PLEADING AND EVIDENCE FOR THE PLAINTIFF. 



179 



after the sale. And he was also to pay 10.s. as the 

 expense of trial, when a horse was found not to answer 

 his warranty. 



After the trial of the horse, the plaintiif called at the 



repository and demanded an account of his expenses, when 



he received the following : — £ 



1847. July 31. Bay gelding bait . . . .0 



Auction 



Aug. 4 I -^^^ geltliiig. ttree days 

 Aug. 3 To cash price for trial of 

 bay gelding in harness 



d. 

 6 

 



10 6 



. 10 

 £17 



warranty. 



The plaintiff, objecting that the charge was exorbitant, 

 laid down 19s. 6d. on the desk iu the defendant's office 

 and demanded his horse. The defendant's clerk told him 

 he could not have it unless he complied with the rules and 

 paid the 11. 7s. The plaintiff then went away, leaving the 

 19s. 6d. on the desk. 



The plaintiff brought an action of debt for money had and Proof of the 

 received with a count in detinue for the horse. It was held Promise or 

 by the Court of Common Pleas, that as the horse was sold 

 subject to certain conditions, the sum received by the 

 defendant on the sale was not money had and received to the 

 use of the plaintiff, until those conditions had been com- 

 plied with, and the time for returning the horse had 

 elapsed. Also that the evidence did not support a tender, 

 inasmuch as there was no .specific appropriation of any 

 part of the 19s. 6d to the 10s. claimed in respect of the 

 trial of the horse (§■) . 



Where \}a.Q promise or ivarranty has been made by word 

 of mouth, the plaintiff or some party who heard it given 

 must be called to prove it. Where the promise or war- 

 ranty is to be gathered from letters which passed between 

 the parties, or was formally made in writing, and this in 

 the case of a warranty is usually contained in the same 

 instrument as the receipt, they should be put in and read. 



The buyer may give evidence of a warranty, although 

 in a note of the sale and receipt for the money, given by 

 the seller after the conclusion of a parol contract, there be 

 contained no notice of any warranty. Thus the defendant 



A warranty 

 not contained 

 in the receipt. 



[q) Hardingham v. Allen, 5 C. B. 796. 



