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TO CON

TRACTS OF

LOAN.

RELATING Consolidated bank long annuities, then standing in the name of the said plaintiff in the books of the Governor and Company of the Bank of England, by them kept for that purpose, to wit, at, &c. (venue); and thereupon, heretofore, to wit, on, &c. [day of transfer or about it,] at, &c. (venue) aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant would sell and dispose of his said interest or share in the said consolidated bank long annuities, and would then and there lend and advance the produce thereof to the said defendant, he the said defendant undertook, and then and there faithfully promised the said plaintiff to replace, in the name of the said plaintiff, in the books of the Governor and Company of the Bank of England, by them kept for that purpose, the said sum ofl. consolidated bank long annuities aforesaid, in [nine months then next following,] and until the said -. consolidated bank long annuities should be replaced, to pay unto him the said plaintiff, the amount of the interest, dividends, or produce which he the said plaintiff would have been entitled to in case the said consolidated bank long annuities of the said plaintiff had remained and continued standing, in the books of the said Governor [ *277] and Company, in the name of the said plaintiff; and the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) sell and dispose of his said interest or share in the said consolidated bank long annuities, and did then and there lend and advance the produce thereof, that is to say, the sum of -7. of lawful money of Great Britain, to the said defendant, and the said plaintiff in fact further saith, that although [nine months from the making of the said promise and undertaking of the said defendant] have long since elapsed, and although afterwards, to wit, on, &c. at, &c. aforesaid, he the said plaintiff requested (e) the said defendant to replace, in the name of the said plaintiff in the said books of the Governor and Company of the Bank of England, the said sum ofl. consolidated bank long annuities, according to the said promise and undertaking of the said defendant; yet the said defendant, not regarding his said promise and undertaking, but contriving, and craftily and subtly intending to deceive and defraud the said plaintiff, in this behalf, did not nor would, [in nine months after the making of his said promise and undertaking,] or at any time since, replace in the name of the said plaintiff, in the books of the Governor and Company of the Bank of England, the said sum of -. consolidated bank long annuities, or any part thereof, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do; and the said consolidated bank long annuities still remain wholly unreplaced as aforesaid. And the said plaintiff further saith, that if the said consolidated bank long annuities of the said plaintiff had remained and continued standing on the books of the said Governor and Company, in the name of the said plaintiff, the interest or produce thereof would have amounted in the whole to a large sum of money, to wit the sum of―l. [state enough] whereof the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. had notice; nevertheless the said defendant further disregarding his said promise, and undertaking, hath not, although often requested so to do, as yet paid to the said plaintiff the amount of the said interest or produce, or any part thereof, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit, at, &c. (venue) aforesaid.-[Add money counts, interest count, account stated, and breach.]

(e) Such request would seem unnecessary.

