WARRANTY. 367 



money : the least sum will suffice for earnest. No verbal promise to buy 

 or to sell is bindintr without one of these ; and the moment either of these is 

 effected, the le2:aT 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, by using' the animal without 

 leave of the vendor, or by having any operation performed, or done to 

 him, or medicines given, he makes him his own. The warranty of a ser- 

 vant is considered to be binding on the master*. 



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

 at the time of warranty, the buyer may return it. Although not 

 legally compelled to give notice to the seller of the discovered unsound- 

 ness, it will be better for it to be done. The animal should then be ten- 

 dered at the house or stables of the vendor. If he refuses to receive him, 

 it is cruel to tie up the poor beast in the street, and leave him to the tender 

 mercies of the other party : it will be more advisable to send the animal 

 to a livery-stable, for an action (the horse having been tendered) may be 

 brought for expenses as well as for price. 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 legally necessary to 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, how- 

 ever, would be, has he injured, or diminished the value of the horse by this 

 treatment? It will generally, however, be prudent for him to refrain 

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

 employed, may have an unfortunate effect, or what he does may be misre- 

 presented by ignorant or interested observers. 



When a horse is returned, and an action brought for the price, it will be 

 indispensable that in every other respect, except the alleged unsoundness, 

 the animal shall be as perfect and valuable as when bought. 



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

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

 in value on account of the unsoundness. Few, however, will do this, be- 

 cause the detention of the horse will cause a suspicion that the defect was 

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

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

 obtained t. 



* Tlie weight of authority decides that the master is bound by the act of the servant. 

 Lord Kenyon, however, had some doubt on the subject. 



f ' I take it to be clear law, that if a person purchases a horse that is warranted, 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; inv,'hich he will 

 have a right to recover the difference betv/een tlie value of a sound horse, and one with 

 such defects as existed at the time of warranty; or he may return the horse, and bring 

 an action to recover the full money paid ; but in the latter case, the seller has a right to 

 expect that the horse shall be returned to him in the same state he was when sold, and not 

 by any means diminished in value ; for if a person keeps a warranted article for any length 

 of time after Uiscoveriug its deftcts, and when he returns it, it is iu a worse state than it 



