244 ACTIONS AT LAW. 



unsoundness, but an ailment which prevented a horse 

 being a good worker. Mr. Holborough thereupon sent 

 the horse back, and went next day to stop the cheque, 

 but found it cashed. They, therefore, alleged that the 

 contract was void — first, because the horse was unsound ; 

 and, secondly, because it was not a good worker. 



Plaintiff was called and bore out Mr. Garrold's opening 

 statement. 



Cross-examined by Mr. Comer, plaintiff said that 

 defendant stated the horse to be sound, and a good worker, 

 but when he got it home it was found to be unsound. That 

 was the breach of warranty he complained of. He did 

 not allege anything else. 



Edward Evans was called. He stated that he saw the 

 attempt at backing, and heard defendant say that plaintiff 

 could take his word for it that the horse was sound and 

 a good worker. Having had his attention called to the 

 horse by the blacksmith, he noticed that it had the " dimmy 

 shivers." 



Thomas Smith, blacksmith, said he was of opinion the 

 horse had the shivers. 



Mr. S. Beeson, veterinary surgeon, deposed to having 

 examined the horse. It was subject to shivering. Shiver- 

 ing was an acute unsoundness. 



Mr. Comer asked Mr. Garrold if he imputed fraud ? 



Mr. Garrold said he would not be cross-examined. 



Mr. Comer submitted that he had no case to answer. 

 Fraud was not alleged, or, if alleged, not attempted to be 

 proved. The claim was one for damages for alleged breach 

 of warranty. Where a specific article was sold, and there 

 was no term in the contract that the purchaser might 

 return the article, the purchaser could not return that 

 article, and he was bound by the warranty given ; and his 

 only remedy was to sell the article and claim for the 

 difference. He contended that the horse should have 



