LEGAL DEPARTMENT. 637 



which the doctrine of caveat emptor (let the buyer beware) appHes, must 

 be so manifest and palpable as to be necessarily within the knowledge of 

 the purchaser, and also such defects as at the time of sale either are or will 

 produce unsoundness. Whether a defect is patent or not is a question 

 for the consideration of the jury. Thus : in the case of a horse which 

 was warranted sound, and was shortsighted from a peculiarity of the 

 cornea that induces the habit of shying. Lord Campbell observed that 

 this was not a defect which the purchaser was bound to have observed. 

 Again where an action was brought on the purchase of a race horse, war- 

 ranted "sound in wind and limb at this time," two defects, viz., crib- 

 biting and a splint, were both discussed before purchase. The horse 

 broke down, and on the case being tried the buyer obtained a verdict. 

 Tindal, C. J., in granting a new trial, said : "In this case no fraud or 

 deceit can be attributed to the defendant as the horse's defect was mani- 

 fest, the splint not only being apparent, but made the subject of discus- 

 sion before the bargain was made * * * and the learned judge left 

 it to the jury to say whether the horse was fit for ordinary purposes. His 

 direction would have been less subject to misapprehension if he had left 

 it to them, in the terms of the warranty, to say whether the horse was at 

 the time of the bargain sound in wind and limb, saving those manifest 

 and visible defects which were known to the parties." (Margetson v. 

 Wright, 7 Bing. 603. ) 



Although the loss of an eye is -a breach of warranty of soundness 

 which has been laid down, that, ' ' Where one buys a horse upon war- 

 ranting him to have both his eyes, and he have but one eye, he is remedi- 

 less, for it is a thing which lies in his own cogyiizance, and such a war- 

 ranty or affirmation is not material nor to be regarded. ' ' But this seems 

 to assume that the eye has entirely disappeared, or has been so obviously 

 damaged that it must lie in the cognizance of the buyer, and nothing is 

 said with regard to loss of sight where there is little apparent injury to 

 the eye, for a horse may appear to the majority of people perfect in his 

 eyes, and yet have lost sight of one or both. 



If a person purchases a horse, knowing it to be blind, he cannot sue the 

 seller on a general warranty of soundness, although he warranted the ani- 

 mal to be sound in every respect. (Margetson v. Wright, 5 M. & P. 



610.) 



Where a buyer suspects some defect and wishes to examine and try 

 the horse for it, but the seller objects and says, " I will warrant him," 



