l!^D<|£ LASCELLES HORSE WARRANTY. SECOND EDITION :i\!: I,- '^ i 1881 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY W A R D, SOLiCr'OR LYNN & V/ISBECHi HORSE WARRANTY. THE L AW llRI.ATIXIi TO Tin; PURCHASE, SALE, LETTING AND HIEING OF HORSES, AMD Tin-; RIGHTS AND LIABILITIES OF IXXKEEPERS, LIVERY STABLE KEEPERS AXD OTHERS, USING HORSES, WITH HINTS AS TO PROCEDUIfE IN CASES OF DISPUTE. BY FRANCIS HENRY LASCELLES, LL.B., Ill / I OF TItlXITY HALL, C'AMBUIDOE, AND OF TIIK IXXKK TF.Ml'LE, ESg., UAKRISTER-AT-LAW. ' Tu qui crotoris cavcre didicisti, in Britaniua ne ab essedanis decipiaris caveto." — Cic, Ep. Lib., 7 Ep. 6. SECOND EDITION, LONDON: eee"vt:s and tlt^nei?, loo, chancery lane, ^ato goolisfllrrs nnh Dublisljfn, T i.ONi>«x : I'KINTKI) IiT C. P. IIOWOUTII, UUKAM'h IlUII-I.tNOS, CHANCKBT IJIKE. 1^ TREFACE TO THE SECOND EDITION. In submitting another Edition of this little AVork to the puLlic, I have added somewhat to the law points, of value to the trade called " Ilorse Dealing," and, at the same time, I have tried to retain a more simple phraseology than is usually found in Law Looks. The chief object of my endeavours has been to supply Buyers and Sellers and Users of Ilorses, as well as Lawyers, -with some rules for their guidance. The latter, however, can always find access, in works especially devoted to contracts, to more complete treatises on the law, than I can hope to give in so small a publication. F. U. L. November, 1S80. 766311 niEFACE TO TIIE FIRST EDITION. Professional cii'cumstances have required mo during the last few years to see and hear a great deal of ntigation in what arc called *' Horse Cases." In that experience I have known many transactions in which the aggrieved party, on appealing to Law, has not been successful ; and where the ^^•aut of success has been attributed to defects in the tribunal appealed to, whereas, in fact, the blame should have been laid on the care- lessness or ignorance of the complainant in the trans- action under dispute. For this reason, partly, I venture to submit the following pages to the public. They are not intended for a Law Look, nor will they supply the place of business habits, or turn a careless deal or bargain into a satisfactory one ; but I hope they ^\•ill show those who propose to buy or sell a horse some of the rules and safeguards to bo adopted to avoid litigation, if possible, or to ensure success if litigation must take place. The o's\Tiership of a good many horses, both in India and in this country, must bo my apology for some statements which are the result of experience. Temple, May 1st, 1877. TABLE OF CONTENTS. -♦- CHArTEE I. PAGE Purcnaso and Salo of Ilorsos — Generally 1 CHAPTER II. Purchaso and Salo of Horses, and requisites necessary to satisfy tho Statute of Frauds 4 CHAPTER in. Barc:ains and Sales by Horsedealers, Auctioneers, and in Market Overt I9 CHAPTER ly. "Warranty of Uorscs 31 CHAPTER V. Purchase and Salo and "Warranty of Uorsos where there are Patent Defects 66 VIU TVllI.K OF CONTENTS. CILVrTER TL. PAOB Tho Rights and Liabilities of Innkeopors, Livery Stable Keepers and others, relative to lloi-ses 96 rnAPTEE YIT. Of Iliiing and Letting Horses 108 C'lLVrTEE Mil. Of Dri\-ing and Killing Horses, and tho Law and Rules relating thereto 118 CnArTEP. TX. Diseases of Horses 1-^2 CILVPTER X. Hints oa to Proceedings in Cases of Dispute 1C2 { ix ) TABLE OF CASES. A. PAOE AnnoTT r. Macfie l'J3 Acebal v. Levy 24 Adam v. RicliarcLs Go, 1G4 Adams v. Lancashire and Yorkshire Rail. Co 126 Alexander v. Gibson 51, 52 Allen V. Bennett 14 V. Pink 34 V. Shaqie 19 V. Smith 100 Archer v. Baj-nes 14 B. Bach I'. Owen 10 Baglchole r. Walter Gl Bailey r. Forrest 144 Baily v. Morrell 6G Baker v. Deniuf;- 14 Baldwav r. Ouster 101 Bartlett v. rumcU 23 Beaumont «'. Brengin .... 8, 22 Begbio r. Levi 22 Benjamin v. Andrews 30 Bennett r. Mcllor 99 Best V. Osbonie "SI), 137 Bexwell v. Christie 26 Binus V. riggott 101 Bird V. Boulter 16 Blenkinsop v. Clayton .... 7, 10 Bloxsome r. Williams 20, 21 Bolden v. Rrogdou 155 Boss r. Litton US, 129, 130 Brady r. Giles 113 t;. Todd 53, 57 L. PAGE Bray v. Ma3Tic 110 Bridge v. Grand J. Rail. Co. 126 British Telegraph Co. r.Cul- son 23 Broadwater v. Blot 100 v. Grauara .... 'M Brown r. Elkington . . . .79, 150 Browne r. Fry 33 Buolianan v. Parnshaw .... 30 Buckingham v. Reeve 92 Budd v. FaLrmanner 40 Buldey r. Parker 6 Bull V. Robinson 7S Bussott r. Collis 157 Buttertield r. BuiToufrhcs . . 71 V. Forrester .... 128 By water t;. Richardson 30,42, 165 Calye's case 97, 99 Camac v. Warriner 34 Capel c. Tlioniton 25 Carter v. Toussaint 9 Cashill V. Wright 103 Caswell r. Coare 64 Caton r. Caton 15 Cave V. Coleman 39 Champion r. Plummcr .... 11 Chanter r. Hopkins . .30, 43, 64 Chaplin v. Hawes..ll8, 130, 131 Chapman v. Allen 106 f. Gwyther 43, 165 Chesterman r. Lamb 64 Chew r. Jones 109, 110 lAl'.I.E OF CASES. PAOE Clay f. "Wood 131 C<>!ite« r. Stevens 37, 166 ColcliesttT (Muvor of) Urooko '. 1-2 Colthcrd r. Puiicheon M Cooko f. Oxlcy 'J.i Cooper V. liurton 110 r. II(...(1 14 V. Siiiitli 13 Copley r. lUirtou 07 Corlntt t'. r.'iekiii^-tou 106 Coriifoot r. Fowkc oO C«)tteril V. Sturkey 128, 129 Cotterill r. Tupp 130 Cotton f. "Wood 121, 129 Croft r. Alison Ill Crosier r. Tonikinsou 101 (.'rc»ss V. (fjirdner 33 Crowder r. AuMin 2G Davies r. Mann 127 Dawson V. Chamncy 103 Dean f. Keato 110,117 Dicas r. HidcH 9S l)ickeu80u r. Follctt .... 147, l'')0 r. (jijpp 40 Ijiuglc r. Hare C4 ]>ot' f. Lanuniii^'' 97 I)onnatty r. Crowdtr 101 l)|lrrin^■llln r. Kdwards .... (17 ])ou^laH' ca.m- 4 ") lirury r. Difontaine 20 I>urrell V. Kvans lo Dyer v, l'fttr»on 21 K. Ivlau r. Dudf5«.'ld 7 IC'\, M Fcnnell c. Jiidlcr 19, 21 I'lnwtr c. Adam 122 Fowkes f. Joyce 107 Frauciii v. "Wyatt 104, Ki.') G. Gardiner r. Gray 77 tianneut v. Harrs 39 Gibbous r. Pepper 120 (tibsou f. Holland 14 GoiKlall V. Skelton 10 (Jorhani v. Sweetintr 46 Greenland c. C)iai>liu 126 Grico V. Kendriek 27 Groucott V. Williams 106 H. Hall r. Tiekard Ill Hamnack r. White .... 120, 121 Handford r. ralnur 110 Hani)er 126 Hawtlxjni i'. Hammond.... 98 Head f. Dijr^ron 23 V. TutterwiU 41, hi.l HelMliaw 1. Lanffley 14 Hi lyear v. Hanko 62 llill'r. Cray 26 Jlimle f. Wliiteliouse .... 6, 16 }|oadly «'. Maclaino 13 Holliday f. Morgan 37 ll"i]ikiiiH V. Tumiueray .. 34, 47 Howard r. Cawlle 27 V. Shi wartl .... 63, 66 I. Illidge r. Goodwin 124 TAI!I-E OF CASES. XI PAOE Jackson v. Cummins 10(i V. Lowe 11 Jelly V. Clarke 9i> Joudwine i'. Shido .'!.S Johnson r. Dodg'son 14 V. Hill 101 Jones V. Brifrht 38 f. Cowley 40 t'. Just 78 v. Osborne 98 V. Tcarle 101, 102 V. PowoU 107 V. Thurloe 101 — — r. Tyler 1(C2 Judsou t'. Etlieridge 104 K. Kearney r. London, Brighton and South Coast Kail Co. 121 Ivenuod}- r. Panama Rail. Co. 49 Ken worthy r. Schoficld .. 11,23 Kiddcll c.'Buniard .. 37, 4o, 89 Knight f. Crockford 14 L. Lack V. Seward 118 Lamb c. Palk 114 Lausrlicr r. Pointer Ill Laj-thoarp v. Bryant 14 Lcame r. Bray 1 30 Lee t'. Bayos 29 Leggo r. Tucker 103 Lewis c. Peakc Go Liddard r. Kain G7 Limpus r. London General Omnibus Co 116 Lloydd i: Ogleby 129, 130 Luckford r. Large 126 Lynch v. Nurdiu 124 M. Mackenzie v. Cox 1 00 Maclaughlin r. Pryor 112 McMauus V. Crickett 113 PAGE Mangan v. Atterton 123 Margetsou v. Wright 68, 73, 75, 85, 147 Marvin r. Wallis 8 McKcnzie r. yancock .... 04 Medina v. Stougliton '■'>'■'> ]\IeUish r. Motteaux 01 Mesnard r. Aldridge 30 Mews r. Carr 23, 24 Michael v. Alestree 121 Morgan v. Ravey 103 Musrl. V '. r^.-M't 99, lOG i\r..,.s .; r-Mi-, i,d 101 Murniy i . I\l.iuii 27 N. North V. Smith 121 0. Onslow V. Eames 157 Orchard r. Rackstraw 104 Onurod r. Huth 48 P. Page V. Defrics 114 Parker v. Flint 9G Parkinson r. Lee 45 Parsons v. Gingell 105 Pasley v. Freeman 3S Payne v. Caye 23 Phillimore r. Barry 15 Pickering r. Busk 24, 58 !•. Dawson 44 Pierce v. Corf e 1 G Pilmore r. Hood 2G Pluck well r. Wilson .... 118, 130 Potter r. Duffield 11 Powell V. Salisburj- lOG Power V. Barham 3S Q. Quarman r. Burnett Ill xu TAHI.E OF CASES. R. PAOE R. «•. Tvcns ys — r. Kenrick 01 — r. Tu^'woll GO — r. Read 60 — r. Slu'ppnrd GO — r. Tiiiuuius 120 — f. ■Whiutk-y 60 — f. Whitnaah '22 Rcuss c. Pieksey 12 Richards r. Putter I'.i V. Synions 107 Richardsou r. Brown 40 Riy the halter. ])e;il«rs rail this an out :ir(;iiin is for ready iiiomy uo ;icrciitauco until inonoy ]>.'ii(l. changed. Ho had in fact become bailee of the horses for tho buyer, and, as C. J. ^lausfield re- marked, " after the plaintiff had assented to keep the horses at livery, they would, on tho decease of tho defendant, have become general assets; and 80, if he had become bankrupt, they would have gone to his assignees. Tho plaintiff could not have retained them, though ho had not received the price." The ruling in Elmore^ v. Stone wa.s followed by Man-in v. WaUU (r). There tho jury found, that after the bargain was concluded, tho vendor borrowed the horse for a short time, with the purchaser's consent, and the (iueen's Bench held that there was a change in tho character of the vendor from owner to bailee of the horse in question. On tho other hand, it has been held that whero tho parties agreed that tho bargain should be a ready-money transaction, no right of property passed until tho money was paid. In Tempest V. Fitz'jera/d if), tho ])uyor oi a horse in August, agreed to give forty-livo guineas for tho animal and to take it away in (September. Ad- mittedly, it was a ready-money deal. Tho buyer returned at the end of Soplembor, had the horse out, and tried it, and a.sked tho plaintiH's son to keep tho horse for another week. Tho son, (r) C K. k B. 72G; 20 L. J., Q. B. 3C9. V. Jirenffin, 6 C. B. 301. (/) 3 B. 4: A. OSO. Sec also Beaumont THE STATUTE OF FRAUDS. unwillingly, consented to do so, as a great favor, the buyer saying lio would call and pay for it in a few days. The buyer did return on the 29th September, with the intention of paying for the horse, but the animal had died in the interval, and the defendant learning this, refused to pay. The seller thereupon brought his action, but was nonsuited on the grounds that there was " no receipt," — the defendant acquired no property in the horse until the price was paid, and that there was no acceptance within the Statute of Frauds. Again, it has been held, that where no time was specified for the payment, and no payment is made, no property passes. In Carter v. Tonsnaiiit (//), the plaintiffs, farriers, sold the defendant a race horse. No money was paid or time fixed for payment. The horse required firing, which was done in the defendant's presence, and after a time, by defendant's orders, the animal was turned out to grass. The entry of turning it out, however, was made in the sellers' name, in the park-keeper's books. After a time, the defendant refused to take the horse, and the sellers brought their action. They were nonsuited, on the ground that there had been no actual receipt, because the sellers were not bound to deliver the horse without payment, and from the circumstances they had never lost possession or control of the horse. (^) 5 B. & A. So.j. 10 lIOnSE WARRANTY. Socond re- Tlic socoiul oxcoptioii or requisite, mentioned pajTnciitof aLove, to satisfy the Statute of Frauds, is giving ®'^™*^ ' something in earnest, or in part pa}Taent. This, as a custom, prevails in many parts of Ireland, in the Isle of Man and parts of Scotland, and, locally, no bargain would be deemed complete •without some such payment being made. The custom docs not prevail so much in English fairs. The earnest should be some coin in current iise, and the con- tract will be as valid, if ratified liy a sixpence as by a sovereign. The coin, however, should be retained by the vendor. There are two old cases in the reports on tho point — lidcli V. Otvcn (//) and Goodall v. SkcHon (/). In the first of these cases, the earnest given was a halfpenny. The facts were as follows: — Tho plaintilf and defendant exchanged horses. It was agreed that the i»laintiff should i)ay the defendant four guineas more on the 17th December follow- ing, and also that plaint ilf should keep the colt, }io was selling or exchanging, until September of the following year. The defendant, to make tho contract binding, paid tho plaintiff one halfpenny, as «'arncst of tho Imrgain. It was held, that tho l)aymcnt of the halfpenny vested tiie i)roperty of tho colt in tho defendant. A pretended pay- ment of tho oamest will not do. In lilrnkinaop y. Clayton (A), tho purchaser of a horse drew tlie Eanicfit muHt bo Bomc cur- rent coin. {h) 5 T. K. loy. (i) 2 II. Bl. aiG. (/.) 7 Tiiunton, 597. THE STATUTE OF FRAUDS. 