SOUNDNESS. 431 



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 

 suiEcieat ; for it is possible that he might have caught cold by 

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

 from a cause that existed before the animal was in the purchaser's 

 possession. 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 pro- 

 mise to warrant the horse given at any period antecedent to the 

 sale, is invalid ; for horse-flesh is a very perishable commodity, 

 and the constitution and usefuhiess 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 is given without any legal consi- 

 deration. 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 suffice for 

 earnest. No verbal promise to buy or to sell is binding without one 

 of these. The moment either of these is effected, the legal trans- 

 fer of properly or delivery is ma,de, 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 vender, or by having any operation per- 

 formed, or any medicine given to him, he makes him his own. 

 The warranty of a servant is considereid to be binding on the 

 master.* 



If the horse should be afterwards discovered to have been un- 

 sound at the time of warranty, the buyer may tender a return of 

 it, and, if it he not taken back, may bring his action for the price ; 

 but the seller is not hound to rescind the contract, unless he has 

 agreed so to do. 



Although there is no legal compulsion to give immediate no- 

 tice 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 vender. If he refuses to receive him, thr 

 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 he recovered only for the time that necessarily intervened 

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

 legally necessary to tender a return of the horse as soon as the 

 unsoundness is discovered. The animal may be kept for a reaso- 

 nable time afterwards, and even proper medical means used to re- 



* The weight of authority decides that the master is bound hy the act of 

 the servant. Lord Kenyoo, however, had some doubt on the siiuject 



