WARRANTY OF A HORSE ".SOUND AND QUIET IN HARNESS." 561 



ants the plaintiff was obliged to hire other horses instead. Parhe B. 

 ruled that special damage may he recovered in trover if it is laid in the 

 declaration, but that where no such special damage is laid the value of 

 the article at the time of the conversion is the measure of damages. At 

 his lordshij^'s recommendation, however, it was agreed that the plaintiff 

 should have the expense of the hire of other horses, less the keep of his 

 own pony during the time, and the plaintiff abated some part of his 

 demand, and consented to a verdict of £25. A rule to show cause why, 

 on defendant delivering up to plaintiff a horse for which he had brought 

 trover, and paying his costs, all further proceedings should not be 

 stayed on an affidavit that the animal was not in a worse state than 

 when he came into the possession of the defendant, but in an improved 

 condition, was discharged, on cause shown, with costs {Makinson v. 

 RawUnson). 



Where A had wrongfully, and without the licence of B, ridden his hoise, 

 and so caused his death, a promise by a third person to pay the damages 

 thereby sustained, in consideration that B would not bring an action 

 against A, is a collateral promise within the Statute of Frauds, and 

 must be in writing {Kirkliam v, Ilarter). But an agreement to sell a 

 mare on condition that if she prove in foal she should he returned to the 

 vendor on the payment of a certain sum, is not a distinct agreement for 

 the resale of the mare within the scope of the statute, but a mere quali- 

 fication of the original contract of sale which was executed, and need not 

 be in writing ( Williams v. Burgess). 



A tcarranty that a horse is " sound and qtiiet in harness " was ruled by 

 Lord Ah'inger C.B., in Smith v. Parsons, to be supported by proof that 

 the defendant verbally warranted the horse to be " perfectly sound and 

 quiet in all respects," as the latter phrase includes the going quiet in 

 harness. A somewhat similar case, of Coltherd v. Puncheon, had been 

 decided previously in the Queen's Bench, where the plaintiff had a 

 verdict on a warranty that the horse was " a good drawer, and ivould 

 pull quietly in harnessy The defendant moved to set it aside, on the 

 ground that being " a good di'awer" (which appeared by the evidence) 

 and "pulling quietly in harness" were not convertible terms. The 

 Court, however, held that they were, " because no horse can be said to 

 be a good drawer if he will not pull quietly in harness; and therefore 

 proof that he is merely a good puller will not satisfy the warranty. 

 The word ' good ' must mean ' good in all particulars.' " 



Where the plaintiff declared that in consideration of his re-delivery 

 to the defendant of an unsound horse, the defendant promised to deliver 

 to him another horse whicli should be worth £80, and be a young horse, 

 and a breach was assigned in both those respects, it was held no 







