THE MODERN HORSE DOCTOR. 411 



" Or, ' Warranted free from vice and blemish, except ■ 

 " Or, ' Warranted in every respect, except 



" Or, 'Warranted to have been constantly driven both in single 

 and double harness, to have carried a lady, to have been regu- 

 larly hunted, to be a good hunter or hackney, &c, &c.' 



" Following the word ' except ' there being every opportunity 

 afforded the (honest) vender of stating what he may know inval- 

 idating the warranty, and thereby saving his reputation as well 

 as screening himself from the probability of litigation afterwards. 



" ' With respect to what (oral) declarations of the seller will 

 amount to a warranty, the primary rule for the interpretation of 

 contracts in general is applicable. It depends upon the intention 

 of the parties. A simple affirmation of the goodness of an arti- 

 cle is a warranty, provided it (a warranty) appear to have been 

 intended; whereas the sublimest epithets that seller ever em- 

 ployed to recommend his goods to a credulous buyer will be re- 

 garded as the idle phraseology of the market, unless an intention 

 to warrant actually appear.' In fine, ' it is from the intention of 

 the parties, as collected from the whole transaction, and from the 

 meaning they appear to have attached to particular expressions, 

 that the existence or non-existence of a warranty is to be in- 

 ferred.' * 



" ' Let us now consider how the rights of the parties are af- 

 fected by the horse being unsound at the time of the warranty. 

 The 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 warranty. 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 expenses of his keep ; but in order to do this, a posi- 

 tive tender is said to be necessary. No notice of the unsound- 

 ness need be given to the vender to entitle the vendee to main- 

 tain the action ; nor is it necessary to bring the action imme- 

 diately on discovering the unsoundness.' — ' But although such 

 a notice be not essential, yet it is always advisable to give it, as 



* Law Magazine for October, 1838. 



