130 waerantt; sale and warrantt by agent, etc. 



case : — where an action was brought for a breach of war- 

 ranty on the sale of a racehorse, the terms of which were, 

 " And the said Mr. Wright (the defendant) doth hereby 

 warrant the said horse to be sound wind and limb at this 

 time," two subjects, namely, crib-biting (p) and a splint (q) 

 on the off- fore leg, were discussed by the parties at the time 

 of the bargain, and after that discussion, the warranty in 

 question was given. The horse soon became lame and 

 afterwards broke down. On the case being tried, the jury 

 returned a verdict for the plaintiff. 



Chief Justice Tindal, in making a rule for a new trial 

 absolute, said, " It is laid down in the older books, that 

 where defects are apparent at the time of a bargain, they 

 are not included in a warranty, however general the terms 

 maybe, because they can form no subject of deceit or fraud ; 

 and formerly the mode of proceeding for a breach of war- 

 ranty was by an action of deceit grounded on an express 

 fraud, and the averment in the declaration was icarrantizando 

 rendicUt." 



" Although, however, certain exceptions ma}' be grafted 

 on a contract of warranty, yet in this case no fraud or deceit 

 can be attributed to the defendant, as the horse's defect was 

 manifest, the sphnt not only being apparent, but made the 

 subject of discussion before the bargain was made. If a 

 person purchase a horse, knowing it to be blind, he could 

 not sue the seller on a general warranty of soundness, 

 although he had warranted the animal to be sound in every 

 respect. The splint was known to both the plaintiff and 

 the defendant, 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 

 wind and limb, saving those manifest and visible defects 

 which were known to the parties; the jury might then 

 have considered whether the effect which might be pro- 

 duced by the splint was contemplated or not " (r). 



When the case was again tried the jury found for the 

 plaintiff, as they thought the horse unsound at the time 

 of the contract from the splint, which was in a very bad 

 situation, pressing upon one of the sinews, and which 



(p) Crib-biting, ante, p. 75. (r) Jlaiyetson v. JFriaht, 5 M & 



(q) Splint, ante, p. 94. P. 610. 



