186 



PLEADING, EVIDENCE AND DAMAGES. 



Evidence in 

 reduction of 



Defence to an 

 action for 

 fraudulent 

 representa- 

 tion. 



Disputing the 

 warranty. 



Disputing the 

 unsoundness, 



for the defendant, being of opinion that the warranty had 

 been surreptitiously introduced into the receipt by the 

 plaintiff he/ore it was signed by the defendant. And Mr. 

 Baron Piatt said, that if the jury had been of opinion that 

 the words were added aftericards by the plaintiff, it_ would 

 have been his duty to have impounded the receipt for 

 ulterior purposes («). 



Where an action is brought on a breach of a warranty of 

 soundness, the subsequent recovery of the horse may be 

 proved in reduction of damages. Evidence may also be 

 given as to the slightness of the disease ; because, of course, 

 if the disease be slight, the unsoundness is proportionably so, 

 and so also ought to be the damages ; and if they were very 

 inconsiderable, the Judge might certify to deprive the 

 plaintiff of costs (tj). 



In an action for fraudulent representation on the sale of 

 a horse, the defendant may show that he never made any 

 representation on the sale ; or that the representation was 

 honestly made and believed by him at the time, though not 

 true in point of fact ; or that the horse at the time of sale 

 corresponded with the representation. A statement merely 

 untrue is not sufficient evidence of fraud ; there must be 

 wilful deceit with the object of inducing the plaintiff to act 

 upon it {%). 



The defendant may show that he is not bound by the 

 warranty (a), as where it has been given by a person 

 merely entrusted to deliver the horse (6), or by a servant 

 after sale (c). And where the defendant is neither a 

 horsedealer nor stahlekeeper he may prove that the warranty 

 was given by an agent who was expressly forbid to 

 warrant (rf), and that in consequence he had offered to take 

 back the horse. 



The defendant may show that the horse at the time of 

 sale was sound, or free from rice, or that the defect was 

 I'fitent at the time of sale. And this will depend upon the 

 same sort of evidence as we have before described (e). The 

 defendant may also show that the horse was not unfit for 



Uaron 

 18.53. 



{y) 



670. 

 632. 



(^) 



651. 



{«) 



Bliss V. Snow, hefore Mr. 

 Piatt, Ex. N. P., May 12, 



KkiMl V. Bm-mrd, 9 M. & W. 

 See Dawson v. GoUis, 10 C. B. 



Ormrod v. Euth, 14 M. & AY. 



See Warranty, Chap. T. 



(J) JFoodhiff V. Burford, 2 Cr. & 

 M. 391; S. C, 4Tyrw. 264. 



[c) Hehjer v. Ilaivke, 5 Esp. 72. 



Id) Fain T. Barrison, 3 T. R. 761; 

 and Scotland (Bank) v. TTatson, 1 

 Dow, 45; 14 R. R. 11. 



(e) Evidence as to Unsoundness, 

 ante, p. 182 ; Patent Defects, Chap. 



