130 



warranty; sale and warranty by agent, etc. 



E\idence of 

 ixsage not to 

 warrant. 



Warranty by 

 a Servant 

 after Sale. 



Warranty by 

 a Servant for- 

 bid to give 

 one. 



reserved to tlie defendant to move to enter a nonsuit or 

 for a new trial. The rule was refused. And Willes, J., 

 in tlie course of Hs judgment, said, " David Sheward did 

 not negative the fact that this was an ordinary transaction 

 as between his brother and himself. It must be assumed, 

 therefore, that he negotiated the sale as his brother's 

 Servant or Agent. It was not an isolated instance, though 

 if it had been I do not conceive tliat it would have made 

 any difference ; but it appeared that David Sheward had 

 before assisted the defendant in the sale of Horses. Is it, 

 then, part of the business of a Horsedealer to warrant 

 Horses wliich he sells ? No doubt it is where a sufficient 

 price is given. Upon the whole I think there was clear 

 evidence of authority to warrant. It arose out of the 

 general character of the transaction, and any person 

 dealing with the Agent of a Horsedealer has a right to 

 assume it." 



It was also decided in Howard v, Sheward (/) that evi- 

 dence of the alleged usage amongst Horsedealers not to 

 warrant where the Horse has been examined by a Yete- 

 rinary Surgeon, was not admissible to rebut the inference 

 of authority to warrant. 



What an Agent says as a Warranty or Representation 

 at the time of Sale respecting the thing sold, is evidence 

 against the Principal ; but not what he has said at an- 

 other time, whether to the purchaser, or to a stranger, 

 unless it is a statement accompanying an act done in the 

 course of his agency {g). And Lord Ellenborough said, 

 " If the Servant is sent with a Horse by his master, and 

 which Horse is offered for sale, and gives the direction 

 respecting his sale, I think he thereby becomes the ac- 

 credited agent of his master, and what he has said at the 

 time of sale, as part of the transaction of selling, respecting 

 the Horse, is evidence ; but an acknowledgment to that 

 effect, made at another time, is not so : it must be confined 

 to the time of actual sale, when he was acting for his 

 master. I think, the master having entrusted the Servant 

 to sell, he is entrusted to do all he can to effectuate the 

 sale ; and if he does exceed his authority in so doing he 

 binds his master " (Ji). 



If the Servant of a Horsedealer, with express directions 

 not to warrant do warrant, the master is bound ; because 



(/) L. E., 2 C. P. 148. 5 Esp. 133 ; 1 Tayl. Evid. 4th ed. 



{g) PerErskine, J., Allen v. Ben- 526. 

 Stone, 8 C. & P. 760 ; Peto v. Hague, [It) Helijer v. Eaiche, 5 Esp. 72. 



