1788. FIELDER against STARKIN. she was unsound and vicious (a), but kept her three months after this discovery, during which time he gave her physic and used other means to cure her. At the end of the three months he sold her, but she was soon returned to him as unsound. After she was so returned, Plaintiff kept her till the month of October 1787, and then sent her back to the Defendant as unsound, who refused to receive her. On her way back to the Plaintiff's stable, the mare died, and on her being opened, it was the opinion of the farriers who examined her, that she had been unsound a full twelvemonth before her death. It also ap[18]peared that the Plaintiff and Defendant had been often in com pany together during the interval between the month of March, when the mare was sold to the Plaintiff, and October, when he sent her back to the Defendant; but it did not appear that the Plaintiff had ever in that time acquainted the Defendant with the circumstance of her being unsound. The jury found a verdict for the Plaintiff with 30 guineas damages. Le Blanc, Serjt., having obtained a rule to shew cause, why the verdict should not be set aside and a nonsuit entered; Adair, Serjt., shewed cause. Three questions arose in this case upon which the jury had a right to decide. 1st, Whether there was a warranty from Defendant to Plaintiff?-2d, Whether such warranty was true or false?-3d, Whether the Plaintiff returned the mare to the Defendant and gave him notice of the being unsound within due time? These were clearly questions of fact which it fell within the province of the jury to determine. Although it has been sometimes considered as a question of law, what shall be reasonable notice and due diligence, yet in the present case, whether the plaintiff returned the mare, and gave notice of her unsoundness in due time, is a question of fact, depending upon the situation of the parties, their places (a) The instances of which, were that" she was a roarer, had a thorough pin through the hock, and had a swelled hock from kicking." [Roaring is not unsoundness, unless it proceed from some disease or organic infirmity which renders the horse incapable of performing his usual functions. Bassett v. Collis, 2 Campb. N. P. C. 523. Onslow v. Eames, 2 Stark. N. P. C. 81. Any infirmity which renders a horse unfit for present service, is an unsoundness. El ton v. Brogden, 4 Campb. N. P. C. 281. 1 Stark. N. P. C. 127, S. C. but see Garment v. Barrs, 2 Esp. N. P. C. 673. Crib-biting is said not to be an unsoundness within a general warranty. Broennenburgh v. Haycock, Holt's N. P. C. 630; see also the note by the reporter. A cough, unless it be a temporary malady merely, has been held to be an unsoundness. Shillitoe v. Claridge, 2 Chitty's Rep. 425.] of of abode, and the facility of communication between them. As the jury have decided in favour of the Plaintiff upon these facts, the Court will not now interfere. It is plain that the jury gave no credit to that part of the evidence which tended to shew, that the Plaintiff and Defendant were seen together after the mare was discovered to be unsound, and that the Plaintiff at that time neglected to give notice to the Defendant. This neglect if it had been proved, would have been perhaps a waiver of the right to return the mare, but as the verdict is found, this evidence must be taken to be false. The jury have exercised a discretion, which they have a right to exercise, of believing or disbelieving any part of the evidence, and of which discretionary power many instances have occurred. 1788. FIELDER against STARKIN. Le Blanc, in support of the rule, confined himself to the question, Whether the Plaintiff had used due diligence to return the mare to the defendant, and had given reasonable notice of her being unsound? This, he argued, was a question of law, arising out of facts. The undisputed facts were, that Plaintiff had early discovered the unsoundness of the mare, but he took no pains to make inquiry for the Defendant, to give him notice of the mare being unsound, or to return her till six months [ 19 ] after he knew she was unsound. The inference of law from these facts must be, that he has not used due diligence, nor given reasonable notice to the Defendant. This is like the case of a bill of exchange being dishonoured, where it is necessary in order to make the indorser liable, that the holder of the bill should use due diligence and give reasonable notice to the indorser. But in such case what is due diligence and reasonable notice, is a question of law arising from particular circumstances (a).-The Plaintiff in the present case, was so far from returning the mare in proper time after he knew her to be unsound, that he endeavoured by every method to cure her, and exerted the highest act of ownership, by selling her to a third person. Lord LOUGHBOROUGH.Where there is an express warranty the warrantor undertakes that it is true at the time of making it. If a horse which is warranted sound at the time of sale, be proved to have been at that time unsound, it is not necessary (a) Tindal v. Brown, Term Rep. B. R. vol. 1. p. 167. that 1788. FIELDER against STARKIN. [ 20 ] that he should be returned to the seller. No length of time elapsed after the sale, will alter the nature of a contract originally false. Neither is notice necessary to be given. Though the not giving notice will be a strong presumption against the buyer, that the horse at the time of the sale had not the defect complained of, and will make the proof on his part much more difficult. The bargain is complete, and if it be fraudulent on the part of the seller, he will be liable to the buyer in damages, without either a return or notice. If on account of a horse warranted sound, the buyer should sell him again at a loss, an action might perhaps be maintained against the original seller, to recover the difference of the price (a). In the present case it appears from the evidence of the farriers who saw the mare opened that she must have been unsound at the time of the sale to the plaintiff. GOULD, J. of the same opinion, remembered many cases of express warranty, where a return was not held to be necessary. HEATH, J.