#### A. L. Erwin *v.*Samuel Maxwell.

*1*j- From Burke. J

Warranty in the sale of a horse. — When the purchase-money was about to he paid, the buyer asked the seller, if the horse was sound; the seller, answered, he was. The declaration charged that the horse was unsound, lame, stiff and defective in all his limbs. Plaintiff nonsuited; for

1. The conversation about the soundness took place after the contract of sale had been entered into.

2. The answer of the seller to the question of the buyer, whether the horse was sound ? does not amount to a warranty ; for, to constitute a warranty, it must be express ; it will not be implied by a mere affirmation of the quality or kind of the article sold, nor by amere affirmation of the value, nor where the subject is of dubious quality, on winch common judgment might be deceived : and the reason is, that as a warranty renders the party subject to all losses arising from a failure of it, however innocent he may, Courts of Law are cautious in creating an obligation of such extent.

Without a warranty by the seller, or fraud on his part, the. buyer must stand to all losses arising from latent defects ; the principle on which the common law proceeds, being, that the purchaser ought to apply his attention to those particulars which may be supposed to be within the reach of his observation and judgment; and the vendor to communicate those particulars and defects which cannot be supposed to be immediately within the reach of such attention.

To make an affirmation at the time of the sale, a warranty, it must appear by evidence to be so intended, and not to have been a mere matter of judgment and opinion.

This was an action of assumpsit on a warranty in the the sale of a horse. The declaration charged that the Defendant did warrant and affirm to the Plaintiff, that the horse was sound, except that he had been badly cut for the hooks, which gave his eyes a bad appearance *;*and it fur- . ther charged that at the time of the sale and warranty, the horse was lame, stiff and defective in all his limbs and *242feet, so that ho could not travel well, and became of little use to the Plaintiff. The evidence on the trial related to a conversation between the Plaintiff and Defendant, when |jK,y weiJj- together into a room to pay and receive the purchase-money, after the agreement relative to the sale had taken place *•,*upon which conversation, the Plaintiff asked the Defendant if the horse he was about to let him have was sound *;*to which the latter answered, he was. After-wards the Plaintiff told the Defendant that some persons disliked the appearance of his eyes j to which the Defendant answered, his eyes were good, for any thing he loieiv to the contrary, that he had been badly cut for the hooks, and advised the Plaintiff not to let any person have any thing to do with him, except a skilful hand. It did not appeal' in evidence whether the conversation respecting tlie eyes, took place before the payment of the money, or at the time.

The presiding Judge nonsuited the Plaintiff; a rule for a new trial being obtained, it was sent to this Court; and

Tavxor, Chief-Justice,

delivered the opinion of the Court: ■

A few plain principles have been established by many decisions, on the subject of warranty, the application of which to this case will free it from difficulty. As a warranty i-endcrs *the*party subject to all losses arising from a failure of it, how'ever innocent he may be, much caution has been exercised in Courts of Law in creating an obligation of such extent. Hence the rule that on the sale of chattels, there is not any implied warranty, except as to the title ; that to constitute a warranty it must he express, and will not be implied by a mere affirmation of the quality or kind of the article sold, nor by a mere affirmation of the value, nor where the subject is of dubious quality, on which common judgment might be deceived. Therefore, when an auctioneer, on the sale of pictures, set in the printed catalogue opposite to each, the name of a painter, *243it was determined not to amount to a warranty of the pic-tare’s being the work of such artist.* In every case upon the sale of a chattel, where there is neither a warranty nor deceit, the buyer purchases at his peril. In the case of Chandler *v.*Lopez,† it was determined that for selling a jewel, which was affirmed to be a bezoar stone, when it was not, no action lay, unless the Defendant kne w it was not a bezoar stone, or had warranted it to be one. And in Packinson *v.*Lee‡, it was decided that a fair, merchantable price did not raise an implied warranty *;*that if there bo no warranty, and the seller sell the thing such as he believes it to be, without fraud, he will not be liable for a lateut defect. Lord Coke says, “ that by the civil *“*law, every man is bound to warrant the thing that he sel- *“*letli, albeit there be no express *warranty;*but tiie common *“*law bindeth him not, unless there be a -warranty in deed *“*or in law.” And Fitzherbcrt, in the Nat. Brev. 94, c. says, “ that if a man sell wine that is corrupted, or a *“*horse that is diseased, and there be no warranty, it is at *“*the buyer’s peril, and his eyes and his taste ought to bo the *“*judges in that case.” It appears from all the authorities, that without a warranty by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects *;*and a contrary rule is no where laid down. — The. principle, on which the common law proceeds, being, that the purchaser ought to apply his attention to those particulars which may be supposed to be within the reach of his observation and judgment, and the vendor to communicate those particulars and defects which cannot be supposed to be immediately within the reach of such attention. The. purchaser may always proude against his own want of vigilance or skill, by requiring the vendor to warrant. Saying, when the money was paid, that the horse was. sound, did not amount to a warranty ; to make an affirmation at the time of the sale, a warranty, it must appear by evidence to be so intended, and not to have been a mere *244matter of judgment and opinion.* Here the Plaintiff seemed content with the assertion of the Defendant as to the soundness of the horse, though he had been previously advised to take a warranty. If, then, the Defendant asserted only what he believed, and the contrary does not appear ,* and the Plaintiff chose to run the risk of being able to prove that the Defendant knew of the unsoundness, when he might have procured an indemnity, with or without that knowledge, there is neither hardship nor injustice in throwing the loss on him. The nonsuit must, therefore, stand, and the rule for a new trial be discharged.

*

 3 Term Rep, *57,*Carth. 90. Salk, 210,

*

2 Esp. Rep. 572.

†

 Cro. Jac.

‡

 Ersf. 314.