#### M. C. C. LAWSON v. ELIAS BAER.

In an action for a deceit in the sale of a horse, where it appeared that the animal sold was affected with spavin, and slightly lame from that cause, and that there was a knot on the leg affected, which could be plainly seen, but the plaintiff took the nag without seeing it in motion, it was Held that the defect being patent, and there being no evidence of any art to withdraw plaintiff’s attention, he could not recover.

This was an action on the oase for a deceit in the exchange of horses, tried before SauNdees, J., at the Eall Term, 1859, of Lenoir Superior Court.

The following bill of exceptions is sent up as part of the record :

“ Smith, a witness for the plaintiff, testified that he was present at the trade. Defendant said she was the Davis mare. Witness asked why she was so poor? Defendant replied, she bad been hauling turpentine with mules. Witness thought the mare worth twenty-five dollars more than the horse, which defendant got, if sound. But plaintiff said be knew the mare better than defendant. Nothing further said by either party.

his father raised,the mare, who bad let him have her- — -that she was too fast for him, so he had traded her; that defendant told him she was spavined — had a small knot on one of her legs, which easily seen by any one— slightly lame. Plaintiff lived near.'h'is father’s, and knew the mare; the trade took place the saíne day defendant- got *462home. She had been worked with mules in hauling turpentine ; that his father took her out of the wagon because she was too fast.

Herring testified to her being slightly lame. 'The defendant offered no evidence.”

The Court charged that to entitle the plaintiff to recover, the jury should be satisfied that the mare was spavined, and that the defendant knew of the defect and failed to disclose it, unless the defect was such that a person of ordinary prudence might have discovered it.

The plaintiff’s counsel asked the Court to add : “unless the defendant, at the time, practiced some -art to divert the plaintiff’s attention.”

The Court asked “ where was the evidence of the defendant’s having practiced such art?”

The counsel replied, “ that was a question for the jury.”

The Court replied, that “ the jury could take it.” Defendant excepted.

Verdict for the defendant. Judgment for the defendant, and appeal by the plaintiff to this Court.

No counsel appeared for the plaintiff in this Court.

■J. W. Bryan, for the defendant.

Pearson, C. J.

A patent defect is one that may be discovered by the exercise of ordinary diligence. The mare, in reference to which the action was brought, “had a small knot on one of her legs, which (could be) easily seen by any one, and (was) slightly lame.” In the exercise of ordinary diligence, the purchaser of a horse should look at the legs and have the animal moved. So the defect, in this instance, was patent, and the charge of his Honor is supported by Brown v. Gray, '6th Jones’ Rep. 103, by which the law, in regard to patent and latent defects, is considered as settled.

The interrogatory put by his Honor: “ Where was the evidence of the defendant’s having practiced such art?” may be taken as an intimation of an opinion that there was no such *463evidence, which was a matter proper for Mm to decide. We concur with him in the opinion, that there was no evidence of the fact. So, the defendant has no right to complain, that instead of deciding it absolutely, he “letthe jury take it$” and, as their verdict corresponds with his opinion and that of this Court, it set the matter right. There is no error.

Per CceiaM,

Judgment affirmed.