GEXERAL, EXPRESS, AND IMPLIED WARRANTIES. 51 



ranty of quality from a full price. But in dealing with the 

 evidence of a Avarranty, it must be kept in view, first, that 

 the words must amount to an express warranty as contrasted 

 Avith representation, or assurance, or statements of belief of 

 quality ; and secondly, it must be proved to what specific 

 element of quality the warranty was intended to apply." (^0 

 The oth section of the statute in which these words occur 

 contains a proviso excluding implied warranties " where the 

 seller was without knowledge that the goods were defective 

 or of bad quality, . . . unless he has given an express war- 

 ranty or sold them for a specific purpose," and it applies to 

 the sale of horses, (b) Previous to this the Scotch was similar 

 to the English law, by which, when a warranty of soundness 

 is given generally, the seller is not liable for defects distinctly 

 obvious to the purchaser ; and, on the other hand, a buyer 

 who purchases on the faith of a warranty, and neglects to 

 make a minute examination, is protected against defects 

 which, though not apparent, might have been readily 

 detected by such an inspection, (c) But what if a seller, 

 charging a full price with knowledge of defect, sell a horse 

 without an express warraiity and not for a specific purpose ? 

 Does the implied warranty of the old law still apply ? This 

 question was touched in a recent case, (d) which was decided 

 upon the ground of false representation, Avhere a mare was 

 sold by auction with a descrijDtion in the catalogue by the 

 seller's instructions as " having been driven regularly in 

 double and single harness." In an action for the price it 

 was held, after a proof that the mare was not fit to be so 

 driven, and that the seller was aware of this, that he was not 

 entitled to recover — (1) in respect of the implied warrandice 

 at common law (the first branch of § 5 of the Mercantile 

 Law Amendment Act not being appHcable, as the seller was 

 not without knowledge of the defect) ; and (2) of the implied 



(a) Rose v. Johnston, 1878, 5 R. 600, 603. 



(6) Young \, Giffcn, 1858, 21 D. 87 ; for issues, see Appx. iii. 



(c) § 9. 



(d) Rough v. iMolr, 1875, 2 R. 529 ; see § 58. 