11 cdgo of a shilling on the palm of tlio hand of tho Boiler, and then put tho shilling back into his own pocket. This in many fairs is called " striking a bargain," but it is not a suflicient part payment to satisfy tho Statute of Frauds. It would appear that the true legal effect of Effect of giving and receiving earnest is, to afford conclusive earnest evidence that a bargain was actually completed bargatu with mutual intention that it shoidd bind both seller and buyer. In Shcppard's Touchstone we have this rule: ''If one sell me his horse or any- thing for money .... and I give earnest money, albeit, if it be but a penny, to the seller .... there is a good bargain and sale of tho thing to alter the property thereof." The thu'd exception is, that there must be some Third note or memorandum in writing of the contract, signed ' This note sliould contain tho names of the parties J}' contracting, and generally the terms upon which "°*<^ they contract, because the word "bargain" means the terms tho parties mutually assent to, and the words of the statute require a note or memorandum " of the bargain " (/). The note need not contain the signatm-e of both pai-ties; but the names or descriptions of the parties to the contract shoidd be shown {/ii). {I) Kcnworthy v. Schojield, 2 B. & C. 945 ; see Sale v. Lambert, L. R., 18 Eq. 1 ; Potter v. BuJfieM, L. R., IS Eq. 4. (w) Champion v. Fliimmer, 1 N. R. 2.52 ; TTUhams v. Lake, 29 L. J., Q. B. 1 ; 2 E. & E. 349. niemorau- um or 12 IIORSF, ^V.^RRA^•TY. It should bo noted, that there is a considerahlo distinction hctweon the 4th section and the 17th section of the Statute of Frauds. In Sailx. liour- (li/hii {)i), the judges said: *'Tho memorandum states all that Avas to be done by the person charged ; and, according to Eycrton v. JLif/icics (o), that is sufficient to satisfy the 17th section of tlie Statute of Frauds, though not to make a valid agreement in cases within the 4th section." A memorandum of a bargain is sufficient, although it only contain a proposal, if it can be proved by parol that such proposal "was accepted ( ]>) . If pricp If the price has been agreed upon, that should ihathhould bo mentioned in the note. lu Elmore v. K'nuj- tkii™d"in ^^^^(v)* tbere had been a verbal sale of a horse for note. 200 guineas, and the i)laintill" tried to prove his case, as within the statute, by producing a letter from the defendant in these words, "^fr. Kingcoto begs to inform Mr. Elmore that if the hoiTsO can bo proved to bo five years old on the 10th of this month, he shall bo most ha]»]iy to take him, and if not most clearly jirovcd, ^Ir. Iv. will most de- cidedly have nothing to do with him." This was lield insuflicient. Tiio Couil saying, "The price agreed to bo paid constituted a material part of («) 2G L. J., C. r. Ts ; 1 C. U., N. S. 1S8. (o) G Ea«t, 307. \p) IUiu$ T. I'ic/itUy, L. n., 1 Kxdi. 312 ; 3'; L. J., Exch, 218. (y) 5B. &C. 683; 8 D. i U. :iV.i. THE STATUTE OF FRAUDS, VS tliG bargain." "Wlion tlio prico is not a material part of the bargain, as Avhero a gentleman ordered a landaulet, in general terms, the Court held the ^vTiting contained a /I thftt nas agreed on (/■), and found for the coachmaker. On this point, Mr. Benjamin in his work on Sales says, " So far as price is concerned, the rule of law is that where there is no actual agreement as to price, the note of the bargain is sufficient, even though silent as to the price, because the law supplies the deficiency by importing into the bar- gain a promise by the buyer to pay a reasonable price. But the law only does this in the absence of an agreement, and tliorcfore, where the price is fixed by mutual consent, that price is part of the bargain, and must be shown in order to satisfy the statute; and finally, that parol evidence is admis- sible to show that a price was actually agreed on in order to establish the insufficiency of a memo- randum which is silent as to price." A correspondence between the parties that does Sufficient not contain all the terms of the contract will not bcmudo'by be held a sufficient note of the bargain (s) ; but, ^'^"'^"■ on the other hand, a sufficient note may be made by letters or other writings, if taken together they (»•) Hoadly v. Madaluc, 10 Bingham, 4S2. (4) Cooper V. Smith, \b East, 103; liichardsv. Potter, 6 B. i- C. 437; Smith v. Sunnan, 9 B. & C. 5G1 ; 1 M. & R. 4.35. 14 HORSE WARRANTY. form a contract (/). It is not necessary that the wliolo note should bo on ono piece of paper, if tlie different parts can bo shown to be the same contract [it). It was said above, that tlie me- morandum or note contemplated by the 17th sec- tion of the Statute of Frauds should contain tho names of tho parties to the contract, but that it is not necessary that it shoidd contain the signature of both pai-tios. The party whose signature is required is f/ic parti/ to lie cJiiinjal. This is now settled by authority and practice (?r). A mark made by a jiarty as his signature is sulTiciont (.r), or even if the party hold the top of a pen while another person ^^Tites liis signature (//). So, too, it has been held, that the signature may 1)0 in print or stamjifd, and in tho body of tho ]»apcr, or at tho beginning, or at tho end. Tho leading case on this is Sdunderson v. Jackson (c). {t) Jackson v. Lone, 1 Biiif,'linni, 9 ; Allni v. Bennett, 3 Taunt Ex. G2.j; Gib' ton T. Holland, L. R., 1 C. P. I. («•) Allat V. Bennett, 3 Taunton, 109; Thornton v. Kempiter, ') Taunton, 7SG ; Laythoarp v. Brijant, 2 Binglinni, N. C. 735, nud 3 Scott, 238. (x) Bilker V. Deniny, 8 Ad. & E. 91. (y) Jlehhauy. I.angloj, 11 L. J., Ch. 17. (:) 2 B. & r. 238; Knujht v. Crock/unl, 1 Enp. 190. Soo, abw, Schneider v. Xorris, 2 Maulo & S. 28G ; Johnton v. D'/dgton^ 2 M. k W. C53. THE STATUTE OF FRAUDS. 15 There the printed heading of a hill, connected with a subsequent letter by defendant, was held to take the case out of the statute of Frauds. If the party to be charged puts his initials to the note as signing it, such initialing is sufficient (a). The ^fercautile Law Amendment Act, 185G (19 & 20 Vict. c. 97), has, by its 3rd section, some- what extended the provisions of the 4th section of the Statute of Frauds. It is there provided that no special promise by one person to answer for the debt of another shall be void because the consideration for such promise does not appear in the writing — that is, in the note. If, then, a farmer in a fair signs a paper, as guarantee for a friend who is buying, the former may be bound by it, even if the amount is not mentioned in the paper. The next point to consider is, who is the agent who is an duly authorized to sign ? If an agent be duly "fiti"Ju the appointed or is recognized as such, no difficulty v^^"]^"^* arises. Sometimes, however, the law implies agency; for instance, generally speaking, an auc- tioneer is the agent of both parties at a public sale for the purpose of signing. This has long been established as law (//) ; so, too, it has been held that (rt) rhiUimore v. Barnj, 1 Camp. ol3. Sec, also, LordWcst- bui-y's remarks in Caton v. Caton, L. R., 2 II. L. 127, 143. {h) EmmcrsoH v. llcelis, 2 Taunt. 38; Jlinde v. Whiklwusc, 7 East, ooS; Liorell t. Evans, 31 L. J., Ex. 337. IG HORSE WAHUANTY. Summan* of first ex- ception in 17th sec- tion of Statute of Fraud3. Summary of Necoiiil eic<-]>tiou. tlio auctioneer's clerk may bo the agent (c). " AVhero the bidder, that is, the person to bo charged, by word or sign authorizes the auc- tioneer's clerk to sign on his behalf, ho makes him his agent, although by general custom, the auctioneer's clerk would not be the bidder's agent" {d). The result of the English law on these points may be summed up thus : — If a dealer or farmer takes a horse into a fair, or sells it anywhere, say for 30/., and the buyer after agreeing to the price, but without 1 laying for the animal at the moment, hands the horse over to his own servant, or takes it to some stable to stand at his, the buyer's, ex- pense, then the buyer has accepted and received the horse within the meaning of the Statute of Frauds, and the seller can sue for the price of tlio animal sold ; but if no money passes upon the bar- gain, and tho seller ]mis the hnrso back into his string of horses, or into his own stable, or a stable he hires, and nothing more is done, the seller can refuse to go on with tho bargain, and tho buyer can refuse to ratify his bargain or to take tho liorse. Again, if after tho buyer and seller liavo bar- gained for tho horse, and settled tho price and terms, if tho buyer gives tho seller something in (f) Tlirdr. Jloultn; i B. fc A<1. 443. {if) By Blnrkl.uni, J., in r,erct v. Cor/r, L. I{., Q. B. 21.'>. THE STATUTE OF FRAUDS. 17 earnest, say one shilling, and the seller puts tlie shilling into his pocket, either party can enforce tlio bargain. This method of ratifying a bargain is not uncommon in northern fairs, the shilling being spent in a glass or two of ale. Such spend- ing will not invalidate the bargain, if the seller has appropriated the shilling, for of course he can use the shilling, after it has come into his posses- sion, as he pleases. There remains the third and last exception to Summary the Statute of Frauds, the note or memorandum exception, of the bargain signed by the party to be charged. It is usual, nowadays, after a bargain lias been struck about a horse, for some note to be taken, which mentions whether the horse is warranted or not. The subject of warranty is something quite apart from sales. A horse may be sold any number of times without warrant}^ and in fact horses are only occasionally warranted when sold, and in the case of hiring and letting, when horses are sometimes warranted to be free from disease and quiet for the purpose hired. A mere war- ranty note may not satisfy the Statute of Frauds. It may be that the note after sale is a receipt ; if so, and it contained the names of the parties and the price, it would necessarily be a note within the meaning of the statute : but as the money would be paid before the receipt was given, the only questions that would probably arise between the parties would be questions on the wan-anty. Some- 1,. c 18 HOUSE WARn\XTV. times only a note or memorandum of warranty or sale, is given by the seller, the money to bo sent next (lay or soon after. In this case dealers and famicrs should remember tliat only the seller is bound, unless the buyer has taken actual posses- sion of tho horso or paid some earnest. The seller cannot draw back from liis bargain, although the buyer can do so, because, as was above pointed out, it is tho signature of tlie party to be charged that is wanting, and if tho defaulter has not signed, you cannot charge him, tliat is, he cannot bo sued and made to take the horso ho has bar- gained for. ( 10 ) CHAPTEE III. SALES OF HORSES 15Y IIORSEDEALERS, AUCTIONEERS, AND AGENTS, AND IN MARKET OVERT. In treating of the sales mentioned at the head of who is a this chapter, the first question for consideration is, dealer, what is a horse dealer? According to a legal decision which has Leen much discussed, a horse dealer is one, who in his trade " distributes horses" {«). The question is one of importance, because as Sunday is by no means an uncommon day for bargains to bo made in horse flesh, and because it is established by law and practice, that horse- keepers cannot maintain an action upon the sale of a horse made by such horse dealer on a Sunday (i). The reason of this is that " the Act for the better Dealing iu Observation of the Lord's Day " (29 Car. 2, c. 7, suuday" s. 1), enacts, that no tradesman shall exercise his ^{^^^^l'^ ordinary calling upon the Lord's day, and as the ordinary calling of a horse dealer is selling and bargaining about horses, a sale of a horse on a Simday, or a contract made respecting one on that [a] Allen v. Sharpc, 2 Ex. 352. (>,) Fonirllv. Jiidln; 5 B. & C. 406. c 2 20 HOUSE W A UK ANT Y. Cases (lay, may 1)0 illegal. ( >iio of tlio first cases re- Suiid.iy ported, that bears upon the point, occurred in uSil: ^^^^- There the sale of a horse on a Sunday, was held valid, because it was a sale by a horso auctioneer, and private, it being held that his ordinary calling was the public sale of horses (c). The next reported case occurred in lS-24 ; thoro again, a sale of a horse, with a Avarranty, on a Sunday, was held valid on two grounds, — one, that the sale was not completed on the Sunday ; the other, that it was not competent for the de- fendant to set up his own guilty act in defence (rf). In the last case montionod, there Avas no ques- tion about the Avarranty being given and that the Avarranty was bad, but the defendant objected that the i»laintifF could not recover in his action, bo- cause lie the defendant Avas a horsedealer, and tlio Avarranty Avas given on a Sunday. The beamed judge overruled the objection, and (lu> ]ilaintilf obtained a verdict for the i)ric(> he had jiaid for the liorse. I'pon the defendant moving the Jving's Bench, tlio Court discharged tlie rule, saying, — " In tliis case there was no note in writing of tlio bargain, and on the Sunday all rested in jtaroi, and nothing wjis done to bind the bargain. The contract therefore was not valid, until the horso was delivered to, and accoptod by the defendant. (f) Dniiy V. Dr/ontaiiif, 1 Tftuiit. l.TI. (//) Bloxnmiie v. H'lllinm*, 3 ». & C. 232. SALES BY UORSEDEALERS, AUCTIONEERS, ETC. 21 The terms on which tho sale was afterwards to take place were only specified on the Sunday, and these terms were incorporated in the sale made ori n subsequent day." This case was in the Com- mon Pleas. However, in 182G, another horse case, Fonirl/ v. 2ii(ncr{r), Avas decided in the same Coui't and by the same judges. The plaintiffs were horse dealers, and the horse was bought by tlieni, and a war- ranty given, on a Sunday. Tho horse not answer- ing its warranty, the plaintiffs brought their action, but were nonsuited. On moving the Couii, tho plaintiffs were again unsuccessful, the judges saying that they had not put a sufficiently broad construction on the Sunday Observance Act, in Bloxsomc V. Will i mm, and that they now had come to tho opinion, that the act was intended to regu- late private conduct as well as to enforce public decency. In 1827, another case came before the Court of Cases Common Pleas (,/" ) , which is useful to horse dealers, Sunday because the judges doubted the decision of their J^p",/"^ own Coiu't in Bloxsome v. Wil/ianis, referred to 'iieg'iJ- above, and warmly eulogised the decision in Fennel/ V. liidler. It should be noted that the 29 Car. 2, c. 7, does ((') o B. & Cr. 40G. Sec also Williams v. Faid, G Bing. 653 ; and Simpson v. Xicholh, 3 M. & "W. 240. (/) Smith V. Sjjanou; 4 Bing. 84. 