horse, the contract being entire. Symonds v. Carr, 1 Campb. 361. Where the declaration stated the contract to be, that in consideration the plaintiff would buy of the defendant a horse for a certain price, to wit, 55l., the defendant undertook that the horse was sound, and the contract proved was that the defendant warranted the horse sound, and agreed to give 1l. back if the horse did not bring the plaintiff 4l. or 5l., this was held a fatal variance. Blyth v. Bampton, 3 Bingh. 472, Gaselee, J., diss.

The promise or warranty.] The plaintiff must prove an express warranty, a high price not being tantamount thereto. Parkinson v. Lee, 2 East, 322. Where the plaintiff wrote to the defendant, "You will remember that you warranted a horse as a five-year old, &c." to which the defendant answered," The horse is as I represented it," it was ruled that this was sufficient evidence for the jury to infer a warranty at the time of sale. Sulmon v. Ward, 2 ̊C. and P. 211. If the seller says, "The horse is sound to the best of my knowledge, but I will not warrant it," and the seller knows it to be unsound, he is answerable on this qualified warranty. Wood v. Smith, 4 C. and P. 45, 1 M. and M. MSS. S. C. Where the warranty was, "To be sold, a black gelding, five years oldhas been constantly driven in the plough-warranted," this was held to be only a warranty of soundness. Richardson v. Brown, 1 Bingh. 344, 8 B. Moore, 338, S. C. A servant, employed to sell a horse, has an implied authority to warrant; Alexander v. Gibson, 2 Campb. 555; and even though the servant have express directions not to warrant, but does warrant, the master, it is said, is bound, because the servant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed. Per Bayley, J., Pickering v. Busk, 15 East, 45; see Helyear v. Hawke, 5 Esp. 75. But this doctrine has been confined to the cases of sales by servants of horse-dealers, who may be supposed to possess a general authority. Bank of Scotland v. Watson, 1 Dow, 45; and see Fenn v. Harrison, 6 T. R. 760, Anon. case, cited 15 East, 407. What is said by the servant at the time of sale is evidence, but an acknowledgment at another time is not so, and the servant must be called. Helyear v. Hawke, 5 Esp. 72. A receipt for the price, containing the warranty, is admissible to prove the latter, though only bearing a receipt stamp. Skrine v. Elmore, 2 Cumpb. 407.

Where the plaintiff declared on a warranty that the horse was sound, and the warranty proved was, that the horse was sound every where, except a kick on the leg, it was held a fatal variance. Jones v. Cowley, 4 B. and C. 445.

Breach of the warranty.] The plaintiff must give positive

proof that the horse was unsound, &c. at the time of the sale; a suspicion that the horse was unsound is not sufficient. Eaves v. Dixon, 2 Taunt. 343. It was ruled by Lord Ellenborough, that any infirmity, as a temporary lameness, which renders a horse less fit for present use or convenience, though not of a permanent nature, and though removed after action brought, was an unsoundness. Elton v. Jordan, 4 Campb. 281. 1 Stark. 127, S. C. But in Garment v. Barrs, 2 Esp. 673, it was ruled by Eyre, C. J., that a horse labouring under a temporary injury or hurt, which is capable of being speedily cured or removed, is not an unsound horse. Roaring is not, it is said, necessarily unsoundness, unless symptomatic of disease; Basset v. Collis, 2 Campb. 523; but if it is of such a nature as to incommode the horse when pressed to his speed, it is an unsoundness. Onslow v. Eames, 2 Stark. 81. A nerved horse is unsound. Best v. Osborne, R. and M. 290. A cough, if of a permanent nature, is an unsoundness, Shillitoe v. Claridge, 2 Chitty's R. 425; see 1 Stark. 127; but crib-biting is no unsoundness. Broennenburg v. Haycock, Holt, 630. Whether thrushes, splints, or quidding, be an unsoundness, is a disputed question. 2 Cumpb. 524 (n). So the being "chest foundered." Atterbury v. Fairmanner, 8 B. Moore, 32. It need not be averred, nor, if averred, proved, that the defendant knew of the unsoundness. Williamson v. Allison, 2 East, 446. Proof that a horse is a good drawer will not satisfy a warranty that he is "a good drawer, and pulls quietly in harness." Colthird v. Puncheon, 2 D. and R. 10.

