case baily against MERREL Trinity term James on a agreement to carry good at  so much per cwt a action will not lie for false affirm that they contain a  less quantity of cwts than in fact they weigh for the plaintiff may have  inquire into the truth of the assertion ante post SC Bulst roll ab Yelv side  Carth salk term Rep action on the case whereas that December James there be  communication betwixt the plaintiff and defendant concern the hire the  plaintiff to carry for the defendant with horse and wain a load of mad from  Exhall in the county of Essex to Uppingham in the county of Rutland and that  then and there to deceive he in the carriage thereof the defendant affirm  fraudulent that the say load of mad be eight hundred pound weight whereto he  give credit undertake the charge of the say mad and that the defendant promise  he to pay for every hundred weight S d and he give credit that the say mad be  but eight hundred weight carry it accord to the say agreement croak throw and  allege in facto that the say load of mad weigh much more than eight hundred  weight videlicet two thousand two hundred weight by reason whereof his horse  draw the say wain with the load of mad be load with so great weight be compel  ita vehemently to labor et to draw that seven of his horse which draw the say  wain ration ind periba per quod c the defendant plead not guilty and it be  find against he it be now move in arrest of judgement that this action lie not  for he be hire to carry by the hundred it be his own folly to overload his  horse and it be a matter which lie in his own view and conusance and if he  doubt of the weight thereof he may have weigh it and be not bind to give  credence to another speech and be his own negligence he be without remedy as  where one buy a horse upon warrant he to have both his eye and he have but one  eye he be remediless for it be a thing which lie in his own conusance and such  warranty a or affirmation be not material nor to be regard but otherwise it be  in case where the matter be secret and lie proper in the conusance of he who  warrant it and can be know to he who buy or make the contract for the law give  no remedy for voluntary negligence the whole court be of that opinion although  it be say that there be apparent fraud here in he who affirm c and  peradventure the plaintiff be a stranger there where he undertake the carriage  and have no weight to weigh it but it be answer that it be his gross  negligence that he will undertake a weight so far exceed the affirmation  without cause it to be weigh wherefore the judgement be stay a see Mr butler  note   light a croak James er p croak throw hilary term James in the king  bench sir Edward coke Knt chief justice sir John croak Knt sir John Doderidge  Knt sir Robert Houghton Knt justice sir Francis Bacon Knt attorney general sir  Henry Yelverton Knt solicitor general