22 HORSE AVARRANTV. not make every work or business done on the Lord's day illegal, but only carrying on a person's trade and ordinary calling on that day. So in Sao'fc V. Jloi'f/aii (fj), the defendant pleaded ille- gality under the statute, against a farmer for tho service of a stallion in covering the defendant's mare on a Sunday, but the defence was overruled. So also a contract made by a fai-mer on a Sunday, for hire of a labourer to attend on a horse, is not illegal (//). llorsedealers, then, and farmers who are in tho habit of selling horses, should bo cautious how they deal in them on Sundays. If they bought, or sold, or entered into some contract about a hoi-so on a Sunday with some one not in tho trade, it may happen, that tho latter may repudiate tho contract, and jjuI tho person in the trade to groat trouble and needless expense. At tho same time, it must bo remembered, that a person not in tho liorso trade cannot sue a horse dealer on a contract made on Sunday respecting horses, if such person knew that tho horse dealer carried on that trade. The above quoted case, tSmiih v. Sjxirroir (/), is also useful in showing that if a contract is made by an agent, and the objection is taken by tho party at {^) -I M. & W. 270. (/i) Jl. V. Whitnath, 7 B. & C. 09C; Ikgbu v. Ixti, 1 C. i J. 180; 1 TjTwhitt, 13i». Sue Jicaiunoiit \.Bmigin, o C. B. 301. (0 i Bingbatn, 81. SALES. BY HORSEDEALERS, AUCTIONEERS, ETC. AO "wlioso request it was entered into ou tlie Sunday, it cannot bo enforced. It has before been shown that an auctioneer is An the agent of both parties to sign the memorandum may Lc tho or note contcmphitcd by the Statute of Frauds, boTh buyer and that he is, generally speaking, the agent of ^"fj^-^^t^^Q both seller and buyer (/r), but this depends some- statute of what on the facts of each particular case (/). Thus, where the sale is at a private place — there the auctioneer is the agent of tho seller only, and this may be of consequence on the point, who is to receive the pui'chase money {ni). Also, wherever the place may be at which the sale takes place, the auctioneer only becomes agent for the purchaser when tho contract is complete by the hammer being knocked down {)i) , until then he is agent for the seller only. In Payne v. Cave (o) it was held that a bidder Xo con- may at an auction retract his bidding any time until the before the hammer is down. The Court said, Jl'ammer. " Every bidding is nothing more than an offer on one side, which is not binding on cither side until it is assented to " (»). (/.) Kcmcorthij v. Sc/iqfield, '2 B. & C. 945; Emmcrsou v. Medh, 2 Taunton, 38. (/) Bartktt t. Furncll, 1 Ad. & E. 792. (wi) Metcsv. Can; 26 L. J., Ex. 39; 1 11. & N. 484. (n) Warlow v. Harrison, 28 L. J., Q. B. 18; 1 E. & E. 29.3. (o) 3 T. R. 148. See also ITcad v. Biggon, 3 M. & K. 97 ; also B. Tel. Co. V. Colsoti, L. E., 6 Ex. 108; and L. R., 7 Ch. App. 587; Coolcc V. Oxlcg, 3T. K. MS; Kuthdgcx. Grant, 4 Bing. 653. HORSE WARRANTY. It is not absolutely necessary to give a -svTittcn authority to an auctioneer to sell or to complcto the contract on behalf of buyer and seller (y>), however desirable it may be to do so. An authority may be implied from the act of the party, although no authority was ever given, as when the owner of a horse sends it to a common repository for the sale of horses, the owner woidd be bound by the sale of the animal, if made to a bona fide pm'chaser, even without liis express consent. An authority to sell would be presumed from the act of sending the horse to the repository (7). The possession of a horse at a public place like a repository is in the auctioneer, and he makes the contract and can maintain an action on it. AVTicre, however, goods or horses are sold at a private place, as is sometimes the case now with hunters and race- horses, it is doubtful whetlier the auctioneer has sufli an interest in the things sold as to recover the ]>rice; as per AVilson, J., in WiUiatnH v. Mil- linijtun {)•). However, in that case, Lord Lough- borougli said, " An auctioneer has a possession coupled with an interest in goods which ho is cm- jtloyed to sell, lujt a bare custody, like a servant or shopman. There is no difference, whether the sale (/>) Actbal\. Levy, 10 B\a\(. 370. (7) riekfrituj v. JSiiik, \b KnBl, 38—13; iJycr v. rcariton, 3 B. & C, 42 ; irilliaiiin v. JJarton, 3 Ding. 139. (r) 1 H. Bl. 81. iJut HOC Jlcia v. Can; 2G L. J., Ex. 39 ; 1 II. & N. 481. SALES IJY IIORSEDFALERS, AUCTIONEERS, ETC. 25 bo on tlio premises of the owner, or at a public auction room, for on the premises of the owner, an actual possession is given to the auctioneer and his servants Ly the owner, not merely an authority to sell. I have said a possession coupled with an interest ; but an auctioneer has also a special pro- perty in him with a lien for the charges of the sale, the commission with the auction duty which he is bound to pay/' The auctioneer at a rciiository may be, from the Auctioneer , J 1 J** some- terms of the sale, a stake-holder between the owner times of the horse sold and the pui'chaser, as, for in- j'.^^ucrfor stance, where a horse is sold at a repositor}", on ^^^^^^ ^'^'^ the condition, that if it does not answer the war- ranty or guarantee given with the animal, it may be retm-ned within a certain time. Until that tune has elapsed, the money paid by the buyer does not vest in the seller, but shoidd be held and retained by the auctioneer (s) . ^Vhere an auc- tioneer is employed to sell horses for ready money, he is the agent of the seller to receive the money (f), imlcss the conditions of sale point out that the money should be paid otherwise. A statement by an auctioneer, that the horse Framlu- , ■■ , , ,1 1 lent state- put up for sale belongs to the person whose pro- ments by perty he is advertised as selling, when in fact the j'lJ'ay vftiate a sole. («) HardingMm v. Alien, o C. B. 793. [i) CapclY. Thornton, 3 C. & P. 352; Sykes v. Gihs, o M. .v "W. 645. i2G IIOKSK WAKUANTY. animal beloiif^cd to another stud or to some other person, would vitiate the sale. See Lord Mans- field's remarks in Bexircll v. C/irinfie («), where the horses offered at auction were described as " the goods of a gentleman, deceased, and sold by order of his executors," and such not being the fact, the sale was declared fraudulent. In the same case it was held to be fraudident for the seller to bid by himself or by his agent, the published conditions being " that the highest bidder shall bo the purchaser, and if a dispute arise to bo decided by a majority of the persons present." Pufling at sales of horses by auction is illegal. If the buyer finds it out, the seller cannot recover rufTing at the price (.?•) . iluH^ousia The point was considered in Croicdcr \. Au- illfgui. ^fj^^ ^^^^ l*laintifl' brought an action to recover the value of a horse sold by him to the defendant at Aldridgo's Repository. One of the conditions of tlie sale was "that oa»li horse sliould be sold to tlio highest bidder." liut as a fjul, tlio plalntifi"6 groom attended tlio sale, and in his master's in- terest ran the horse up from 12/. to XM., at wliich jirice it wa.s knocked down to the defendant. The dofcjidant, the buyer, found this out, and refused (u) 1 CowTwr, 3I».'». St-o nI«o llUl v. Gray, 1 Stark. -13 J. (x) nimore v. Jlood, .'» Biugliuin, N. C. 07. (y) 3 Bioghatn, 3GS. SALES 11 Y IIOIISEDEALERS, AUCTIONEERS, ETC. J/ to take the borso. C. J. Best nousuited the plaiutill', and the ruling of the Chief Justice was confirmed by the Court of Common Pleas. Mr. Justice Pai-k said, " I entii'cly concur in the opinion expressed by Lord Mansfield that sales of this description are fraudulent and void." This was followed in Hoirard v. Castle {z), and again in Thornctt v. Haines (a). Auctioneers, as a rule, have an interest in the Auction- sales over which they preside, and consequently lieuonthc have a hen on the articles sold. In llohinson v. for^their Rutter {b) it was held that an auctioneer had a charges. lien on a horse for his commission and charge. If an auctioneer is instructed by the owner of a horse to make fraudulent representations respect- injr the animal, the owner cannot recover the purchase money (c) . Where a horsedealer employed an auctioneer to sell a horse for him, and make certain representations which were fraudulent and imtrue, and the fraud being discovered before the horse was taken away, the auctioneer retui-ned the money to the purchaser. The horsedealer there- upon sued the auctioneer for the purchase money, but it was held that he coidd not recover, the (-) G T. E. 634. {a) 13 L. J., Exch. 230; aud lo M. & W. 3G7. (i) 4 E. & B. 951; irilliaius v. Millbigton, 1 H. Bl. 81 ; Grlee V. Kcndrick; L. R., ') Q. B. 340. (r) Murray v. Mauu, 2 Exch. 538 ; HUvciis v. Ltijh, 2 C. L. E., Q. B. 201. 28 HOUSE WAKRANTV. Coiu't saviug it would bo a cliscredit to the law if the innocent agent of the plaintiifs fraud were bound to pay the money to him. Market As a general rule, a sale in a fair or market what'i5. overt, is binding, not only between the parties, but also on all persons claiming any right of property in the thing sold. Market ovei-t, in the country, is held on certain days provided by charter or pre- scription. In the City of London, every day except Sunday is market day. In the country, only the jilace or piece of land set ajtart by custctm for the sale of goods, is market overt, and this does not include shops. In the City of London every shop is market overt for the i>articular goods the owner of the shop professes to sell. The ordi- nary rules as to the validity of sales in market overt are somewhat modified in relation to tho sales of horses by statute. These animals can so oa.sily be moved from one place to another after being stolen, that special provisions have been made by statute respecting sales of them. The hrst .statute was i»assed more than MOd years ago— in looo, 2 ^ '^ W &, ^\. <•. 7. Another Btatute— 31 Kli/. c. 12 (1589)— also applies to tliis Bubjcct. Tho statute of I'liilliji and ^fary provides, amongst otlier things, that there shall be a certain place appoint •'), quoted in the above case of JiKc/d v. 7'uirniaiiei', a wairanty thus worded, " Re- ceived 1(M)/. f(»r a bay gelding, got by Cheshire Cheese, warranted sound," wa.s lield not to be a warranty of Ijrecd, but of soundness onlv. i.imitivi ^\^ warranty is said to bo limited when the time warranty. •' (m) 1 Binphain, 3<4 ; »oc n\m Jom* v. CouUi/, C D. & 11. o33; 4 I J. »^ C. 41.