220 ACTIONS AT LAW. 



learned author, speaking of the rehef given by courts of 

 equity for misrepresentation, says : ' The misrepresentation 

 must not only be in something material, but it must be 

 something in which the one party places a known trust or 

 confidence in the other. It must not be a mere matter of 

 opinion, equally open to both parties for examination and 

 inquiry, where neither party is presumed to trust the other, 

 but to rely on his own judgment. But if the purchaser, 

 choosing to judge for himself, does not avail himself of the 

 knowledge, or means of knowledge, open to him or his 

 agents, he cannot be heard to say that he was deceived by 

 the vendor's misrepresentations, for the rule is caveat 

 emptor.' Now, I am of opinion that, in the present case, 

 there was no intentional misrepresentation. I think the 

 plaintiff believed, and that he had reasonable grounds 

 for his belief, that the horse was seven years old. I am 

 further of opinion that the words ' Subject to V S examina- 

 tion prior to sale ' was intended to enable the purchaser, 

 and did enable him, to avail himself of skilled professional 

 assistance, if he thought fit to do so. He seems to have 

 chosen to judge for himself. He cannot, therefore, now be 

 heard to say he was deceived, even in a court of equity. 

 Speaking generally, I have been unable to find any direct 

 authority for the proposition that a description of a horse, 

 his age, or qualities, in a catalogue of sale by auction, even 

 though such description be read out by the auctioneer at 

 the time of the sale, is a warranty of the thing or quality 

 so described ; and I am unable to deduce such a proposition 

 from the cases. In the catalogue of sale before me I observe 

 that Lot 7 speaks of a bay gelding, ' Turko,' his height, his 

 qualities as a charger, a hack, a hunter, and otherwise, 

 and then adds ' warranted sound.' Lots 14, 26, 27 and 28, 

 mutatis mutandis, are to the same effect, and all have the 

 words added, ' warranted sound.' Referring to these lots, 

 I asked Mr. Joel whether he would say that the qualities 



