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1817.

SITTINGS AT WESTMINSTER, AFTER MICHAELMAS

TERM, 58 GEORGE III. 1817.

BROENNENBURGH v. HAYCOCK.

A

Crib-biting CTION upon the warranty of a horse, which is no such unsoundness in a

had been sold for ninety guineas. The horse, as to entitle a pur

question was, whether crib-biting, which was the chaser, who

vice in question, was such a species of unsound. has bought un. der a general ness as to sustain the action. The horse had been warranty, to maintain an warranted sound generally. Some eminent veteaction for the breach of it, rinary surgeons were called as witnesses, who upon this fault stated, that the habit of crib-biting originated in only.

indigestion ; that a horse, by this habit, wasted the saliva which was necessary to digest his food, and that the consequence was a gradual emaciation. But they said that they did not consider crib-biting to be an unsoundness, but that it might lead to unsoundness. That it was sometimes an indication of an incipient disease, and sometimes produced unsoundness, where it existed in any great degree.

Best and Vaughan, serjeants, for the defendant. This was no breach of warranty. The defendant had given no undertaking against the particular vice which was the subject of complaint. As well might it be said that kicking was an unsoundness,

1817.

because a horse might, by kicking, accidentally break a leg

BROENNEN,

BURGH

HAYCOCK.

Lens, serjeant, contrà, The habit of crib-biting detracts from the value of a horse ; and whatever renders a horse unfit for service, and incapacitates him for general use, is unsoundness. If it must necessarily terminate in unsoundness, it is the same thing as if the horse were actually unsound. Besides, unsoundness was a question of fact, not of jaw.

BURROUGH, J.-It is, perhaps, compounded of both. If it be law, I am of opinion that, in this particular case, it is not unsoundness. And I am satisfied the Jury will think with me on the fact. It is a curable vice in its first stages, and this horse was only proved to be an incipient cribbiter. It is a mere accident arising from bad management in the training of a horse, and is no more connected with unsoundness than starting and shying. The plaintiff might have demanded a warranty against this particular vice; but I am quite clear that it is not included in a general warranty.

Nonsuit.

Lens, serjeant, and Gaselee, for plaintiff.

Best and Vaughan, serjeants, for defendant.

Actions are

so frequently that it may be useful to colbrought upon a breach of war lect the cases within the comranty on the sale of horses, pass of a short note.

BURGH.

1817.

Horses being subject to se in the English law. Parkin

cret maladies, it is usual with son v. Lee, 2 East. 314. It BROENNEN. the buyer to require a war was formerly, indeed, a cur

ranty of soundness upon their rent opinion, that a sound HAYCOCK.

sale. For if a horse, having price was per se an implication
a secret malady, be sold with. of warranty. In other words,
out a warranty of soundness, that a sound price given for a
the purchaser has no remedy. horse was tantamount to a
If, indeed, a fraud have been warranty of soundness. But,
practised at the time of sale, when this notion came to be
the buyer may have an action judicially examined, it was
on the case for the deceit. found to be so loose and unsa.
But unless in the case of tisfactory, and so much at va-
fraud, the maxim of the Eng- riance with the principles of
lish law, contrary to that the English law in contracts of
which obtains in the civil law, buying and selling, that Lord
is caveat emptor. An express Mansfield, (in Stuart v. Wil.
warranty extends to latent de- kins, 1 Dougl. 18.) rejected it
fects. But if there be no such as a popular error; and said,
warranty, and the seller sell that there must either be an
the horse, such as he believes express warranty of soundness,
it to be, without fraud, the or fraud in the seller, in ore
law will not imply that he der to maintain the action.
sold it upon any other terms See likewise, 1 Roll. Abr. 90.
than such as were stipulated at P. and the judgment of Mr.
the time of the bargain. It is Justice Lawrence, in Parkin-
the fault of the buyer, if he do son v. Lee, supra.
not insist upon a warranty. The advantage arising to the
It has been said, that there is buyer from an express war.
an implied warranty of the ranty of soundness is this, that
goodness of an article arising such warranty extends to every
from the conditions of all kind of soundness, known and
sales; and this has been rested unknown to the seller; and if
upon the principles of natural the warranty be false, the
justice and equity, which must buyer has a remedy against the
govern all the contracts of seller, to recover a compensa-
men without reference to the tion in damages. But as soon
particular quality of the thing as the unsoundness is disco-
for which they contract. There vered, the buyer should imme-
is no such principle, however, diately tender the horse to the

