36 WARRANTY. 



the action immediately on discovering the un- 

 soundness."* 



* As in the case of Fielder v. Starkin, where an action 

 was brought " on the warranty of a mare, * that she was 

 sound, quiet, and free from vice and blemish.' Soon after 

 the sale, the plaintiff discovered that she was unsound and 

 vicious; viz., a roarer, had a thorough pin through the hack, 

 and had a swelled hock from kicking ; but kept her three 

 months, and gave her physic, and used other means to cure 

 her ; at ^'^'hich time he sold her, but had her soon after re- 

 turned as unsound, when he returned her to the defendant 

 as unsound, who refused to receive her. On her way back 

 she died ; and upon being examined, it was the opinion of 

 the farriers that she had been unsound a full twelvemonth 

 before her death ; but it did not appear that the plaintiff had 

 ever in the interval, though in the defendant's company, 

 complained of the mare being imsound. Lord Loughbor- 

 ough : — ' Where there is an express warranty, the warran- 

 ter undertakes that 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 necessary 

 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 complete ; and if 

 fraudulent on the part of the seller, he wUl be liable to the 

 buyer in damages, without either a return or notice. If, on 

 account of a horse warranted sound, the buyer should sell 

 him again at a loss, an action might perhaps be sustained 

 against the orignal seller, to recover the difference of the 

 price. In the present case, it appears, from the evidence oi 

 the farriers who saw the mare opened, that she must have 



