2i8 ACTIONS AT LAW. 



alleging as the breach that it was not ' quiet to ride and 

 drive,' nor was it ' seven years old.' In the result, an action 

 was commenced in the Newcastle District Registry of the 

 High Court of Justice for the price of the cob, £24 3s, The 

 action was sent down to be tried before me, with the writ, 

 without pleadings. In the course of the trial, Mr. Joel 

 withdrew his defence, so far as related to ' quiet to ride and 

 drive,' and took his stand upon ' seven years old.' He 

 contended that these words, which the auctioneer admitted 

 he had read out from the catalogue at the time of putting 

 up the lot for sale, constituted a warranty that the horse 

 was seven years old. He called, in support of his conten- 

 tion, Mr. Elphick and Mr. Hunter, both veterinary surgeons 

 of experience and repute, who both positively swore from 

 an examination of the cob's mouth that it was more than 

 fifteen years old. On the other hand, the plaintiff swore 

 that, to the best of his belief, the cob was seven years old. 

 He stated that he had bought it of one Graham, a horse 

 dealer, who did not warrant it, but who told him, inter alia, 

 that he believed it was seven years old. Graham was 

 called and confirmed this. Both Graham and the plaintiff 

 swore that it was very difficult, if not impossible, to form a 

 positive opinion of a horse's age after six, or at most, eight 

 years old, from an examination of its mouth ; and I confess 

 that the contrary opinions, sworn to by Messrs. Elphick 

 and Hunter, very much surprised me. This evidence 

 would, of course, be very material if we were dealing with 

 an admitted warranty. But though it seemed necessary 

 to refer to it to make the facts intelligible, it is not really 

 before me. In my view of the case, there is a preliminary 

 question to be solved. Is an allegation in a catalogue of 

 sale by auction that a horse is seven years old a warranty 

 of that fact by the seller, or is it mere description or repre- 

 sentation ? Now, it is well settled that every statement 

 as to soundness or other qualities which the seller of a horse 



