222 
SALE AND WARRANTY OF HORSES. 
the horse dies in the vender’s custody, still he is entitled to the 
money, because by the contract the property is in the vendee.” 
“ But although the right of property is thus absolutely trans¬ 
ferred by the contract, yet, unless payment be expressly postponed 
to a future day, the buyer will not be entitled to possession , with¬ 
out tendering the stipulated price/’ 
“ We now come to the important doctrine of Warranty , which 
is thus summed up by Lord Coke. 1 By the civil law, every 
person is bound to warrant the thing that he sells or conveys, al¬ 
though there is no express warranty ; but the common law binds 
him not, unless there be a warranty, either in deed or in law, for 
caveat emptor; the meaning of which Latin expression is, that 
the buyer takes the article sold with all its defects, and must not 
look to the law for any redress if its intrinsic worth do not cor¬ 
respond with its outward appearance. It cautions the buyer, 
therefore, according to the Italian proverb, “ that he has need of 
a hundred eyes, but the seller of only one.” ’ 
u By the law of England, warranties are divided into express 
or implied: the latter, however, differ in no respect from the for¬ 
mer except in the circumstance of proof. The intention to war¬ 
rant is collected from the whole tissue of circumstances proved, 
and as a legitimate deduction from them, like the presumption of 
any other part not established by direct evidence ; while the ex¬ 
press warranty is proved by direct and express testimony to the 
fact itself. To give a single instance: In Jones v. Bowden, it 
was proved to be the uniform course and habit of dealing in a par¬ 
ticular place, if the article were sea-damaged, to state that fact on 
the sale of it: a sale was made without any such statement, and it 
was therefore held that the article was warranted not sea-da¬ 
maged. This was an implied warranty.” 
“ A warranty can only exist as a term and condition of the 
contract of sale, into the very essence of which it so completely 
enters, that a breach of it entitles the buyer to treat, if he 
pleases, the whole contract as a nullity. It constitutes part of 
the inducement or consideration for the purchase. It follows that, 
for a warranty to be valid, it must exist or be made at the time of 
the sale; or, at least, that, being agreed to be made before, there 
should be an understood reference at the actual sale to that agree¬ 
ment. As, for instance, if, previous to the time of the sale, the 
vender says he will warrant the goods, and having named his 
price, gives the vendee two or three days to consider of it, and 
the vender then agrees to purchase, the warranty, though only 
made hypothetically, is tacitly incorporated into the terms of the 
sale, and is a valid warranty.” 
