1831.

HEWITT

v.

PIGGOTT.

sent plaintiff, which had been so deposited by the plaintiff under it.

Cross, Serjt., objected, that, to make any part of the proceedings in equity evidence in this cause, the bill and answer must be put in, upon which the order in question was founded; and that it was not competent to the defendant to select a particular document, which might bear a very different interpretation from its prima facie import, when explained by the other parts of the proceedings to which it related.

TINDAL, C. J.-The object of putting in this order is merely to introduce a letter which it is alleged the plaintiff produced from his own custody, and placed in the Six Clerks' Office. I think the order is admissible of itself, being an act of the Court, not affecting the rights of either of the parties; but it is another question whether the letter can be given in evidence.

The order was then read.

A clerk from the Six Clerks' Office then produced several bundles of letters and papers as having been deposited there under the said order, from among which the letter in question was taken.

Cross, Serjt., objected to its being read, unless the bill and answer, of which this letter was in fact made a part, either by being set out in the answer, or being therein referred to and described, were also read. It might be the fact, that the present plaintiff had, in his answer in Chancery, given such explanations with respect to the letter, as would destroy or materially alter the effect for which it was attempted to give it in evidence on the other side.

Wilde, Serjt.-The letter is not written by the present

plaintiff, and, therefore, it cannot be made evidence against
him in the ordinary way, by proof of the handwriting.
But it appears, by the order, that it has been in his pos-
session for a considerable time, and it may be inferred that
he is not only well acquainted with its contents, but has
acted upon it. He will have full opportunity of giving any
fair and legitimate explanation of its contents here, which
he
may
have given in his answer in Chancery; and the de-
fendant ought not to be required to put in the whole pro-
ceedings, by which he would probably have to produce
as his evidence the partial statements of the plaintiff in
his own favour, which have nothing to support them.

TINDAL, C. J.-The letter cannot contain any statement made by the present plaintiff himself at the time it was written, because it is a letter written and sent to him. It is not proposed to put in with it any letter in reply, written by the present plaintiff; but, it may be that his answer in Chancery contains such a contradiction or explanation of any parts of the letter which may seem to bear against his right to recover in this action, as will at once wholly neutralize its effect. I think, therefore, that the letter is inadmissible without the bill and answer.

The letter was not read.

Verdict for the defendant.

Wilde and Jones, Serjts., and Follett, for the plaintiff. Cross, Spankie, and Andrews, Serjts., and Steer, for the defendant.

[Attornies-Vines & A., and R. Hill.]

See the case of Fairlie v, Denton, Vol. 3 of these Reports, p. 103.

1831.

HEWITT

v.

PIGGOTT.

1831.

Adjourned Sittings in London after Trinity

Term, 1831.

BEFORE LORD CHIEF JUSTICE TINDAL.

July 2nd.

sale of a colt contained the

following words

after the date,

name, and sum,

"for a grey
four years old
colt, warranted
sound in every
respect:"-
Held, that such

part as related
to the age was

BUDD v. FAIRMANER.

A receipt on the THE declaration stated, that in consideration that the plaintiff would deliver to the defendant a certain mare, and also pay him 10%. in exchange for a certain colt, the defendant undertook, and then and there faithfully promised that the said colt was then and there a four years old colt. It then averred that the plaintiff delivered the mare and paid the 10., "yet the said defendant, contriving and fraudulently intending to injure the said plaintiff, did not perform or regard his said promise and undertaking, but thereby craftily and subtilly deceived the said plaintiff in this, (to wit) that the said colt, at the time of the making of the said promise and undertaking of the said defendant as aforesaid, was not a four years old colt, but on the contrary thereof was much less than a four years old colt, (to wit) a three years old colt, whereby the said colt became and was of no use or value to the said plaintiff," and whereby also the said plaintiff "was put to great charges and expense in feeding, keeping, and taking care of it," &c.

a representation only, and not a

warranty.

The action was brought to recover the expense of keeping the colt mentioned in the declaration for a year, it being contended, on the part of the plaintiff, that the defendant warranted the colt to be, at the time of the bargain for it, a four years old, whereas, in point of fact, it was only a three years old. When the bargain was made, the following receipt was signed by the defendant

"Received, August 4th, 1830, of Mr. Budd, ten pounds for a grey four years old colt, warranted sound in every respect. John Fairmaner."

From the evidence of several veterinary surgeons it appeared, that, on the 4th of August, 1830, when the colt was sold, it was only a three years old, and could not be strictly called a four years old till the 1st of May, 1831; but they admitted, on cross-examination, that by four years old was sometimes meant three off or rising four, and sometimes four off or rising five. They said also, that till it was actually four years old, it was not suitable for a carriage horse, as which it appeared the plaintiff meant to use it.

Andrews, Serjt., for the defendant, contended that the plaintiff must be nonsuited, as there was no evidence of any warranty that the colt was a four years old colt: the warranty, according to the terms of the receipt, being confined to the soundness; and the other part being description only. He referred to Richardson v. Brown (a).

Wilde, Serjt., for the plaintiff.-The case of Richardson v. Brown is distinguishable from the present, as there the warranty was separate from the rest of the contract. There are numerous cases which shew that where a man sells an article of a given description, he warrants it to be of that description (b).

TINDAL, C. J.—I am of opinion that the first part of the receipt contains a representation, and the latter part a warranty. In the case of a representation, to render liable the party making it, the facts stated must be untrue to his knowledge; but in the case of a warranty, he is liable whether they are within his knowledge or not (c). The plain

(a) 1 Bing. 344; and 8 J. B. Moore, 338. The words relied upon in that case were, "To be sold, a black gelding five years old, has been constantly driven in the plough-Warranted." And it

was held that the warranty was
only of soundness.

(b) Vide the cases referred to
in the argument in banc.

(c) Vide Salmon v. Ward, Vol. 2 of these Reports, p. 211.

1831.

BUDD

ย.

79

FAIRMANER.

1831.

Budd

V.

FAIRMANER.

tiff has not made out his case as stated in the declaration, and therefore he must be called.

Wilde and Spankie, Serjts., and Kelly, for the plaintiff.
Andrews and Russell, Serjts., and Erle, for the defend-

[Attornies-Sylvester & W., and D. Willoughby.]

Nov. 13th.

IN the ensuing Michaelmas Term, Wilde, Serjt., obtained a rule nisi for setting aside the nonsuit. He cited on the motion the cases of Gardiner v. Gray (a); Bridge v. Wain (b); and Yeates v. Pim (c).

On a subsequent day in the term, Andrews, Serjt., shewed cause. The nonsuit was right. The language of the receipt is decisive, it warrants the soundness only. In moving for this rule it was argued, that every representation amounts to a warranty. But the cases cited do not