BURGH

seller, for otherwise he will ney paid. But in the latter

1817. not be entitled to recover for case, the seller has a right to the keep. Caswell v. Coare, expect that the horse shall be BROENNEN1 Taunton, 567.

returned to him in the same A person sells a horse as of state as when he was sold it; and

HAYCOCK: the age stated in a written pe not by any means diminished digree, declaring that he knows in value.” A warranted artis nothing of the horse but that cle must be returned immehe has learnt from the pedi- diately; or in a reasonable time gree. This is not a warranty. after the defect is discovered. Dunlop v. Waugh, Peake, 123, But where on the sale of a Kenyon, C. J. 1792.

horse there is an express warWhere a horse has been sold, ranty by the seller, that the warranted sound, which it can horse is sound, free from vice, be clearly proved was unsound &c. coupled with an under. at the time of the sale, the taking on the part of the seller seller is liable to an action on to take the horse again, and the warranty, without either pay back the money, if on trial the horse being returned, or he shall be found to have any notice given of the unsound. of the defects mentioned in the Fielder v. Starkin, 1

warranty, the buyer must in H. B. 17.

such case return the horse as In Curtis v. Hannay, 3 Esp. soon as he discovers any of 83. Lord Eldon says, “I those defects, in order to maintake it to be clear law, that if

tain an

action on the wara person purchases a horse that ranty, unless he has been inis warranted, and it afterwards duced to prolong the trial by turns out that the horse was any subsequent misrepresentaunsound at the time of war tion of the seller. Adams v. ranty, the buyer may, if he Richards, 2 H. B. 573. In pleases, keep the horse, and such case, trial means a reabring an action on the war sonable trial, 2 H. B. 573. ranty, in which he will have a Upon the warranty of a right to recover the difference horse as sound, the vendor, in between the value of a sound a subsequent conversation, prohorse, and one with such de- mised, if the horse were uofects as existed at the time sound (which he denied), that of the warranty; or he may he would take it again, and return the horse, and bring an return the money: though the action to recover the full mo horse be unsound, the rendes Yol. I.

2 T

ness.

BURGH

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1817. must sue upon the warranty, gave the plaintiff a bill of ef.

and cannot maintain assumpsit change for the price; the deBROENNEN- to recover back the price, for fendant discovering the horse

such promise does not dis to be unsound, tendered him HAYCOCK.

charge the original warranty. to the plaintiff, who refused Payne v. Whale, 7 E. R. 274. to take him back again, and

If a horse sold at a public brought an action against the auction be warranted sound, defendant on the bill, it was and six years old, and it be holden, (upon the defendant's one of the conditions of sale proving that the plaintiff, at the that it shall be deemed sound time of the sale, knew that upless returned in two days; the horse was uns

nsound) that this condition applies only to he could not recover upon the the warranty of soundness. bill, for it was clearly a fraud; Buchanan v. Parnshaw, 2 T. and a person cannot recover R. 745. Therefore, where a the price of goods sold under horse, sold with such a war

a fraud. ranty, was discovered to be

Upon the breach of the war. twelve years old ten days after ranty of a horse, if the horse the sale, and was then offered is returned, the measure of da. to the seller, who refused to mages is the price paid for take him, it was holden that him; if the horse is not rean action might be maintained turned, the measure of da. by the buyer against the seller, mages is the difference between on the warranty; and his right his real value and the price to recover is not affected by given; if the horse is not tenhis having sold the horse after dered to the defendant, the offering him to the defendant, plaintiff can recover 2 T. R. 745. In an action on mages for the expence of his a warranty of a horse, the-af- keep. Castell v. Coare, 1 firmative is, however, upon Taunt. 566, cited supra, and the plaintiff; he must positively Curtis v. Hannay, 3 Esp. 83. prove that the horse was un A horse labouring under a sound. Eaves v. Dizon, 2

Dixon, 2 temporary lameness, occasioned Taunt. 343. And see Lewis by accident, and capable of v. Cosgrave, 2 Taunt. 2. In being speedily removed, is not the latter case, where the unsound. Therefore, an averplaintiff sold the defendant a ment in a declaration of a ge. horse, with a warranty of neral warranty of soundness is soundness, and the defendant supported by evidence of a

no da.

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