1. While we do not agree with the circuit judge in the view he took of the case, we-do not feel constrained to order *446a new trial. There is positive evidence that the defendant below said, at the time of the swap, that he would warrant the mule to be sound in every respect. That declaration was, doubtless, intended as a representation, and was understood to be such by the other party. That it amounted to a warranty, would not strip it of its character as a representation.
2. An express warranty may be waived as a contract, and an action maintained upon the same general transaction as fraud and deceit. To do this, the warranty must have been made with knowledge by the warrantor that it was false, and must have been accepted by the warrantee without such knowledge on his part. We think that these conditions, and others requisite to a recovery, are established with reasonable certainty by the evidence in the record.
3. The request to charge on the subject of giving notice, should have been refused altogether. Without the party trading the mule knew it was afflicted with the disease, he was guilty of no deceit; and if he did know it,'he was not entitled to be informed after the other party found it out. That the latter, when he found it out, was bound to use due diligence to keep the disease from spreading to his other stock, or else take the consequences of all subsequent injury to them, there can be no doubt; but it does not appear but what the court charged the law on that subject fully and correctly.
4. The verdict is so well warranted by the evidence, that we cannot do otherwise than regard as immaterial such inaccuracies as we have discovered in the charge of the court.
