432 SOUNDNESS. 



'.nove the unsoundness ; but courtesy, and indeed justice, will re 

 Muire that the notice should be given as soon as possible. Al- 

 chough It is stated, on the authority of Lord Loughborough, that 

 •* no length of time elapsed after the sale will alter the nature 

 of a conU-act originally false," yet it seems to have been once 

 thought it was necessary to the action to give notice of the un- 

 soundness in a reasonable time. The cause of action is cer- 

 tainly complete on breach of the warranty. 



It used to be supposed that the buyer had no right to have the 

 horse medically treated, and that he would waive the warranty 

 by doing so. The question, however, would be, has he injured 

 or diminished the value of the horse by this treatment? It will 

 generally be prudent for him to refrain from all medical treat- 

 ment, because the means adopted, however skilfully employed, 

 may have an unfortunate effect, or may be misrepresented by ig- 

 norant or interested observers. 



The purcliaser possibly may like the horse, notwithstanding his 

 discovered defect, and he may retain, and bring his action for the 

 lepreciation in value on account of the unsoundness. Few, how- 

 ever, will do this, because his retaining the horse will cause a 

 suspicion that the defect was of no great consequence, and will 

 give rise to much cavil about the quantum of damages, and after 

 all, very slight damages will probably be obtained. "I take it 

 to be clear law," says Lord Eldon, " that if a person purchases 

 a horse that is warranted, and it afterwards turns out that the 

 horse was unsound at the time of warranty, the buyer may, if he 

 pleases, keep the horse, and bring an action on the warranty ; in 

 which he will have a right to recover the difference between the 

 value of a sound horse, and one with such defects as existed at 

 the time of warranty ; or he may return the horse, and bring an 

 action to recover the full money ; but in the latter case, the sel- 

 ler has a right to expect that the horse shall be returned to him 

 in the same state he was when sold, and not by any means di- 

 minished in value ; for if a person keep a warranted article for 

 any length of time after discovering its defects, and when he re- 

 turns it, it is in a worse state than it would have been if returned 

 immediately after such discovery, I think the party can have no 

 defence to an action for the price of the article on the ground of 

 non-compliance with the warranty, but must be left to his action 

 on the warranty to recover the dilference in the value of the ar- 

 ticle warranted, and its value when sold.* 



Where there is no warranty, an action may be brought on the 



ground of fraud ; but this is very diihcult to be maintained, and 



not often hazarded. It will be necessary to prove that the dealer 



blew the defect, and that the purchaser was imposed upon by his 



* Curtis V. Hannay, 3 Esp. 83. 



