5-^ ox SOUNDNESS, AND THE 



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

 atter the sale is mvahd, 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 agTeement, or the payment of earnest-money. The 

 least sum will suffice for earnest. N'o verbal promise to buy or to sell is 

 bmdmg without one of these. The moment either of these is effected the 

 legal transfer of property or deHvery is made, and whatever may happen 

 to the horse, the seller retains, or is entitled to the money. If the purchaser 

 exercises any act of ownership, by using the animal without leave of the 

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

 hmi, he makes him his own. The warranty of a servant is considered to 

 be bmdmg on the master : the weight of authority denoting that the mas- 

 ter IS bound by the act of the servant. Lord Kenyon, however, had some 

 doubt on the subject. 



If the horse should be afterwards discovered to have been unsound at 

 the tmie of warranty, the buyer may tender a return of it, and if it be not 

 taken back, may bring his action for the price ; but the seUer is not bound 

 to rescind the contract, unless he has 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 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 intervened 

 between the tender and the determination of the action. It is not legaUy 

 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 proper medical means used to remove the unsoundness ; 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 was necessary to the action to give notice of the unsoundness 

 m 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 

 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 

 refram from all medical treatment, because the means adopted, however 

 skilfully employed, may have an unfortunate effect, or may be misrepre- 

 sented by ignorant or interested observers. 



The purchaser possibly may hke the horse, notwithstanding his dis- 

 covered defect, and he may retain, and bring his action for the depreciation 

 m value on account of the unsoundness. Few, however, will do this, 

 because his retaining the horse wiU cause a suspicion that the defect was 

 of no great consequence, and will give rise to much cavil about the quan- 

 tum of damages, and after all, very slight damages will probably be 

 obtained. ' I take it to be clear law,' says Lord Eldon, in the cause 

 Gtirtis V. Eammy, 3 Esp. 83, ' that if a person purchases a horse that is 

 vyarranted, 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 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 brmg an action to recover the full money paid : but in the latter case, 



