
    ALLEGHENY COUNTY,
    December Term, 1793.
    David Irwin v. John Rankin.
    THIS was an action on the case, for selling a horse for 20l. assuming that he was found, when, in fact, he was unfound, and of that unsoundness died.
    It was proved, that Rankin, in selling the horse, said, he had been overheated, and was foundered; but that he would warrant him found in other respects. The horse, after being worked sometime, died two weeks after the sale; and there were opinions, that he had been affected, for some time before the sale, with the disease of which he died.
    
      Bradford, for the defendant,
    argued, that there was no fraud in the contract, that the sale was fair, and that the death of the horse was owing to his having been over-worked.
   President.

This action goes not on the foundation of fraud. The evidence proves none. And your verdict, going no farther than the allegata and probata, the facts alledged in the declaration and proved by testimony, cannot establish against the defendant any charge of fraud, nor acquit him of it. Your verdict must go on another point entirely, the undertaking that the horse was found. The question then is, what was the state of the horse, at the time of the sale. If he was only overheated or foundered, and the subsequent death was the effect of being worked after over-heating and foundering; Irwin must bear the lots: for Rankin sold him as an over-heated, and a foundered horse. If, on the contrary, the horse was, at the time of the sale, unsound of a disease, of which he afterwards died; Rankin must bear the loss; allowing for the profit, if any, made of the labour of the horse subsequent to the sale.

When the jury returned, and were ready to give a verdict, the plaintiff suffered a nonsuit.  