REPLACING

of ex

change,

had deliv

For that whereas heretofore, to wit, on, &c. (date of bill) at, &c. (venue) FOR NOT in consideration that the said plaintiff, at the special instance and request, STOCK. of the said defendant, would indorse and deliver to the said defendant a cer- For not tain bill of exchange, bearing date, to wit, the same day and year aforesaid, discountand drawn by the said plaintiff upon one E. F. whereby he, the said plain- ing a bill tiff, requested the said E. F. (two) months after the date thereof, to pay to his, the said plaintiff's order, the sum of -. for value received, to be dis- which ofl. counted by the said defendant for the said plaintiff; and also in considera- plaintiff tion that the said plaintiff had then and there agreed to pay and allow to the ered to desaid defendant, a certain sum of money, for interest or discount upon the fendant for said sum of—7. in the said bill of exchange specified, at and after the rate that purpose (ƒ). of 51. per cent. until the said bill of exchange would become due and payable, according to the tenor and effect thereof; [and also in consideration that the said plaintiff had then and there agreed to take, accept, and receive of and from the said defendant, in part of the said sum of money in the said bill of exchange specified, between 7. and -. worth of certain goods and merchandize,] (omit this statement between the brackets, if not according to fact), he the said defendant undertook, and then and there faithfully promised the said plaintiff to discount the said bill of exchange by delivering to the said plaintiff, in part of the said sum of money in the said bill of exchange specified, between -I. and -7. worth of certain goods and merchandize, and advancing and paying the said plaintiff the residue of the said sum of money in the said bill of exchange specified, within a certain time, which long since elapsed, (let these averments agree with the facts) and the said plaintiff in fact, says, that he, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the day and year aforesaid, indorse and deliver the said bill of exchange, to the said defendant, to wit, at, &c. (venue) aforesaid; and he the said plaintiff hath always hitherto been ready and willing to pay and allow to the said plaintiff the said sum of money, for interest or discount as aforesaid, and to take, accept, and receive, of and from the said defendant, in part of the said sum of in the said bill of exchange specified, between -l. and -l. worth of goods and mer- [ *278 ] chandize as aforesaid, to wit, at, &c. aforesaid; whereof the said defendant afterwards, to wit on the day and year aforesaid, to wit, at, &c. (venue) aforesaid, had notice. And although the said defendant did, on the day and year aforesaid, at, &c. aforesaid, in part-performance of his said promise and undertaking, in part discount the said bill of exchange, by advancing and paying to the said plaintiff the sum of -7. part of the said sum of money in the said bill of exchange specified, yet the said defendant, not regarding his said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this behalf, did not nor would, although he was afterwards, to wit, on the day and year aforesaid, at. &c. (venue) aforesaid, requested by the said plaintiff so to do, within such time as aforesaid, or at any time afterwards, deliver to the said plaintiff between 7. and -1. worth of goods and merchandize, or any goods and merchandize whatsoever, in part of the said sum of money in the said bill of exchange specified, or pay and advance to the said plaintiff the residue of the said sum of money in the said bill of exchange specified, or any part thereof, but hath hitherto wholly refused and neglected so to do; and the residue of the said sum of money in

(f) See 1 New Rep. 433; 6 East, 333; 2350, for not accounting for the proceeds of a Wentw. 482. See a form of declaration, post, bill delivered to defendant to get discounted.

VOL. II.

26

DISCOUNT

ING A BILL.

FOR NOT the said bill specified, to wit, the sum of 7. still remaing wholly due and unpaid to the said plaintiff, to wit, at, &c. (venue) aforesaid.-[Add another count on an executed consideration, and money had and received, account stated, and breach.]

[ *279 ]

ON WAR

RANTIES.

*XXII. ON WARRANTIES.

For that whereas heretofore, to wit, on, &c. (day of sale, or about it) On a war- at, &c. (venue) in consideration that the said plaintiff, at the special inhorse, &c. stance and request of the said defendant, would buy of the said defendant, a certain horse [or dog, &c. at and for a certain price or sum of money, to

ranty of a

to be

sound, &c.

(g).

(g) As to actions for breaches of warranties in general, see 1 Vin. Abr. tit. Act. Case Deceit, P. b. 1; 1 Com. Dig. action on the case of a Deceit, A. 8; 2 East, 446; Chit. jun. Contr. 133, &c. See old precedents, Morgan, 256. Herne, 92. It was formerly more usual to declare in case than in assumpsit. Dougl. 18; but of late assumpsit is most usual. See 2 East, 451, 452. See the forms in case, post, 679, and 3 Wils. 40.

(And see a declaration in case and law relating to warranties. 1 Adol. & El. 508.) If there was no warranty, but a written contract, and a false representation, the declaration should be in case for the deceit, 4 Camp. 22; 12 East, 11, and see further, for precedent and law, post, 697; and in some cases, though there be a warranty and stipulation that vendor will take the article back, yet vendee may sue for the deceit. 2 Stark. 162.

