IN SEARCH OF A HORSE. 283 



There are a few cases in which the doctrine ap- 

 pears to be held that representation simply and 

 without fraud, amounts to warranty. That doctrine 

 is not, however, recognized ; but I will quote the 

 authorities in favor of it : — 



In the case of Tapp v. Lee, 3 Bosanq. and Puller, 

 367, a dictum of Lord Kenyon's is quoted, that he 

 did not think the proof of fraud necessary ; but was 

 of opinion, that if a man made an assertion without 

 sufficient ground, whereby another was injured, he 

 rendered himself liable to an action. 



In Wood V. Smith, 4 Carrington and Payne, 41, 

 Mr. Justice Bay ley held that "whatever a person 

 represents at the time of a sale is a warranty." 



Also in the case of Hellyer v. Hawkes, 5 Espi- 

 nasse, 72, the answer given to the inquiry whether 

 the horse was free from vice, was simply in the 

 affirmative, unattended by circumstances of fraud; 

 yet no question appears to have been raised whether 

 this amounted to a warranty. 



On the other hand it is undoubtedly laid down as 

 an established point, in many instances, that fraud 

 is the gist of the action ; and this being the state of 

 the law, I must caution my readers that they cannot 



