UNSOUNDNESS. 397 



by any means diminished in value ; for if a person keeps 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 defence 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 difference 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 difficult to be maintained, and not often hazarded. It will be necessary 

 to prove that the dealer knew the defect, and that the purchaser was imposed upon 

 by his false representation, or other fraudulent means. If the defect was evident to 

 every eye, the purchaser has no remedy — he should have taken more care; but if a 

 warranty was given, that extends to all unsoundness, palpable or concealed. Al- 

 though a person should ignorantly or carelessly buy a blind horse, warranted sound, 

 he may reject it — the warranty is his guard, and prevents him from so closely exam- 

 ining the horse as he otherwise would have done; but if he buys a blind horse, think- 

 ing him to be sound, and without a warranty, he has no remedy. Every one ought 

 to exercise common circumspection and common sense. 



A man should have a more perfect knowledge of horses than falls to the lot of 

 most, and a perfect knowledge of the vendor too, who ventures to buy a horse without 

 a warranty. 



If a person buys a horse warranted sound, and discovering no defect in him, and, 

 relying on the v/arranty, re-sells him, and the unsoundness is discovered by the second 

 purchaser, and the horse returned to the first purchaser, or an action commenced 

 against him, he has his claim on the first seller, and may demand of him not only the 

 price of the horse, or the difference in value, but every expense that may have been 

 incurred. 



Absolute exchanges, of one horse for another, or a sum of money being paid in 

 addition by one of the parties, stand on the same ground as simple sales. If there is 

 a warranty on either side, and that is broken, an action may be maintained : if there 

 be no warranty, deceit must be proved. 



The trial of horses on sale often leads to disputes. The law is perfectly clear, but 

 the application of it, as in other matters connected with horse-flesh, attended with 

 glorious uncertainty. The intended purchaser is only liable for damage done to the 

 horse through his own misconduct. The seller may put what restriction he chooses 

 on the trial, and takes the risks of all accidents in the fair use of the horse within 

 such restrictions. 



If a horse from a dealer's stable is galloped far and fast, it is probable that he will 

 soon show distress ; and if he is pushed farther, inflammation and death may ensue. 

 The dealer rarely gets recompensed for this ; nor ought he, as he knows the unfitness 

 of his horse, and may thank himself for permitting such a trial ; and if it should occur 

 soon after the sale, he runs the risk of having the horse returned, or of an action for 

 its price. 



In this, too, he is not much to be pitied. The mischievous and fraudulent practice 

 of dealers, especially in London, of giving their horses, by overfeeding, a false appear- 

 ance of muscular substance, leads to the ruin of many a valuable animal. It would 

 be a useful lesson to have to contest in an action or two the question whether a horse 

 overloaded with fat can be otherwise than in a state of disease, and consequently 

 unsound. 



It is proper, however, to put a limit to what has been too frequently asserted from 

 the bench, that a horse warranted sound must be taken as fit for immediate use, and 

 capable of being immediately put to any fair work the owner chooses. A huntei 

 honestly warranted sound is certainly warranted to be in immediate condition to fol- 

 low the hounds. The mysteries of condition, as has been shown in a former part of 

 the work, are not sufficiently unravelled. 



In London, and in most great towns, there are repositories for the periodical sale 

 vif horses by auction. They are of great convenience to the seller who can at once 

 get rid of a hnrse with which he wishes to part, without waiting month after month 

 before he obtains a purchaser, and he is relieved from the nuisance or fear of having 



* Ctiitis v. Ilayinay, 3 E?n. 83. 

 34 



