In this case, it appears to me, there was a rescisión of the contract, and that it was no longer open ; for after the unsoundness of the horse was discovered, the plaintiff tendered the horse to defendant, who did not dispute the unsoundness, but told the plaintiff to keep the horse, and if he died, he should be no loser.

The warranty of the defendant was here.put an end to, by the defendant himself, who admitted the unsoundness, and that if the horse died, he would pay. For, saying ‘‘that the plaintiff should be no loser,” amounted to a promise to pay. But, independently of that promise, the law would raise the implied assumpsit, where the consideration failed. It appears to me, therefore, there was no occasion for the plaintiff to declare on the warranty. The end and design of a special count is to guard against surprise ; but here is no pretence of a surprise on the defendant. There was no qu’estion of soundness to be tried between them, for the defendant knew the whole of the matter as well as the plaintiff; and the plaintiff keeping the horse, after the tender, till he died, was acting as the agent of the defendant, and at his request. There is, therefore, no ground to say this was not money paid to the plaintiff’s use. And if so, then this action will lie. 1 Term. Rep. 134,5, 6. I am, therefore, of opinion, that the nonsuit should be set aside.