STATUTE OF LIMITATIONS. 487 



returning- it show that it did not correspond with the warranty, and 

 that the buyer was not bound to trust the assertions of third parties, 

 and return the seed on the assumption that it was bad seed, but was at 

 liberty to test its capabilities by sowing. In such cases of warranty the 

 vendee is entitled, although he do not return the seeds to tlie vendor, or 

 give notice of their defective quality, to bring an action for breach of 

 the warranty, or if an action be brought against him by the vendor for 

 the price, to prove the breach of the warranty either in diminution of 

 damages, or in answer to the action, if the goods be of no value. 



And per Littledah J. : " The not giving notice raises a strong pre- 

 sumption that the article at tlm time of the sale corresponded with the 

 warrantg. But if that be clearly established, the seller will be liable 

 to an action brought for breach of his contract, notwithstanding any 

 length of time which may have elapsed since the sale." 



The application of the Statute of Limitations to such cases was com- 

 sidered in Battleg v. FaulJmer, where the plaintiffs bought certain 

 wheat from the defendants early in 1810, as spring wheat, and sold it 

 to one Shepard, who sowed it, and discovering in the autumn that it 

 was wholly unproductive, gave the plaintiffs notice that he held them 

 responsible for the loss of the crop. This the plaintiffs communicated 

 to the defendants, as well as the fact that in June, 1811, he was about 

 to assess damages against them in the Court of Session. Nothing 

 more passed between the parties till 1818, when the suit in Scotland 

 was completed, and the plaintiffs paid Shepard his damages and costs, 

 and commenced the present action of assumpsit, alleging as special 

 damage the damages so recovered. Abiott C.J., on finding that there 

 was no promise to take the case out of the Statute of Limitations, non- 

 suited the plaintiff. The Court of Queen's Bench confirmed this 

 raling, on the ground that though such special damage had occurred 

 within six years before the commencement of the action, yet that the 

 breach of contract, which in assumpsit was the gist of the action, having 

 occurred and become known to the plaintiff more than six years before that 

 period, he was guilty of negligence, and the statute might well be pleaded. 

 The gist of the action in Allen v. Lake was that the seed proved to be 

 of a different kind to what it u-as sold for. One of the plaintiffs, in 

 company with Eeed, the defendant's agent, saw six acres of the 

 defendant's turnips in bloom, and agreed to buy the seed produced by 

 them. On August ?.rd the produce, fourteen quarters, was delivered to 

 the plaintiff, and the following sold-note— 

 " Mr. T. C. Heed, 

 Aug. 5, f Sold to Messrs. Beck & Co., for Mr. C. Lake, 14 qrs. 

 1850. t Skirvinfs Swede at lis. per bushel,'' 



