158 WARRANTY. 



the breach of warranty on the sale of a race horse, 

 in which the defendant warranted the animal as 

 being sound in wind and limb, Chief Justice Tindal 

 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 may be, because they can form no subject 

 of deceit or fraud ; and formerly the mode of pro- 

 ceeding for a breach of warranty was by an action 

 of deceit, grounded on an express fraud. 



" Although, however, certain exceptions may 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 splint not 

 only being apparent, but made the subject of dis- 

 cussion before the bargain was made. If a person 

 purchases a horse knowing it to be blind, he could 

 not sue the seller on a general warranty of sound- 

 ness, 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- 



