PLEADING AND EVIDENCE FOR THE DEFENDANT. 197 



And Mr. Baron Alderson said, "The meaning of the 

 plea is, that there was a sort of conventional Warranty 

 of Soundness, and that the Warranty was to be considered 

 as complied with, unless a Notice and Certificate of Un- 

 soundness were given within a certain time, which was 

 not done. That is not a denial of the Contract, as alleged 

 in the Declaration." And in this opinion Barons Grurney 

 and Eolfe concurred (o). 



Where an action is brought on a Breach of a Warranty Evidence in 

 of Soundness, the subsequent Recovery of the Horse may Reduction of 

 be i^roved in Reduction of Damages. Evidence may also ^^^^S^^- 

 be given as to the slightness of the disease ; because of 

 com'se, if the disease be slight, the Unsoundness is pro- 

 j)ortionably so, and so also ought to be the Damages ; and 

 if they were very inconsiderable, the Judge might certify 

 to deprive the plaintiff of costs (p). 



In an action for Fraudulent Representation on the Sale Defence to an 

 of a Horse, the defendant may show that he never made action for 

 any Representation on the sale ; or that the Representation ^^^.udulent 

 was honesfl/j made and believed by him at the time, though tion. 

 not true in point of fact ; or that the Horse at the time of 

 sale correspo)ided with the Representation, A statement 

 merely untrue is not sufficient evidence of fraud ; there 

 must be wilful deceit with the object of inducing the 

 plaintiff to act upon it (q). 



The defendant may show that he is not bound by the Disputing the 

 Warranty (r), as where it has been given by a person Warranty. 

 merely entrusted to deliver the Horse (s), or by a Servant 

 after Sale(?'). And where the defendant is neither a 

 HorsedeaJer nor Stahlekeej)er he may prove that the War- 

 ranty was given by an Agent who was expressly /or J /c/ to 

 warrant {u), and that in consequence he had offered to take 

 back the Horse. 



The defendant may show that the Horse at the time of Disputing the 

 sale was Sound, or free from Vice, or that the defect was Unsound- 

 Patent at the time of Sale. And this will depend upon ^®^^' ^^' 

 the same sort of evidence as we have before described (x). 

 The defendant may also show that the Horse was not nnjii 



(o) Smart v. Ilt/de, 8 M. & W. M. 391 ; S. C. 4 Tyrw. 264. 

 723, 728. {t) Hchjer v. Eaivke, 5 Esp. 72. 



[p] Kiddell v. Burnard, 9 M. «&; {n) FeimY.Har7-isoH,ZT.'R,.'tQ\; 



W. 670. See Dawson v. CoUis, 10 and Scotland {Bank) v. Watson, I 



C. B. 532. Dow, 45. 



{q) Orm}-odv.IIuiJi,liM.&W.65l. (x) Evidence as to Unsoundness, 



(>•) See Warranty, Chap. 5, ante. ante, p. 191; Patent Defects, Chap. 



(«) Woodinf/ V. Biirford, 2 Cr. & 5, ante. 



