50 GENERAL, EXPRESS, AND IMPLIED WARRANTIES. 



implied exclusion of otliers not alluded to in the war- 

 ranty, (a) Thus — e.g., a horse is sold as "for life," or 

 " alive " (a frequent term at auctions) ; this expression 

 means that no warranty of any kind is given, and the buyer 

 takes the horse with all its faults, visible and invisible, 

 and the rule caveat emptor applies. Again, if a horse 

 is sold with a general warranty of " believed sound," such 

 a warranty is limited to what the seller believed, (Ij) but 

 will not exemj)t him from defects which he knew 

 of, or must have known. Again, an action was raised 

 under the following warranty : — "To be sold, a black 

 gelding, five years old ; has been constantly driven in the 

 plough ; warranted." It was held that the warranty applied 

 only to soundness, and it was not necessary to prove the fact 

 of its being constantly driven in the plough, (c) Any war- 

 ranty higher than this, such as " warranted sound," or " this 

 horse is sound,"(c?) is express, and will render the seller liable 

 for any unsoundness except a patent defect. This distinc- 

 tion is more sharply drawn in English than in Scotch law, 

 where the term ' ' express warranty " is more frequently used 

 in contradistinction to the implied warranty of quality for a 

 full price of the law previous to the Mercantile Amendment 

 Act, 1856 ;(e) and, in reading English cases, it must always 

 be kept in view that in English law it is competent, when 

 there is stipulation to that effect, to hold to the sale, and 

 also bring an action of damages on breach of warranty,(/) a 

 remedy not available in Scotch law.((7) Lord Justice-Clerk 

 Moncreiff, referring to the Mercantile Law Amendment Act, 

 said: — " The words ' express warranty ' are used in the statute 

 to exclude and alter the former law, which implied a war- 



(a) § 40. 



(6) Wood V. Smith, 1829, 4 C. and P. 45. 



(c) Richardson v. Brown, 1823, 1 Bing. 344. 



(d) Best, C.J., in Salmon v. Ward, 1825, 2 C. and P. 212. 

 (c) 19 & 20 Vict. c. 60. 



(/) § 37. 



(7) M'CormicJc v. Rittmcyer, 1869, 7 M. 854 ; see as to fraud, § 36. 



