WAEEANTT,] 



THE HORSE, A.ND 



[WAEEANTT, 



is termed a warranty. It sHould be thus ex- 

 pressed : — 



"Eeceived of A. B. forty pounds for a grey 

 mare, warranted only five years old, sound, 

 free from vice, and quiet to ride and drive. 

 "£40. C. D." 



A receipt including merely tlie word " war- 

 ranted," extends only to soundness : " war- 

 ranted sound" extends no further. The age, 

 freedom from vice, and quietness to ride and 

 drive, should be especially named. This war- 

 ranty embraces every cause of unsoundness 

 that can be detected, or that lurks in the con- 

 stitutiC'H at the time of sale, and to every 

 vicious habit which the animal has hitherto 

 shown. To establish a breach of the warranty, 

 and to be enabled to return the horse, or re- 

 cover the price, the purchaser must prove that 

 he was unsound or viciously disposed at the 

 time of sale. In cases of cough, the horse 

 must have been heard to cough previous to 

 the purchase, or as he was led home, or as 

 soon as he had entered the stable of the pur- 

 chaser. Coughing, even on the following 

 morning, will not be sufficient; for it is pos- 

 sible that he might have caught cold by change 

 of stabling. If he is lame, it must be proved 

 to have arisen from a cause that could not 

 have occurred after the animal was in the pos- 

 session of the purchaser, " 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 horse or 

 maintain an action for the price. The war- 

 ranty should be given at the time of sale. A 

 warranty, or a promise to warram the horse, 

 given at any period antecedent to the sale, is 

 invalid ; for the horse is a very perishable 

 commodity, and his constitution and his use- 

 fulness may undergo a considerable change 

 within the compass of a few days. A war- 

 ranty 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. No verbal pro- 

 mise to buy or to sell is binding without one 

 of these. The moment either of these is ef- 

 fected, the legal transfer of property or de- 

 livery is made ; and whatever may happen to 

 164 



the animal, the seller retains or is entitled to 

 the money. If the purchaser exercises any 

 act of ownership, by using the horse without 

 leave of the vendor, or by having any operation 

 performed, or medicines given to him, he 

 thereby makes him his own. The warranty of 

 a servant, we believe, is considered to be bind- 

 ing on the master, notwithstanding that Lord 

 Kenyon had some doubt on this subject. 



If the horse should be afterwards discovered 

 to have been unsound at the time of warranty, 

 the buyer may tender a return of it ; and if it 

 is not taken, may raise an action for the price. 

 The vendor, however, is not bound to annul 

 the contract, unless he had so agreed to do. 

 Although not legally compelled to give 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 stables 

 of the vendor. If he refuse to receive him, the 

 animal may then be sent to a livery stable and 

 sold. After this, an action — the horse having 

 been tendered — may be brought for expenses, 

 as well as for price. The keep, however, can 

 be recovered oiily for the time that necessarily 

 intervened between the tender and the deter- 

 mination of the action. It is not legally ne- 

 cessary to tender or return 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 there are cases on record in which 

 the plaintiff was nonsuited because he did not 

 give notice of the unsoundness in a reasonable 

 time. The extent of this reasonable time must 

 depend on many circumstances. 



It used to be supposed that the buyer had 

 no right to have the horse medically treated, 

 and that he would vitiate the warranty by 

 doing so. The question, however, would be, 

 has he injured or diminished the value of the 

 animal by so doing ? It will generally be pru- 

 dent for him to refrain from all medical treat- 

 ment, because the means adopted, however 

 skilfully employed, may have an unfortunate 

 effect, or may be misrepresented. 



