PLEADING AND EVIDENCE FOE THE PLAINTIFF. 



181 



Where a servant employed to sell and receive the price 

 has given the warranty, it is enough to prove that it was 

 given by him, without calling him or showing that he had 

 any special authority for that purpose («/). 



But the warranty of a person merely entrusted to deliver 

 a horse, is not prima facie binding on the principal, but an 

 express authority must be proved (s). So also where an 

 agent makes an alteration in a warranty given by his 

 principal, a special or general authority must be shown (a). 



where a power to rescind is one of the terms of a verbal 

 contract for a horse, some witness to the transaction must 

 be called to prove it (b). Where, however, there is a 

 written contract, and such power appears as one of the 

 terms, it is proved by putting in the document ; but if it do 

 not so appear, or if it were given in a subsequent conversa- 

 tion, it is inoperative, and the original contract as proved 

 still remains open (c). 



We have seen in the seventh chapter what constitutes a 

 fraudulent representation, so as to support an action for 

 deceit. And it may be laid down as a rule, with regard to 

 the proof of the scienter or fraud, that where a representa- 

 tion is false to the knoivledge of the party making it, this is 

 in general conclusive evidence of fraud (d). 



Where the breach of warranty (e) is unsoundness, the 

 plaintiff must prove either an actual existence of unsoundness 

 at the time of sale, or that from the appearance of the 

 horse afterwards he must have been unsound when sold. 

 This, however, must be satisfactorily proved, because a mere 

 suspicion that the horse was then unsound is not sufficient (/). 

 AVhere the breach of warranty is vice, the plaintiff must 

 prove the existence at the time of sale of such a bad habit 

 as in the eye of the law constitutes a vice (g). And where 

 a horse is warranted fit for some particular purpose, he 

 must be proved to have been unfit for it in ordinary 

 hands (h). 



It is not necessary that the plaintiff should inform the 

 defendant of the nature of the unsoundness, and he may 



Where au- 

 thority to 

 "warrant need 

 not he 

 proved. 



"Where 

 authority to 

 warrant must 

 be proved. 



Proof of a 

 power to 

 rescind. 



Proof of a 

 fraudulent 

 representa- 

 tion. 



Proof of the 

 breach of 

 warranty. 



Notice of the 

 nature of the 

 unsoundness. 



(y) Alexander v. Gibson, 3 Camp. 

 555. 



(z) Woodin V. Burford, 2 C. & M. 

 391 ; S. C, 4 Tyrw. 264. 



(a) Strode v. btjson, 1 Smith, 400. 



(b) As to unfitness, see Breach of 

 Warranty, ante, Chap. VIII. 



(c) Payne v. Whale, 7 East, 274. 

 \d) Ormrod v. Euth, 14 M. & W. 



664— Ex. Ch. 



[e) See Breach of Warranty, ante, 

 Chap. VIII. 



{/) Eaves v. Dixon, 2 Taunt. 343. 



{ff) Scholejield v. Robb, 2 M. & 

 Eob. 210. 



(A) Geddes v. Fennington, 5 Bow, 

 164. 



