PLEADING AND EVIDENCE FOR THE PLAINTIFF. 189 



support a Tender, inasmuch as there was no specific appro- 

 priation of any part of the 19s. 6(1. to the lOs. claimed in 

 respect of the trial of the Horse (/<•) . 



Where the Promise or Warranty has been made by word A Warranty 

 of mouth, the plaintiff or some party who heard it given not contained 

 must be called to prove it. AVhere the Promise or War- Receipt, 

 ranty is to be gathered from letters which passed between 

 the parties, or was formally made in writing, and this in 

 the case of a Warranty is usually contained in the same 

 instrument as the Receipt, they should be put in and read. 



The buyer may give evidence of a Warranty, although 

 in a note of the sale and receipt for the money, given by 

 the seller after the conclusion of a parol contract, there be 

 contained no notice of any Warranty. Thus the defendant 

 sold his Horse at Aldridge's Repository, and said at the 

 time of sale that if he did not work well, and go quietly in 

 harness, the plaintiff was to send him back, and he should 

 have his money returned. The plaintiff bought him and 

 received the following memorandum : — 



" Bought of Gr. Pink a Horse for the sum of 71. 2s. M. 



a. Pink." 



The Horse when put into harness was found to be un- 

 ruly and vicious, and was accordingly returned to the de- 

 fendant. The price was demanded back, and on its being 

 refused an action was brought to recover it. It was held 

 by the Com-t of Exchequer, that parol evidence might not- 

 withstanding be given of the Warranty (/). 



But a Warranty contained in a Receipt is not always Warranty in 

 conclusive evidence that a Warranty has been given. For ^ Receipt not 

 where some hours after bargain the defendant sent his elusive '^°^" 

 coachman to pay the plaintiff the money, and the coach- 

 man drew out the following Receipt, which was signed by 

 the plaintiff, an illiterate man, " Received 10/. for a Colt 

 warranted sound ;" it was held to have been properly left 

 to the Jury to find whether the Warranty of the Colt 

 formed any part of the bargain, or was inserted in the 

 Receipt without authority, by an after-thought of the de- 

 fendant's Servant [m) . 



It is not necessary that a written Warranty should Written 

 have an Agreement Stamp. This was so decided in the Warranty 

 following case, where the plaintiff gave in evidence a A^eemeut 



Stamp. 

 [k) Hardingham v. Allen, 5 C. B. (/«) Falnnaner v. Budd, 7 Bing. 



796. 575. 



(/) Allen V. Pink, 4 M. & W. 140. 