A warranty on the sale of a personal chattel, as to the right thereto, is generally implied. 2 Bla. Com. 451; 3 Id. 166; 3 T. R. 57; Peake, C. N. P. 94; Cro. Jac. 474. 1 Rol. Ab. 90; 1 Salk. 210; Dougl. 18, but not as to the right of real property, (Dougl. 654; 2 B. & P. 13; 3 B. & P. 166) if a regular conveyance has been executed, 6 T. R. 626. A warranty however, of the soundness, goodness, quality, or value of a horse, or other personalty is not implied on the sale or exchange thereof, 3 Campb. 351; 2 East, 314; 3 Bla. Com. 451; 3 Bla. Com. 165; 2 Rol. Rep. 4; F. N. B. 94. But there is an implied warranty that goods are of a merchantable quality, where the vendee has had no opportunity before or at the time of the sale of inspecting them, 4 Campb. 144. So if a person sells an article he thereby warrants that it is merchantable, that is, fit for some purpose. If he sells it for a particular purpose, he thereby warrants it fit for that purpose. Upon such principles therefore, if a man sells a horse generally, he warrants no more than it is a horse; but if the vendee asks for a carriage-horse, or a horse to carry a female or a timid and infirm rider, he who sells undertakes, on every principle of honesty, that it is fit for the purpose indicated. See per Best, C. J; 5 Bingh. 544. So if beer be sold to be consumed at Gibraltar, the sale is an affirmation that it is fit to go so far. 4 Campb. 169. 6 Taunt. 108. And in the case in 4 B. & C. 115. 6 D.

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& R. 208, S. C. Abbott, C. J. observed, "that on the trial it occurred to him if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose, and that he was still strongly inclined to adhere to that opinion," but some of his learned brothers thought differently. A warranty may be implied from the production of a sample, in a parol sale by sample; 4 Campb. 22, 144, 169; 4 B. & A. 387; 3 Stark, 32, and see note; and if the bulk of the goods do not correspond with the sample, it would be a breach of the warranty. If the contract describe the goods as of a particular denomination, there is an implied warranty that they shall be of a merchantable quality, of the denomination mentioned in the contract, 4 Campb. 144; 3 Chit. Com. Law, 303. 1 Stark. 504. 4 Taunt. 853; 5 B. & A. 240. In all contracts for the sale of provisions there is an implied contract, they shall be wholesome. 1 Stark. 384; 2 Campb. 391; 3 Campb. 286. If goods are ordered to be manufactured, a stipulation that they shall be prop er is implied. 4 Campb. 144; 6 Taunt. 108; especially if for a foreign market, 4 Campb. 169; 6 Taunt. 108. See a form, post, 282. An implied warranty will arise from the nonobservance of an usage in specifying defects, 4 Taunt. 847. Holt, C. N. P. 95, and see 4 B. & C. 110, 114.

A simple affirmation, or assertion by the vendor as to the value or quality of the goods does not amount to a warranty unless it be made and received as such, although the purchaser may have bought the goods on the faith of such recommendation, Cro. Jac. 4 Rol. Ab. 101. Chit. jun. Contr. 135, and in many cases the positive recommendation of the seller is not, from the nature of the case, to be regarded as a warranty, but merely as an expression of his belief and opinion on a matter of which he could have no certain knowledge, and on which the purchasers were generally capable of forming an opinion, Chitty jun. Contr. 135. Thus where the defendant not knowing the age of a horse, but having a written pedigree which he received with him, sold him as a horse of the age stated in the pedigree, at the same time stating that it was his source of information. Lord Kenyon held this was no warranty. Peake Rep. 123; 2 Esp. 572, and see 5 B. & Alb. 240.

RANTIES.

wit, the sum of -. to be therefore paid to the said *plaintiff, he the said de- ON WARfendant undertook, and then and there faithfully promised the said plaintiff that the said horse [or dog, &c.] then [was sound (h).] And the said plaintiff

Chit. jun. Contr. 135; 1 Bingh. 344. (In the case in 4 Car. & P. 45, it was decided, that if a person, at the time of selling a horse, say, “İnever warrant, but he is sound as far as I know," this is a qualified warranty, and may be sued on even in assumpsit, showing that the plaintiff knew of the unsoundness. Sed quære.)

A general warranty will not extend to guard against defects that are plain and obvious to the senses of the purchaser. As if a horse be warranted perfect, and wants an ear, or a tail, &c. 2 Bla. Com. 165; 1 Salk. 211. But if on the sale of a horse, the seller agree to deliver it sound and free from blemish at the expiration of a specified period, the warranty is broken by a fault in the horse when delivered, although such defect existed and was apparent or obvious at the time of the sale. 2 Bingh. 183. As to a sale of goods with all faults, see 5 B. & Ald. 240. 3 Campb. 154.

