26 SOUNDNESS. 



contract being thus broken on the part of the seller, it is at the 

 buyer's option either to treat it as a nullity, and return the horse, 

 or to retain him, notwithstanding, and bring an action on the war- 

 ranty. In the former case, the price paid is the measure of the 

 damages he will be entitled to recover in an action ; in the latter, 

 the difference between that price and his real value. If he offer 

 to rescind the contract and return the horse, he may also recover 

 the expences of his keep ; but in order to do this a positive tender 

 is said to be necessary. No notice of the unsoundness need be 

 given to the vender to entitle the vendee to maintain the action ; 

 nor is it necessary to bring the action immediately on discovering 

 the unsoundness." — *' But, although such a notice be not essential, 

 yet it is always advisable to give it, as the omitting to do so will 

 furnish at the trial strong presumption that the horse, at the time 

 of sale, was free from the defect complained of, thus rendering 

 the proof of a breach of warranty more difficult. Common justice 

 and honesty require that the commodity should be returned at the 

 earliest period, and before it has been so changed by lapse of time 

 as to make it impossible to ascertain, by proper tests, what were 

 its original properties*." 



Having made these observations on lameness in general, we 

 proceed to the consideration of lameness in detail ; the various 

 kinds and forms of which, in order that our descriptions may be 

 conducted methodically, we have thrown into three classes. 



Class I, comprising lamenesses arising from disease of joints 

 or bursas mucosae. 



Class II, Lamenesses arising from disease or disordered func- 

 tion of muscles, or from disease of tendons or ligaments (uncon- 

 nected with joints). 



Class III, Lamenesses arising from diseases peculiar to the 

 feet. 



* Law Magazine for October, 1838. 



