MISREPRESEXTATIOX, 35 



made by the auctioneer when the horse was exposed and 

 sold ; it was held that, as the horse then was, and formerly 

 had been lame in both shoulders, and had a sprained hind 

 leg, which were old faults that were not visible at the sale 

 by reason of the softness of the ground, and the seller 

 declined to say who the gentleman to whom the horse 

 belonged was, he was liable in repetition of the price, (a) 

 Again, where the seller of a mare on being told by the 

 buyer that he wanted " a quiet, useful and thankful animal," 

 answered, " that the beast was canny and serviceable in 

 every respect, and particularly in riding," whereupon she 

 was bought at a fair price ; it was held, although the evi- 

 dence was contradictory, that as the seller was aware she had 

 " tricks," he was bound to take her back and repay the 

 price. (6) In these cases the facts misrepresented were held 

 material ; but in the following case, though there was mis- 

 representation, it was held not to be of a material fact. A 

 party bought a horse under a written warranty, which 

 described him as " my dark bay horse," and as " safe in 

 harness ; " and the seller had verbally represented that the 

 horse had been sent to him for sale by a gentleman in Eng- 

 land, whereas he had bought him from a gentleman in Leith, 

 who parted with him because he had been on one occasion 

 vicious in a m^, which the seller knew and did not disclose : 

 and, after being kept for two months, the horse became 

 restive in a gig, but this was attributable partly to the blame 

 of the buyer. It was held on an action on the warranty, 

 that the verbal misrepresentation as to the former owner of 

 the horse was not sufficient to annul the sale (the written 

 warranty being silent as to the former owner). (c) Lord 

 Chancellor Eldon observed in that case : — " The object of the 

 misrepresentation must have been to prevent inquiries which 

 might lead to the rejection of the horse. But that mis- 



(rt) Brotvn v. Gilbert, 1791, Hume, 671. 

 (6) Bcddie v. Milroy, 1812, Hume, G95. 

 (c) Gcddes v. Pcnninr/ton, 1814, 17 F.C. 606 ; afF. 1817, 6 Pat. App. 312. 



