WARRANTY DISTINGUISHED FROM REPRESENTATION. 137 



And where a man not knowing the age of a horse, but Selling 

 having a written pedigree, which he received with him, said pS^gg" '* 

 at the time of sale that he sold him according to that pedi- 

 gree, knowing nothing further than he learnt therefrom, the 

 mark being out of his mouth when he bought him, it was 

 held to be no warranty, and that he was not liable to an 

 action on account of the pedigree turning out false {;n). 



But a written instrument may consist partly of a war- Partly a war- 

 ranty and partly of a representation. Thus, where the partfyTrepre- 

 following receipt was given on the purchase of a horse, sentatioa. 

 " Received of Robert Dickenson 100^. for a bay gelding got 

 by Cheshire Cheese, and warranted sound," and an action 

 was brought on an alleged breach of warranty, on the 

 ground that he was not bred in the manner above described, 

 Chief Justice Dallas held that the warranty was confined 

 to the soundness, and the statement that he was got by 

 Cheshire Cheese was a mere representation (o). Also, where 

 a receipt on the sale of a colt contained the following words 

 after the date, name and sum, " for a grey four years old 

 colt warranted sound in every respect," and the colt turned 

 out to be only three years old, Chief Justice Tindal non- 

 suited the plaintifi', who had brought an action on that 

 ground, and said, " I am of opinion that the first part of the 

 receipt contains a representation and the latter part a icar- 

 ranty. In the case of a representation, to render liable the 

 party making it, the facts stated must be untrue to his 

 knowledge ; but in the case of a warranty he is liable whether 

 tHey are within his knowledge or not." The Court of 

 Common Pleas discharged a rule nisi for setting aside the 

 nonsuit, and Mr. Justice Aiderson said, " A loarranty must 

 be complied with whether it is material or not, but it is 

 otherwise as to representation. If the word ' warranted ' 

 had been the last word, I should have held that it extended 

 to the whole" (_?:>). However, in a previous case, where 

 the plaintiff brought an action to recover the price of a 

 horse sold under the following warranty, " a black gelding, 

 about five years old, has been constantly driven in the 

 plough — loarranted," it was held that the terms of such 

 warranty applied to the soundness of the horse rather than 

 to the nature of his employment {q). 



(») Bunlop V. Vaugh, 1 Peake, [p) Sudd v. Fairmanmr, 5 C. & 



167 P- 78. 



(o) Diekensan y. Gapp, H. T. (?) Kiehanhon y. Brown, 8 Moore, 



1821, cited in Buddv. Fairmcmner, 1 338 ; 8. C. 1 Biug. 34i. 

 M. & So. 78. 



