48 HORSE WAUKANTY. 



No bettor test can bo given of tbo fact wbotbcr 

 ptatcmonts arc or are not a warranty tban tbat 

 given by ^Ir. Benjamin in liis book before 

 (luotod. llo says : " In determining whether it 

 (that is, a warranty) was intended ; a decisive test 

 is, whether the vendor assumes to assert a fad of 

 whieli the buyer is ignorant, or merely states an 

 opinion or judgment upon a matter of which the 

 vendor lias no special knowledge, and on which 

 the buyer may be expected also to have an opinion 

 or to exercise his judgment. In the former caso 

 there is a warranty, in the latter not." 

 ^rero When a representation is made during the 



tXu m,' course of a dealing, wliich leads to a bargain, and 

 Avarraiity. ^^^^^^ representation afterwards becomes an in- 

 trinsic part of the bargain, it constitutes a war- 

 ranty ; but a representation made by a seller to a 

 buyer to induce the latter to buy, which however 

 does not form any part of the contract, is not a 

 warranty. No arti(jn will lie upon a misrepre- 

 sentation only. The Exchequer Chamber said, 

 in Ormrod v. llutli {e) : " The rule which is to be 

 derived from all the cases appears to us to be that 

 where upon the sale of goods the purchaser is 

 satisfied without requiring a warranty (which is 

 matter for his own consideration) ho camiot recover 

 ui)on a mere representation of tho quality by tho 

 seller, unless he can show that such representation 

 was bottomed in fraud.'' 



(«■) IJ M. i; W. 001. 