Damage.] If the horse has been returned, the plaintiff will be entitled to recover the whole price; if kept, the difference between the value and the price; or the plaintiff may sell the horse for what he can get, and recover the residue of the price in damages. Caswell v. Coare, 1 Taunt. 566. If the horse is not tendered to the vendor, the vendee can recover no damages for the expense of his keep, ibid.; but where the seller rescinded the contract, it was held that he was liable for the keep of the horse from the time of the contract; King v. Price, 2 Chitty, 416; though for such space of time only as would be required to re-sell the horse to the best advantage. M'Kenzie v. Hancock, R. and M. 436. Where A. warranted a horse to B., who re-sold him with a warranty to C., and the horse proving unsound, C. sued B., who gave notice to A. of the action, and offered him the option of defending it, but A. not giving any answer, B. defended the action, and failed, it was held that A. was liable in an action on the warranty, for the costs of the action brought by C. against B. Lewis v. Peake, 7 Taunt. 153, 2 Marsh. 431, S. Č.

Competency of witness.] It has been held, that a former pro

prietor of a horse, who has sold him with a warranty to the plaintiff, is a competent witness for the defendant, to prove that the horse was, at the time of the sale by himself, sound; for it does not appear that the horse was unsound at that time, and unless it were, the witness would not be liable to the defendant; Briggs v. Crick, 5 Esp. 99; but see 2 Phill. Ev. 114, and quære, for unless the testimony as to the soundness at the time of the former sale, tended to prove soundness at the time of the latter sale, it would be irrelevant. If, on the other hand, the testimony of the soundness at the time of the first sale tends to proof of soundness at the time of the second, then the witness seeks to establish a fact in which, if he failed, damages would be recovered, to which he would, it seems, be liable, on negativing the fact which he attempted to prove, viz. the soundness at the time of the first sale. 3 Stark. Ev. 1647 (n), and see Lewis v. Peake, supra.

ASSUMPSIT ON PROMISE OF MARRIAGE.

To maintain this action, the plaintiff must prove, 1, the promise of the defendant as stated, and, 2, the breach. The promises must be mutual, the reciprocity constituting the consideration, 1 Rol. Ab. 1, 5, 22. Either a man or woman may sue for breach of promise of marriage, although an attempt was made in Harrison v. Cage, 5 Mod. 511, to resist the action on the ground that marriage is not an advancement for a man. As in other cases, an infant may enforce an advantageous contract, although not bound thereby, so an infant may sue a person of full age for breach of promise of marriage. Holt v. Ward, 2 Strange, 937, Warwick v. Bruce, 2 M. and S. 209. This action falls within the general rule actio personalis moritur cum personá; and cannot be maintained by an executor or administrator, unless perhaps under peculiar circumstances, whereby a strict pecuniary loss has accrued to the party deceased, and the personal estate been endamaged accordingly, which special damage must be stated on the record, for it will not be intended. Chamberlain v. Walker, 2 M. and S. 416.

Proof of the contract.] In an early case (Philpot v. Wallet, Skin. 24, 3 Lev. 65, S. C.) it was held, that mutual promises to marry come within the fourth section of the statute of frauds; and the rule was so stated by Lord Chief Baron Comyn in the Digest (Action on the case, F. 3.); but in Bull. N. P. 280, a contrary doctrine is laid down, for which the authority of Cork v. Baker, 1 Strange, 34, is cited. This case, as well as that of Harrison v. Cage, 1 Ld. Raymond, 386, has been animadverted upon by Mr. Philipps in vol. 2. of his Evidence, page 73, 5th edition. He, however, concludes by

