134 



warranty; sale and warranty by agent, etc. 



" Bright 

 Eye." 



Convexity of 

 Eye. 



Where the 

 Buyer knows 

 the Defect. 



Where De- 

 fects are dis- 

 cussed. 



perfect in his Eyes, and yet have lost the sight of one or 

 both. Such is the case in Gutta serena, vulgarly called 

 " Glass-ei/e" (s), which is a Palsy of the optic nerve or 

 retina, and being difficult of detection can certainly never 

 be considered a Patent defect. 



This point seems to have been taken in an old case, 

 where it is said, " Lou jeo vend chivaU que ad null Oculus 

 la null action gist; auter/nent lou H ad un counterfeit faux 

 et Bright Eye." " Where I sell a Horse that has no 

 Eye, there no action lies; otherwise where he has a 

 counterfeit, false and Bright Eye^^ {a). Thus it appears 

 that a distinction is here made between a Horse having 

 no eye at all, and having a counterfeit, false oi B rigid one. 

 And probably by Brig/it Eye is meant Glass-eye or Gutta 

 serena ; and the words " counterfeit" and " false" may be 

 an attempt of the Reporter to explain an expression which 

 he did not understand. Because, putting a false Eye into 

 a Horse is very far in advance of the sharpest practices of 

 the present day, or of any former period. 



Thus, too, in a case in which a convexity in the forma- 

 tion of the cornea of the Eye made a Horse short-sighted, 

 and thence induced in him a habit of shying, Lord Camp- 

 bell said that this was not such a defect as the purchaser 

 was bound to take notice of. " There being an express 

 Warranty, he was not bound to examine so closely as to 

 ascertain whether the cornea was so formed as to produce 

 short-sight ; the most prudent man could not be expected 

 to do that" {b). 



But if a person purchase a Horse hiowing it to be Blind, 

 he cannot sue the seller on a general warranty of sound- 

 ness, although he had warranted the animal to be sound in 

 every respect (f) . 



AVhere the buyer observes some Defects, and they are 

 discussed by both parties before sale, and a Warranty is 

 given ; if an action is afterwards brought for a breach of 

 the Warranty, it is a question for the Jury to say whether 

 the Horse is sound in the terms of the Warranty, saving 

 those manifest and visible Defects which were known to 

 the parties. And then if he is sound with these exceptions, 

 they must consider whether the effect which might be pro- 

 duced by any of those Defects was contemplated or not. 



(z) Gutta serena, ante, p. 91. 

 (ffl) Soiitherne v. Eowe, 2 Rol. 

 Rep. 5. 



(i) Hohjdmj V. Morcjan, 28 L. J., 

 Q. B. 9. 



(e) Marfjction v. Wyi'jht, 5 M. & 

 P. 610. 



