70 llOKSr. WAKKANTY. 



not exactly bearing on tlie ])oint now under dis- 

 cussion, is of great value in a general conside- 

 ration of the subject, lie said: "The older 

 books lay it down that defects apparent at the 

 time of a bargam are not included in a war- 

 ranty, however general, because they can form 

 no subject of deceit or fraud, and originally the 

 mode of procceiling on a breach of warranty was 

 by an action of deceit, groimded on a supposed 

 fraud. There can, however, 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 sound- 

 ness." lie then goes on to suggest that it would 

 have been better, when the case was tried, to 

 have left certain questions to the jury, to con- 

 sider whether the horse was, at the time of the 

 bargain, sound wind and limb, saving those 

 manifest defects contemplated by the parties, and 

 the Court granted a new trial. ( )n the case 

 going do^\^l the jury again found for the plain- 

 tiff, and, in reply to the learned judge who tried 

 tlie cas(! (Baron Yaughan), who asked them to 

 say whether the horse was sound, or, if unsound, 

 whether the unsoundness ai'oso from the splints of 

 which evidence had been given, said " (hat al- 

 though the horse had exhibited no symptoms of 

 lamen('S.s when the contract was made he had 

 upon him tlie seeds of unsoundness at the time of 