>. (o) 6 C. & r. 7H ; and 8 Bing. 48. (/>) H. T. 1821. HORSE WARRANTY. H for which the seller wairants is specified, as where one saj'S, " I will wan-ant the horse for four days." This is a common form of warranty at repositories and public sales, where the buyer is generally allowed a specified number of days to make his objections to the horse he has bought, and if he fails to do this, as a rule, he has no remedy if the horse turns out worthless. The case Head v. Tattcrsall {(]), in which a con- Head v. dition of sale was to this eflfect : *' Horses not answering the description must be returned before five o'clock on Wednesday evening next, otherwise the purchaser shall be obliged to keep the lot with all faults," — should be perused as beaiing upon the doctrine of a sale with a limited condition. In that case it appears that before the horse was removed from the place of sale, the buyer was told by the person in charge of it that the war- ranty given was "^Tong, and at bar it was con- tended that the buyer's action in taking the horse away after hearing such a statement waived his right under the warranty ; but the Com-t were imanimously of opinion that a mere loose state- ment made by the groom in charge of the horse was not tantamount to an explicit notice by the defendant that the warranty was a mistake. Another important question was also then de- cided, viz. : as to whether the fact that the horse {q) L. E., 7 Ex. 7. 42 HORSE AVARUAMY. Effect of notice on IxiUT'l ill miction lyoiii. received some iiijiuy when in the custody of the buyer deprived the latter of his right to return it. It was held that it did not. Baron Bramwell said, " It was quite true as a general proposition that a buyer cannot return a specific chattel ex- cept it be in the same state as when it was bought ; but in such a case as the present, the ndo must bo qualified thus : the buyer must return the horse in the same condition as when ho bought it, but sub- ject to any of those incidents to which the horse might bo liable either from its inherent nature or from the course of the exercise by the buyer of those rights over it which the contract gave. For examplo, suppose the liorso when standing in the stable strained itself or injured a limb, that would not affect tlio right of ruturn, although the horse would no longer be cxat-tly in the same condition as before." In Jii/irafrr v. Richardson (r), a notice painted on a board and fixed in a conspicuous position, and stating that any warranty of horses selling tliat day at a private sale was to renuiin in force only until twelve o'clock next day, was construed to mean tliat tlio seller was responsible only for Bucli defects as were pointed out before that liom-, altliougli the unsoundness svdjsequently ascertained was of such a nature as would n(;t be discovered within the twenty-four hours. .So again in Clinp- (r) 1 Ad. & EUifl, 608. HORSE WARRANTY. 43 man v. Gwythcr (.s), -when a liorse was warranted sound for one month, it was held that the com- plaint of unsoundness must bo made within one month of the sale, and the vendor was held not liable for a defect which existed at the time of sale, but was not discovered imtil more than a month had elapsed. A large horse dealer for many years never war- ranted horses, and never meant to do so, but find- ing that County Coiu-t juries woidd not believe ho had not done so, now says, when asked if he war- rants a horse, " You may take him as warranted for a week from to-day ; " and he finds, although some horses are returned on his hands with a veterinary certificate of imsoundness, yet on the whole he is the gainer by obtaining better prices and avoiding litigation. There may also be a special waiTanty, as where Special the parties in bupng and selling a horse discuss a uatu^^"df! certain defect in the animal of which they are cognizant, and the buyer requires a warranty from the seller holding the latter answerable against the defects wliich might be likely to proceed from the defect ; such a warranty would be a special one. So, also, where the seller wishes to exempt himself from liability in respect of the unsound- ness likely to arise from a known defect. In Chanter v. Hopkins {t), the Court said : " If (*) 1 L. R., Q. B. 4G3. {() 4 M. & W. 406. 1 1 HORSE WARRANTY. a party ofTercd to sell mo a horso of such a do- seription as would suit ray carriage, ho could not fix on mo tlio liability to pay for it unless it were a horse fit for the purpose it was wanted for; but if I describe it as a particular bay horse, in that case tho contract is performed by liis sending that horse." Again, where tho seller represents tho animal he is selHng as suited for particular work : as for instance, that a horse is " a good drawer and pulls quietly in harness," this is a special warranty of being quiet in harness and pulling well there. The word "good" must mean good in all particidars (a) ; and the wairanty is not satislled by the horse being a good drawer only (r). If a waiTanty is reduced to wTiting, the parties are bound by the writing; tho Courts of law will not go outside the document, although a written warranty need not be formal, as in the example above, but may be given by a number of letters, or even by a buyer's letters (y). In Stuchlnj v. Baileij (~), the evidence of tho contract of tho sale of a yacht consisted of a series of letters which were of an ambigur)us character in their terms, and it was held that, assuming tho assertions in the letters amounted to a warranty of certain parts of the vessel, it was competent to tho (m) Coltherd V. Puncheon, 2 D. i R. 10. (x) Smith V. J'anons, 8 C. k T. 199. (y) rickeriiig v. Dairioti, 4 Taun. 785. (.-) 31 L. J., Kx. -JN.J. IIOHSK WARRANTY. 45 clofenilant to prove all tlio snn'oimding firciira- stancos and statonionts of tlic parties, as well after as before the letters, to show that a warranty was not contemplated between the parties, and by a parity of reasoning it may bo said that parol evi- dence would be admitted to show that a warranty was intended by a number of documents. In a Sussex County Court, a buyer once proved a warranty in this way — he sent his servant with a cheque and note to the seller, saying if the seller warranted the horse specified, as soioid, he could retain the cheque and send the horse; but, if not, the cheque was to be returned. The seller kept the cheque and sent the horse. The horse was found to be blind, and returned ; and though the seller tried to deny the warranty, the buyer suc- ceeded in his action by producing a copy of his letter, which the seller admitted was correct. A large price is no proof of warranty. Mr. Largeprice Justice Grose, in the case of Parkinson v. Lee (a), warranty, referring to the controversy as to implied warranty before Douglnn's case, said : " Before that time it was a current opinion that a large price given for a horse was tantamount to a wan'anty of sound- ness ; but when that came to be sifted it was found to be so loose and unsatisfactory a ground of de- cision, that Lord Mansfield rejected it, and said, (a) 2 East, 314. See also Stuart t. Wilkins, Douglas, 19 ; and Kiddell v. Buniard, 9 M. & "^^. 6CS. •K) HORSK \V MIKAM V. 'there must cither bo an express warranty of sound- ness or fraud in tlie .seller to maintain an action.'" It is now law, that a high price is not tanta- mount to an implied warranty. Sometimes buyers of horses make mistakes, and suppose they have a warranty, because many dealers and others in selling a horse, make all sorts of statements which are only intended to bo representations, and it becomes a question with a complainant who tliinks he has been defrauded, to consider, were the words used only representations or warranties. If a seller says "I can fully recom- mend this horse," or "I would sell it to my dearest friend," although such language might induce a purchaser to buy, still those words do not amount to a warranty. The distinction between a warranty and a mere representation made before the sale is pointed out in the notes to Govham v. Stircf in;/ (b), hut it is not easy always to distingui.sh them. In Salmon v. Ward (c), which was an action on the warranty of a horse, the principal e\'idenco consisted of letters which had passed between the parties ; the argument of the defendant was that the statements made respecting the horse in ques- tion were only representations and descriptions ; C. J. Best, said : *' The question is whether the jury and I can collect that a warranty took place; (*) 2"Wra«. SauiulcTS, 200. (c) 2 C. i- V. J 11. HORSE WARIIANTY, 1/ 1 quito af^roo tliat lliore is a difForonco between a waiTanty and a roprcseutation, because a repre- sentation must bo known to bo wrong. The plain- tilf in his letter says 'you remember you repre- sented the horse to be five years old,' to which the defendant answers ' the horso is as I represented it.'" The jury found for the plaintiff, saying there was a warranty. In IFophina v. I'd no uc rail (d), a good illustration Distinction •, i -, <. ^ ■,- • /• ? i Letwceu may bo loimd oi the distmction between a mere repre- represcntation to induce a would-be purchaser to and war- buy, and statements which form part of the con- ranty. tract, and are therefore w^arranties. There the plaintiff bought a horse, sold by auction at Tat- tersall's, and it was admitted that, at the time of the sale, no warranty was given. But it appeared that the day before the sale, while the plaintiff was examining the horse, the defendant came into the stable, and as they were acquainted, said to the plaintiff, " You have nothing to look for, I assure you he is perfectly sound in every respect," to which the plaintitf replied, " If you say so I am satisfied," and left off examining the horse. Tho horse turned out unsound, and the plaintiff brought his action on the supposed warranty. It was ad- mitted that there was no fraud in the statement by the defendant. The judges unanimously ruled that there was no warranty, and that the antecedent representation formed no part of the contract. i'l) loC.B. 130; •23L.J.,C. r. 1G2. 48 HORSE WAUKANTY. No bettor test can bo given of tbo fact wbotbcr ptatcmonts arc or are not a warranty tban tbat given by ^Ir. Benjamin in liis book before (luotod. llo says : " In determining whether it (that is, a warranty) was intended ; a decisive test is, whether the vendor assumes to assert a fad of whieli the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor lias no special knowledge, and on which the buyer may be expected also to have an opinion or to exercise his judgment. In the former caso there is a warranty, in the latter not." ^rero When a representation is made during the tXu m,' course of a dealing, wliich leads to a bargain, and Avarraiity. ^^^^^^ representation afterwards becomes an in- trinsic part of the bargain, it constitutes a war- ranty ; but a representation made by a seller to a buyer to induce the latter to buy, which however does not form any part of the contract, is not a warranty. No arti(jn will lie upon a misrepre- sentation only. The Exchequer Chamber said, in Ormrod v. llutli {e) : " The rule which is to be derived from all the cases appears to us to be that where upon the sale of goods the purchaser is satisfied without requiring a warranty (which is matter for his own consideration) ho camiot recover ui)on a mere representation of tho quality by tho seller, unless he can show that such representation was bottomed in fraud.'' («■) IJ M. i; W. 001. IlOnsE AVUIUANTY. 49 Occasionally It liajiitons that there is amisropro- Bcntation of fact, "which is perfectly innocent, hoth buyer and seller thinking that they are dealing about a sound horse, and yet being in error. In such case, if there is no waiTanty, the buyer must l)ay the ■svholo price ; but if there is a general waiTanty, ho has a remedy, as the seller would be liable for the error, and not the buyer. See Kin- )tctlij V. P(i)i) Alexander v. Gibso)i, 2 Canij}. 555. e2 towarniuf. :y4 noRsi: wAUit vmy. thority to warrant (/). Tho pmver to glvo a war- ranty, however, might 1)0 frequently implied, wlierover a general authority is given by a ]>riu- eipal or master to an agent or servant; this in- cludes a power to do all acts necessary to perform and carry out that, for which the general authority was given. Sen-ants In the caso of Alexander v. Gibson (J), a servant, Imtf.oriK who was scnt to sell a horse at a fair, and autho- rized to receive the price, gave a warranty that the horse was sound, without having any special authority to do so, but without any limitation of authority. It was held tliat the master was bound. Lord EUenborough, in giving judgment, said : " If the servant was authorized to sell the horse and to receive the stipulated price, I think he was also authorized to give a warranty for soundness. It is now most usual on tho sale of horses to require a warranty, and the agent who is em- ployed to sell, when he warrants the horse, may fairly bo presumed to be acting within tho scope (^f his authority. This is the common and usual manner in which tho business is done, and the agent must be tak<'n to be vested with powers to transact tho business with which he is intrusted in tho usual manner." In this ca.se, it is .said that the master was a horso dealer, and that the ser- (•) jroodi» V, nur/onl, 2 C k Jfy. 301 : I Tyr. 204. {/} '2 Cump. 5.')'). Sro ulf*o Jlth/rnr v. Jfiiidr, .') K.xp. 71. HORSE WAHHANTY. 