309 



grounded on a supposed fraud. There can how- 

 ever, be no deceit where a defect is so manifest 

 that both parties discuss it at the time. A party 

 therefore, who should buy a horse knowing it to 

 be blind in both eyes, could not sue on a general 

 warranty of soundness. In the present case the 

 splent was known to both parties, and the learned 

 judge left it to the jury to say whether the horse 

 was fit for ordinary purposes. His direction would 

 have been less subject to misapprehension, if he 

 had left them to consider whether the horse was, 

 at the time of the bargain, sound wind and limb, 

 saving those manifest defects contemplated by the 

 parties. It seems to us, therefore, that the jury 

 may have been in some degree, misled, and that 

 the purposes of justice will be better attained by 

 sending the cause to a second inquiry." 



I have before adverted to this doctrine, that 

 apparent defects are not contemplated by a war- 

 ranty of soundness,- but if it is sound doctrine, 

 it certainly is to be received with considerable 

 qualification ; namely, that the defect must be so 

 unequivocal as to be visible to a common observer : 

 except with this reserve, it is difficult to recon- 

 cile it with the case of Buchanan v. Parnshaw, 

 2 Term Reports, 745, where an action was held to 

 be maintainable for breach of warranty, that a 



