PATENT DEFECTS. 135 



that is, whether under the circumstances of the case the 

 seller undertook that they should not impede the natural 

 usefulness of the Horse. This appears in the following 

 case : — where an action was brought for a breach of War- 

 ranty on the sale of a Racehorse, the terms of which were, 

 "And the said Mr. Wright (the defendant) doth hereby 

 warrant the said Horse to be sound wind and limb at this 

 time," two subjects, namely. Crib-biting (d) and a Splint (e) 

 on the off-fore leg, were discussed by the parties at the 

 time of the bargain, and after that discussion, the War- 

 ranty in question was given. The Horse soon became 

 lame and afterwards broke done. On the case being tried, 

 the Jury returned a verdict for the plaintiff. 



Chief Justice Tindal, in making a rule for a new trial 

 absolute, said, " It is laid down in the older books, that 

 where Defects are apparent at the time of a bargain, they 

 are not included in a Warranty, however general the 

 terms may be, because they can form no subject of deceit 

 or fraud ; and formerly the mode of proceeding for a 

 breach of Warranty was by an action of Deceit grounded 

 on an express fraud, and the averment in the declaration 

 was warraniizando vendklitP 



" Although, however, certain exceptions may be grafted 

 on a contract of Warranty, yet in this case no fraud or 

 deceit can be attributed to the defendant, as the Horse's 

 defect was manifest, the Splint not only being apparent 

 but made the subject of discussion before the bargain was 

 made. If a person purchase a Horse, knowing it to be 

 blind, he could not sue the seller on a General Warranty 

 of soundness, although he had warranted the animal to 

 be sound in every respect. The Splint was known to 

 both the plaintiff and the defendant, and the learned 

 judge left it to the Jury to say whether the Horse was fit 

 for ordinary purposes. His direction would have been 

 less subject to misapprehension, if he had left it to them in 

 the terms of the Warranty to say whether the Horse was, 

 at the time of the bargain, sound wind and limb, saving 

 those manifest and visible defects which were known to 

 the parties ; the Jury might then have considered whether 

 the effect which might be produced by the Splint was 

 contemplated or not " (./). 



When the case was again tried the Jury found for the 



{d) Crib-biting, ante, p. 84. (/") Maryetson v. Wrighl, 5 M. & 



[e) Splint, ante, p. 103. P. 610. 