63 vant was in tlio liahit of selling horses for his employer, and, as will ho seen from the ease of Ilouard v. Shcirar(l{h), the law is more stringent against horse dealers than it is against private o\Miers. Where warranties are given by agents, without express authority to do so, the general rule is, " that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual" (/). The important judgment of Chief Justice Erie, in the case of Brad;/ v. Todd (ni), will throw much light on the point. In that case, if buyer the defendant was not a horse dealer, but a trades- rji^ty from man in London, havino; a farm in Essex. The •!'^"''^1k„* ' o onus that plaintiff sent to him for a horse, and the de- seryaut fendant sent his farm bailiff with a horse with cipai's authority to sell, but no authority to warrant, on buyer. Nevertheless, the bailiff waiTanted the horse to be sound and quiet in harness. The horse not being so, an action for breach of warranty was brought, and the plaintiff's contention was that " an autho- rity to sell imports an authority to warrant." After referring to the earlier cases, and among others to that of Foni v. Harrison («), Chief Jus- tice Erie said: "We understand these judges to (/•) L. R., 2 C. P. 150, and post, p. 65. (/) Benj. on Sales, 2nd cd. p. 508. (m) 9 C. B., N. S. .392 ; 29 L. J., C. V. H4. [n) 3 T. R. 757. HOUSE WAUIIAM Y. refer to a general agent employed for his prin- cipal to carry on his business, that is, the business of horse dcalinp:, in which case there would be by law tlio authority hrro contended for But it is also contended that a special agent witli- out any express autliority, in fact, might have an autliority by law tlalntifr has, in our judgnu-nt, failed. "\Ve are aware that the question of wananty frequently arises upon tho sale of horses, ])ut we are also aware that sales may be made without any waiTanty, or even an HORSK AVAUKANTY, 55 inquiry about warranly. If avc laid down for the ilrst tirao thai tbo .servant of a private owner in- trusted to sell and deliver a liorse on one par- ticular occasion is therefore by law authorized to bind bis master by a warranty, we should estab- lish a precedent of dangerous consequence. For the liability created by a warranty extending to unknown as well as known defects, is greater than is expected by persons inexperienced in hn\', and as everything said by the seller in bargaining may bo evidence of warranty to the effect of what ho said, an unguarded conversation with an illi- terate man sent to deliver a horse may be found to have created a liability which would be a sui'- prise equally to the servant and the master. We therefore hold that the buyer, taking a w^arranty from such an agent as was employed in this case, takes it at the risk of being able to prove that he had the principal's authority, and if there was no authority in fact, the law does not, in our opinion, create it from the circumstance? It is unnecessary to add, that if the seller should repudiate the warranty made by his agent, it follows that the sale woidd be void, there being no question raised on this point." This case was much commented on in Howard v. iloicardx. Shcwavd [n). There, the plaintiff being at a riding school, asked the proprietor "If he knew of a {») L. R., '1 C. r. l.')0. '"^/ictcard. 5G IIOKSK U AUll VMY. horse that would Lo likely to suit him," aiul tlio ])roth(>r of the dcfeiulant Slieward, a liorso dealer, who happeued to be presout, aud who oecasionally acted in the sale of horses for the defendant, said "he thought the latter had one." Tlie horse was brought to the riding school and ridden by the plaintiff; and the defendant's brother, in answer to questions as to the soundness of the animal, said, "I'll guarantee the horse is sound." The horse was then examined by a veterinary surgeon, and pronounced sound, and it was bought by the l»laintiff for 'iloL The horse, however, after tnal, proving to be unsound, was sold by the plaintill", and an action brought to recover the difference in the price. ]']rle, ('. J., ruled that the brother, as servant of the defendant, a horse dealer, had authority to warrant, and the jury, finding he had done so and that there was a breach of the war- ranty, a verdict was entered for the jilaintilf. Upon a new trial being moved for, it was refused, and the Court held that if the servant of a horse dealer gives a warranty, notwithstanding that ho is expressly directed not to warrant, the master is bound; the reason being that in the ordinary course of business the servant enjoys a general authf)rity to sell, and that such autJiorit}', unless notice is given to the contrary, implies the power to warrant. In his judgmi'iil ^fr. Justice "Willes Miy.><, "It appeared that l)avid Showard (the drfcmlaut's HOUSE -WAKKANrY. h7 brother) had before occasionally assisted the de- fendant in the sale of horses. Is it then part of the business of a horse dealer to warrant horses which he sells? No doubt .... it was an ostensible authority, which could not be nega- tived by showing a secret understanding between the horse dealer and his servant that the latter was not to warrant. The case of Bradij v. Todd sustains that proposition. The Court there de- dined to extend the rule to a single transaction of sale by the servant of a private individual, because in such a case the buyer has no right to presume any authority in the servant beyond that which is apparent on the particular occasion." The judgment, however, of IMr. Justice Byles is so terse and clear, as reported, that it is given in full. After referring to the case of Ih'adij v. Todd above quoted, he says : " The rule to be deduced from that case is this : if the servant of, or agent of, any private individual entrusted on one occasion to sell a horse — without authority from his master takes upon himself to warrant the soundness of the animal, the master is not bound ; but if the servant of a horse dealer, or even one who only occasionally assists him in his business, being employed to sell, gives a warranty, the principal is bound, even though the agent or servant was expressly forbidden not to warrant. In such a case there is ostensible authority to do that which is usual in the conduct of the business of a horse dealer. OS HORSi; WAKKVNl Y. If servant of horse (li-nlor or livpr\' Ktnbl'o kii-iK-r wiirraiits In' binds his master. The aLovc cases may appear to bo somowliat contradictory, and dillicult questions niiglit arise as to who is a liorse dealer ; but tlie general prin- ciple to be learned from them is that if the servant or agent of a horse dealer waiTant, the master or principal is bound, even if ho has told his servant or agent not to warrant. On the liability of the agent or servant of a dealer, Mr. Oliphaut says, condensing the language of Mr. Justice Bayley (o), "If the servant of a horse dealer with express directions not to waiTant, do warrant, the master is bound, because the servant having a general authority to sell is in a condition to waiTant, and the master has not notilied to the world that the general authority is circumscribed.'' "Wlicro also a livery stable-keeper, having in his stables a horse for the purjiose of sale, em- powers his servant to sell it, but directs him not to give a warranty, and the servant docs, neverthe- less, warrant it, the master is liable on the ground that the -orvant, having a general authority to sell, the public cannot be supposed to be aware what transpired iirivately between the master and servant (;>). In all thc.'^e cases the sale was effected by the servant in the usual course of business, and it is necessary in such eases, if the master does not wish to be bound, to give intimation to those who deal with his servant. It is different where the (o) Pickering v. Hunk, l.")Ka«f, -l'). {p) Fcim V. Harriton, 3 T. K. '-u uud 7G0. HORSE AVAURANTY. 59 owner of a horso chooses to send a stranger with a horso to a fair, with express instructions not to warrant, for in that case the agent would be only agent for one occasion, and the buyer would have to ascertain whether the servant's authority was limited or not. It may then bo taken that the Servant of , 1 , • private principal or master is bound by a warranty given owner in- by his agent or servant in all cases where such sell horse agent or servant is his general agent to caiTy on j);'';^,"^,! his business, even when such warranty is given authority ' , 1 to warrant. contrary to express directions from the master. On this point the dictum of Lord Abinger, in Conifoof V. Foid-c {q), may be quoted. "Tut the ordinary case of a servant employed to sell a horse, but expressly forbidden to warrant him sound. Is it contended that the buyer, induced by the war- ranty to give ten times the price which he would have given for an unsound horse, when ho dis- covers the horse to be unsound, is not entitled to rescind the contract ? This would be to say that though the principal is not bound by the false representation of an agent yet he is entitled to take advantage of that false representation for the purpose of obtaining a contract beneficial to him- self, which he could not have obtained without it.'' Although the piu'pose of this chapter is to treat more particularly of warranty, still it should be remembered that a contract respecting a horse, as also any other contract, may be rescinded if cither i'j) 6 M. i- W. 3.38. Sec also Steward v. Cocsvcll, 1 C. & T. 23. 60 lIOllSi: WAKUAM Y. vitintfs nil coutracU. Fraud by more thau line is a i-niisjii- rucy. party to the contract has Locii iiidiicod to enter into it by fraud, for fraud renders all contracts void, both at law and in equity. The English law does not attempt to define what fraud is, bo- cause fraud is in itself so manysided that it is al- most impossible to do so, nor does the French law attempt a definition, although the civil code of France purports to define almost everything. Still it provides, Article lllG : "Fraud, ' le dol,' is a ground for avoiding a contract when the tricks, ' les maua3uvres,' practised by one of the parties are such as to make it evident that without those tricks the other party would not have contracted." A horse, then, may be sold without any war- ranty and the buyer retui-n it, if there has been any fraud on the part of the seller in the transac- tion. Nor will such fraud, if peqietrated by only one person, be a criminal oflencc. In such case the fraud is a mere imposition, and the buyer must look out for himself, 11. v. Whcntlr >/{>'). But where two or more persons combine together to cheat in the sale of a horse, it is a criminal of- fence, and renders such persons liable to be in- dicted for a conspiracy, IL v. Slicppard {a). But it must be shown that all the parties charged knew of the fraud. /.'. ^•. J'l/ucU {t), also Ji. v. licad{u). »So also it is u criminal offence for two or moro persons to obtain money for a horse upon state- (»•) 2 Bumll, I'js. (») DC. k V. 121. (0 1 Starkir, N. V. C. 102. («) 6 Cox, C. C. 135. HOUSE WARllWTY. CI raents, all of wliicli are absolutely false, as where two defoiulants told the buyer that certain horses were then the property of a lady and had been ridden by a lad}^ and never belonged to a horse dealer, thereby inducing the buyer to purchase the horses for his daughter by statements not one of which were true, Ji. v. Kenrk-k (./•). In former times, the method of obtaining a remedy in cases of breach of warranty, was by action of deceit. Much useful information, even for modern actions, may be gained by perusing chapter xv. Selwyn's Nisi Prius, vol. 1, 11th edition, p. G4;5, on Deceit. A mere naked lie is not actionable ; the deceit that is actionable, though possibly not so common now by an action of deceit, is some lie or false statement made knowingly with a design to injure, cheat, or deceive another person ; but on an action for a breach of a general warranty, it is not neces- sary to prove a knowingly false statement. In selling horses it is not unusual, when doing .Sale of a so by auction or private sale, to state that they are ..with aii sold "with all faidts," or, "take him as he is, f-'"!