WARRANTY. 105 



ttird party, not declared or known to the buyer 

 before or at the time when the contract is made." 



As sub-s. (1) of this enactment uses the terra " implied 

 condition " in contrast with implied warranty in sub-ss. (2), 

 (3), the buyer may, on a breach thereof, repudiate the con- 

 tract under s. 11 (1), (a), post, p. 108, and recover the price 

 paid on the ground of a failure of consideration (under 

 s. 54), or may treat the breach as a breach of warranty 

 only under s. 11, sub-s. (1), (a) {m). 



A dispute respecting the title of different parties to a Mode of 

 horse may be decided by an interpleader issue. Thus, ^Ti^g ? ^■ 

 a question was tried whether certain race-horses named P"*'^ *'***■ 

 -3]lgis, Ninnyhammer, and War Eagle, were the property of 

 the plaintiff when they were seized in execution by the 

 sheriff of Cambridgeshire, at Newmarket, under a fi.fa., 

 consequent on a judgment obtained by the defendant against 

 a gentleman named Oarew, and a jury found a verdict for 

 the plaintiff (w). 



But an interpleader order will not be granted where the 

 respective claims are not co-extensive. Thus, where the 

 defendant, the proprietor of a horse repository, sold there, 

 by public auction, a horse to the plaintiff, warranted quiet 

 to ride and in harness, but subject to a condition by which, 

 if considered by the buyer incapable of working from any 

 infirmity or disease, it might be returned on the second 

 day after the sale, and the matter determined by veterinary 

 surgeons according to the terms provided for in such con- 

 dition ; and the horse was accordingly returned by the 

 plaintiff, who demanded to have back the money he had 

 paid for the purchase, and this being refused he brought 

 an action against the defendant for breach of warranty ; 

 and the person who had placed the horse at the repository 

 for sale claimed of the defendant the proceeds of the sale, 

 stating that the horse had left the repository perfectly 

 sound. It was held that the defendant was not entitled to 

 an interpleader order (o). 



Where there is a contract for the sale of goods by descrip- Sale by 

 tion, there is an implied condition that the goods shall description. 

 correspond with the description {p). 



(«j) Kerr & Pearson-Gee on the Q. B. 377. 



Sale of Goods Act, 1893, p. 80. See (o) Writ/ht v. Freeman, 48 L. J., 



also MchholzY. £annisier, ubi snpra. C. P. 276; 40 L. T., IS". S. 134. 



{n) Ford V. Stjkes, before Lord (p) Sale of Goods Act, 1893, s. 13. 



Campbell, C.J., Cambridge Spring See also ^owss v. -S/iff«f7, 2 App. Cas. 



Assizes, 1853. See also Cochrane v. 455 ; 46 L. J., Q. B. 561 ; 36 L. T., 



Moore, 26 Q,. B. D. 57 ; 59 L. .T., N. S. 857 ; 25 W. R. 730. 



