HORSE SOLD WITH ALL FAULTS. 551 



too late, and the purchaser was deemed to have been cognizant of the 

 conditions, though they were not read over before the sale by the 

 auctioneer. And so in Smart v. Hyde, where a mare was sold under a 

 somewhat similar condition, at Lucas's Repository, and the defendant 

 pleaded to a declaration on a warranty of soundness that the sale took 

 place subject to that condition, and that the same was agreed to by the 

 parties, and that the notice and certificate of unsoundness were not 

 given within the time limited {i. e., before noon of the day after the 

 sale), the plea was held good, and not amounting to the general issue. 

 It admits the contract and promise ; but shows it to have been made 

 subject to certain rules, which had not been complied with. That was 

 clearly not a denial of the contract, as alleged in the declaration. 



In Buchanan v. Parnshaiv a horse, warranted six years old and 

 sound, was discovered ten days afterwards to be twelve years old. The 

 Court of King's Bench held that the condition of sale— " That the 

 purchaser of any horse warranted sound, who should conceive the same 

 to be unsound, should return him within two days, otherwise he should 

 be deemed sound " — must be confined solely to the unsoimdmss ; and 

 that, as regarded that, it was a wise and reasonable one ; but that, as 

 the age of the horse was not open to the same difficulty, he ought to 

 have been taken back, and therefore the buyer might maintain an action 

 against the seller. And the buyer's right to recover was held not to be 

 aflFected by his having sold the horse, after offering him to the defen- 

 dant (/&.). The imsoimdness in By water v. Richardson was of a nature 

 not liJcely to he discovered (especially as he was shown on a bark ride at 

 Lucas's Repository) in the twenty-four hours, within which the buyer 

 had the option of returning the horse ; but still the Court of King's 

 Bench upheld the condition as not unreasonable, although it would 

 have been inoperative if the facts had shown any fraud or artifice in the 

 seller. In contracts of this nature, where a horse is "sold with all 

 faults," there is no fraud unless the seller by jwsitive means renders 

 it impossible for the purchaser to detect latent faults ; and the dictum 

 of Lord Kenyon C.J. in Hellish v. Jlotteux, that the seller is bound to 

 disclose such of the latter as have come to his knowledge, was expressly 

 overruled by Lord Ellenhoroucjh C.J., in Baylehole v. Walters, which 

 Lord Denman relied upon in Bywater v. Richardson. 



The cjnestion as to whether a private ivarranty could he incorporated 

 into the conditions of sale at TattersalVs, where the well-known course 

 of business is, that horses sold there are not warranted unless a state- 

 ment to that effect is made in the catalogue, was very much discussed 

 in Hopkins v. Tanqueray, which was an action for alleged breach of 

 warranty. The defendant, in that case, had sent his horse California to 