*"-" subject to a veterinary inspection." In such case the seller is not bound to point out or disclose defects in the horse. At one time it was supposed that the law was otherwise, but in Bacjichole v. Walter {y), Lord Ellenborough, after refusing to subscribe to McJJi^h v. MotfeaH.c, said "where an article is sold 'with all faults,' I tliink it is quite (j) o Q. B. 49 ; 2 D. i: M. 208. (;/) 3 Camp. lo6. G2 iiousF. ^^.vlnt \niy. liaoiehoh immaterial liow many belonged to it witliin tlio ^ ■ " '^' ' knowledge of tlio seller, unless he used some artifice to disguise them, and prevent their being discovered by tlie purchaser. The very object of introducing such a stipidation is to piit tlio purchaser on his guard, and throw upon him the burden of ex- amining all faults, both secret and apparent. I may be possessed of a horse I know to have many faults, and I wish to get rid of him, for whatever sum he will fetch. I desire my seiTant to dispose of him, and instead of giving a wan-anty of sound- ness, to sell him 'with all faults.' Having thus laboriously freed myself from responsibility, am I to be liable, if it be afterwards discovered that the horse was imsound '^ Wliy did not the pm-chaser examine him in the market, when exposed f) ; for the huyor is entitled to recover for tli<> keep of tlie horse for such time only as would he required to resell tho horse to the hcst advantage" (c). The amount of damage a person wTonged in a horse deal can recover is the difference hetween the amount paid l»y him and the amount for which the horse is sold hy him, plus such expenses as the huycr has heen necessarily put to hy reason of the wronirfid dealing. If anyone jiurchases a horse, warranted for a particular purpose, and finds the animal unfit f. (c) Denmun, C. J., iu Chfitrrmaii v. Lamb, 2 A. & K. 132, citing McKtiizie v. Hancock^ Tiy. k M. 430. {(J) Chantrr V. Hopkins, 1 Jf. & "W. 100. HORSE WAUIIANTY. 66 tlio purc'liascr to prolonj^: tho trial (c). If A. tlio Luyor of a liorso with a waiTanty, resells the animal witli the same wan-anty, ho can, if sued by his subvendoo 13., recover tho costs of defend- ing the action of 13., from his vendor C, as special damaf^es, provided A. has informed C. of tho first action, and offered C. tlio option of de- fending it (,/'). It is sometimes difficult to determine Avlietlier an action on tlie failure of a horse deal sliould be an action on the contract, or in tort. The powers of amendment, in plaints, are now so largo that tho point is not of so much consequence as fomierly ; still, in a large matter, it is as well to be careful. The point is very ably treated in the notes to Chandoloi' v. Lopus {(/). If a warranty is intended and there is a breachj there is good cause of action, whether the defendant knew of the fault or not, but if only a representation was meant at the time of sale, the plaintiff must show that the defendant knew the representation made at time of sale was a false one. (e) Adam v. Richards, 2 H. BI. 573. (/) Lewis V. Peakc, 7 Taunton, 153; sec also Wrightupv. Chamberlain, 7 Scott, 'j98. G?) 1 Smith's L. C. 17o, Stli cd. GG IIORSK ^\.VUKAM V, CIIArTER V. OF PURCHASE AND SAI.F. WHF.RE THERE ARE PATENT DEFECTS. In buying and selling horses, or indeed any other articles, no cause is so prolific of disagreements and subsequent litigation, as bargains or contracts in which the seller has shown, or the buyer should have seen, paient defects in the article sold and bought. Patent defects are avowed blemishes or wants in the subject of contract, which are visible or manifest to the naked eye. Where this has been the case with regard to any article bought and sold, it has always been law that " a general warranty does not usually extend to defects ap- parent on simple inspection, requiring no skill to discover them, nor to defects known to the buyer" (r/). Hence it was long ago laid down in liai/i/ v. Mcrrell (/>), " To waiTant a tiling that may bo perceived by sight is not good." Yet, although this doctrine appears so mucji in accordance with common sense and the ordinary usage of every-day life, so much stress has, in (a) BcDJainiu on SiiloH, 2nd cd. 502. (b) 3 Bulstrodc, 96. OF PURCHASE AM) SAM-:, KTC. 07 a commerf'iiil country like (rrcat ]3ntain, heon laid on tlio need of upliolding- tlio principle of Notpm- guaranteo or warranty, that legal cases have so gh4 imy far estaLlished a different doctrine as to make it ^•''jef",'.V' unsafe, especially in selling- horses, to give a ^\ar- Patent, ranty, even after both parties have discussed defects or blemishes in the horse the subject of the bargain. The cases at law are not free from apparent contradiction on this point. In an old case, I)or- rington v. Edtcards (c), an action Avas brought on the warranty of a horse as sound, but which was in fact at the time of sale lame from shouldertie. It was contended the action would not lie, be- cause the defect was patent. The judges, how- ever, ruled that as the defendant insisted upon warranting the horse sound, the defendant was bound. " The defendant said I Avill wan-ant him sound, that is the distinction where the defect is visible." Lichhird v. Kain {'<^ v. supported the doctrine that a general warranty guarantees the buyer even against every sort of defect, manifestly visible at the time of sale, but this is not so. There Liddard, the seller, when selling tAvo horses to Kain^ the buyer, told him that one of them had a cold; but, nevertheless, he warranted the horses as " sound and free from blemish at the end of a fortnight." When that (c) 2 Rolle, 188. {(l) 2 Bingham, 183. f2 G8 llKUSi; WAKIl\NTY. timo olapsod tlio buyer rofusod to tako tlicm, ono horso still having a cold, and the other having a swollen log. In evidence, however, it camo out that the leg was swollen at tho date of sale, and was apparent to every observer. T^pon the seller bringing his action for tho price of tho two horses, tho jury found for the buyer, and tho Court re- fused a motion for a now trial, on tlio grounds that although a warranty was inoperative against patent defects generally, in this case the warranty applied not to the timo of sale when tho defects ■were i)atent, but to some future period — viz., the end of the fortniglit. The whole facts of the case are not stated in tho reports, but it may fairly be inferred tliat what happened was this ; tho seller said : " I have these horses with this cough and blemish, I cannot warrant them now, but will warrant them at tlie end of a fortnight," for tlioy were blemishes and ailments which a fort- night's nursing would ordinarily remove ; but in a fortnight's timo those defects were on the hoi'ses still, they had not been cured, and tho buyer had a right to refuse them ; for although he saw the defects at the time of sale, tho warranty said they were to bo delivered "sound and fn^e from blemish in a fortnight." Another case on tho same points is not so easy of explanation. In Margetson v. Wright (<•), {e) 7 Bingham, C03 ; 8 Binghnin, IVI. or rURdlASF, AND SALE, ETC. G9 an action was brought by tlio buyer of a horse Mametson against the seller on an alleged breach of war- ranty. The facts were these : Margctson, a solicitor, wanted a horse to race, and applied to AVright, a horse dealer, for one ; Wright showed him a horse called " Samson," telling the buyer at the same time that the horse was a crib-biter, and also that it liad had a splint, which had been reduced, but which had thrown the horse out of training. After some bargaining "Wright, tlio seller, took OU/. and a contingent sum of oO/. for the animal, which was admitted to have been worth 500/. if these defects which were disclosed had not existed; but on the buyer submitting a ■wi'itten warranty to him for his signature, in these words : — " And the said Mr. "Wright does hereby warrant the said horse to be sound, wind and limb," — the latter refused to sign it unless the words "at this time" were added after the statement that the horse was sound. With this addition a warranty was, however, given, and the horse was taken away. ]\Iargetson put the horse in training, and at the end of six months " Samson " broke down, whereupon ho brought his action for a breach of warranty, and the jiuy gave him a verdict. A motion for a new trial was made by the defendant, and was granted, and in doing so Chief Justice Tindal laid down some valuable law in relation to dealing in horses where they have patent defects, which, although 70 llOKSr. WAKKANTY. not exactly bearing on tlie ])oint now under dis- cussion, is of great value in a general conside- ration of the subject, lie said: "The older books lay it down that defects apparent at the time of a bargam are not included in a war- ranty, however general, because they can form no subject of deceit or fraud, and originally the mode of procceiling on a breach of warranty was by an action of deceit, groimded on a supposed fraud. There can, however, be no deceit where a defect is so manifest that both parties discuss it at the time. A party, therefore, who should buy a horse, knowing it to be blind in both eyes, could not sue on a general warranty of sound- ness." lie then goes on to suggest that it would have been better, when the case was tried, to have left certain questions to the jury, to con- sider whether the horse was, at the time of the bargain, sound wind and limb, saving those manifest defects contemplated by the parties, and the Court granted a new trial. ( )n the case going do^\^l the jury again found for the plain- tiff, and, in reply to the learned judge who tried tlie cas(! (Baron Yaughan), who asked them to say whether the horse was sound, or, if unsound, whether the unsoundness ai'oso from the splints of which evidence had been given, said " (hat al- though the horse had exhibited no symptoms of lamen('S.s when the contract was made he had upon him tlie seeds of unsoundness at the time of OV rUUCHARE AND SALE, ETC. 71 tliG contract, arising from the splint." TJpon another motion for anotlicr new trial, the Court refused to grant it, holding that though the huyer knew of the splint the jury found the residt, as it turned out, was not apparent to him, and that, therefore, he was protected by the wan-anty of soundness. It is not probable that this end of the case is satisfactory to any one reading it, and who knows anything about horses ; still it is now to be understood as laAV, and has been followed in other cases (./'). And the lessons to be learnt from the case are, that if the owner of a horse, having any patent defect, say a clouded eye or a splint, or spavin, wants to sell it, he should bo carefid not to waiTant the animal, without a memorandum on the waiTanty, if a \mtten one, of such defect, and a statement that he will not be responsible for unsoundness, which may arise from such defect, or proof of such defect being excepted fi'om the warranty, if the warranty be by word of mouth. Speaking as those who must submit to decisions legally made, one must be guided by the case ; but otherwise it would be hard to say what "Wright, the defendant, could have done more than he did to protect himself. lie teUs the buyer of the defect; he sells the horse for less than a fifth of the animal's value, (/) BiKterfieldY. Sinrouffhcs, ISalk. 211; Southenicv. IIouc, 1 Rolle, 0. , 2 TIORSE WARRANTV'. supposing it had not sucli a dofoct ; and ho insists upon adding to tho -warranty that the horse was sound those words, " at this time." To persons conversant ^^'ith horse cases, it is not too much to say his meaning was, " tlie animal is sound now, but if you train it, I will not ho answerable. However, a jury found twice against such a con- struction of the meaning of tho warranty, and tho second time the Court refused to disturb the ver- dict. It is just possible that the defendant knew how and when a horse woidd train, and the plain- tiff, a solicitor, how and when to bring his action ; but it seems absurd to say that because a horso in training — and, therefore, almost necessarily a young horso — goes lame, he had tho seeds of un- soundness in liini six months before. Such a statement may or may not be true, but it could not be proved. But this is tiiio, that every young horso has more or less structiu'al altoratiuu oveiy six months of its life until it attain its fifth or sixth year, and in no place is this structural altora- Percivai tion morc marked than in tho splint bones. That ou . i< 111 . ^.,^j.