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'In contracts for provisions, it is always implied that Ibid. they are wholesome ; and, if they be not, the same remedy may be had.

Also if he that selleth any thing doth, upon the sale, this warrant it to be good, the law annexes a tacit contract to this warranty, that, if it be not so, he shall make compensation to the buyer: else it is an injury to good faith, for which an action on the case will lie to recover damages.(6) The warranty must be upon the sale ; for if it be made

Ibid. after, and not at the time of the sale, it is a void warranty: for it is then made without any consideration ; neither does the buyer then take the goods upon the credit of the vendor. Also, the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro; as, that a horse is sound at buying of him; not that he will be sound two years hence.

But if the vendor knew the goods to be unsound, and hath u sed any art to disguise them, or if they are, in any shape, different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness.(7)

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exercises an act of ownership about property, by offering it for sale, he by implication, declares he is the owner, and the buyer has reason to believe he is the owner; this therefore ought to amount to a warranty in law.” Vol. II. p. 124.

(6) The ancient method of declaring in cases of warranty, was in tort on the warranty broken, but of late years it has been found more convenient to declare in assumpsit for the sake of adding the money counts. The propriety of the modern practice, which has prevailed generally for more than forty years, was established in the case of Stuart v. Wilkins, Doug. 18. See Selw. 585.

(7) In every bargain there is a covenant; for if I buy of you a horse, although there be not an express warranty of soundness, yet if the horse be unsound, I shall have writ of trespass on my case, and shall aver, that you sold me the horse, knowing it to be unsound.

Ibid. 167.

Ibid.

A general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind.(8)

But if cloth is warranted to be of such a length, when it is not, then an action on the case lies for damages, for that cannot be discerned by sight, but only by a collateral proof, the measuring it.

Also, if a horse is warranted sound, and he wants the sight of an eye, though this seems to be the object of one's senses, yet as the discernment of such defects is frequently maiter of skill, it hath been held that an action

Per Paston, J. It seems, that by the term “covenant” in this pas. sage must be understood implied promise, or warranty.

See Selw. 581, in notis. In cases of this kind, however, which are grounded merely on the deceit, it is essentially necessary, that the knowledge of the party, or as it is technically termed, the scienter, should be averred in the declaration, and also proved.

Ibid. in the text. (8) A horse being an animal subject to secret maladies, which cannot be discovered by a mere trial or inspection, it is usual, and in all cases prudent, for the buyer of a horse to require from the seller a warranty of its soundness ; for if a horse having a secret malady, is sold without a warranty of soundness, and without any

fraud on the part of the seller, the purchaser is without a remedy. * Formerly, indeed, it was a current opinion, that a sound price given for a horse was tantamount to a warranty of soundness; but it was observed by Grose, J. in Parkinson v. Lee, 2 East, 322, that when that doctrine came to be sifted, it was found to be so loose and unsatisfactory a ground of decision, that Lord Mansfield, C. J. rejected it, and said, that there must either be an express warranty of soundness, or fraud in the seller, in order to maintain the action.

Ibid. 584. The advantage arising to the buyer, from an express warranty of soundness, is this, that such a warranty extends to every kind of soundness, known and unknown to the seller ; and if the warranty prove false, the buyer has an immediate remedy against the seller, to recover a compensation in damages.

Ibid. 585.

on the case lieth to recover damages for this imposition.(9)

Besides the special action on the case, there is also a 1bid. peculiar remedy, entitled an action of deceit, to give damages in some particular cases of fraud ; and princi. pally where one man does any thing in the name of another, by which he is deceived or injured; as if one brings an action in another's name, and then suffers a non-suit, whereby the plaintiff becomes liable for costs; or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right.

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VII. Of this action as it respects injuries to real property. This action lies in case of a nuisance.(10)

2 Esp. Dig. 427. So it lies for a disturbance of ways. If a person has a right to a private way over the land

Cantrell v. Church, of another, and that way is obstructed or shut up, the Co. Abs. 9.9. person having such right, may maintain for such obstruction an action on the case. This right of way arises, 1. From the grant of the

2 Esp. Dig. 427, cites owner of the soil. 2. From prescription which supposes an original grant. 3. From operation of law : as where a man grants a piece of ground in the middle of his field, he tacitly gives a right of way to it, as necessary to its enjoyment.

So this action lies for the disturbance of a right of common.

So turning an ancient water-course is another injury, ve for which this action lies.

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1 Stra. 5.

(9) Where the affirmation is, (as it is termed in some of the books,) a nude assertion ; that is, where the party deceived may exercise his own judgment; as where it is mere matter of opinion, or where he may make inquiry into the truth of the assertion, and it becomes his own fault from laches, that he is deceived ; in this case an action cannot be maintained.

Selw. 583. (10) See Title NUISANCE.

VIII. Of injuries to a person standing in the relation of a husband.

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If any person entices away the wife of another to live a-part from him, without sufficient cause, the husband may have this action for the injury.

So if in consequence of an enormous battery of his wife, or any other bodily injury done to her, the husband is deprived of her society and assistance, he may have a particular action for the injury, and declare for a per quod servitium amisit.'

And the ground of the action being, the loss of the wife's company, not the injury to the wife herself, she need not join in the action.

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IX. Of injuries to a person standing in the relation of a father.

An action will lie at the suit of the father for getting his daughter with child.

But the daughter should be at the time resident in her father's house, or the action will not lie.(11)

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X. Of injuries to a person standing in the relation of a master.

If any person inveigles away the servant, or apprentice of another, and prevails on him to quit his service; it is an injury for which this action lies.

But in such case the person hiring must have notice, that the servant was then in the service of another and not discharged, for otherwise he might hire the servant, ignorant of the circumstances, and so would do no injury, unless after notice he refused to discharge him.

For it is no excuse for the defendant, who has hired the plaintiff's servant to say, that he did not entice him

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(11) In this case Lord Mansfield held, that, she should be under the age of 21 years, but in the case of Tullidge v. Wade, it was held to be no objection, the daughter being above that age.

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away, but that the servant came away of his own accord, and hired with the defendant, if the defendant had notice that the servant had so deserted the plaintiff's service, and yet he still retained him.

Declaration,

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Pleadings,

XI. Of the declaration, pleadings and evidence.

The declaration in this action should state the particular manner in which the injury complained of has been 2 Esp. Dig. 413. committed.

For where the action was for overloading the plaintiff's horse, whereby he was injured, without shewing how he Cro. Eliz. 194. was overburdened, the declaration was for that held to be bad. In this action, the day laid in the declaration is not ,

2 Esp. Dig. 446. material, provided the plaintiff can prove the injury for which the action is brought to have been committed any time before the action brought.

The general issue in this action is not guilty; and upon it defendant may give in evidence any matter which des- i Wils. 45. troys the plaintiff's action.

As in case for beating plaintiff's servant, per quod servitium amisit, defendant upon not guilty may give in evi-9 G. 1. per Rayın. dence, that plaintiff did not lose his service, for that is the injury charged and denied by not guilty.

So under the general issue, defendant may give a jus-, por Diony tification in evidence.

As where the trespass laid was for beating the plaintiff's horse, per quod he lost the use of him for several 2 Stra. 872. days, the defendant pleaded not guilty, and he was allowed to give in evidence that he kept a shop, and that the plaintiff put his horse and cart so directly before the defendant's door, that the customers were prevented from coming to his shop, wherefore he whipped the horse away, and the defendant had a verdict.

In an action against the master for an injury done by the servant, the servant is not an admissible witness, unless Jarvis v. Adayes, he shews a release from his master; for if the plaintiff

VOL. IV.

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Slater v. Swann,

Evidence,

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