#### B. H. SIMMONS v. J. W. HORTON.

'Where the buyer, as well as the seller of a horse, had knowledge of a patent indication of disease, which, both as to its nature and origin, was misrepresented by the latter, it was Held that this amounted to some evidence on the question whether artifice had been used to withdraw the buyer’s attention from the defect.

Case, for deceit and false wabeanty in the sale of a horse, tried before Sauhdees, J., at the last Term of the Superior Court of Bertie.

The plaintiff introduced a witness who testified that ho went to the defendant, who had horses for sale at the hotel lot, in the town of Windsor, and as agent of the plaintiff, proposed to buy a horse ; that the horse in question was shown to him, which he finally bought at $105, but during the penden-cy of the trade, he discovered that there i-vas a knot upon one of the legs of the animal just above the hoof, to which he called the defendant’s attention. The defendant said in reply to this, that it arose from a kick another horse, and would be well in a few days, and that the horse was a good family horse. Upon concluding the purchase, tho witness started home with the horse, and had not traveled more than a mile when he discovei’ed that the horse was lame in the leg wRich had the knot upon it; and was lame every time ho was driven afterwards ; that plaintiff went a journey of about 70 miles *279a few days after getting the horse, and brought him back quite lame, when it was discovered that the knot in question was what is called a ring-lone, and that the malady continued to increase until the horse became very lame and hopped badly.

The defendant then introduced a witness to show that the defect was a patent one. He swore that he went to the lot about half an hour after the bargain was made, when he discovered that the horse was quite lame; that he called the attention of plaintiff’s agent to the knot on his leg, who said that defendant had told him it arose from a kick and would soon be well.

The Judge instructed the jury, that there was no evidence of a warranty, and he left it to them to say whether the defect complained of existed at the time of the sale, and if so, whether it was patent; that if the knot was obvious to an ordinary observer, the plaintiff could not complain of it, unless it was shown that the defendant used some artifice to divert the witness’ attention from the indication and prevent him from making an examination and enquiry. The defendant excepted.

Yerdict for the plaintiff. Judgment. Appeal.

Winston, Jr., for the plaintiff.

Garrett, for the defendant.

PeARSOk, O. J.

It is fixed by the verdict that the statement of the defendant “ as to the cause of the lameness was false, and was known by him to be so.” This concludes the question as to the scienter, and the only point open is, was there any evidence in regard to it. The distinction between any evidence and sufficient evidence, has been frequently marked out, and need not again be elaborated. This Court is of opinion there was evidence proper to be submitted to the jury. The knot on the leg of the horse would necessarily attract the notice of any one, and it was a fair and natural inference that the owner had examined into and ascertained its nature and what caused it. Any ordinary man would do this immedi*280ately; consequently, it was not indispensible to prove liow long the animal had been in the possession of the defendant, and as the knot was proved to be a ring-bone, and not the mere effect of a kick, the jury were at liberty to infer that the statement in respect to it, made by the defendant, was knowingly false. Indeed, as the defect was patent, the scienter would have been brought home to the plaintiff as well as the defendant, but for the fact, that the false statement of the latter, as to its cause was calculated to lull suspicion and prevent a thorough examination.

The question which was discussed by the counsel of the defendant, i. e. : If a vendor makes a statement in respect to property which he does not know to be true, and it turns out to be untrue, is liable in an action of deceit, does not arise. That point is cut off by the verdict. There is no error.

Per Curiam, Judgment affirmed.