-If this had been an action for money had and received to the plaintiff's use, an immediate return of the mare would have been necessary; but as it is brought on the express warranty, there was no necessity for a return to make the Defendant liable. WILSON, J. of the same opinion, recollected a cause tried. before Mr. Justice Buller, at Nisi prius, where the Defendant had sold the Plaintiff a pair of coach-horses and warranted them to be six years old, which were in reality only four years old. It was contended that the Plaintiff ought to have returned the horses; but Mr. Justice Buller held, that the action on the warranty might be supported without a return. As to part of the evidence being contrary to the verdict, the jury have a right to use their discretion either in believing or disbelieving any part of the testimony of witnesses. (a) [S. P. per Mansfield, C. J. in Rule discharged (b). p. 136. Dr. Compton's case, there cited. ALEXANDER ALEXANDER against COMBER. 1788. TROVER for sheep-Tried before Mr. Justice Grose, at the The Statute last Assizes at East Grinstead. It appeared that the Plain- of Frauds will prevent tiff had agreed to buy the sheep of the Defendant at Lewes a parol Fair, and to take them away at a certain hour. There was no agreement to buy goods money paid, nor any sheep delivered. The Plaintiff not com- without ing at the time appointed time, nor sending to take the sheep, the Defendant sold them to another person. Verdict for the Plaintiff. either earn est or delivery, from giving the buyer any them. In such case therefore the A rule having been obtained to shew cause why the verdict property in should not be set aside, and a nonsuit entered; Bond, Serjt., argued against the rule, that as the sheep were sold to the Plaintiff, there was a sufficient property in him to maintain the action; and as they were re-sold by the Defendant, a sufficient conversion on his part. But the Court held, that the statute of frauds prevented any property from vesting in the Plaintiff, so as to enable him to maintain trover, there being neither earnest, delivery, nor agreement in writing. buyer cannot mainagainst the tain trover, vendor, who sells them to another person. Where a sale is immediate, it is not within that WILSON, J., observed, that where a sale is not immediate it statute. is not within the statute of frauds, such as a contract to purchase a carriage when it shall be built, and the like. (a) See 4 Burr. 2101, Clayton v. Andrews.—1 Strange, 506, Towers v. Sir John Osborne. (See also Rondeau v. Wyatt, post. vol. 11. p. 63. Groves v. Buck, 3 M. Rule absolute (a). & S. 178. Garbutt v. Watson, 5 B. [ 21 ] a Defendants a CAMDEN, CALVERT, and KING, against EDIE. THE Plaintiffs having brought twenty-five actions on policy of insurance against the Defendant and others, rule was obtained to consolidate; by which it was ordered (among other things) that the Defendant should be at liberty to prosecute a bill filed by them in the Exchequer, upon their undertaking not to file any other bill against the Plaintiffs for an injunction, nor to bring "any writ of error." having agreed un der a con solidation rule not to bring any cannot do it, writ of error, though there be manifest error on the record. But The cause went to trial, and a verdict was found for the the Court will not grant an attachment against the Attorney for having brought such writ of error, if it appears that it was not done for delay, and that he was led into a mistake (a). (a) [See Baddely v. Shafto, 8 Taunt. 434.] Plaintiffs 1788. CAMDEN Plaintiffs for a total loss. The costs were taxed and paid by the Defendant's Attorney, and the damages settled between the and others parties themselves, who had an open account with each other. All the other Defendants (except one, who became a bankrupt) paid their subscriptions. against EDIX. The Plaintiffs' Attorney was afterwards served with an allowance of a writ of error in this cause; upon which a rule was obtained in Easter Term last to shew cause why an attachment should not issue against the Defendant's Attorney for contempt and breach of the consolidation rule, and why all further proceedings on the allowance of the writ of error should not be stayed. On shewing cause against this rule, it appeared by the affidavit of the Defendant's Attorney, that he had consulted some very eminent Counsel, who gave it as their opinion, that there was manifest error in the record; upon which, and also conceiving that the Defendant was only bound by the rule not to bring a writ of error for delay, he brought the writ of error in question, the damages and costs being previously satisfied. On this the Court called upon the Defendant's Counsel (who were Bond, Cockell, Runnington, and Marshall, Serjts.) to point out the error on the record. They stated the stat. 25 G. 3. c. 44. which enacts, "that no 66 person or persons shall make any policy of assurance, with"out inserting in such policy his, her, or their own name or "names, as the person or persons interested therein", &c. and that every policy made "contrary to the statute, should be "void." By the declaration it appeared that the action was brought jointly by the Plaintiffs Camden, Calvert, and King, stating that they caused to be made a policy, purporting thereby, and containing therein, that "Messrs. Camden and Calvert [22]" (leaving out King) as well in their own names as in the name " and names of every other person", &c. &c. and averring that the assurance so made was made for the benefit and on the account of them (the Plaintiffs), and that they were interested in the premises, &c. This omission of the name of King in the policy, as stated in the declaration, was a radical defect, which nothing could cure, inasmuch as it avoided the policy itself(a). Though there was (a) Wilton and others v. Reaston, tried at Guildhall, after Michaelmas no Term, 1787. There were several name |