AVERMENT OF WARRANTY. 513 



warranty. If it occurred before, or if it was qualifiad, then it must be 

 taken to be a representation, and not a warranty." 



Lord Eldon Cli., in Geddes v. Pennington, held that if the horse 

 answered the warranty at the time of sale, a misrepresentation as to the 

 place from ivhich it icas procured does not suffice to set aside the sale, 

 though it might be a material consideration with respect to costs ; and 

 the judgment of the Scotch Court of Session, where three out of five 

 judges held that the accident was not owing to vice in the horse, but 

 lack of skill in the driver, was affirmed by the House of Lords, without 

 costs on either side. 



On a motion for a nonsuit in Cave v. Coleman, the Court of Queen's 

 Bench held that the simple words, " You may depend upon it that the 

 horse is perfectly quiet and free from vice^' spoken hy the defendant in the 

 course of dealing, and before the bargain teas complete, was sufficient to 

 support an averment of warranty, although the word "warrant" was 

 not used. In Dunlop v. Waugh, where a horse sold as an eight-year- 

 old proved to be fourteen, but the defendant showed the written 

 pedigree at the sale, and said that he knew no more, as the mark was 

 out of his mouth, Lord Kenyon C.J. ruled that this clearly was no 

 Avarranty, as the defendant told all he knew, and entered into no express 

 undertaking that the horse was of the age stated in the pedigree. So 

 in Anderson v. Rohson, which was an action for the price of a horse 

 which had thrown a spavin, and evidence as to warranty went to show 

 that plaintiff had merely said, on defendant's making inquiry, that the 

 horse was " sound as far as he knew," and he had not previously dis- 

 covered anything the matter with him, Gresswell J. held that there was 

 no warranty, and the plaintiff had a verdict. This case differed mate- 

 rially from Wood v. Smith, where, although the defendant at the time 

 of the sale said, " The mare is sound to the best of my knowledge, but 

 I never warrant ; I would not even warrant myself," it was proved that 

 he knew her to be unsound at the time : and hence the Court of Queen's 

 Bench refused a nonsuit. Bayley J. observed : " The general rule is 

 that whatever a person represents at the time of a sale is a tvarranty. But 

 the party may either give a general warranty, or he may qualify that 

 warranty. By a general warranty a person warrants at all events ; but 

 here the defendant gives a qualified warranty, as he only warrants the 

 mare sound for all he knows. This is a qualified warranty, and the 

 purchaser may maintain assumpsit on it, if he can show that the horse 

 was unsound to the knowledge of the seller." 



It was ruled by the Court of Queen's Bench in Hort v. Lord Neicry 

 that, although a person may disclaim against making a warranty of a 

 horse, yet if he give him a character for a particular quality, as by saying 



