SUING AUCTIONED FOR PURCHASE-MONEY RETURNED. 557 



that it was sound and free from vice. The purchaser returned the 

 horse in three weeks as unsound, and got back from the plaintiff the 

 £125, the amount which the defendant sought to set-ofF, on the 

 ground that it was received for his use by the plaintiflF. The jury- 

 found for the plaintiff, and the Court of Exchequer refused a new 

 trial. 



This case governed the decision of the Court of Queen's Bench in 

 Stevens v. Legh, where an auctioneer ivas sued for the ^purchase-money of a 

 horse, ivMch he had returned to the vendee after the fraudulent misrepre- 

 sentations which he had been employed by the plaintiff to maJce had been 

 discovered. The plaintiflF, a horse-dealer in Bristol, had here instructed 

 the defendant to sell a horse for him, representing to him that it was a 

 useful horse, &c., and accustomed to harness work, but that he was not 

 to warrant it. The defendant sold it and represented it as such ; and 

 the purchaser afterwards rescinded the contract, on the ground of fraud, 

 as the horse proved worthless, and gave the defendant notice not to pay 

 over the purchase-money to the plaintiflF; and it was held by the Court 

 that these facts afForded the defendant a good defence, and they refused 

 to disturb the verdict. 



The case of Foster appt. v. Rev. W. Smith resp., which was one of 

 money had and received for the price of a mare sold by defendant to 

 plaintiflF, and afterwards returned, was very complicated, fi'om the con- 

 flict of evidence as to whether the agent had really warranted the mare, 

 and on whose account he received her when she was returned. The 

 plaintiflF had purchased the mare from Sparrow, a veterinary surgeon at 

 Cambridge, for £44 ; and stated that at the time of sale he said to 

 Sparrow, " I suppose she is all right," and received, as a reply, *' If 

 there is anything not right, she is not yours ; she belongs to the Rev. 

 Mr. Smith, of Drayton, who is not the man to do anything wrong." 

 This Sparrow denied, in his examination ; and said that he told plain- 

 tiflF the defendant never warranted, it was his iiabit never to do so, but 

 that he (S.) believed the mare to be perfectly sound, and that if he mis- 

 represented her he would take her back. Sparrow paid over the £44 

 to the defendant, who acknowledged to having received it ; and in 

 about nine weeks the mare was returned to Sparrow, whose evidence 

 was to the eflFect that he got her then to try and sell for the plaintiflF, 

 while the latter said that he got her for the defendant ; but there was 

 no evidence that the defendant had assented to or knew of the return of 

 the mare, or taken any part in these transactions. 



The defendant said he had employed Sparrow to sell eight horses for 

 him before in the course of fifteen years, and had over and over again 

 repeated to him that he never would warrant a horse, and he was not 



