PATENT DEFECTS 413 



It should be noticed that, as the hiw now stands, a written warranty 

 can be varied by parole evidence {Graves v. Key, 3 B. v. Ad. 313, 1832). 



A distinction should also be drawn between patent defects, which are 

 the defects of disease, accident, &c., and such as are in the nature of 

 natural malformations. 



These latter are patent, and may seriously interfere with a horse's 

 action, as where it is cow-hocked, but a warranty will not cover them. 

 Whether curby hocks are a natural malformation or not is a moot-point, 

 and in Broivn v. Elkington (8, 7 v. AV. 132, 1841) the jury, under the 

 judge's direction, found for the defendant on the ground that curby hocks 

 are not, like splints, symptoms of disease, but malformation for which the 

 seller is not liable. 



One question that naturally suggests itself in connection with this 

 subject of patent defects is, what is the position of dealers in respect of 

 it? These, it is clear from their special training, are better able to judge 

 of, and would be quicker to notice, defects than an ordinary or unskilled 

 person, and defects that would not be patent to the latter might be so 

 to them. The answer is that the law makes no distinction between skilled 

 and unskilled persons in respect of patent defects, but the former are 

 placed in the same favourable position as the latter in this respect. 

 And rightly, as a man's special skill should not be pleaded to his dis- 

 advantage. Of course, where defects are so patent as to be obvious to 

 any one, neither a dealer nor a private person would be protected by a 

 warranty. Many defects are obvious to any one, as, for instance, broken 

 knees and severe lameness. Vice, too, can hardly be concealed. Very 

 often, however, a warranty is impugned when the buyer only is in fault. 

 A horse that was perfectly free from vice when sold may be rendered 

 vicious by cruel or improper treatment; or a horse that was perfectly 

 quiet to ride or drive in the hands of its former owner may become restive 

 from want of exercise and from high feeding. 



Defects, of course, that are not patent may be covered by a warranty; 

 but so indeterminable is the law of patent defects as applied to horse 

 warranty, that many dealers refuse to give warranties either absolutely 

 or for more than a certain time. We have already shown that a warranty 

 given by Messrs. Tattersall at their weekly sales at Albert Gate extends 

 only to two days, and a common warranty from Horncastle Fair lasts 

 twenty-eight days. 



Vol. ni. 92 



