case mew against russel in a action on the case a declaration state that the  plaintiff buy such wine of the defendant and the defendant in consideration  thereof then and there warrant they to be merchantable be good after verdict  for it shall be intend that the warranty and the contract be make at the same  time action upon the case on a warranty of good sell to be merchandizable thus  declare quod cum the plaintiff barganizasset et to buy of the defendant so  many hogshead of claretwine at such a price the defendant in consideration ind  warrantizabat et affirmaba adtunc et ibidem she be good c Mr pollexfen move in  arrest of judgement for that the warranty here be subsequent to the contract  and in consideration of the contract whereas it ought to be in the contract  and parcel thereof now this be but a voluntary promise afterward he cite the  case of pape v levuin a for that the defendant bargain to sell to the  plaintiff a mare and that the defendant know her to be lame sell he the say  mare and therein false deceive the say plaintiff and rule that the declaration  be not good because he do not say warrantizando to sell for if the warranty be  not at the time of the sale the action be not maintainable and here though it  be say to be adtunc yet it plain appear to be subsequent by the word in  consideration ind sander chief justice the adtunc prove it to be all at the  same time and the exception be very nice if it have be postea perhaps it have  be somewhat more dubious shower KB suppose the word in consideration ind have  be omit then it seem well enough however let it stay till it be move on the  other side Mr holt in Trinity term follow move for judgement here be a general  issue plead and a verdict for the plaintiff he agree the warranty ought to be  at the same time or nought and the usual form be warrantizando to sell but he  say that it be all at one time here for it be adtunc et ibidem which now after  a verdict ought to be intend at the same time and the money pay be always the  consideration of the warranty and all the court think it well enough and  judgement be give for the plaintiff see owlet case latch a cro James shower KB  er p