Where a horse has been warranted sound, any infirmity rendering it unfit for immediate use, is an unsoundness; it is not necessary the infirmity should be of a permanent nature, 1 Stark. 127, and a warranty of soundness is broken if the disease existed in the constitution of the animal at the time of the sale, although its fatal appearance could not be discovered, and did not appear until two months afterwards, 1 R. & M. 136. A cough of a permanent nature is an unsoundness, 2 Chit. Rep. 425. A nerved horse is unsound, 1 R. & M. 230. But crib biting, Holt, C. N. P. 630, or roaring, 2 Campb. 523, do not of themselves constitute an unsoundness; but if the roaring be of such a nature as to incommode the horse, when pressed to its speed, it is an unsoundness, 2 Stark. 81. It is a disputed question, whether thrushes, splints, or guidding to be an unsoundness, 2 Camp. 524, n. (Badness of shape of a horse is not unsoundness, though it might occasion lameness from badness of action, 1 Mood. & Rob. 299.) The question of unsoundness is for the opinion of the jury, 7 Taunt. 153. 8 J. B. Moore, 32. (Per Baron Parke, Hilliard v. Orbell, sittings in Exchequer, 11 June; 1834, Times, 12 June, "where a horse is warranted sound, and turns out otherwise, the purchaser has no right to return him unless the warranty was fraudulent; his only remedy is an action on the warrantry. This has been lately settled, but the general impression formerly among the profession, and now amongst all others, is that the purchaser is to return the horse,"-referring to Street v. Blay, 2 B. & Ad. 456.

If not otherwise stipulated, an action for the breach of warranty may be supported without returning the horse, or even giving notice of the unsoundness, and although the purchaser, have re-sold the horse. 1 Hen. Bla. 17; 1 T. R. 136; 2 T. R. 745; 9 B. & Cres. 265. But unless the horse be returned as soon as the defect is discovered, or if the horse has been

long worked, the purchaser cannot recover back the purchase money on the count for money had and received. 1 T. R. 136; 5 East, 449; 7 East, 274; 2 Campb. 410; 1 New Rep. 360, and in all cases the vendee should object within a reasonable time, otherwise a strong presumption arises that the article, at the time of the sale, corresponded with such warranty, and the plaintiff is called upon to give the strictest proof of the breach, 9 B. & Č. 265; 1 J. B. Moore, 106. 1 H. Bla. 19.

When the purchaser has not returned the goods, or endeavored to do so within a reasonable time after the sale on account of the breach of the warranty, or cannot return the goods or horse in the same state by reason of doctoring, &c. 3 Esp. 82; 5 East, 452, he has no defence to an action by the vendor for the price, but must proceed in a cross action on the warranty, 1 T. R. 136. 5 East, 449; 7 Id. 274; 2 Campb. 410; 1 N. R. 260; 3 Esp. Rep. 82; 4 Esp. Rep. 95, and it seems, if the vendee has accepted a bill or given any other security, the breach of warranty is no defence to an action thereon, but he must proceed by cross action, 2 Taunt. 2; 1 Stark. 51; 3 Campb. 38, S. C; 14 East, 486; 3 Stark. 175, but this seems otherwise when the purchaser has returned, or endeavored to return the goods in a reasonable time after the sale, see 2 Taunt. 2; 14 East, 484; 3 Campb. 38; Peake, C. N. P. 33. (2 B. & Adol. 456; 4 Nev. & M. 195.) In a late case whereby a contract of sale of cinq-foin seed, the vendor warranted it to be new growing seed; and soon after the sale, the buyer was told it did not correspond with the warranty, and he afterwards sowed part, and sold the residue, but which being unproductive was never paid for, it was held the buyer might defend an action for the price of the seed, by showing the breach of the warranty, and that the seed was good for nothing, 9 B. & C. 259.

For what damage defendant is liable in this action, post, 281, note. (Evidence. A prior vendor who warranted on his sale to the defendant is not a competent witness for the defendant in an action by a purchaser from him on a warranty. Bliss v. Mountain, 1 Mood. & Rob. 302.)

