THE HOKSE; • 77 



The animal should then be tendered at the house or stable of the vender. 

 If he refuses to receive him, the animal may be sent to a livery-stable 

 and sold, and an action for the difference in price may be brought. The 

 keep, however, can be recovered only for the time that necessarily in- 

 tervened between the tender and the determination of the action. It is 

 not legally necessary to tender a return of the horse as soon as the un- 

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

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

 ness; but courtesy, and indeed justice, will require that the 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 false," yet it seems to have 

 been once thought it Avas necessary to the action to give notice of the 

 unsoundness in a reasonable time. The cause of action is certainly com- 

 plete 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 treatment, because the means adopt- 

 ed, however skillfully employed, may have an unfortunate effect, or may 

 be misrepresented by ignorant or interested observers. 



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. Faw, however, will do 

 this, because his retaining the horse will cause a suspicion that the de- 

 fect was of no great consequence, and will give rise to much cavil about 

 the quantum of damages, and, after all, very slight damages will prob- 

 ably be obtained. " I take it to be clear law," says Lord Eldon, " that 

 if a person purchases a horse that is warranted, and it afterward 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 seller 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 diminished in value; for if a person keep a 

 warranted article for any length of time after discovering its defects, 

 and when he returns 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 defense 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 diflerence in the value of the article 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 haz- 

 arded. It will be necessary to prove that the dealer knew the defect, 



* Curtis i's. Hannaj, 3 Esp. 83. 



