such case to prove the defendant knew it not to be his own at the time of the sale (for the declaration must be, that he did it fraudulently, or knowing it not to be his own:) for if the defendant had a reasonable ground to believe it to be his property (as if he bought it bonâ fide) no action will lie against him; but the defendant cannot plead such matter, but must give it in evidence.-Medina v. Stoughton, sup. So if the vendor affirm that the goods are the goods of a stranger, his friend, and that he had an authority from him to sell them, whereas in truth they are the goods of another, and he had no such authority, an action will lie against him; and in such case it will be sufficient for the buyer to prove them the goods of another, without proving that the defendant knew them to be so; (for it need not be averred in the declaration) *for the deceit is in his falsely affirming he had an authority to [31] sell them; the plaintiff must therefore prove that he had no such authority; and doubtless, proving them to be the goods of another would be evidence primâ facie that he had no authority, and sufficient to put him apon proving that he had.-Warner v. Tallerd, cited 1 Danv. Ab. 176. pl. 7. (a) If the seller were out of possession of the personal chattel at the time of the sale, no action will lie against him though it be not his own, without an express warranty, for then there was room to question his title.-Medina v. Stoughton, T. 12 W. 3. Salk. 210. (b) term, offers to sell it to B. saying that a stranger would have given a certain sum for it, when in fact nothing was offered for it, this is not such an affirmation as will maintain this action. Vide etiam Bayley v. Merrill, Cro. Jac. 386. and 3 Bulst. 94. for a useful attestation of this rule; and also Pasley v. Freeman, 3 T. Rep. 54, where Grose, J. has mentioned another class of cases on fraudulent assertions, which see infra, note (b). (a) In Miles v. Sheward, 8 East, 9, Lawrence, J. said, if the substantive part of a warranty be proved, it is sufficient, and it is a very different thing whether the plaintiff truly state those parts of a contract, the breach of which he complains, though other parts, not material to the question, be not stated, or whether he state any part of it untruly, for then it appears to be a different contract. And Le Blanc, J. in S. C. said, that (b) But where one having posses If the seller affirm the rent of a house to be more than it really is, whereby the purchaser is induced to give more than it is worth, an action will lie for the deceit; for the value of the rent is matter which lies in the private knowledge of the landlord and tenant, and must be the same to all. But if the seller had only affirmed that J. S. would have given so much for it, whereas J. S. had never offered so to do, no action would lie, for such affirmation could not deceive in the value; (Risney v. Selby, H. 3 Ann. Salk. 211. Raym. 1118. S. C. nom. Lysney v. Selby. Leakins v. Chissell, T. 15 Car. 2. 1 Sid. 146.) so if he had only affirmed it was worth so much, for the purchaser might inform himself of the value. (Harvey v. Young, M. 44 & 45 Eliz. Yelv. 20.)(a) And so it is in all cases, where the purchaser may easily discover the true value, or where the thing may be of more value to one man than to another; as jewels, pictures, &c.—Leakins v. Chissell, sup. et vide 1 Lev. 102. S. C. nom. Elkins v. Tresham. In Chandelor v. Lopus, (E. 1602. Cro. Jac. 4.) which was a case, whereas the defendant having skill in jewels, had a stone which he affirmed to be a bezoar stone, and sold it as such to the plaintiff: judgment was arrested, because the declaration did not aver, that the defendant knew it not to be a bezoar stone, or that he warranted it to be one. (b) But if a merchant sell one kind of silk for another, whereby the purchaser is imposed upon in the value, he may bring his action; and though appear upon evidence that there was no actual deceit in the merchant, it (a) Where a thing is of a certain yalue, and that is known to the seller, but cannot be so to the buyer, if there be any deceit in affirming the value to be different from what it is, this action lies. Esp. N. P. Dig. 629; and upon this principle the above cases in the text were decided, and SO was Jendwine v. Slade, 2 Esp. N. P. C. 572. cited in Philips v. Hunter, 2 H. Bla. 415. and it has been also decided upon great consideration, that a purchaser may recover against a vendor for a false affirmation of rent, though he enquired what the estate let for, and did not depend on the statement. Sugd. Vend. and Purch. 5. Sce also Pasley v. Freeman, 3 T. Rep. 51, where Buller, J. said, that every deceit comprehends a lie, but yet it is more than a lie, from the view with which it is practised, its being coupled with some dealing, and the injury which it is calculated to occasion, and does occasion to another. (b) Sed quære as to this case, be cause there may be a difference between affirming a thing to be of a species which it is not, and warranting it to be good or bad of a parti cular species. In Lysney v. Selby, Raym. 1118. above cited, it was said by Powell, J. that actions on the case, in nature of a deceit, will lie upon a false affirmation without a warranty. But where this action is grounded on the warranty, there you must say, "warrantizando vendidit," Which was formerly the usual and correct form for this purpose. Vide Pope v. Lewyns, Cro. Jac. 630. See also Mr. Selwyn's observations on this case in his Abr. of N. P. Law, p. 581. but but that it was in the factor beyond sea; yet it will be sufficient to charge the defendant; for he shall be answerable for the deceit of his factor civiliter, though not criminaliter; for since somebody must be a loser, it is more reasonable that he that puts the trust and confidence in the deceiver should be the loser, than the stranger.