285 



taxation of costs before the Master, that the suit 

 m which the costs were taxed was conducted by 

 his employer from motives of charity on behalf of 

 the plaintiff, it was held that the clerk was 

 such an agent as to bind his master by such 

 'admission." 



It was contended by Scarlett, that there was 

 nothing in this case to take it out of the general 

 rule of law, which excluded hearsay evidence ; 

 for in the case of an action upon the warranty 

 of a horse, sold by a servant for his master, the 

 servant's declaration of soundness w^ould not be 

 evidence to prove a warranty by the master. — 

 Chief Justice Abbot : " The case supposed was 

 distinguishable from the present, because there 

 was not, in the instance of a groom's selling a horse 

 for his master, that direct and positive agency 

 which existed on the fact of an attorney's clerk 

 attending to tax the costs of an action conducted 

 by his employer." 



It is also necessary for the purchaser to take 

 care that his warranty is very distinctly expressed, 

 so as to fix a liability with certainty upon the 

 actual vendor; for in Symonds v, Carr, 1 Camp- 

 bell, 361, it was held, that if an agent for the 

 sale of horses sells to a man in one lot, and at one 

 entire price, a horse belonging to B, and another 



