WARRANTY. 



J 17 



clearly 

 proved. 



five years, quiet to ride and drive, and warranted sound up 

 to this date, or subject to the examination of a veterinary- 

 surgeon ; " it was held that there was no warranty that the 

 horse was quiet to ride and drive {x). 



But in setting up a breach of such a warranty, it must Unfitness 

 be clearly proved that the horse at the time of sale was ™^„^*|^^ 

 unfit for the purpose for which he was bought ; and if he 

 has gone quietly with persons of ordinary skill, there wiU 

 be a strong presumption that he answers his warranty. In 

 the following case it appeared that a horse warranted " a 

 thoroughbroke horse for a gig," kicked and broke the 

 gig, &c. the first time he was driven by the purchaser. 

 This was, however, two months after sale, but in the mean- 

 time other persons had driven him, and he had always 

 answered his warranty. It was decided that this was no 

 breach, because as the horse had previously behaved as he 

 had been warranted, his bad conduct must be attributed 

 and have been owing to the purchaser's want of skill in 

 driving (y). And in the case of Buckingham v. Reeve, 

 Pollock, O.B., said, " A horse put into a new harness and 

 an unaccustomed carriage once or twice might kick, and yet 

 be deserving of a warranty of being quiet in harness " (s). 



In all cases of warranty as to the quality of the thing Warrantor'i 

 sold, as, for instance, where a horse is warranted sound or I'^ibi'ity- 

 the like, the loarrantor undertakes that it is true at the 

 time of making it ; and the law annexes a tacit contract 

 that if it be otherwise than warranted, the vendor shall 

 make compensation to the buyer (a) ; and the seller will be 

 liable for any latent defect, according to the old law con- 

 cerning warranties {b), that is, as Lord Mansfield laid down, 

 for all faults, known or unknown to the seller (c), inconsis- 

 tent with the warranty given. 



But where a horse is sold with a warranty, Siny fraud at 

 the time of sale will avoid the sale, though it is not on 

 any point included in the warranty {d). A sale, however, 

 is not avoided by some immaterial representation in the 

 warranty proving untrue. For Lord Eldon, in delivering 

 judgment in the case of an appeal to the House of Lords, 

 held, where a horse was sold under a warranty of sound- 



Sale avoided 

 by fraud. 



(x) Anthony -v. IIahtead,ZlTi.T., 

 N. S. 433. 



(y) Geddes v. Fennington, 5 Dow, 

 164. 



(z) Buckingham^ . Iteeve,N. P. Ex. 

 Dec. 1, 1867. 



(«) Archbold's N. P. 40 ; Fielder 



V. Starhin, 1 H. Bla. 17; 2 R. E. 

 700. 



(h) Farkinson v. Lee, 2 East, 321 ; 

 6 E. E. 429. 



(e) Stuart v. Wilkins, Doug. 19. 



{d) Steward v. Coesvelt, 1 C. & P. 

 23. 



