ACTIONS AT LAW. 219 



may make at the time of the sale in the course of his deaUng, 

 and before the bargain is completed, is a warranty, if it 

 appears to have been so intended. That was the law 

 laid down in the leading case of Pasley v. Freeman (2 

 Smith, L.C., p. 72), and it is the law now. Mr. Justice 

 Buller there said : ' It was rightly held by Holt, C. J., and 

 has been uniformly adopted ever since, that an affirmation 

 at the time of a sale is a warranty, provided it appear in 

 evidence to have been so intended.' And it has been held 

 that whether or not a warranty be intended is a fact to be 

 determined by the jury, upon consideration of all the cir- 

 cumstances. In Budd V. Fairmanner (8 Bingham, p. 48), 

 the receipt was in the following words : ' Received /lo for 

 a four-years-old colt, warranted sound in every respect.' 

 It was held that the warranty was restricted to soundness, 

 the age being mere matter of representation or description. 

 Tindal, C. J., there says : ' A party who makes a simple 

 representation stands in a very different situation from one 

 who gives a warranty. For such a representation he will 

 not be answerable unless it be shown to be false within his 

 knowledge.' No doubt, it would be more prudent in cases 

 of this kind, where it is difficult, or even impossible, to 

 arrive at certain conclusions, to describe a horse generally 

 as ' aged ' instead of particularizing his age ; and it seems 

 strange that so shrewd a class of persons as horse dealers 

 are supposed to be do not act upon this. But that they 

 do not do so is obvious from a cursory inspection of this 

 particular catalogue, in which, out of forty-two lots of horses 

 for sale, no less than eleven horses are described as seven, 

 or eight, or nine years old. But it may be said that Pasley 

 V. Freeman and Budd v. Fairmanner are purely common 

 law cases, decided before the Judicature Acts, which give 

 a contractor the benefit of any equitable doctrine in his 

 favour. But caveat emptor is as much a rule of equity as 

 of law. In Snell's ' Principles of Equity,' p. 387, the 



