253 



with a secret malady, without warranting it to be 

 sound, he is not liable ; that is, if there be no fraud. 

 The instances are familiar in the case of horses. 

 It is known that they have secret maladies which 

 cannot be discovered by the usual trials and in- 

 spection of the horse — therefore the buyer requires 

 a warranty of soundness in order to guard against 

 such latent defects. Then how is this case different 

 from the sale of a horse, where it is admitted that 

 the buyer must stand to all such latent defects ? " 



There are a few cases in which the doctrine ap- 

 pears to be held that representation simply and 

 without fraud, amounts to w^arranty. That doctrine 

 is not, how^ever, recognized ; but I will quote the 

 authorities in favour of it : — 



In the case of Tapp v. Lee, 3 Bosanq. and 

 Puller, 367, a doctrine of Lord Kenyon's is quoted, 

 that he did not think the proof of fraud necessary ; 

 but was of opinion, that if a man made an asser- 

 tion without sufficient ground, whereby another was 

 injured, he rendered himself liable to an action. 



In Wood V. Smith, 4 Carrington and Payne, 45, 

 Mr. Justice Bayley held that " whatever a person 

 represents at the time of a sale is a warranty." 



Also in the case of Hellyer v. Hawkes, 5 Es- 

 pinasse, 72, the answer given to the inquiry whether 

 the horse was free from vice, was simply in the 



