396 UNSOUNDNESS. 



the stable of the purchaser. Coughing, even on the followinir morning, will not be 

 euflicieiit; for it is possible that he might have caught cold by change of stabling. 

 If lie is lame, it must be proved to arise from a cause that existed before the animal 

 was in the purchaser's possession. No price will imply a warranty, or be equivalent 

 to one ; there must be an express warranty. A fraud must be proved in the seller, in 

 order that the buyer may be enabled to return the iiorse or maintain an action for the 

 price. Tlie warranty should be given at the time of sale. A warranty, or a promise 

 to warrant the horse given at any period antecedent to the sale, is invalid ; for horse- 

 flesh is a very perishable commodity, and the constitution and usefulness of the ani- 

 mal may undergo a considerable change in the space of a few days. A warranty 

 after the sale is invalid, for it is given without any legal consideration. In order to 

 complete the purchase, there must be a transfer of the animal, or a memorandum of 

 agreement, or the payment of earnest-money. The least sum will suffice for earnest. 

 \o verbal promise to buy or to sell is binding without one of these. The moment 

 either of these is effected, the legal transfer of property or delivery is made, and what- 

 ever may happen to the horse, the seller retains, or is entitled to the money. If the 

 purchaser exercises anj' act of ownership, by using the animal without leave of the 

 vendor, or by having any operation performed, or any medicines given to him, he 

 makes him his own. The warranty of a servant 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 inay tender a return of it, and, if it be not taken back, may bring 

 his action for the price ; but the seller is not bound to rescind the contract, unless he 

 ha? agreed so to do. 



Although there is no legal compulsion to give immediate notice to the 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 hinx, the 

 animal may be sent to a livery-stable and sold ; and an action for the difference in 

 nrice may be brought. The keep, 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 tender a return of the horse as soon as the unsoundness is 

 discovered. The animal may be kept for a reasonable time afterwards, and even pro- 

 per medical means used to remove the unsoundness ; but courtesy, and indeed jus- 

 tice, 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 was necessary to the action to give notice of the unsound- 

 ness in a reasonable time. The cause of action is certainly complete on breach of 

 the warranty. 



It used to be supposed that the buyer had no right to have the horse m.edically treat- 

 ed, and that he would waive the warranty by doing so. I'he 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 adopted, however skilfullj' employed, may have an unfortunate effect, or may 

 be misrepresented by ignorant or interested observers. 



The purchaser possibly may like the horse, notwithstanding his discovered defect, 

 and he may retain, and bring his action for the depreciation in value on account of 

 the unsoundness. Few, however, 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 (piantum of damages, and after all, very slight damatres will 

 ])robably be obtained. " I take it to be clear law," saj's Lord Eldon, " that if a per- 

 son 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 aciifm on the warranty; in which he will have a right to recover 

 the difference between the value of a sound horse, and one witli such defects as ex- 

 isted at the time of warranty ; or he may return the horse, and bring an action to 

 recover tlie full money p;:id : but in llie latter case, the seller has a right to expect 

 that the horse shall be n turned to him in the same state he was when sold, and not 



' The weight of auibority decides that the master is bound by the act of the Eervant. fjOrd 

 Kenyon, however, had some doubt on the subject. 