-Hern v. Nichols, Salk. 289. (a) If (a) So if a servant sell any thing in the way of his master's trade, and warrants it, the master is liable. Esp. N.P. Dig. 630. Et vide Grammar v. Nixon, 1 Stra. 653, and Armory v. Delamirie, 1 Stra. 505. S.P. But where some hops were sold by sample, with a warranty that the bulk was of the same quality, the law will not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price was given; therefore, if there be a latent defect then existing in it unknown to the seller, and without fraud on his part (but arising from the fraud of the grower) such seller is not answerable, though the goods turn out not merchantable. Parkinson v. Lee, 2 East, 314, as to sale of goods by sample, and a compliance with warranties. Vide etiam Fortune v. Lingham, 2 Camp. 416. Hibbert v. Shee, 1 Camp. 113. Fisher v. Samuda, 1 Camp. 190. In order to charge the seller by reason of his warranty, it must be observed, that the warranty does not extend to defects visible to the buyer, for he must be aware of what he can see. But if the defect be not visible, a general warranty shall extend to it, and subject the seller in case of fraud. Vide Pasley v. Free man, 3 T. Rep. 63, where an action was brought upon an inducement to the plaintiff to give credit to a third person, in consequence of an affirmation by the defendant which he knew to be false, and it was there held, that to maintain such action, it was not necessary that defendant should have any interest in the deceit, or that he should have colluded with the other party, for fraud without damage, or damage without fraud, gives no cause of action, but where these two concur, the action lies. Per Croke, J. in Baily v. Merrill, 3 Bulst. 95; and it was said, that in the declaration, fraudulenter, without sciens, or sciens without fraudu lenter, would be sufficient. Per Buller, J. in Pasley v. Freeman, sup. in which case Grose, J. mentioned another class of cases, (somewhat contradictory) on fraudulent assertions, in which this action cannot be maintained, namely, where the affirmation is that the thing sold has not a defect which is visible, as in a case cited arguendo in Bayley v. Merrell, Cro. Jac. 387, where a man bought a horse, which the seller warranted to have two eyes, when in fact it had but one, yet the purchaser was held without remedy. So in Dyer v. Hargrave, 10 Ves. 507, Grunt, M. R. said, that at law a warranty is not binding where the defect is obvious, and he put the case of a horse with a visible defect, or a house without roof or windows, as in good repair. On a warranty broken, the ancient method was to declare in tort, in which case it was not necessary to charge the scienter, or if charged, to prove it. Williamson v. Allison, 2 East, 451. But the modern practice of declaration in assumpsit, with the money counts added, being found more convenient, it has been adopted ever since the case of Stuart v. Wilkins, M. 1778. Dougl. 18. And there are other cases of express warranty which move on the principle before laid down. As where a painter exhibited specimens of his art to one who contracts with him for a painting of a particular size, at If the vendor affirm a horse to be sound wind and limb, whereupon the purchaser fidem adhibens gives so much; if the horse be blind, an [*32] action will lie; (a) but it seems to be good evidence * in such case on the at a certain price, and the painting sent is of inferior execution. It was held, that the vendee must either pay the price or return the picture. Grimaldi v. White, 4 Esp. N. P. C. 95. Et vide Hunt v. Silk, 5 East, 449. 452. 2 Pr. Smith 15. Basten v. Butter, 7 East, 479. Taylor v. Hare, 1 Bos. and Pull. N. R. 260. In Finch's Law 189, it is laid down, that a warranty, in order to charge the vendor, must be upon the sale, for if after it is void. And the warranty can only reach things in being at the time. 3 Blac. Com. 165, therefore an offer of a warranty at one time will not extend to a subsequent sale of the same thing. Anon. 1 Stra. 414. But this action lies for the breach of a warranty in the sale of a chattel for which the purchaser has not paid. 9 Henry VII. 21. (b) Bro. Ab. tit. Deceit, pl. 24. So will cheating, or a false pretence, maintain this action, as personating a man in the demand and receipt of money. Thompson v. Gardener, Mo. 538. But not for the assumption of full age by an infant to obtain money. Johnson v. Pye, 1 Sid. 258. Yet for playing for money with false cards or dice it will. 90. Harris v. Bowden, Cro. Eliz. (a) A horse being more the subject of speculative dealing, than almost any chattel, and being more liable to secret maladies than any other animal, (which maladies are frequently not discernable either on inspection, or a mere trial) it has become usual, and a practice of