SALE AND WARRANTY OF HORSES. 
225 
“ It is commonly asserted that a warranty will not bind when 
it is obviously false; the instance given being that of a horse 
warranted sound, when it is apparent that he is blind; and for 
this doctrine, the venerable argument, which makes so conspi¬ 
cuous a figure in legal logic, is usually urged—for that it is his 
own folly. For that it is the other's roguery, might, we think, 
be an argument of greater cogency the other w r ay, unless knaves 
in this country are to be regarded with peculiar favour, like idiots 
in Turkey ; but we apprehend that this rule,—if any such indeed 
exist,—is one of presumption only, it being inferred that both 
parties meant to exclude the particular defect from the warranty. 
The case of Shillitoe v. Claridge, however, goes far towards 
disproving the existence of such a rule.” 
Let us now consider how the rights of the parties are 
affected by the horse being unsound at the time of warranty. 
The contract being thus broken on the part of the seller, it is at 
the buyer’s option either to treat it as a nullity, and return the 
horse, or to retain him notwithstanding, and bring an action on 
the warranty. In the former case, the price paid is the measure 
of damages, which he w ill be entitled to recover in an action; in 
the latter, the difference between that price and his real value. 
If he offer to rescind the contract, and return the horse, he may 
also recover the expenses of his keep ; but in order to this a posi¬ 
tive tender is said to be necessary. No notice of the unsound¬ 
ness need be given to the vender to entitle the vendee to main¬ 
tain the action; nor is it necessary to bring the action imme¬ 
diately on discovering the unsoundness. As in a case where a 
mare was warranted to be sound, quiet, and free from vice and 
blemish, the buyer, soon after the sale, discovered that she was a 
roarer, had a thorough-pin, and also a swelled hock from kicking', 
yet kept her after this for three months, gave her physic, and 
used other means to cure her. At the end of that time he sold 
her, but she w r as soon returned to him as unsound. He sub¬ 
sequently sent her back to the seller as unsound, who refused to 
receive her, and in returning to the stables she died. He re¬ 
covered the full price.” 
“ But although such notice be not essential, yet it is always 
advisable to be given, as the omitting to do so will furnish at the 
trial a strong presumption that the horse, at the time of sale, was 
free from the defect complained of, thus rendering the proof of a 
breach of warranty more difficult. Common justice and honesty, 
it has been remarked, require that the commodity should be 
returned at the earliest period, and before it has been so changed 
by lapse of time, as to make it impossible to ascertain, by 
proper tests, what were its original qualities.” 
h h 
