194 The Book of the Horse. 



A horse must be of considerable value, and the defendant must be rich enough to pay 

 damages and costs to make it worth while to venture, as plaintiff, into the expensive annoyance 

 of that worst of lotteries — a lawsuit. Sir James Stephens, a solicitor, wrote a book, with the 

 title of " Caveat Emptor," at the beginning of this century — which made a great sensation, 

 and has run through many editions — in which he gives the whole law of horse warranty, and 

 paints so picturesquely the pitfalls open for purchasers, that it is almost a wonder how any 

 novice can venture to buy a horse after reading it. But for the purposes of the present 

 work I have nowhere found all that a purchaser should know so simply and plainly laid 

 down as in an essay by A. T. Jebb, Esq., barrister-at-law,* from which the following extracts 

 are abridged : — 



" A representation that a horse about to be sold by auction is sound does not afford any 

 warranty to the purchaser at auction. According to Maule I., the contract commenced when 

 the horse was put up for sale, and ended when he was knocked down to the highest bidder. 

 But if a person sell a horse for a particular purpose — as a hunter, as a hack, to carry a lady 

 or a child — he could not fix on a purchaser a liability to pay for it unless it were a horse 

 fit for the purpose for which it was required. Whether a hunter must jump well is a question 

 for the jury ; but he must not be blind or wrong in the wind. In like manner, it has been 

 decided that a horse sold as ' a good hack ' must not be lame. The servant of a private 

 owner entrusted with selling a horse, ' not at a sale or mart,' cannot bind his master by 

 giving a warranty. It remains a doubtful question whether a special agent, entrusted with 

 the sale of a horse in a fair or other public mart, is or is not authorised to give a warranty. 

 But where a horse-dealer or livery-stable keeper employs a servant to sell a horse, any state- 

 ment made by him equal to a warranty will bind his master." 



It must, however, be carefully borne in mind that the seller of a horse may tell a great 

 many lies and use a great number of laudatory expressions that will not amount to a 

 warranty. Hence the necessity of a written warranty. 



" The rule as to unsoundness is that if at the time of sale the horse has any disease 

 which either actually does diminish the natural usefulness of the animal, so as to make him 

 less capable of work of any description, or which in its ordinary progress will diminish the 

 natural usefulness of the animal — or if the horse has, either from disease (whether such disease 

 be congenital, or arises subsequently to its birth) or from accident, undergone any alteration 

 of structure that either actually does at the time, or in its ordinary effects will, diminish his 

 natural usefulness — such a horse is unsound. The importance of the term ' natural usefulness' 

 in this definition must be borne in mind, for ' one horse with a heavy fore-hand is liable to 

 stumble, and is continually putting to hazard the neck of his rider ; another with an irritable 

 constitution and a washy make loses his appetite, and begins to scour if a little extra work 

 is exacted from him.' To this it may be added that such defects as cutting, speedy cut 

 and overreach, which arise from imperfection of form, though impairing the usefulness of a 

 horse, do not impair his natural usefulness, and therefore cannot be pronounced a breach of 

 warranty of soundness. As long as he is uninjured he must be considered sound. Although 

 it was otherwise held by Mr. Justice Eyre in one case, and by Mr. Justice Coleridge in 

 another, it would appear to be now well established that a warranty of soundness is broken 

 if a horse at the time of sale has any infirmity upon him which renders him less fit for 

 present use and convenience ; and his subsequent recovery is no defence to an action on the 



• T/u- Fuhl QiiarUrly Magazine, May, 1872. 



