PLEADING AND EVIDENCE FOR THE DEFENDANT. 195 



action is broiig-lit hy the seller to recover the Price or Reduction of 

 Yalue of a Horse or any other goods, that the buyer Damages, 

 should be at liberty to show the Breach of Warrant// in 

 Reduction of Damafies (/). 



And where a Horse is bought warranted Sound, and Defence for 

 part of the Price is paid, and on turning out Unsound, he ^s.^i*^^^ of the 

 is found to be w^orth no more than that sum, it is a good 

 defence to an action for the residue. Thus in the follow- 

 ing case, it appeared that the plaintiff sold to the defen- 

 dant a Horse, warranted sound, for twelve guineas, of 

 which the defendant had paid three. In fact, the Horse 

 was not sound ; and the defendant refusing to pay any 

 more, an action was brought to recover the Pesidue of 

 the Horse's Price. It was proved that the Horse, at the 

 time of sale to the defendant, was not worth more than 

 \I. lis. Qd., and the defendant afterwards sold it for 

 11. 10s. On these facts Lord Kenyon held that the plain- 

 tiff could only recover the value ; and more having been 

 paid to him by the defendant, he was nonsuited (/<•) . 



Wliere an action is brought to recover back the Price Defence for 

 paid for a Horse, on failure of consideration, as Money had ^o/^^y ^.^^^ 

 and received., the defendant may show that he never received 

 the Price, or that he never warranted, or that there was no 

 Bread) of Warranty, or that there was no Rescission of the 

 contract, or that there was no power to rescind, or no Tender 

 of the Horse, or that being sold on trial, it was kept longer 

 than was necessary for such trial (/). 



The defendant in an action on a Breach of Warranty Defence to an 

 may deny the Warranty, or he may show that, at the 5°*^°^]^°^/ 

 time of Sale, the Horse ansicered his JFa r ra n t y, ^Yhet\ler it Warranty. 

 were Soundness, Freedom from Vice, Fitness for a par- 

 ticular Pm-pose, &c. (m). 



The defendant may prove that the Warranty was added Surreptitious 

 to the form of receipt unknown to him. Thus, in an Warranty, 

 action brought on the Warranty of a Horse, the Jury 

 gave a verdict for the defendant, being of opinion that 

 the Warranty had been surreptitiously introduced into 

 the Eeceipt by the Plaintifi before it was signed by the 

 defendant. And ]\Ii'. Baron Piatt said, that if the Jmy 



(j) FoiiUon V. Lnttimore, 9 B. & 481. 

 C. 265 ; Momlel v. StceJ, 8 M. & W. (/) Street v. Bhiy, 2 B. & Ad. 450 ; 



858 ; »S'. C. 1 D. N. S. 8 ; Farsons v. and seeBatvsonv.Collis, 10 C. B. 532. 

 Sexton, 4 C. B. 908 ; (S'. C. IG L. J., (;«) See evidence as to Unsound- 



C. P. 184. uess, Vice and Unfitness, ante, pp. 



(/■■) Khnix. Boston, cited 7 East, 191, 192. 



o2 



