
    Wilmot vs. Hurd.
    Generally, a loarmnty of an article sold should be made at the time of sale ; but if, when parties first are in treaty respecting the sale, the owner offers to warrant the article, the warranty will be binding, although the sale does not take place until some days afterwards.
    In an action for the recovery of damages for the breach of a warranty in the sale of goods, the defendant is not entitled to a set-off of demands against the plaintiff.
    Error from the Steuben common pleas. Wilmot sued Hurd in a justice’s court. The defendant did not attend upon the return of the summons, but the plaintiff declared against him for the breach of a warranty in the sale of a horse, and the cause was adjourned to a subsequent day; at which time the defendant appeared and pleaded the general issue, and offered a set-off of demands which he had against the plaintiff. The justice ruled that the defendant was entitled *to plead a set-off, provided he paid the costs ; to which the plaintiff assented ; but the defendant did not offer to pay the costs. A jury was then summoned, who tried the cause and found a verdict for the plaintiff, upon which the justice rendered judgment. The defendant removed the cause by certiorari into the Steuben common pleas, and from the return of the justice, it appeared that when the parties first were in treaty respecting the sale of the horse, the defendant offered to warrant him as sound ; but it did not appear that at the completion of the sale, which was some days subsequent to the first conference, the defendant again warranted him. The horse was proved to have been unsound. The common pleas reversed the judgment, and the plaintiff sued out a writ of error.
    J. A. Spencer, for plaintiff in error.
    J. Taylor, for defendant in error.
   By the Court,

Savage, Ch. J.

I can perceive but two points which could have been raised in the common pleas upon the justice’s return : first, as to the admission of the set-off, and second, whether the warranty was valid, not being made at the time of the sale.

1. As to the first point, the justice and plaintiff agreed to receive the set-off on the payment of the costs, which of course meant the costs of the default; but the defendant did not pay them. This was not a case for set-off without the plaintiff’s consent. A set-off can be allowed in actions founded upon demands which could themselves be the subject of set-off according to law. 2 R. S. 354, § 18, sub. 5. Damages for breach of warranty in the sale of a horse cannot be set off; they are not for property real or personal sold, for money paid, or services done; nor are they liquidated nor capable of liquidation by calculation, id. sub. 3.

2. The warranty was made shortly before the sale—a few days only. In Lysney v. Selby, Ld. Raym. 1120, Lord Holt says, “ If, upon a treaty about buying certain goods, the seller ^warrants them, the buyer takes time for a few days, and then gives the seller his price, though the warranty was before the sale, yet this will be well, because the warranty was the ground of the treaty ; and this is warrantizando vendidit. According to this rule, the warranty was binding, nothing appearing to vary the liability of the defendant. There was no dispute about facts, nor contradiction of witnesses.

The justice’s judgment should have been affirmed, and the judgment of the common pleas must therefore be reversed.  