an action, if it turn out that he might be mistaken, and it was not the work of the artist to whom it was attributed. Upon a mistaken representation a party is not liable, unless he be guilty of fraud, but upon a warranty he is liable at all events. Williamson v. Allison (a). If the Defendant be held to have warranted the age, he may, with as much justice, be contended to have warranted the colour of the horse, or any other quality equally obvious to the sense. Wilde and Spankie Serjts. Richardson v. Brown was not an action on a warranty, but for the price of a horse which the defendant had kept and used; and the alleged warranty being apparently resorted to by an afterthought for the purpose of eluding payment, was not entitled to much favour. There is no printed report of Dickenson v. Gapp; and as to the age of the horse being apparent upon inspection, it does not appear but that the Plaintiff purchased without inspection on the recommendation of the Defendant. The principle which applies to such transactions is clearly laid down in Shepherd v. Kain (b), where the defendant sold what he described to be "a copper-fastened vessel; to be taken with all faults." The Court held, "with all faults must mean, all faults which it may have consistently with its being the thing described;" and that as the ship was not copper fastened, the plaintiff was entitled to recover for a breach of warranty. TINDAL C. J. In this case a written instrument was produced by the Plaintiff to shew the nature of the contract between him and the Defendant, and we are to interpret that instrument like all others, according to the intention of the parties. The instrument appears (b) 5 B. & A. 240. (a) 6 East, 446. 1831. BUDD V. FAIRMANER. 1831. BUDD บ. to be a receipt for 107. "for a grey four year old colt, warranted sound." I should say that, upon the face of this instrument, the intention of the parties was to conFAIRMANER. fine the warranty to soundness, and that the preceding statement was matter of description only. And the difference is most essential. Whatever a party warrants, he is bound to make good to the letter of the warranty, whether the quality warranted be material or not: it is only necessary for the buyer to shew that the article is not according to the warranty: whereas, if an article be sold by description merely, and the buyer afterwards discovers a latent defect, he must go further, allege the scienter, and shew that the description was false within the knowledge of the seller. And where there is an express warranty as to any single point, the law does not beyond that raise an implied warranty that the commodity sold shall be also merchantable. Therefore, in Parkinson v. Lee (a), upon a sale of hops by sample, with a warranty that the bulk of the commodity answered the sample, although a fair merchantable price was given, it was held that the seller was not responsible for a latent defect, unknown to him, but arising from the fraud of the grower from whom he purchased. A party who makes a simple representation stands, therefore, in a very different situation from a party who gives a warranty. And if so, how can I say that this distinction was not present to the mind of the Defendant in this case? When he sells a grey four year old colt, warranted sound, he means to say that he will be responsible for the soundness, but that the rest is only matter of representation, for which he will not be answerable, unless it be shewn to be false within his knowledge. Many cases have been referred to, and some stress has been laid on the effect of the word dedi when contained in a grant; (a) 2 East, 313. but, 1831. BUDD บ. but, according to Lord Eldon, in Browning v. Wright (a), words of that nature "import a contract in law, the effect and meaning of which would be affected by the subsequent words of the indenture;" and in the cases FAIRMANER. relied on for the Plaintiff, the sellers had delivered commodities essentially different from those which they had professed to sell. Richardson v. Brown and Dickenson v. Gapp are authorities in point for the Defendant. GASELEE J. concurred. BOSANQUET J. In every case where the contract appears on a written instrument, the instrument must be construed according to the intent of the parties. As, where the dealing is by a contract note, the article delivered must agree with the terms of the note; or, where a ship is insured, it must correspond with the warranties contained in the policy. What is the instrument here? Not a contract of sale, but a mere receipt, describing an antecedent contract. Are we to infer from the terms used, that the party had expressly contracted the animal should be four years old? The collocation of the word warranted shews that such was not the intention of the parties. Richardson v. Brown proceeded on this principle, and Dickinson v. Gapp is almost the same case as the present. Interpreting this instrument, therefore, according to the intention of the parties, I think it clear that the warranty was confined to soundness. ALDERSON J. It is not necessary to refer to Richardson v. Brown, because we can see here, from the collocation of the word warranted, that it is confined to the quality of soundness. A (a) 2 B. & P. 21. E s Rule discharged, 1831. Nov. 22. WILSON V. HAMER. A party dis- THE Defendant had been discharged from an arrest, charged from arrest on giving security, cannot be arrested again if the security turn out to be worth less, unless he has been guilty of fraud. upon giving the Plaintiff securities, which, as the Plaintiff alleged, turned out to be of no value. The prothonotary, upon an investigation of the circumstances, found that there was no fraud; but the Plaintiff, when the nature of the securities was manifest, without restoring them, had arrested the Defendant a second time for the same cause. Wilde Serjt. obtained a rule nisi for setting aside the process on the Defendant's filing common bail; when Spankie Serjt., in support of the second arrest, relied on Puckford v. Maxwell (a), where the defendant having been arrested at the suit of the plaintiff, obtained his discharge by giving a draft for a part of the demand, which draft being dishonoured, a second arrest was held regular. TINDAL C. J. The rule must be made absolute. The Defendant was discharged from the first arrest upon an arrangement that securities should be given. Whether they were adequate or not, at all events the Plaintiff took them, and now, without restoring them, arrests the Defendant a second time. The principle of the case referred to is, that when a party gets rid of an arrest by subterfuge or fraud, as by giving a check on a person with whom he has no connection, the plaintiff may arrest him again. That is not the case here, and, therefore, the rule must be made Absolute. (a) 6 T. R. 52. 1831. DIGBY V. Lord STIRLING. Nov. 22. having voted at the election SPANKIE Serjt. had obtained a rule nisi to set aside Defendant the capias ad respondendum and bail-bond in this case, upon an affidavit that the Defendant was a Scotch peer; had voted at elections for Scotch peers in the years 1825, 1830, 1831, when his vote was duly received by the clerk of session; and that an application similar to the present had been made to Lord Tenterden with success. Wilde Serjt. shewed cause on affidavits, which denied that the Defendant had any rightful claim to the title, or that the patent on which he relied, existed. It was also to be collected from the Defendant's own affidavit, that at the last election the Duke of Buccleugh and Lord Lauderdale had protested against the Defendant's voting; that his right had not been recognised by the House of Lords previous to voting, as required by order of that house; that the Lord Chancellor had refused to acknowledge him, and the King to receive him at court. The Defendant, therefore, it was contended, was not even a peer de facto; for the clerk of session had exercised no judgment on the claim, his office being merely ministerial. TINDAL C. J. The course which the Court will pursue is that to which the Defendant is entitled at their hands. Without our coming to any decision on the particulars of the Defendant's claim, he is entitled to be discharged on common bail if he acts as a peer of Scotland. By the twenty-second article of the act of union (5 Ann. c. 8.), sixteen peers of Scotland are to sit and E 4 vote of Scotch peers, Held, as a Scotch peer, entitled to be discharged from arrest, although his vote had been protested against, his claim to the title disputed, and never recognised by the House of Lords or at Court. |