K

stating the better opinion to be, and it is universally agreed upon at this day, that the promises need not be in writing. Should, however, written evidence of the contract be produced, no stamp is required. Orford v. Cole, 2 Stark, 351. A promise on the part of a woman may be presumed from such circumstances of acquiescence, or tokens of approval, as ordinarily attend the acceptance of an offer of marriage; her presence when the offer was made, and the consent of parents asked, without her making any objection; her subsequent reception of the suitor's visits, and concurrence in the arrangements for the wedding; her carrying herself as one consenting and approving, for her express consent in words is not necessary. Daniel v. Bowles, 2 C. and P. 554. Hutton v. Mansell, 3 Salk. 16. But to prove a promise by a man, undoubtedly more would be necessary, neither the usages of society nor considerations of delicacy interfering, to restrain an explicit declaration on his part. A promise to marry generally is in law a promise to marry within a reasonable time; and although a special promise to marry at a particular time, varying from that stated on the record, should be proved in evidence, it may be left to a jury to infer from the circumstances a promise to marry generally. Potter v. Deboos, 1 Stark, 83. Phillips v. Crutchley, 3 C. and P. 178, 1 Moore and P. 239.

The breach of the promise.] To prove the breach of the promise, evidence must be given either that the defendent has married another, so that the performance of the promise is no longer possible; or that a tender has been made by the plaintiff, followed by a refusal on the part of the defendant. For this purpose it has been held sufficient, that the father of a female plaintiff demanded of the defendant, if he meant to perform his engagement with his daughter, and that the defendant replied, "Certainly not." Gough v. Farr, 2 C. and P. 631. Any conduct or circumstances evincing the readiness of the one party, and the contrary determination of the other, would be evidence of a tender and refusal to lay before a jury.

Defence.

If, after entering into a contract of marriage, either party discover gross immorality, or depraved conduct in the other, evidence to that effect may be given in bar of the action; thus brutal and violent conduct in the man, accompanied with threats of ill usage to the woman, go to the ground of the action; Leeds v. Cook, 4 Esp. 258; and if a man has been paying his addresses to one that he supposes a modest person, and he afterwards discovers her to be with child, (not by himself,) or to be a loose and immodest woman, and on such account he refuses to fulfil any promise of marriage he may

have made her, he is justified in so doing. Irving v. Greenwood, 1 C. and P. 350. Baddeley v. Mortlocke, Holt, 151. But if a man knowingly promise to marry a loose and immodest woman, he is bound by such promise. Per Lord Tenterden, ibid. To entitle the defendant to a verdict, on the ground of the bad character of the plaintiff, it is not sufficient to show that charges (as of pecuniary dishonesty and perjury) were made against him, which he promised, but failed to explain. The defendant must go further, in order to bar the action, and show that the charges were founded, and that the plaintiff's character was bad. Baddeley v. Mortlocke, Holt, 151. In reduction of damages, any circumstances in the character of the plaintiff, leading the jury to a just appreciation of the loss for which compensation is sought, may be proved; as also the disapprobation of the match expressed by the parents of the defendant, to prove which, (the father being an incompetent witness by reason of his having employed the attorney,) Lord Tenterden allowed one of the other relations to be called. Irving v. Greenwood, 1 C. and P. 350. To show the general bad character of the plaintiff, a witness may state what has been said by third persons; and it is not necessary to produce those persons. Foulkes v. Sellway, 3 Esp. 238, supra. If by misrepresentation, or wilful suppression of the real circumstances of the family and previous life of the plaintiff, the defendant be induced to enter upon or continue the treaty of marriage, it is a good defence to the action. Wharton v. Lewis, 1 C. and P. 531. Should the defendant's counsel intimate by his course of cross-examination of plaintiff's witnesses, that the practice of deception is imputed to the plaintiff, the plaintiff's counsel ought, upon such notice, before closing his case, to offer the evidence, rebutting such imputation. Ibid. If a female plaintiff know that her father is making, by letter, representations to the defendant respecting her, his letters are evidence for the defendant, to show deceit on her part, although she will not be answerable for particular expressions; but a representation made orally by the father to a third person, in the absence of the plaintiff, and by such person communicated to the defendant, is not admissible. Foote v. Hayne, 1 C. and P. 547.

ASSUMPSIT ON AN AWARD.

In assumpsit on an award, the plaintiff must prove the submission and award in the manner before stated, ante, p. 76, and the performance by himself of any conditions precedent. Where the submission has been by a judge's order, which has been made a rule of court, it is sufficiently proved by production of the rule. Still v. Halford, 4 Campb. 17. If the time for making the award has been enlarged, and the award made