VETERINARY JURISPRUDENCE, 
349 
proved the selling of a horse for Mr. Pownall on the 18th Feb. 
for 16 guineas : — the expenses of the auction were £1 4s. 9d. and 
£15 11s. 3d. were paid to Mr. Pownall. 
In cross examination Mr. Langley said the horse was sold 
as a disputed horse, and that such horses rarely fetched more 
than half their value. He also said that the person to whom the 
horse was sold had since observed that he would not take £35 
for it. 
It was also proved that 7s. was paid to the man for taking the 
horse to Bristol ; and that the horse was kept by the plaintiff for 
four weeks. 
Mr. Norris then, at some length and with much ability, addressed 
the Jury for the defendant, insisting that the plaintiff had not 
made out his case. Admitting, although it had not been clearly 
proved, that the horse was a roarer — roaring was not necessarily 
unsoundness. Such, however, was the opinion of many eminent 
veterinary surgeons, and such had been held by the Bench. The 
celebrated horse Eclipse was a roarer, yet he had never heard it 
contended that it was on that account unsound, or unfit for racing. 
It was not sufficient, therefore, to prove that the horse was a roarer ; 
it ought to be indisputably shewn that roaring was unsoundness, 
or there would be no breach of the warranty. He then humbly 
submitted that the plaintiff had not made out his case, and that 
the defendant was entitled to their verdict. But even if they 
should be of opinion that roaring was unsoundness, the gist of the 
action being fraud in the original contract, it should be proved that 
the defendant knew it was unsound at the time he sold the horse, 
and referred to the case of Chandler v. Lopus, which was an action 
for selling a jewel asabezoar stone, and it was held that the action 
would not lie unless the defendant knew at the time it was not a 
bezoar stone. Again, whatever defect there was in the horse, it 
was manifest at the bargain, and the plaintiff directed his attention 
to it. And it was well known that defects apparent at the time 
of a bargain are not included in a warranty, however general, for 
the simple reason that they can form no subject of deceit or fraud. 
A party who should buy a horse knowing it to be blind could not 
sue on a general warranty of soundness. There can be no deceit 
where a defect is so manifest that parties discuss it at the time. 
Mr. Norris also contended that the identity of the horse had not 
been proved. It had not been shewn that the horse purchased of 
Batt was the horse pronounced by Mr. Croley to be a roarer, or 
the horse sold at Mr. Fisher's. 
Under all the circumstances, he felt persuaded the Jury would 
do their duty, and return a verdict for the defendant. 
His Honor, in summing up, having disposed of the legal points 
VOL. XX. 3 A. 
