#### ALEXANDER DUCKWORTH v. DAVID WALKER.

The want of castration in a male mule does not meet the allegation of unsoundness.

Where a male mule, which has the usual developments in the scrotum, is sold at public auction, the maxim of *caveat emptor*applies to the claim oí damages for unsoundness in respect of the animal's being not castrated.

ACTION in the case for a Deceit in the sale of a mule, triéd before his Honor Judge Dick at the Spring Term, 1854, of Burke Superior Court.

The defendant offered for sale, at public auction, a male mule, which had not been castrated, but which had the usuaj. visible-developments in the scrotum. While the mule was being cried by the auctioneer, the plaintiff came np and proposed to give-seventy five dollars for the animal if he was sound; to which the defendant replied that the mule was sound. The trade was thereupon *concluded;*the plaintiff paid the seventy-five dollars to the defendant, and had the mule sent to a stable which ho designated. A few hours afterwards, the plaintiff accosted the defendant and informed him that he had discovered, since the sale, that the mule was not gelded ; that he had no idea he was purchasing a stud mule, and was cheated. To this the defendant replied that he suppposed everybody knew the quality of the animal in this particular, but offered to take back tbe mule and refund to tbe plaintiff the money he had received. This the plaintiff refused to do, saying he never made a *child’s bargain.,*hut was willing to forego his right to sue, if the defendant would pay him five dollars, which, he said, would cover the risk of the necessary operation of gelding. The defendant rejected this proposition, and accordingly the plaintiff brought his Suit.

His honor charged the jury “ that the fact of the mule’s being a ¡#tud, and not castrated, would not inlaw amount to unsoundness; and that the evidence, if believed, showed that the mule was an entire animal, and such certainly did not make him unsound,” *508and charged further that even if the law was otherwise, the plaintiff would not have a right to recover, because the unsoundness alledged was one of those appai*ent defects to which the doctrine of *caveat emptor*applies.

Under these instructions, the jury rendered a verdict for the defendant.

Motion for a *venire de novo.*Rule discharged; Judgment and appeal to the Supreme Court.

Avery, and *Gfaither,*for the plaintiff.

*Bynum,*for the defendant.

Battle, J.

We cannot conceive of any principle upon which the decision of his Honor can be impugned. The plaintiff’s «ounsel acknowledge that they have been unable to find any authority opposed to it, and we should require a very direct and strong one against it, before we could feel ourselves at liberty to everrúle it. The mule was in good health, and was possessed of all the parts, with which nature had endowed him, and therefore, was sound in law as well as in fact. But if the want of castration could be deemed unsoundness, “the usual visible developments on the scrotum” which the plaintiff might have seen, had he looked as well before as after the sale, were sufficient to have admonished him, *“ caveat emptor.”*The jury were properly instructed, and the judgment upon their verdict, in favor of the defendant, must be affiimed.

Per Curiam. Judgment affirmed.