IN SEARCH OF A HORSE. 315 



warranty of a horse as sound, the vendor in a subse- 

 quent conversation said, that if the horse were un- 

 sound, (which he denied,) he would take it again, and 

 return the money. This is no abandonment of the 

 original contract, which still remains open, and 

 though the horse be unsound, the vendee must sue 

 upon the warranty, and cannot maintain assumpsit 

 for money had and received, to recover back the 

 price after a tender of the horse." 



This case is usually quoted as an authority on a 

 point of pleading, that an action will not lie for 

 money had and received under the circumstances 

 stated, but the original contract remaining in esse, 

 the proper remedy is by an action on the case. I 

 refer to it, however, because the expression used by 

 the defendant is one frequenly used by dealers : "If 

 the horse were unsound, he would take it again, and 

 return the money." There was no other proof of 

 the original bargain than this conversation ; and Mr. 

 Justice Le Blanc observed, that it amounted to a re- 

 cognition by the defendant that he had in the first 

 instancewarranted the horse to be sound. I may ob- 

 serve however, that if it was a recognition of the war- 

 ranty, it seems also to have been a recognition of the 