(h) This form may readily be applied to any description of warranty, as that the horse was "free from vice," &c. The warranty must be described accurately, and co-extensive with the breach complained of. If any conditional or exceptional terms be used, they must be followed in setting out the contract. Therefore if a horse be warranted sound, every where except a kick on the leg, the exception must be stated, 4 B. & C. 445. What a variance, 2 D. & R. 10, 7 Taunt. 405; 1 J. B. Moore, 109; 4 B. & C. 108. (See Heming v. Parry, 6 Carr. & P. 589, Where Anderson, B. observed on Jones v. Cowley, 6 D. & Ryl. 533.)

ON WAR.
RANTIES.

avers. that he confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, buy the said horse [or dog, &c.] of the said defendant, and then and there paid him for the same the said sum of money, nevertheless, the said defendant, contriving and fraudulently intending to injure the said plaintiff, [ *281 ] did not perform or regard his said *promise and undertaking, so by him made as aforesaid, but thereby craftily and subtly deceived and defrauded the said plaintiff in this, to wit, that the said horse, [or dog, &c.] at the time (i) of the making of the said promise and undertaking of the said defendant was not [sound] but, on the contrary thereof, was at that time [unsound (k)], whereby the said horse for dog, &c.] became and was of no use or value to the said plaintiff; and he the said plaintiff hath been put to great charges and expense of his monies in and about the feeding, keeping, and taking care of the said horse (7), in the whole amounting to a large sum of money, to wit, the sum of —7. to wit, at, &c. (venue) aforesaid.

Second

executed

considera

tion.

And whereas also afterwards, to wit, on the day and year aforesaid, at, &c. count on an (venue) aforesaid, in consideration that the said plaintiff, at the like special instance and request of the said defendant, had then and there (m) bought of the said defendant a certain other horse, at and for a certain other price or sum of money then and there agreed upon between the said plaintiff and the said defendant, he the said defendant undertook, and then and there faithfully promised the said plaintiff, that the said last-mentioned horse, at the time of the said sale thereof was sound; nevertheless, the said defendant, contriving and intending to injure the said plaintiff, did not regard his last-mentioned promise and undertaking, but thereby craftily and subtly deceived and defrauded him of this, to wit, that the said last-mentioned horse, at the time of the said sale thereof was not sound, whereby the said last-mentioned horse then and there became, &c.-[Conclude as in the first count_from_the*, and add counts for horse-keep as ante, 59, if there were any contract to that effect, and the money counts, and accounts stated, and breach.]

On a warranty of soundness

on an ex

For that whereas heretofore, to wit, on, &c. (day of contract or about it) at, &c. (venue) in consideration that the said plaintiff, at the special instance and request of the said defendant, would deliver to the said defendant a cerchange of tain horse of the said plaintiff, of great value, and would also pay to the said horses (n). defendant a certain sum of money, to wit, the sum ofl. of lawful money of Great Britain, in exchange for a certain mare of the said defendant, he

(i) This necessary.

(k) The particular description of unsoundness need not be stated, it being a rule in pleading, that the breach may in general be assigned in the negative of the words of the contract, Com. Dig. Pleader, C. 45; 2 Saund. 481 b; 3 T. R. 307; 9 Co. 60 b; Ante, vol. i. 291, &c.

(1) When not recoverable, see 2 Campb. 82; 2 Chitty's Rep. 416. If the horse has not been tendered to the defendant the plaintiff cannot recover damages for the expense of his keep. 1 Taunt. 566. But where there has been an express warranty, and the plaintiff relying thereon, had re-sold the horse with a similar warranty, and being sued thereon by his vendee, offers the defense to his vendor, who gives

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(n) When not necessary, see 9 East, 349. Generally speaking, as in a contract of sale, there is no implied warranty in the exchange of one commodity for another, 3 Campb, 351; see ante, 279, notes. In a contract for the exchange of a watch for candlesticks warranted silver, the owner of the watch cannot recover. it back though the warranty be false, 3 Carap. 299; see a precedent, ante, 274, for not paying money an exchange of horses

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