WARRANTY. 159 



His direction would have been less subject to 

 misapprehension if he had left it to them in the 

 terms of the warranty to say whether the horse was, 

 at the time of the bargain, sound in wind and limb, 

 saving those manifest and visible defects which 

 were known to the parties ; the jury might then 

 have considered whether the effect which might 

 be produced by the splint was contemplated or 

 not. 



At the second trial the jury found that the animal 

 was not sound at the time of sale, owing to the 

 splint, which was situated in a position particularly 

 liable to lead to the production of lameness. 



In another case defendant sold a horse to plaintiff, 

 giving a general warranty of soundness, pointing 

 out the presence of splint. In due course the 

 animal developed lameness, ascribed to the splint, 

 and the plaintiff argued that this was a breach of 

 warranty. 



Pollock, C.B., gave his judgment in the follow- 

 ing terms : — 



" The rule is asked for on the ground that when 

 you point out a splint to the purchaser you except 

 it out of the warranty. It may be so, if the horse 

 be blind, or has any other patent defect that can be 

 seen and is clear ; but here it may well be that the 