^,f^j obsorvor, ^Ir. Porcival, in his lectures on the horse (p. (JO), says, after speaking of tho elastic power of the sjtlint bones : *' Lo the operation and uso of those elastio powers what it may, few horses retain thorn after tho adult period ; the ligamen- tous elastic material booom(>s converted into osseous inela.stic substance, and IhiLS the three bones '' — that is, the cannon and two splint bones — " are, OF rURCIIASE AND SALK, ETC. 73 in point of fact, consolidated into one. I li.avo ridden nimiTjcrs of horses in my time, and, as a general rnle, certainly find that young horses possess more elasticity in their movements than old horses ; and this is readily enough accounted for ■\vlicn Avo come to consider the number of animal springs there are in the body, all or most of which become impaired, and some altogether lost in the course of ago and work ; among them, however, I should say those of the splint bones were probably the smallest in importance, and, therefore, would bo the least of all missed. In every horse that has splints this conversion of elastic into osseous union has necessarily taken place ; and, as I have said before, this is also found to be the case in every horse of a certain age, whether ho show splints or not." As a rule all horse cases are (as was this case of Mai'f/ct.'ioii V. Wi'ujht) mixed cases of law and of fact, and are most diflicult ones for a jury to determine. Judges do their best to explain the points of law, and leave the facts of the case to the jury, and then, if not quite satisfied with the verdict, are unwilling to distm'b it ; but still many verdicts in horse cases are not satisfactory. A jury is an excellent tribunal to say aye, or no, on certain facts, but when questions have to be left to them, as was done by Baron Vaughan in Margcfsoii v. Wright, the answers of twelve men are not like the decision of a judge. It is hoped that now, 7t TIORSK WAURVNTY. uiulrr llio ]irovisions of tlio new Judicnturo Acts, horso cases -will lio tried liy a judge alone. They assuredly -would be, only lliat the party in fault will prohably elect to have :i jury. If sellers and waiTantors of horses will, however, carefully read this case, to which some space has been devoted, and learn that a jury found a horse became lame from a splint after it was put in training, and because it had the seeds of unsoundness some mouths before, and when they consider that in these months it must have naturally acquired con- siderable structural alterations in its logs, they will possibly think with tlie writer, tliat this verdict was straining tlic law of a broiuli <>( wan'anty most unfortunately for horse sellers, and should bo a warning to them to keep clear of jui'ies for ever- more. A somewhat similar state of facts were shown in Siiii'f/i V. (yjiri/d)! [g). There it was proved that the defendant sold a horse to the plaintiff, but before doing so and giving a general waiTanty, pointed out to the plaintiff a splint, which was visible on the horse's fore-leg. After a time the horse became lame, and, upon the plaintiff bring- ing his actif)n, the jury returned a verdict in his favour; and they also found tliat the lameness arose from the splint to which defendant had, before the sale, called the j»laintiff'8 attention. On (y) 11 LuwTimca, N. S. 31C. OF PURCHASE AND SALE, ETC. 75 u rulo l)f'iii^ moved for a now trial, Chief Baron I'ollock drew a distinction between a patent def«'"r no? more (A). There, on a sale of " fair merchantable i>ouml to sassafras wood," the purchaser refused to take the USl- Ills ^ skill. article, alleging that these words meant in the trade the roots of the sassafras tree, but that the article tendered to him by the jilaintiff was wood — part of the timber of tlie sassafras tree — not worth more than one-sixth as much as the roots. In answer to this it was proved that a specimen of the irood rejected by the buyer was exliibited to him before the sale, and it was also sliown that ho was a druggist well skilled in the article, and therefore bound to know wliat lie was buying, but Lord EUonborougli said: — "Tlio question is whether it was in the understanding of the trade ' fair merchantable sassafras wood,' whidi it is clearly proved not to liave been. It is immaterial tliat tlio defendant is a druggist, and skilled in the nature of medicinal woods, lie iras not boiiinf to exercise /lis ski//, liariiifj an express uiu/er/nkitHi from ilie rcudor as /o the qua/it tj of the eommodityy [k) 3 QnmY. iG2. or Pl'RCHASK AND SAI,K, KTP. 83 The passage printed in italics, is not so em- pliasi/cd in the original, but is so very strong that tlie reader's attention is specially directed to it. Assuming suoli ruling to ho law, the same principle would apply to liorse dealing, as to buying sassafras wood ; and if a horse dealer takes a warranty — that is, an express imdertaking from the seller as to the quality of the horso he is buying — he is not bound to exercise his skill to detect any fault or defect in the animal, however manifest or ^dsible it may be to him from the very nature of his trade and the constant exercise of his calling, lie will be on the same footing as any other purchaser, however ignorant of horseflesh. It is partly this state of the law, and partly the unsatisfactory manner in which jiuies have decided horse cases, which have occasioned the complaints against warranty, and which are to be found given expression to in the Appendix to the Iveport of the Committee before alluded to. In 1873, a Committee of the House of Lords, House of with Lord Rosebory as chairman, took a great committee deal of evidence respecting the scarcity and breed- 1873.°'^'^''' ing of horses, and other matters in connection with the subject. Ilis Royal Highness the Prince of Wales attended the committee, and altogether the members of it Avere better qualified to inquire into the subject than any other number of gentlemen. The evidence given was very valuable, and in their report the committee say : — '* As regards war- g2 84 TIORSK WAUUANTY. ranty, -wlueli it is lu'gcd lias caused serious loss and annoyance to breeders, it would appear de- sirable that a specified time should be fixed, beyond wliich a general warranty should not be enforced. And it is to be lioped, however, after the evidence appended on this point, and consider- ing the commanding position in which breeders are put by the groat demand for horses, the system of warranty will disappear in the breeding districts." After the e\'idcnce they had heard the com- mittee could not well do otherwise than make this report, but it is doubtful if all the witnesses knew what they were talking about when they discussed the subject of warranty. Some of them seemed to think that a horse coidd not be sold without a warranty, and, as a sample of what sensible men sometimes suppose, the following is taken from the evidence of Mr. W. »ShaAv, a Yorkshire horse dealer (/). The Duke of llichmond is questioning him : — Evidence Q, " You say that horses are waiTantcd, the Lords consequence of which is that a man who sells a InuTe'e, \iOT?>(i is bound to take him back from the man 1M73. ^y|jQ buys if the horse is unsound Y "Sir W .Shaw.' A. "Yes; within six montlis. (I. " AVliat makes you say mthin six months ? A. " That is according to the rules, I suppose. (/) Blue Book, p. 99. OF PURCHASE AND SALE, ETC. 85 I have liGcard six months spoken of as tlie timG specified in which it has to be done. Q. " You do not know it otherwise than by its being spoken of so ? A. "I have kno"\\Ti horses kept for about six months, and then returned. Q. " I suppose a person might sell a horse, and agree to take him back again within thi'ce months only? A. " Yes, he might fix three months by agree- ment. If it was agreed that the veterinary surgeon should pass the horse before it was sold, then there would be no dispute about it. I think that would be the best plan I could prescribe. Q. " I am not speaking of what you would think the best plan. Supposing a man sells a horse and warrants him — he may only warrant him for three months — there is nothing to compel him to warrant the horse for six months, is there ? A. "I think that six months is the time, ac- cording to the Act of Parliament. Q. " You think that according to law the time must be six months ? A. "Yes." Where this gentleman got his law from it is difficult to say. There is no such Act of Parlia- ment ; perhaps he had heard of six months in the case of Margetson v. Wright^ before refeiTcd to. •'^G IIORST: M'VKRANTY. Colonel Ivingsootc, in his oviJcnco (///), says a com- mon "warranty from llnrncastlo fair lasts twenty- eight days, and with other witnesses, spoko strongly against the system of warranty ; but it is not the warranty, it is more often the system of trying the waiTanty which is in fault. The breeder gives the warranty to get a good price, and very often the horse is sound ; but juries are utterly imfit to try that question. To try the fact, was there a warranty given or not, cannot bo done so well by any tribunal as by a jury. And so with every simple question of fact ; but, fre- quently, a horse case is a question of soimdness or unsoundness, and is very technical, full of scientific evidence, and is no more fit to go to a jury than a patent case. Still, until cases of this kind can be tried by a judge or by assessors who know something about the business, fanners should hesitate in giving wan-antics, unless for very limited periods, such as eight days. There is no necessity to do so. Caj)tain Slack, in his evidence before the same Committee {)i)y says that when dealers buy horses at a fair in Ireland, they nro never warranted sound by the breeders, and the following extract from the evidence of ^[r. V. Sheils, a large general dealer in horses, is material on the subject. The questioner is liord Kcstcvcn, (m) Blue Book, p. 183. (>i) Blue Book, p. 104. OF rUUCIIASE AND SAI.K, ETC. 87 who, aftor remarkin;^ lio had seen tlio witness in some paiis of Liucolushirc, said (p. 114) : Q. " Generally, when you come to a fair, you E%^dence 1 1 p 1 1 ' before are sold out before the end of the day r Lorda' vl. 1 es. nnttec, Q. '' You never take any back? ]^''-^_ A. " Not if I can help it. I am pretty well shdis.' kno^vn, and the people like me, and so I am able to sell, although I do not warrant any. I do not have to give the money back. "When I get the money, I stick to it. I have tlie horses, there they arc ; if the buyers are not able to judge for them- selves, they may get the assistance of any profes- sional man to help them to judge ; but I give no warranty, nor do I get one. Q. *' I think I have seen you cleared out of your stock at a very early hour in the day at a fair 'r* vl. " Yes ; I have generally a good many cus- tomers, that is because I supply them as well as I can. Q. "It arises from yoiu' excellent reputation ? A. "I suppose so. If they did not think I was treating them fairly, they woidd not stick to me for so many years.'' Nor are warranties given in Scotland. Mr. Stephens, in his Book of the Farm (o), says : " With (o) 3rded. vol. 1, 1399. 88 llOUSF, WAUUANTY. regard lo warrandice, by cases it is seen that it is Law in not ncccssary Ly the law of Scotland that a horso to war- should 1)0 Warranted sound at the period of sale, ""**^'- as is generally thought, to entitle the buyer to return it should it prove unfit for the purpose for which it is sold 13y the law of both Scotland and England, the buyer of a sub- ject, sold witli all faults, has no right to question the sale when ho has not been drawn into it by fraud." We now come to consider what is meant by tho Mcauingof tcHU soiinil, as applied to a horse. A sound horso when ap- then really is a horse in perfect health, Avith perfect u horse! action or motion in all its limbs and organs. It maybe said there is not such a horse ; not exactly 80, perhaps, but suflieiently to answer the piuiioses for which horses are required. A veterinary sui*- geon has remarked that there is no such thing as a sound liorse. If by this is meant a perfect horse, it is very neai* tho truth. If a person who knows aiiytliiiig of the action of horses will watch tho cari'iages in llydo l*ark in the season — where, perhaps, tho finest horses in the world ai'o con- gregated — ho will bo suqirised to find how many step shoi-t, or are in some way faulty in that exact and perfect motion wliich nuiy be called sound action. Tho term "perfect action" is used because that is, so far as soundness in moving is con- cerned, tho legal definition of that word; but a horse may have sound action, and yet not bo OF rURCTIASE AND SALE, ETC. 89 perfect. In Brst v. Oahorne (ni), it was not dis- puted that the horse compLained of moved soundly enough, but it had been " nerved," that is, an operation had been performed on the nerves of the foot to cure it of lameness. Mr. Justice Best said, after referring to the horse being warranted sound, "sound means perfect, and a horse deprived "Sound" 7T1CU.I1S of a useful nerve was imperfect, and had not that " iicrfcct." capacity of service which is stipulated for in a warranty of soundness." And so, in Kiddcll v. Jhiruard (n), Baron Parke says: "The word sound means what it expresses, namely, that the animal is sound and free from disease at the time it is warranted to be sound ;" and, in the same case, Baron Alderson said, "the word sound means sound ; and the only qualification of which it is susceptible arises from the purpose for which the warranty is given. If, for instance, a horse is purchased to be used in a given way, the word 'sound' means that the animal is useful for that purpose, and 'unsound' means that he at the time of sale is affected with something which will have the effect of impeding that use." It may be now taken as law that the term "sound" is as defined by the learned judges in the above ease; but whilst this is so, it will be found so much easier to define the negative of soundness — namely, unsoundness — that a chapter is devoted to an attempt to (w) R. & M. 290. {») 9 M. k W. G70. 