326 



it is true at the time of making it. If a horse which 

 is warranted sound at the time of sale, be proved 

 to have been at that time unsound, it is not neces- 

 sary that he should be returned to the seller. No 

 length of time elapsed after the sale, will alter the 

 nature of a contract originally false. Neither is 

 notice necessary to be given ; though the not giving 

 notice will be a strong presumption against the 

 buyer, that the horse, at the time of sale, had not 

 the defect complained of, and will make the proof on 

 his part much more difficult. The bargain is com- 

 plete, and if it be fraudulent on the part of the 

 seller, he will be liable to the buyer in damages, 

 without either a return or notice.'^ 



Mr. Justice Wilson, in delivering the same 

 opinion, referred to a case tried before Mr. Justice 

 Buller, at ISlisi Prius, where the defendant had sold 

 the plaintiff a pair of coach horses, and warranted 

 them to be six years old, while they were only four; 

 and it was contended, that the plaintiff ought to 

 have returned the horses, but held by Buller, that 

 the action might be supported without a return. 

 On turning to this case, however, which is men- 

 tioned by Mr. Justice Buller himself, in Towers v. 

 Barrett, 1 T. R. 136, the learned judge seems 

 to have expressed himself a little at variance with 

 the above doctrine, that is founded by Mr. Justice 



J 



