The defendant, on his part, claims, that he sold the horse, to be taken by the plaintiff as he was, sound or unsound. If that was true, and that was all, there is no doubt that the plaintiff could have no right to recover, unless the court can make bargains for parties.

The plaintiff, however, says, that coupled with this assertion the defendant also undertook to account for certain appearances on the horse, by false assertions, viz., that his want of flesh was caused by a long journey, and the bunch on his neck, by bleeding. Now, if the defendant did make these assertions, and they were false, they completely repelled the defence, that the plaintiff took the horse as he was, sound or unsound. These assertions were calculated to throw the plaintiff off his guard, and to induce him to assume a risk which he never would have done, had they not have been made. They were probably the procuring cause of the contract now set up as a defence by the defendant; that he would take the horse sound or unsound. The defendant, therefore, ought not to be protected thereby, or avail himself of his own fraud. This was probably all that the judge intended in his charge ; but it seems *118to me, that inadvertently he has gone further, and that the jury-must have understood, that if the horse had the unsoundness, (of which he died) at the time of the exchange, and that was known to the defendant, and he did not communicate it, or if, any misrepresentation was used by the defendant, they must find for the plaintiff. There are two distinct propositions: one refers to a suppression of facts; the other, to a misrepresentation of them. The former is, indeed, justified, by the opinion of Lord Kenyon, in Mellish v. Motteaux, Peake’s Ca. 115. where it was held, that where a ship was sold with all faults, and had latent defects known to the defendant, and which the plaintiff could not discover, by any attention whatever, the seller was responsible. But in Baglehole v. Walters, 3 Campb. 154. that case is directly overruled, and Lord EHenborough held, that it was immaterial how many faults she had, if there was no artifice used to disguise them, or prevent their being disclosed; that by buying in this way the purchaser runs the risk of latent defects, and probably purchases for a proportional sum. And in Pickering v. Dowson, 4 Tann. 784. the last case is said never to have been questioned at the bar; and is sanctioned by the court of Common Pleas. The general principle, then, is settled, in conformity with the opinion of the ancient orator, that more silence, when the party is not called upon to declare, is not a representation. Aliud est tacere, aliud celare. Cicero de Offic.

Is there any difference, as seemed to be intimated, that these, were cases of vessels ? It seems to me, that the construction of a contract must be the same, whether it relate to a ship or a horse; and indeed Lord EHenborough illustrates his opinion, by this very. case. He says ; “ I may be possessed of a tiorse J know to have many faults ; and I wish to get rid of him for whatever sum he veil! fetch. I desire my servant to dispose of him, and insíéad of giving a warranty of soundness, to sell him with all faults. Having thus laboriously freed myself from responsibility, am I to be liable, if it be afterwards discovered that the horse was unsound ? Why did not the purchaser examine him in the market, when exposed to sale ? By acceding to buy the horse with all faults, he takes upon himself the risk of latent or secret faults, and calculates accordingly the price which he gives.” 3 Campb. 156.

The construction then of this contract, must be the same as if the filing sold were a ship, and in the absence of any fraud or *119misrepresentation, and with the suspicion that the offer to sell sound or unsound would naturally excite, I can see no reason for saying the vendor was liable. In such a case, it is difficult to see any thing immoral, where there is no artifice or misrepresentation. But “ whatever morality may require, it is too much for commerce to require,” that in such a case, the vendor should be responsible.

To the first proposition, then, in the charge,-I cannot assent.

It is said, however, that this remark must be considered as connected with the other proof and as coupled with the false representation- This ought to be done, if it will fairly admit such construction ; but the case shows, that the plaintiff offered to prove, 1, The unsoundness of the horse ; 2. that the defendant knew it, and did not communicate it ; and 3. that he made misrepresentations calculated to conceal it. Under this claim the jury are instructed, that if the horse was unsound, and that known to the defendant, and he neglected to communicate it ; or if the defendant made misrepresentations respecting it: they must find for the plaintiff. The jury, therefore, it appears to me, were as much bound to bring in a verdict for the plaintiff, upon finding the former propositions without the last, as the last without the former ; and of course, may have founded their verdict upon the 'fact of knowledge of unsoundness and concealment of it. If so, according to my view of the law, injustice may have been done.

With the other principle contained in the charge, I fully concur. The defendant can never palliate or destroy the effect of his false representation, by shewing, that he added, that he sold the animal with all faults, or sound or unsound. Such a construction would be as disgraceful to the law, as such conduct would be to him who practised it.

Another objection was made to the opinion of the court in relation to damages. This action is founded on a contract; and the damages are founded on a breach of that contract. But the expenses of keeping the horse, do not necessarily arise from this breach of contract. Had the plaintiff offered to return the horse, and had the defendant refused to receive him, he might, upon a count adapted to that state of facts, have recovered for his keep, — according to the case of Caswell v. Coare, 1 Taun; 566. But while the horse is his own and he has not offered to return him, he rqust keep his own horse, as long as he has it.

*120A doubt has been suggested, whether as the remarks on this part of the case to the jury, were not in the charge, they are the subject of a motion for a new trial.

When questions of law connected with the testimony, have been noticed, by the judge, in the charge to the jury, the after remarks upon the verdict are not to be caught at, as the ground of a motion for a new trial. But here was a point not noticed at all, by the judge in his charge, and followed by a direct ef-feet upon the jury, evinced by an increase of damages, which can be accounted for upon no principle, except that stated by the judge when he returned the jury to a second consid< ■ tion ; and the party affected by it can have no remedy, except by a motion or a petition for a new trial, unless the plaintiff remits the damages. A petition would only add to the delay and expenses of the party injured ; and no established rule prevents this court from doing what it is manifest must be done, in some wav-

I am, therefore, of opinion, that the defendant, upon both points, is entitled to a new trial.

New trial to be granted.