
    B. Wiggins, vs. D. H. Hunter.
    
      .fiction for the breach of warranty of the soundness of a horse, for the purchase money of which a negotiable note had been given. Held that the action might be maintained, though the note had not been paid.
    This was an action for a'breach of warranty of the soundness of a horse,. It appeared that the plaintiff had given a negotiable note for the purchase money, which had not been paid;, and which still remained in the hands of the original payee. The presiding judge held, that the action could not be maintained, as .the plaintiff had not paid the money. The plaintiff, therefore, suffered a nonsuit, with leave to move this court to set it aside.
    A motion was now made for that purpose.
   The opinion of the Court toas delivered by ■

Mr. Justice Mott.

If this liad been an aciion for money had and, received, perhaps it could not have been maintained, because no money had been paid. But the question was, whether there had beep a breach of warranty, if so the right of action had accrued. If the horse was unsound, the warranty was broken. Whether the money was paid or not w'as perfectly immaterial, so far as regarded the right of aciion. The warranty on the one hand, and the promise to pay the money on the other, were mutual and independent contracts, founded on the consideration of mutual promises.

At common law, each party must have brought his action. It is only by an act of the Legislature that one could have been set off against the other. But the right to bring mutual actions is not taken away. How far the circumstance of the mo« ncy not having been paid might have gone to mitigate the damages, it Is not now necessary to inquire. But I doubt very much whether it could ever have had that effect: For the plaintiff had given a negotiable note, which might at any time have been transferred to other hands, and might, therefore, be regarded as an actualpayment. it is not necessary, however, now to-determine that question. I think the plaintiff was entitled to his action.

The motion, therefore, must he granted.

Huger, Johnson, ColcocJe, and ilichardson, Justices, concurred.  