226 
SALE AND WARRANTY OF HORSES. 
“ To entitle the buyer to the benefit of the warranty, he must* 
of course, strictly fulfil the conditions stipulated to be performed 
on his part. Thus, if, as is frequently the case, a condition be 
introduced into the warranty, that the horse, if objected to as 
unsound, shall be returned within a limited time, no action can be 
maintained for the unsoundness without the strict performance of 
this condition. So where the warranty was qualified by the 
vender by an undertaking to take back the horse, if, on trial , he 
should be found to have any of the defects mentioned in the 
warranty, it was held, that the buyer must return the horse im¬ 
mediately upon the discovery of them. When the contract is 
rescinded by the buyer on account of the warranty being broken, 
the seller has a right to require that the horse shall be returned 
in as good condition as he was when the defect was discovered; 
and, therefore, if the animal fall into a worse state subsequently 
to such discovery , the buyer cannot then return him , but must rely 
on his action to recover back a proportional part of the price .” 
“There being no warranty, but the purchaser having been im¬ 
posed upon, and entrapped into a losing bargain by the artifices 
or wilful misrepresentations of the seller, his remedy is an action 
for the deceit; to support which he must prove a fraud to have 
been committed by the seller, and also that it was such as might 
well impose upon a person of ordinary circumspection; or, in other 
words, that he ivas deceived and misled by relying upon the inte¬ 
grity of the seller , in a point where he might reasonably have 
placed trust and confidence in him.” 
“ Any wilful misrepresentations by the vender of the qualities 
of the commodity to be sold , whereby the vendee is induced to 
purchase , falls within the legal idea of fraud, and will vitiate 
the contract , as being a breach of that good faith which ought 
to reign throughout every commercial transaction. This may be 
called fraud in words . Thus, if A , knowing his horse to be 
broken-winded or lame, induce B to purchase, by an assurance 
that he is sound in wind and limb; then, although A may have 
expressly refused to warrant, B will nevertheless be entitled to re¬ 
cover from A in an action for the deceit. It is obvious, however, 
that this action could not be here maintained upon mere proof of 
the abstract falseness of the representation made by the seller; 
but that evidence of the moral falsehood is requisite—the seller’s 
knowledge of the falsity, that is called, in technical language, 
the scienter . And herein it is, principally, that this action is dis¬ 
tinguished from actions on breach of warranty ; for the warranty 
extends to all faults, known or unknown to the seller.” 
“The other kind of fraud may be termed fraud in deed; and 
we shall conclude this article bv producing an instance which may 
