede his usefulness in that way, he is unsound (c). the sale he might have a thorn in was a mere cold-such a cold as might reasonably be expected to give way to slight medical treatment, and to leave behind no seed of future disease-he recommended them to find their verdict for the defendant. (c) 6 Jurist, 327. SPRING ASSIZES, TAUNTON, 1841. BEFORE MR. COMMISSIONER ROGERS. 1841. REGINA V. ALLAN. April 9th. meanor, in dictable at confined under the Commis sioners for the Relief of Insol vent Debtors, and not on any criminal charge. JOHN ALLAN was indicted for aiding Benjamin Young, It is a misdea prisoner in the gaol at Ilchester, in escaping therefrom, on Saturday, January 9, 1841. There were three counts in the indictment: two for the offence at common law, and one under the stat. 4 Geo. 4, c. 64. Benjamin Young had been taken under a capias ad satisfaciendum for 271. 10s. 2d., at the suit of Samuel Pryor Jackson and Richard Ainsworth. He petitioned the Court for the Relief of Insolvent Debtors for his discharge under the act; and the Court, on hearing his petition, ordered him to be discharged forthwith as to the several debts in his schedule, excepting as to a debt of 517. 10s. 2d., due to the said S. P. Jackson and R. Ainsworth, and as to a certain other debt of 647. due to Joseph Smith, (the two debts amounting to more than £100); and as to them, to be discharged as soon as he shall have been in custody at the suit of the said S. P. Jackson and R. Ainsworth, and at the suit of the said J. Smith, for the period of thirteen calendar months. The debt of 517. 108. 2d. included the above sum of 271. 10s. 2d. The prisoner was undefended by counsel. Kinglake, for the prosecution, submitted on behalf of the prisoner, before going into the merits of the case, whether the indictment would lie or not. There were two questions :-First, was Benjamin Young in such custody as that contemplated in 16 Geo. 2, c. 31, s. 1 (a), so as to (a) 16 Geo. 2, c. 31, s. 1 "If :any person shall, from and after the 24th day of June, 1743, by any means whatsoever, be aiding or as- |