PATENT DEFECTS. 129 



and being difficult of detection can certainly never be con- 

 sidered a patent defect. 



This point seems to have been taken in an old case, "Bright 

 where it is said, " Lou jeo vend chivall que ad null Oculus ^y^"' 

 la null action gist ; auterment lou il ad un counterfeit faux et 

 Bright Eye." " Where I sell a horse that has no eye, 

 there no action lies ; otherwise where he has a counterfeit, 

 false and bright eye " (m). Thus it appears that a distinc- 

 tion is here made between a horse having no eye at all, and 

 having a counterfeit, false or bright one. And probably by 

 bright eye is meant glass-eye or gutta serena ; and the words 

 " counterfeit " and " false " may be an attempt of the 

 reporter to explain an expression which he did not under- 

 stand. Because, putting a false eye into a horse is very 

 far in advance of the sharpest practices of the present day, 

 or of any former period. 



Thus, too, in a case in which a convexity in the forma- Convexity of 

 tion of the cornea of the eye made a horse short-sighted, ^'''^' 

 and thence induced in him a habit of shying, Lord Campbell 

 said that this was not such a defect as the purchaser was 

 bound to take notice of. "There being an express 

 warranty, he was not bound to examine so closely as to 

 ascertain whether the cornea was so formed as to produce 

 short-sight ; the most prudent man could not be expected to 

 do that " (»). 



But if a person purchase a horse knowing it to be blind, "Where the 

 he cannot sue the seller on a general warranty of soundness, J^J^^e^^t"'^ 

 although he had warranted the animal to be sound in every 

 respect (o). 



Where the buyer observes some defects, and they are "Where defects 

 discussed by both parties before sale, and a warranty is a™ discussed. 

 given ; if an action is afterwards brought for a breach of 

 the warranty, it is a question for the jury to say whether 

 the horse is sound in the terms of the warranty, saving 

 those manifest and visible defects which were known to the 

 parties. And then if he is sound with these exceptions, 

 they must consider whether the effect which might be pro- 

 duced by any of those defects was contemplated or not, 

 that is, whether under the circumstances of the case the 

 seller undertook that they should not impede the natural 

 usefulness of the horse. This appears in the following 



(«j) Southerne v. Howe, 2 Eol. Q. B. 9. 

 Eep. 5. (o) Margetson t. Wright, 5 M. & 



(«) Holyday v. Morgan, 28 L. J., P. 610. 

 0. K 



