280 



words subsequently used may acknowledge that a 

 warranty was given at the time of contract, and 

 the following case is quoted on that point : — 



Payne against Whale, 7 East. 274.— " After a 

 warranty of a horse as sound, the vendor in a sub- 

 sequent conversation said, that if the horse were 

 unsound, (which he denied,) he would take it again, 

 and return the money. This is no abandonment 

 of the original contract, which still remains open ; 

 and though the horse be unsound, the vendee must 

 sue upon the warranty, and cannot maintain 

 assumpsit for money had and received, to recover 

 back the price after a tender of the horse." 



This case is usually quoted as an authority on 

 a point of pleading, that an action will not lie for 

 money had and received under the circumstances 

 stated, but the original contract remaining in esse, 

 the proper remedy is by an action on the case. I 

 refer to it however, because the expression used 

 by the defendant is one frequently used by 

 dealers : " If the horse were unsound, he would 

 take it again, and return the money." There was 

 no other proof of the original bargain than this 

 conversation ; and Mr. Justice Le Blanc observed, 

 that it amounted to a recognition by the defendant 

 that he had in the first instance warranted the 

 horse to be sound. I may observe however, that 



