WARRANTY. 113 



Patent Defects. 



Kot covered hy a Warranty .... 133 



In xchat they consist id. 



How far the loss of an Eye is 



patent id. 



" Briffht JEye" 134 



Convexity of Eye id. 



Where the Buyer knows the De- 

 fect 134 



Where Defects are discussed .... id. 

 Conclusion to be drawn from the 



Cases 136 



Suspected Defects 137 



Furchase without Inspection .... id. 



WARRANTY. 



In buying a Horse, as well as in making an Exchange, Warranty 

 the maxim caveat emptor is the Rule of law, and a party required m 

 who has got an unsound Horse has in neither case any HOTget 

 remedy unless there be evidence either of express Warranty 

 or of Fraud. For in the general sale of a Horse the seller 

 only warrants it to be an animal of the description it ap- 

 pears to be, and nothing more ; and if the purchaser makes 

 no inquiries as to its soundness or qualities, and it turns 

 out to be unsound or restive or unfit for use, he cannot re- 

 cover as against the seller, as it must be assumed that he 

 purchased the animal at a cheaper rate {a). 



According to the Roman law ib), and in France (c) and Warranty of 

 Scotland, and partially in America {d), there is always an *^*^^- 

 implied contract that the vendor has the right to dispose 

 of the article which he sells. 



But by the law of England there is no implied "War- Not implied 

 ranty of title in the contract of sale of a personal chattel ; ^a^i^d^ 

 and, in the absence of fraud, a vendor is not liable for a ° 

 defect of title, unless there be an express warranty, or an 

 equivalent to it, by declaration or conduct ; and the ques- 

 tion in each case, where there is no Warranty in express 

 terms, will be, whether there are such circumstances as to 

 be equivalent to such a Warranty (e). 



But a wide construction has been put upon " the cir- How it may 

 cumstances which may be held to be equivalent to an ^^ inferred, 

 express Warranty." Indeed Lord Campbell has said, that 

 if by the law of England the maxim caveat emptor applies 

 on a sale of personal property, the exceptions have well- 

 nigh eaten up the rule (/'). And this dictum was quoted 

 with approval by Erie, C. J., in Eicholz v. Bannister (g). 

 Thus, it seems that executory contracts must be brought 



(«) Jones Y. Bright, 3 M. & P. 175. {e) Per Parke, B., Morley v. At- 



[b] Domat, book 1, tit. 2, s. 2, tenborough, 18 L. J., Ex. 148 ; 

 art. 3. Eicholz v. Bannister, 11 Jur., N. S. 



(c) Code Civil, chap. 4. s. 1, art. 15. 



1603. (/) Sims V. Marryat, 17 Q. B. 



((/) 1 John's Rep. 274 (Amer.) ; 281. 



Story on Sales, 4th Ed. 367. [g) 11 Jur., N. S. 15. 



O. I 



