416 
CH. PEABODY 
work, and he should answer, u I should think he would;” thnt 
evidently would be a mere expression of opinion, and would not 
amount to a warranty. It is for the jury to determine from the 
language of the party whether the seller wishes to convey to the 
purchaser an idea of the existence of a fact upon which the trade 
was founded and based. If so, it amounts to a warranty, no mat¬ 
ter what form or expression was used between the parties. 
Therefore, the first question you have to settle is, Was there a 
warranty ? If the language was as claimed by the defendant, it 
was a warranty. If the language as claimed by the plaintiff, 
that the horse was sound so far as he knew, and from his experi¬ 
ence and knowledge of horses and the nature of the defeet, you 
believe he must have known of it at the time, then it would fie 
clearly a warranty. That is a question of fact, however, for you 
to pass upon, as to which it was. If it was a mere expression of 
opinion on the part of the plaintiff, and the defect was not of such 
a character as to lead you to believe that lie must have known of 
it, then it would not come within the definition of a warranty; if 
there was no warranty, then, of course, there is no defence to this 
note, because their entire defence is based upon the claim that 
there was a warranty of the horse and that the horse has proved 
unsound. So that is the first question for you to consider. 
Secondly, if there was the warranty, was the horse unsound at 
the time of sale. It is not a question as to whether the horse be¬ 
came unsound afterwards, but was he sound at the time. And 
the fact of his becoming unsound afterwards is only a circum¬ 
stance which the jury are entitled to consider for the purpose of 
throwing light upon the question as to whether he* was unsound 
at the time of sale. The defendants testify that, although notic¬ 
ing a peculiarity in his gait at the time of purchase, they were 
not aware of the fact of his unsoundness until some time after the 
purchase, and they offer testimony to you for the purpose of 
showing that the nature of the unsoundness and the condition of 
the horse at the time was such as to raise the presumption that 
the horse must have been unsound for so long a time as to cover 
the time of the purchase. In other words, that it was a kind of 
injury or defect that must have existed longer than the time 
