
    WILLIAM THOMPSON v. RICHARD MORRIS.
    In an action for a deceit in the sale of a horse, where the unsoundness alleged was the loss of the frogs of the feet, which might have been discovered upon an ordinary inspection, nothing having been done or said by the seller to prevent enquiry, it was Held that the plaintiff could not recover.
    The rejection of testimony tending to prove a fact, which fact is assumed by the court as being proved, is not error.
    AotioN on the case for a deoeit, tried before Manly, J., at the last Fall Term of Orange Superior Court.
    The deceit alleged, was in the sale of a mare, and the unsoundness alleged was, that the frogs of the animal’s feet had either rotted out or fallen out. Upon this point, there was conflicting evidence, some portion of it tending to show that the frogs were gone, and another that they were in their natural state. In the course of the evidence, the plaintiff offered a blacksmith, who had been employed to put shoes on the mare while she belonged to the defendant, and asked him concerning a message that a son of the defendant had delivered to him, as coming from the father, touching the manner in which the shoes should be put on. This testimony was objected to by the defendant’s counsel as being mere hearsay ; that the son himself was the proper witness to prove the message sent by the defendant to the blacksmith. The evidence was excluded by the Court, and the defendant excepted.
    With respect to the deficiency of the feet, the Court assum-od it to be an unsoundness, in case the jury should find that they were gone at the time of the sale, but instructed them, that if absence or loss of the elastic substance at the bottom of the foot would be observable, upon ordinary inspection, it was not such a defect or unsoundnes as would make the defendant liable, unless he did or said something to prevent en-quiry or inspection. Plaintiff excepted.
    Yerdict for the defendant. Judgment and appeal.
    
      Bailey and Fowle, for the plaintiff.
    No counsel appeared for the defendant in this Court.
   Rattle, J.

"We are unable to discover any error in the bill of exceptions, of which the plaintiff has a right to complain. Supposing that the message, which the defendant sent, by his son to the blacksmith, as to manner in which he wished shoes should be put on his horse, was admissible, it could only prove an unsoundness and the scienter of the defendant, and that the Judge assumed to be true in his charge to the jury. The case then, turned upon the enquiry, whether the defect was so patent that the rule of caveat emptor' applied. Ilis Honor stated, that if the jury should find that the defect Avas a mere loss of the elastic substance or frogs at the bottom of the horse’s feet, it was a patent one, and the defendant was not liable, unless he said or did something to prevent the plaintiff from making an enquiry or inspection. This construction was, we think, in- accordance with the well-settled law on the subject. The plaintiff was injured, if at all, not by the deceit of the defendant, but by his own neglect in not discovering what the slightest inspection would have disclosed to him; Duckworth v. Walker, 1 Jones’ Rep. 507.

Pee CueiaM, The judgment must be affirmed.  