PLEADING AND EVIDENCE FOR THE PLAINTIFF. 183 



to show that he possesses a right of action, and there must 

 be a general averment of performance of conditions pre- 

 cedent (/•), And as the Price has usually been paid when 

 an action is brought on a Breach of Warranty, the Pay- 

 ment, if made, will be included in such an averment, but 

 Payment is not essential to support the action. 



If the False Warranty or Misrepresentation be mis- Statement of 

 stated, and the variance be material to the merits of the ^^^ ^''•l^^ 

 case, it may be that the Judge at the trial will refuse to rrauduleufc°^ 

 amend on the ground that the defendant has been misled or Reprcseuta- 

 taken by surprise. Where an action on the Case was brought ti^u. 

 against a thii-d party for a Misrepresentation on the sale 

 of a Horse, the Declaration stated that the Defendant war- 

 ranted the Horse to be " sound and a good worker," and it 

 appeared in evidence that he wan-anted the Horse " sound 

 in the wind," an objection was taken that the Warranty 

 and Misrepresentation alleged in the Declaration were not 

 proved ; but Mr. Baron Alderson said, " I think the De- 

 claration is substantially proved, and therefore I shall 

 direct the record to be amended imder the recent statute (/). 

 The variance relied upon by the defendant is not material 

 to the merits. The merits are, whether or no the defendant 

 made a Fraudulent Misrepresentation. It is proved that 

 he did; and the terms of the Misrepresentation are not 

 quite accurately stated in the Declaration, it is clear that 

 the defendant cannot have been misled by the statement. 

 If he had, I would not amend. But he comes here to de- 

 fend himself from the charge of having made a Fraudulent 

 Misrepresentation on the occasion of the sale, and whether 

 he represented the Horse to be wholly sound, or merely 

 sound in the wind, makes no difference to the merits." 

 After this amendment a verdict was foimd for the plain- 

 tiff (m). 



A Breach must always be stated in the Statement of Statemcut of 

 Claim, so that the cause of complaint may appear (y?). If t^*^ Breach, 

 the contract be in the disjunctive the breach ought to be 

 assigned that the defendant did not do one act or other ; 

 as on a promise to deliver a Horse by a particular day or 

 pay a sum of money (o). It is a liule in Pleading that 



{h) SeeBul. N. P. 146;andi2i«-7 c. 75, s. 222; and Ord. XXVII. 



V. Roxbroufjh, 2 Tyr. 468; S. C. 2 & rr. 1—6. 



J. 418; and 1 Chit. Pleading, 6th ed. {^i) Brickhead v. Arclihisho}) of 



296 ; 15 & 16 Vict. c. 76, s. 57. York, Hob. 198, 233. 



{I) 3 & 4 Will. 4, 0. 42, s. 23. (o) Com. Dig. Pleader, C. ; Wright 



\m) Marsh v. Densham, 1 M. & v. Johnson, 1 Sid. 440, 447; Alchcrnj 



Rob. 442 ; and sec 15 & 16 Vict. v. Walh'j, 1 Stra. 231. 



