242 APPENDIX. 



Ill— ISSUES. 



1. Issues adjusted to try a question as to breach of special warranty, 

 ■where repayment of the price was demanded : — 



"Whether, on or about the 9th day of June, 1852, the 

 defenders sold and delivered to the pursuer a bay gelding for 

 the price of £180 sterling, then paid by the pursuer to the 

 defenders : and whether tlie defenders warranted tlie soundness 

 of the near fore-foot of the said gelding in the following 

 terms : — ' His near fore-foot we Avarrant for six months.' 



*' Whether the said gelding, within the said period of six 

 months, was not sound in the near fore-foot, contrary to the true 

 intent and meaning of said warranty, and whether the pursuer 

 duly and timeously offered back the said gelding to the 

 defenders : and whether the defenders are indebted and resting- 

 owing to the pursuer in the said sum of .£180 the price of 

 the said gelding, with interest thereon from the said 9th day 

 of June, 1852, and in the sum of .£50, for the keep of said 

 gelding or in either of the said sums or any part thereof." 

 —Maule V. Laing, 1853, 15 D. 778. 



2. Issues to try the question whether horses were sold under an 

 express or implied warranty : — 



" (1.) Whether, on or about the 1st day of March, 1854, the 

 pursuers purchased two horses, as a pair, from the defender, 

 at the price of £94, under an express warranty of soundness : 

 and whether one of the said horses was at the time of the 

 said sale unsound. 



"(2.) Whether, on or about the 1st day of March, 1854, the 

 pursuers purchased two horses, as a pair, from the defender, at 

 the price of £94, under an implied Avarranty of soundness : and 

 whether one of the said horses was at the time of the sale 

 unsound."— CroaZZ v. Hunter, 1855, 17 D. 652. 



3. It has been held that horses being " goods " under the Mercan- 

 tile Law Amendment Act, 1856, sec. 5, a pursuer must take an issue 

 of express warranty. " An issue of implied warranty will not do 

 now, but it will come out at the trial from what circumstance an 

 express warranty will be inferred." — Per Lord President jNI'Xeill. 

 The following issue was approved : — " It being admitted that on 31st 

 October the defender sold to the pursuer a horse at the price of £60, 

 and that the horse was delivered and the price paid — Whether the 

 defender gave an express warranty that the said horse was sound : 

 and whetlier tlie horse was at the time of the sale luisound, and the 

 defender is due and rcsting-owing to the pursuer the sum of £60 



