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point makes it unnecessary to give any opinion on the other point made in the course of the argument, as to the drainage tax.

Postea to the Defendant.

1832.

The Dean and Chapter of ELY

V.

CALDECOT.

GARTH V. HOWARD and FLEMING.

May 11.

DETINUE for plate. Plea, general issue. At the The declartrial before Tindal C. J., it appeared that Howard ations of a shopman are had, without authority, pawned, for 2007., certain plate not evidence belonging to the Plaintiff. The Defendant, Fleming, was a pawnbroker; but the only evidence to shew that the plate had ever been in his possession, was a witness, who stated that, at the house of the Plaintiff's attorney, he heard Fleming's shopman say that it was a hard case, for his master had advanced all the money on the plate, at 5 per cent.

This evidence being objected to, was received, subject to a motion to this Court; and a verdict having been given for the Plaintiff,

Andrews Serjt. obtained a rule nisi for a new trial, on the ground, among other objections, that the declarations of an agent can only be received in evidence when they have been made in the ordinary course of his employer's business; and that it is not in the course of a pawnbroker's business to lend 2007. on a single pledge, or at 5 per cent. interest.

The declaration of the

Spankie Serjt. shewed cause. shopman was made in the ordinary course of his employer's business; for that business was to lend money

on

against his employer, unless made in the course of his employer's business.

1832.

GARTH

V.

HOWARD.

on pledges, and the amount of the pledge, or of the interest paid, are immaterial. Now it is established by Rex v. Almon (a) that the law presumes a master to be acquainted with the acts of his servant in the course of his business; and slight evidence is sufficient to establish the fact of agency. Hazard v. Treadwell. (b) The declarations of Fleming's shopman, therefore, being within the scope of his authority, Schumack v. Lock (c), — are conclusive against his employer.

Andrews The business, which Fleming's shopman is alleged to have spoken to was, in effect, a private loan, and not the transaction of a pawnbroker's shop. It is inexpedient to extend the exception by which the declarations of agents are received in evidence on hearsay; and in Maesters v. Abraham (d), Lord Kenyon refused to admit even the letter of an agent as evidence of an agreement by his principal. Such evidence, if received, ought at least to be confined to declarations at the time of the transaction. In Helyear v. Hawke (e) it was expressly determined that the principal is not bound by the representation of the agent at another time.

Cur, adv. vult.

TINDAL C. J. The rule in this case has been obtained upon two distinct grounds; but is unnecessary to give an opinion upon any other than this, namely, whether the declaration of the shopman of the Defendant Fleming, that the goods were in the possession of his master, was admissible: for it is clear that, unless Fleming is to be affected by such declaration, he is entitled to the verdict upon the general issue, non

(a) 5 Burr. 2686.
(b) 1 Str. 506.

f) 10 B. Moore, 39.

(d) 1 Esp. 375.
(e) 5 Esp. 74.

detinet.

detinet. If the transaction out of which this suit arises had been one in the ordinary trade or business of the Defendant as a pawnbroker, in which trade the shopman was agent or servant to the Defendant, a declaration of such agent that his master had received the goods, might probably have been evidence against the master, as it might be held within the scope of such agent's authority to give an answer to such an enquiry made by any person interested in the goods deposited with the pawnbroker. In that case, the rule laid down by the Master of the Rolls in the case of Fairlie v. Hastings (a), which may be regarded as the leading case on this head of evidence, directly applies. But the transaction with Fleming appears to us, not a transaction in his business as a pawnbroker, but was a loan by him as by any other lender of money at 5 per cent. And there is no evidence to shew the agency of the shopman in private transactions unconnected with the business of the shop. I doubted much at the time whether it could be received, and intimated such doubt by reserving the point; and now, upon consideration with the Court, am satisfied that it is not admissible. It is dangerous to open the door to declarations of agents, beyond what the cases have already done. The declaration itself is evidence against the principal, not given upon oath it is made in his absence, when he has no opportunity to set it aside, if incorrectly made, by any observation, or any question put to the agent; and it is brought before the Court and jury frequently after a long interval of time. It is liable, therefore, to suspicion originally, from carelessness or misapprehension in the original hearer; and again to further suspicion, from the faithlessness of memory in the reporter, and the facility with which he may give an untrue account.

VOL. VIII.

(a) 10 Ves. 128.

Hh

Evidence,

1832.

GARTH

v.

HOWARD.

1832.

GARTH

V.

HOWARD.

Evidence, therefore, of such a nature, ought always to be kept within the strictest limits to which the cases have confined it; and as that which was admitted in this case appears to us to exceed those limits, we think there ought to be a new trial.

Rule absolute.

May 12.

1. Some

splints cause lameness,

MARGETSON v. WRIGHT.

THE Defendant sold the Plaintiff a race-horse called Sampson, which he warranted sound, wind and limb, others do not; at the time of sale. Some time after the sale, the horse became lame: whereupon the Plaintiff sued the Defendant upon his warranty, and obtained a verdict.

a splint, there-
fore, is not
one of those
patent defects
against which
a warranty is
inoperative.
2. The De-
fendant having
warranted a
horse sound

the contract,

It appearing, however, that the subsequent lameness was occasioned by a splint, the existence of which was known to the Plaintiff at the time of the sale, the Defendant obtained a rule absolute for a new trial. See ante. (a)

Upon the second trial, the Plaintiff gave evidence as at the time of to the nature and consequences of various kinds of and the horse splints; that a splint may or may not be the efficient having aftercause of lameness, according to the position which it wards become occupies, and its size or extent; and that Sampson's splint was in a very bad situation, as it pressed upon one of the sinews, and would naturally produce, when sold him, the horse was worked, inflammation of the sinew, and consequent lameness.

lame from the

effects of splint

visible when

the Defendant

Held, that the Defendant was liable on his warranty.

The jury again found a verdict for the Plaintiff'; when the learned Judge who presided (Vaughan B.), requesting them to tell him distinctly, whether, in their

(a) 7 Bingh. 603.

judg

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judgment, the horse was sound; or, if unsound, whether the unsoundness arose from the splint of which evidence had been given; the jury said, "that although the horse exhibited no symptoms of lameness when the contract was made, he had upon him at the time of the contract, the seeds of unsoundness arising from the splint." Whereupon

Wilde Serjt. obtained a rule nisi for a new trial, upon the ground, that upon this special finding, the learned Baron ought to have directed a verdict for the Defendant, the Defendant having limited his warranty to the time of sale, for the express purpose of exempting himself from liability for the consequences of a splint visible to all who inspected the horse. If, therefore, there were no symptoms of lameness when the contract was made, the Defendant's warranty was satisfied.

Spankie Serjt. shewed cause. As the Plaintiff could himself have ascertained whether or not the horse was lame at the time of the contract, the warranty would have been useless and unmeaning if it did not imply that, at the time of the contract, the horse was exempt from any infirmity which might occasion subsequent unsoundness. Now he was not so exempt: for he had a splint, which turned out to be the cause of the subsequent unsoundness. And a splint is not one of those patent defects, such as blindness or broken knees, on the subject of which a warranty is inoperative; for it is only by the event that it can be ascertained whether the splint is or is not of a mischievous nature. It was a defect, therefore, against the consequences of which the Defendant might give a warranty; Liddard v. Kain (a); and the object of the warranty was to assert that this was an innocent splint.

(a) 2 Bingh. 183.

1832.

MARGETSON

บ.

WRIGHT.

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