WARRANTY. 367 



money : the least sum will suffice for earnest. No verbal promise to buy 

 or to sell is binding without one of these; and the moment either of inesc 

 is effected, the legal transfer of property or delivery is made, and whatevei 

 may happen to the horse, the seller retains or is entitled to tlje money. li 

 the purchaser exercises any act of ownership, by using the animal without 

 leave of the vender, or by having any operation performed, or done to 

 him, or medicines given, he makes him his own. The warranty of a ser- 

 vant is considered to be binding on the master.* 



If the horse should be afterwards discovered to have been unsound at the 

 time of warranty, the buyer may return it. Although not legally com- 

 pelled to give notice to tiie seller of the discovered unsoundness, it will be 

 better for it to be done. The animal should then be tendered at the house 

 or stable of the vendor. If he refuses to receive him, it is cruel to tie up 

 the poor beast in the street, and leave him to the tender mercies of the 

 other party: it will be more advisable to send the animal to a livery-stable, 

 for an action (the horse having been tendered) may be brought for expenses 

 as well as for price. The k^ep, however, can be recovered only for the 

 time that necessarily intervened between the tender and the determination 

 of the action. It is not legally necessary to return the horse as soon as the 

 unsoundness is discovered. The animal may be kept for a reasonable time 

 afterwards, and even proper medical means used to remove the unsound- 

 ness; but courtesy, and indeed justice, will require that notice should be 

 given as soon as possible. Although it is stated, on the authority of Lord 

 Loughborough, that "no length of time elapsed after the sale will alter the 

 nature of a contract originally folse;" yet there are eases on record in 

 which the plaintiff was non-suited because he did not give notice of the 

 unsoundness in a reasonable time. The extent of this reasonable time 

 must depend on many circumstances. It used to be supposed that the 

 buyer had no right to have the horse medically treated, and that he would 

 vitiate the warranty by doing so. The question, however, would be, hag 

 he injured, or diminished the value of the ho'-se by this treatment? It will 

 generally, however, be prudent for him to rpfrain from all medical treat- 

 ment, because the means adopted, however skilfully employed, may have 

 an unfortunate effect, or what he does may be misrepresented by ignorant 

 or interested observers. 



When a horse is returned, and an action brought for the price, it will be 

 indispensable that in every other respect, except the alleged unsoundness, 

 the animal shall be as perfect and valuable as when bought. 



The purchaser, possibly, may like the horse notwithstanding his dis- 

 covered defect, and he may retain and bring his action for the depre- 

 ciation in value on account of the unsoundness. Few, however, will do 

 this, because the detention of 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. f 



* The weight of authority decides that the master is bound by the act of the servant. 

 Lord Kenyon, however, had some doubt on the subject. 



t " I take it to be clear law, that if a person purchases a horse that is warranted, and it 

 afterwards turns out that the horse was unsound at the time of the 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 paid; but in the latter case the seller has a right to 

 expect that the horse shall be returned to him in the same state he was vvhen sold, and not 

 by any means diminished in value; for if a person keeps a warranted article for any length 

 of time after discovering iia defects, and when he returns it, it is in a worse state than it 



