EFFECT OF BREACH OF WARRANTY. 71 



then lame by means of it, but rather led him to muler- 

 stand that he had formerly been so, and a full price was 

 paid, it was held, on the horse proving lame, that the seller 

 was bound to repeat the price, (a) This warranty is 

 commonly combined with some other quality ; and no case 

 has turned upon the question of blemish alone. (5) If, 

 however, a horse "warranted sound" have a blemish of such 

 a character as to impair its usefulness, such blemish amounts 

 to an unsoundness ; (c) but if it merely amount to a lack of 

 elegance or of beauty, or of graceful action, it could not be 

 rejected on a warranty of unsoundness. Thus, chipped 

 knees, capped hocks, angieberries, warts, &c., are all 

 blemishes ; but it is a question of degree whether they 

 amount to unsoundness. When any special idiosyncrasy, 

 vice, or blemish is desired to be guarded against, which does 

 not come under those already mentioned, such — e.g., as 

 clicking, or over-reach, or the like, it is well to have a special 

 ^vritten warranty of freedom from it. 



57. Effect of Breach of Warranty. — By the law of Eng- 

 land, the buyer, when there is a breach of Avarranty, has a 

 twofold remedy ; he can either reject the horse, if there be a 

 stipulation to that effect, and rescind the contract, or retain 

 the horse and raise an action for the loss he has sustained 

 by the breach of the warranty.(cZ) In Scotland, however, 

 the buyer's only remedy is to return the horse to the seller, 

 or to place it in neutral custody, at the seller's risk and dis- 

 2Dosal,(e) if the seller will not receive it, and then bring an 

 action of reduction or of damaofes for breach of contract, 

 according to circumstances. (/) A buyer cannot both retain 



(a) Durie v. Oswald, 1791, Hume, 669 ; see also Scott v. Hannah, 1815 ; 

 Hume, 702, see § 38. 



(6) See cases svhere it is combined with other warranties. Lameness, Durie, 

 cit. ; blindness, Russcl v. Ferrier, 1792, Hume, 675, see p. 67, Scott, cit. 



(c) § 46. 



{d) Benj. 647, ct seq. 



(e) Gardiner v, M'Leavy, 1880, 7 K. 612. 



(/) B.C. i. 471, see §§ 36, 169. 