prudence, to require from the seller a warranty of soundness, to guard against latent defects, and in Parkinson v. Lee, 2 East, 323, it was held, that if an express warranty be given, the seller will be liable for every la tent defect, but if there be no such warranty, and the seller dispose of the thing such as he believes it to be, Grose, J. said, he did not know that the law would imply he had sold it on any other terms than what passed; in fact, it is the fault of the buyer if he do not insist on a warranty. Lawrence, J. also said, that a seller is not liable for a latent defect where there is no fraud, even though the horse have a secret malady, if he be sold without a warranty. It was long a prevalent idea that a sound price given for a horse was tantamount to a warranty of soundness, but in the above case Grose, J. observed, that Lord Mansfield had rejected this doctrine as loose and unsatisfactory, and he laid it down as a rule, that there must either be an express warranty of soundness or fraud in the seller to maintain this action, which express warranty he held to extend to all sorts of soundness whether known or unknown to the seller. If a horse be warranted sound, and if upon discovery that it is not so, the buyer offers to return it, but the seller refuses to receive it, the former may bring his action on the breach of the warranty, if he can prove the unsoundness existed at the time it was given, even though eight months had elapsed; for Lord Loughborough held, that no length of time could alter a contract originally false, But where the seller expressly warrants a horse to be sound, and undertakes to receive him back and restore the money, if on trial he shall be found defective, the buyer, on discovery of unsoundness, must instantly return the horse, for a trial means a reasonable trial. Adams v. Richards, 2 H. Blac. 575. Et vide Payne the part of the defendant, that the defect is visible, for then it cannot be reasonably intended that the affirmation extended to it. And note, that Payne v. Whale, 7 East, 274. Power v. Wells, Cowp. 818. cited in Weston v. Downes, Dougl. 23. So if a man buy a horse which is warranted sound, and he afterwards prove to be unsound at the time of the warranty, the buyer may keep the horse, and bring an action on the warranty, in which he may recover the difference between the value of a sound horse, and the unsound horse when sold to him, or may return the horse, and sue for the full price, but in the latter case he must return him in the same state as when bought, and not diminished in value. Curtis v. Hannay, 3 Esp. N. P. C. 83. Et vide Grimaldi v. White, 4 ibid. 95. and Hunt v. Silk, 5 East, 452. S. P. So where plaintiff declared, that in consideration of his re-delivery to defendant of an unsound horse, which he had before bought of him, defendant had promised to deliver another horse in lieu, &c. which should be young, and worth £80, and then alledged a breach in both respects, this was held sufficient, though the proof was not only of a promise that the second horse should be worth £80, (which it was not) and be a young horse, but also of a warranty that it was sound, and had never been in harness. Miles v. Sheward, & East, 7. At a sale by auction one condition was, that any horse purchased there, and warranted sound, should be so deemed, unless returned within two days; plaintiff bought a horse; warranted six years old, and sound; ten days afterwards plaintiff discovered, that the horse was twelve years old, and offered to return him, but defendant refusing to receive him, plaintiff brought this action, and obtained a verdict, which the court afterwards set aside, holding that the condition of sale was con fined to the soundness, and did not extend to the age. Buchanan v. Parnshaw, 2 T. Rep. 745. As to the publication of condi tions of sale, it was held, in Mesnard v. Aldridge, 3 Esp. N. P. C. 271, that where the auctioneer announced the conditions to be as usual, and pasted them, printed on paper, under his box, it was a sufficient notice to all bidders; and Lord Kenyon compared this to cases of carriers who limit their responsibility by their public notices. Where a horse is sold, warranted sound, and part of the purchase money is paid down, if he prove un sound, and not of greater value than what is paid, the seller has received quant. mer. and can recover no more, King v. Boston, 7 East, 481. (n.) If a man sells a horse as of the age stated in a written pedigree, and declares he knows no more, this does not amount to a warranty. Dunlop v. Waugh, Peake's N. P. 123. Neither can a horse be deemed unsound which is lame by accident, and capable of being speedily cured, therefore an averment of a general warranty of soundness is supported by evidence of a warranty made with an exception of such an injury. Garment v. Barrs, 2 Esp. N. P. Č. 673. In an action on a warranty it is not enough to shew that a horse is a roarer, for that may be a habit and not symptomatic of any disease, or it may proceed from causes unconnected with health. Basset v. Collis, 2 Camp. 523. A party sued on the warranty of a horse may call a prior vendor, who sold with a warranty, to prove the animal sound. Briggs v. Crick, 5 Esp. N. P. C. 99. The vendee of a warranted horse, which proves unsound, cannot recover the expences incurred in keep |