348 THE ADVENTURES OF A GENTLEMAN 



or might not have become a source of unsoundness — 

 namely, crib-biting and a splent — were discovered by 

 the parties at the time of the bargain, and after that 

 discussion, the warranty in question was entered into. 

 Now the older books lay it down, that defects appa- 

 rent at the time of the bargain are not included in a 

 warranty, however general, because they can form no 

 subject of deceit or fraud; and originally, the mode of 

 proceeding on a breach of warranty was by an action 

 of deceit, grounded on a supposed fraud. There can, 

 however, be no deceit where a defect is so manifest 

 that both parties discuss it at the time. A party, 

 therefore, who should buy a horse, knowing it to be 

 blind in both eyes, could not sue on a general war- 

 ranty of soundness. In the present case, the splent 

 was known to both parties, and the learned judge 

 left it to the jury to say wdiether the horse was fit 

 for ordinary purposes. His direction would have 

 been less subject to misapprehension, if he had left 

 them to consider whether the horse w\as, at the time 

 of the bargain, sound wind and limb, save those 

 manifest defects contemplated by the parties. It 

 seems to us, therefore, that the jury may have been 

 in some degree misled, and that the purposes of jus- 



