ON WARRANTY. 35 



unsoundness that can be detected, or that kirks in the con- 

 stitution at the time of sale, and to every vicious habit that 

 the animal has hitherto shown. To establish a breach of 

 warranty, and to be enabled to tender a return of the horse, 

 and recover the difiereuce of price, the purchaser must 

 prove that it was unsound, or viciously disposed, at the 

 time of sale. In case of cough, the horse must have been 

 heard to cough immediately after the purchase, or as he 

 was led home, or as soon as he had entered the stable of 

 the purchaser. Coughing, even on the following morning, 

 will not be sufficient ; for it is possible that he might have 

 caught cold by the change of stabhng. If he is lame, it 

 must be proved to arise from a cause that existed before 

 the animal was in the purchaser's possession. Ko price will 

 imply a w^arranty, or be equivalent to one ; there must be 

 express warranty. A fraud must be proved in the seller, in 

 order that the buyer may be enabled to return the horse, 

 or mantain an action as to the price. The 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 commod- 

 ity, and the constitution and usefulness of the animal 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 the earnest money. The 

 least sum will sufSce for earnest (say one dollar). No 

 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 whatever may 

 happen to the horse, the seller retains or is entitled to the 

 money. If the purchaser exercises any act of ownership, 



