270 



is a difference between a warranty and a represen- 

 tation, because a representation must be known to 

 be wrong. INo particular words are necessary to 

 constitute a warranty. If a man says, ^ This horse 

 is sound,' that is a warranty. The plaintiff in his 

 letter, says, ^ You remember you represented the 

 horse to me as a five-year-old ;' to which the defen- 

 dant's answer is, *The horse is as I represented it.' 

 Now, if the jury find that this occurred at the time 

 of the sale, and without any quahfication, then II 

 am of opinion that it is a warranty : if it occurred 

 before, or if it was qualified, then it must be taken 

 to be a representation, and not a warranty." 



It does not, however, appear to follow, that it i»j| 

 competent to the purchaser, at any time, to avail 

 himself of the objection of fraud. This position is 

 scarcely sustained by the first of the following 

 cases ; on the contrary, it seems to imply, that ij 

 deceit has been practised, lapse of time will noi 

 bar the objection; but at all events the case is in 

 point, as regards the principle of representation 

 without fraud ; and, perhaps, without any forced 

 construction, it will warrant the inference that neg- 

 ligence in promptly ascertaining fraud, will bar the 

 action. The case of Prosser i\ Hooper, already 

 quoted, ought to be closely compared with this 

 case on the question of time. 



