172 



BREACH OF WARRANTY. 



Seller sliould 

 have the 

 Horse ex- 

 amined. 



Breach of 

 "Warranty no 

 defence to 

 action on 

 Bill of Ex- 

 chans-e. 



fnless there 

 be a total 

 failure of 

 consideration. 



Sale by order 

 of Court. 



cases of Fielder v. Starlie {n), and Ccmcell v. Coave (o) 

 being referred to. In sho^ving cause, it was contended 

 \hs\k. Fielder v. Starkie [n) was overruled^ or at least qualified, 

 by subsequent cases; but Lord Denman, ^\i\h. the assent of 

 Justices Littledale, Patteson and Coleridge, said, "We 

 think that Fielder v. Starhie is not overruled. The ride 

 must be absolute" {p). 



The Seller, on receiving jNotice of a Breach of War- 

 ranty, should have the Horse examined by some skilful 

 person, and so ascertain the exact state of the case. If 

 he find that the Warranty is broken, or that there is 

 doubt, he had better either take back the Horse, or come 

 to what terms he can with the Buyer, as Horse causes are 

 decided in a great measure l:)y the strength of Veterinary 

 testimony. But if he find that there is really no Breach 

 of AVarranty, the e\ddence of the party who has examined 

 the Horse, will place him in a favourable position in case 

 an action should be brought. 



It seems that if a Bill of Exchange or Promissory Note 

 has been given for goods, which were warranted to be of 

 a particular quality or description, the buyer has no 

 defence, evQU. pro tan to, to an action brought upon the Bill 

 or Note by the Seller, merely upon the ground that the 

 goods are of an inferior quality or description {q) . 



But he may defend on the Bill or Note in toto, if an 

 action be brought by the seller, where there has been a 

 total failure of consideration, provided the buyer has re- 

 pudiated the contract ; the difference being between an 

 action for the priee of goods, and an action upon the 

 security given for them (/•). 



In an action for the Breach of Warranty of a Horse, an 

 order may be made under Ord. LII. r. 2 (Judicature Act, 

 Sched.), for the sale of the Horse, as "goods which for 

 some just and sufiicient reason it may be desirable to have 

 sold at once" (s). 



(w) Fielder v. Starkie, 1 H. Bla. 

 17. 



(o) Caswell V. C'oarc, 1 Taunt. 566. 



(j)) Pateshall v. Tranter, 3 A. <&: 

 E. 103 ; 8. C. 4 Nev. & M. 649. 



{q) See Chit. Contr. 11th ed. 678, 

 and the cases there cited ; Moggruhje 



V. Jones, 3 Camp. 38 ; Knox v. 

 Whallnj, 1 Esp. 159. 



(/•) See Chit. Contr. 11th ed. 678, 

 and the cases there cited. 



(.s) Bartholomew v. Freeman, L. R. , 

 3C.P.D.316; 38L.T., N. S. 814; 

 26 W. E. 743. 



