
    WESTMORELAND COUNTY,
    March Term, 1797.
    Joseph Dixon v. Charles M'Clutchey.
    
      ASSUMSIT, on an undertaking, in the sale of a horse, that the horse was sound, with an averment, that he was unsound of the yellow-water, and thereof died. There was another count of indebitatus assumsit, for money had and received.
    There was evidence on both sides.
   President,

1. There is no express warranty or undertaking. The price is less, than of a found horse of the same appearance. There is evidence, from a conversation between the parties at the sale, that it was understood by both, that the horse might be unsound. The plaintiff therefore took his chance, and cannot recover, on the first count.

2. But fraud vitiates every contract, and one man, who fells a horse to another, knowing a material defect, which in equity and good conscience he ought to disclose, and does not if it be not known to the buyer, or such as a buyer of common prudence must be presumed to know; this is such a fraud as vitiates the contrail, and the buyer may call for his money again.

Verdict for the defendant.  