1. The instructions given to the jury in regard to the sale were correct, and were applicable to the evidence as reported. The warranty is alleged to have been made, at an interview between the parties, when the defendant came to Boston, bringing a paper containing the number and gouge of the barrels, or a bill of sale or parcels of the cider, (the evidence not being clear which it was,) and requesting a settlement. They agreed upon the price to be paid; a settlement was made, and payment was made. Although the cider had been previously received, yet it was competent to the jury to find upon this evidence that the warranty was part of the contract of sale.
2. If the plaintiffs found, on subsequent examination, that the cider was not such as it was warranted to be, it was not necessary for them to return it, or give notice to the defendant, but their right of action accrued immediately.
Exceptions overruled.