190 



PLEADING, EVIDENCE AND DAMAGES. 



Where au- 

 thority to 

 warrant need 

 not be 

 proved. 



Where 

 authority to 

 warrant must 

 be proved. 



Proof of a 

 power to 

 rescind. 



Proof of 

 Fraudulent 

 Representa- 

 tion. 



Proof of the 



■written instrument signed hy the defendant, wliicli had a 

 Receipt Stamp, and contained a Receipt for the price of 

 the Horse, with the words subjoined, "warranted sound." 

 It was objected that it could not be read in evidence for 

 the purpose of proving the Warranty without an Agree- 

 ment Stamp. But on the authority of Mr. Justice LaAv- 

 rence, in Broicne v. Frye {n), Lord Ellenborough held 

 that such a Receipt might be received to prove the War- 

 ranty, as Avell as the Payment of the Price of the Horse, 

 with a Receipt Stamp only (o) ; and a Warranty comes 

 within the exception in the schedule of 33 & 34 Yict. 

 c. 97 (the Stamp Act, 1870), as it is an Agreement re- 

 lating to the Sale of Groods, Wares and Merchandizes. 



Where a Servant employed to sell and receive the price 

 has given the Warranty, it is enough to prove that it was 

 given by him, without calling him or showing that he 

 had any special authority for that purpose (p). 



But the WaiTanty of a person merely entrusted to 

 deliver a Horse, is not prima facie binding on ihe. Prin- 

 cipal, but an express authority must be proved (^7) . So 

 also where an Agent makes an alteration in a Warranty 

 given by his Principal, a special or general authority 

 must be shown (r). 



Where a power to rescind is one of the terms of a 

 verbal contract for a Plorse, some witness to the trans- 

 action must be called to prove it («). Where, however, 

 there is a ■written Contract, and such power ajipears as 

 one of the terms, it is proved by putting in the docu- 

 ment ; but if it do not so appear, or if it were given in a 

 subsequent conversation, it is inoperative, and the original 

 Contract as proved still remains open [t) . 



We have seen in the Seventh Chapter what constitutes 

 a Fraudulent Ftcprescntation, so as to support an action 

 for deceit. And it may be laid down as a Rule, with 

 regard to the proof of the Scienter or Fraud, that where a 

 Representation is false to the knowledge of the party making 

 it, this is in general conclusive evidence of Fraud {u) . 



Where the Breach of Warranty {x) is Unsoundness, 



[n) Bro icne v. Frije, cited in Shine 

 V. Elmore, 2 Camp. 407. 



(o) Sh-inc V. Elmore, 2 Camp. 407. 



{p) Alexander Y. Gibson, 3 Camp. 

 555. 



(q) Woodin v. Burford, 2 C. & M. 

 391; S. C. 4Tp-w. 264. 



(>•) Strode v. Dyson, 1 Smith, 400. 



(.s) As to unfitness, see Breach of 

 Warranty, ante, Chap. 8. 



{t) Payne v. Whale, 7 East, 274. 



[u) In the Exchequer Chamber, 

 Ormrodv. Iluth, 14 M. &W. 6G4. 



(.(■) See Breach of Warranty, 

 ante, Chap. 8. 



