196 



PLEADING, EVIDENCE AND DAMAGES. 



Condition an- 

 nexed to a 

 Warranty. 



liaci been of opinion that the words were added afterwards . 

 by the plaintiff, it would have been his duty to have im- 

 pounded the Receipt for ulterior purposes {n). 



Where the defendant relies on a condition annexed to 

 a Warranty according to a Notice of certain Rules of Sale, 

 it appears that luiless the matter relating to the Notice has 

 been by way of Proviso upon the Warranty, such condition 

 must be set out in the Statement of Defence. Thus, in an 

 action of Assumpsit on a Breach of Warranty, the De- 

 claration stated that, in consideration that the plaintiff 

 would buy of the defendant a Mare at a certain price, 

 the defendant promised that she was sound. The de- 

 fendant pleaded, among other pleas, that the Mare was 

 sent to Lucas's Repository, to be sold according to cer- 

 tain Rules, which were as follows : " Terms of private 

 sale. A Warranty of Soundness, when given at this Re- 

 pository, will remain in force until twelve o'clock at 

 noon of the day next after the day of sale, when it will 

 be complete, and the responsibility of the Seller will ter- 

 minate, unless in the meantime a Notice of the contrary, 

 accompanied by the Certificate of a Veterinary Surgeon, 

 be delivered at the office of R. Lucas ; such Certificate to 

 set forth the cause, nature or description of any alleged 

 Unsoundness;" that the Sale took place subject to those 

 Rules, and that no Notice was delivered Avithin the time 

 specified. Mr. Baron Parke said, " It appears to me 

 that such plea is not bad as amounting to the General 

 issue. It admits the Contract and the Promise, but shows 

 it to have been made subject to certain Rules, Avhich have 

 not been compHed with. "What is the meaning of those 

 terms? It seems to me to be this, that the Warranty 

 shall be deemed to have been complied with, unless a 

 Notice and Certificate shall be delivered to the Vendor 

 before twelve o'clock at noon of the day next after the day 

 of sale. That is not a denial of the Warranty, but of a 

 mere Condition annexed to it. No Notice and Certificate 

 were delivered, and therefore the Contract is to be con- 

 sidered as compilied with. If the matter relating to the 

 Notice had been by way of Proviso upon the Warranty, 

 it might perhaps have been necessary to state it in the 

 Declaration ; but upon that point I give no opinion. It is 

 enough to say that every word of this plea is consistent 

 with the Contract stated in the Declaration." 



(w) Bliss V. S/ww, before Mr. Baron Piatt, Ex. N. P., May 12, 18.53. 



