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defect, according to the old law concerning warran- 

 ties. But if there be no such warranty, and the 

 seller sells the thing such as he believes it to be, 

 without fraud, 1 do not know that the law will 

 imply that he sold it on any other terms than what 

 passed in fact. It is the fault of the buyer that he 

 did not insist on a warranty; and if we were to say 

 that there was, notwithstanding, an implied war- 

 ranty arising from the conditions of the sale, we 

 should again be opening the controversy which 

 existed before the case in Douglas." Before that 

 time it was a current opinion that a sound price 

 given for a horse was tantamount to a warranty of 

 soundness ; but when that came to be sifted, it was 

 found to be so loose and unsatisfactory a ground 

 of decision, that Lord Mansfield rejected it, and 

 said that there must either be an express warranty 

 of soundness, or fraud in the seller, in order to 

 maintain the action ; and Mr. J. Lawrence ob- 

 serves, " In 1 Rolls Abridgment, p. 90, it is said, 

 that if a merchant sell cloth to another, knowing 

 it to be badly fulled, an action on the case, in nature 

 of deceit, lies against him, because it is a warranty 

 in law. But there is no authority stated to show 

 that the same rule holds, if the commodity sold 

 have a latent defect not known to the seller ; so 

 again the case is there put, if a man sell me a horse 