00 iioKSK \VAUU \N rv. pbow p:onorall y what Jisoasos, ailments, and defects have been hold to bo and arc '* unsoundness" in a hoi-se, and also to point out those faults or habits in the horse as distinguished from defects con- stituting unsoundness, and Avhich generally are called vices, and against which a warranty of " free from vice" shoidd protect a buyer. Vice not Yicc, or really vicious habits, in a horse are so cealcd. easily enumerated, and so apparent, that it requires no skill to discern them. A biter or kicker soon shows the vice, if it is a real one ; and, if it is only a supposed vice, it is often the fault of the buyer ; because a person may have bought a horse, and, upon trial, suppose his purchase is vicious and ill-tempered, whereas the animal is really not so. Many horses will be perfectly quiet and good-tempered with persons who are not afraid of them, or who treat them kindly, but who be- come perfect nuisances where allowed to have their own way, or become so terrified by ill-treatment as to show their fear in the only way dumb animals can show it, by shying, bolting, or kick- ing. There are, moreover, vices which are only sliown on particular occasions, and which are often tlic product of fear from some particular cause, or resentment for some particular injmy. A liorse that was known to be perfectly quiet for years was struck l)y a groom on the stiiie joint witli a slablc-fcn-k to make it get over while the litter was Ijciu"' sliook out; the horse never OK PURCHASE AND SALE, ETC. 91 forgot it, but "whenever afterwards a man passed behind it with a fork in his hand, the animal always kicked or lashed out with one leg at the passer, and the habit became so confirmed that the horse was obliged to be put in a corner stall, or some accident would have happened. It was the horse's only fault, but it was a bad one, and grew into a decided vice. If then a buyer of a horse finds the animal as he thinks vicious, he should, before claiming to set aside the sale on a breach of warranty, consider well whether the horse bought has been properly treated, and by persons accustomed to handle horses. Juries arc very unwilling to believe that vice in a horse can be concealed, judging, as is the fact, that if a horse is really vicious it will show the vice at the time of sale, and disregarding complaints of a trifling nature, which often really are playfulness, or the result of too high feeding without work. In the form of warranty given in a former chap- Meaning of ter there is a guarantee that the horse is "quiet to riduTnd" ride and drive ;" such a statement means that a and '''quiet horse will go quietly when ridden, and in double i" ^^j \^,- or single harness ; so too if a horse is warranted "quiet in all respects," this means quiet in har- ness (o). Perhaps no waiTanty is alleged to be broken so often as one of this class, and yet none in which the buyer of a horse more often fails in (o) .Smil/i V. Fanoiis, 8 C. & P. 199. iiii.stakfu for vice. 02 HOKSr, WAUIMNTY. obtaining redress, not Lccauso the horse lias not kicked or ran away, or done soniotliing dearly eliowing tlial on tlio occasion on which tlio breach of wan*anty is alleged he did not behave pro- perly, but because the buyer has not used those proper precautions which every person should uso iiinii spirit when first trying a new horse. In one case which hoiupfinio came to the writer's knowledge, the horse, a young one, was bought in August and not used for two months ; it then was put in a dog-cart, and kicked, and upon action brought for breach of waiTanty the jury said, and rightly, that if a man lets a horse, especially a yc)ung one, run for two months, he should use great caution in putting it into harness, and that plaintill" did not use such caution, So it may hapi)cn that a saddle does not fit a horse, or a l^ridlc be too short in the cheek-piece, or the harness may be too small and pinch, and in such cases a horse becomes restivo for awhile, which would not have happened with its old saddle or in the hands of those to whom it was accustomed {/>). Another example may bo given, in whicli a horse was sold "(piiet to rido and drive by a lady," and as a fact the animal was as quiet as jiossibly a horse could be. It was of a sluggish nature and slow. Soon after the horse was bought, some young gentlemen, sons of the buyer, put it into a dog-coi-t to drive a short {p) Buckinghain v. Reeve, N. P. Exch. 1, 18. OV rrRCIIASR AND SALK, KTC. 93 clistanco on a fisliing excursion. 1 laving forgotten their wliip, and tlio animal not going up hill quite as fast as they liked, one of the party struck tho horse on tho buttocks witli the fishing-rod ; tho horse kicked, and, in doing so, got its leg over tho shaft, and an accident occurred. Both buyer and seller in tliis case were friends, and tlie matter was referred to a neighbour to decide the case, and he ruled that a whip and not a fishing-rod is the proper instrument to strike a horse with; that the proper place to whip a horse is the flank or shoulder, and that nothing would be more likely to make a sluggish horse kick than pressing him up hill with blows of the nature above indicated ; the buyer accordingly kept the horse, which he drove in a brougham for many years afterwards, and had only one fault to find, whidi was that tho animal was too slow and quiet. In considering the subject of soundness or un- Temporary- soundness in horses, it should be taken as settled uess, law that any unsoundness is a breach of warranty, ^v.nTaiity. whether such unsoundness can be cured or other- wise. Should a horse recover, even before action brought, it is no defence to an action on a breach of warranty. In Elton v. Brofjdcn (7), Lord Ellen- borough long since laid down that "a waiTanty of soundness is broken if the animal at the time of {q) 4 Camp. 281. \)i. IIOUSK w \UK \N1Y. salo had any infirmity which ron»loro(l it less fit for present service. It is not necessary to prove that the disorder sliould lie pennanent and in- cnrahle." So again in K/foii v. Jordan (r), ''any infinnil}- which renders a horse less fit for present use and convenience is unsoundness." French law By a Frcnoli law, passed in 1S;?S, twelve diseases soundness, and dofccts arc enumerated as legally constituting unsoundness, and various enactments were framed for the purpose of protecting persons dealing in horses. This law has, however, not worked well, and the present French Government are under- stood to be preparing a new law on the subject. Xo law that attempts to define fraud will meet all cases. Fraud is too protean to be met by legal enactments of that kind. Kuleasto The rule as to unsoundness, as laid do^^^l in ue.s.s. E/fon V. Jh'Ofjiloi, is so very clear that it is given here in full : "If at the time of sale the horse has any disease which either actually does diminish the natiural usefulness of the animal, so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, ////v is ii>isoitH(/ne.ss; or if the horse lias, cither from diseas(> or accident, imdergone any alt(>ration of s(ni(tun> that cither (»•) 1 Storkic, N. V. V. 127. or ruRciiAsE and salt;, t/vc. 95 aotiuilly docs at the lime or in its orJinaiy effects will (liniinisli the natural usefulness of the horse, such a horse is unsoiiiid.^' Willi this definition, it is proposed to present sliortly to the readers, in another chapter, those diseases and defects which constitute in law unsoundness. 90 IIOIISK WAKKANTY, CIIArTEH VI. THE RIGHTS AND LIAUILITIES t)F INNKEEPERS, LIVERY STA BEEKEEPERS, AND OTHERS IN RE- LATION TO HORSES. The oLject of this work being more pai-ticularly to explain the laws and rules relating to hoi-ses, it is not proposed to enter minutely into the laws generally regvdating inns and mews, but to show where innkeepers and others are required to pro- vide for guests' hoi-ses, and the liabilities they incur respecting sucli horses generally ; also, what rights innkeepers and others have over the horses of guests and customers in their .«;tal)les or fields. Definition First let us consider, AVho may be said to be an nioiHnn-" innkeeper? "Every person who makes it his ket-pcr. business to entertain travellers and passengers, and pro^Ndde lodgings and necessaries for them and their horses and attendants, is a common inn- keeper ; and it is in no way material whether he liavi' any sign before his door t)r not " (a). But a jtcrson who merely opens a house for the sale of l)rovisions and refreshments and dues nut jirofess {a) Bacon's Al.r. Inns. 13. ; I\irf.rr v. J-'liiil, 12 Mod. 2.'.r). KinilTS AND MARILlTir.S OF INNKKErKKS, ETC. 97 to funiisli LoJs and lodgings for tho niglif, is not a common innkeeper (/>). Every man who opens an inn and professes to exercise the business of a common innkeeper is, by tlie custom of tlie realm, bound to afford such plieller and refreslmient as ho possesses to all travellers (r), and moreover, to receive and provide for the horses of all travellers who alight at his inn, if ho has room in his stables {(/). The law relating to the general rights and lia- bilities of that class of tradesmen is now governed to a great extent by a statute passed in 18G3, innkeepers "respecting the liability of innkeepers, and to ^ict.'c.4i. prevent frauds on them" (2G & 27 Vict. c. 41) ; but this act, while it saves them from liability to make good " any loss of or injury to a greater amount than 30/. to goods or property brought to their inns," excepting in certain cases specially provided, exempts a Jtonc or other live anii/ia/, or any gear appertaining thereto, or any carriage. The law, therefore, so far as regards horses and carriages left at an inn, is much as it was before the passing of that act, and its general bearing may be gathered from Cahje's case (Smith's Lead- ing Cases, Vol. I.). {b) Doe V. Lamm'uig, 4 Camp. 77. (c) Robinson v. Walter, 3 Buls. 270 ; Taylor v. Jlicwplirajs, 30 L. J., M. C. 242; Cojylci/ v. Burton, L. R., 5 C. P. 489. {d) Saunders v. Tlummer, Orl. Bridg. 227. L. H 98 TIonSE WAUKANTY Definition of an inu. Duties of inn- keepers. An inn is defined in TItompson v. Ldoj (*') to be a " lionso wlioro tlio traveller is furnished with everything ho has occasion for while on his way." A person Avho keeps an inn has certain rosponsi- Lilities imposed on him wlilch may he called lia- Ijilities, and certain privileges which maybe called rights. As was before stated, it is generally ad- mitted that an innkeeper undertakes to reeoive and entertain all travellers until his house is filled, and an innkeeper by opening a common inn in the country undertakes to receive and keep the horses of those who come to his inn (./'). Sometimes a dilliculty arises in determining who is a traveller; but a bona tide traveller has a right to be provided for in an inn if there is room both for himself and liis horse (^), and a refusal by an innkeeper to give accommodation may subject him to an indict- ment (//). Under the old law an innkeeper, tliough licensed to lot post-horses, could refuse to supply a chaise and horses to enable a guest to resume his journey, even though tend(n'ed a reasonable sum (/) ; nor is ho bound to provide for his guest the precise room the latter may choose to select: nil tliat lie is required to do is to find reasonable («•) 3 B. & A. 286. (/) Jonei V. Oibomr, 2 Chitty, 484 ; and Saunders v. Plummer, Orl. Bridg. 227. {(/) Hauthorii v. llammoinl, 1 C. k K. 107; iV// v. Knight, 8 M. & "\V. 200. (A) li. V. /.<•«», 7 C. k P. 213. (i) Jhcan V. //iV/r», 1 Stnrkio, 247. RlfJHTS AM) I.TAl'.lI.ITIES OF INNKKKPKKS, ETf. 99 and proper aocommodation for liis guests and ihfir horses, in sliort, suoli aocommodation as tlio inn possesses uithoiil inoonvoniencing others (/•). 11' (lio innk(^opor lias only a stable for a horse ho is not bound to receive the carriage (/). If a person Liability of goes to an inn to stay there, and the innkeeper i"°rcsp?ct receive him as a guest, the innkeeper will bo liable of gu'-'st's if the guest's horse is stolen {»i), even if the guest is only received and has come for mere temporary refreshment (//). In York v. Grimhtonc {o) three judges held, against Lord Holt's opinion, tliat if a guest leave his horse at an inn and lodge else- where, he is a guest, "because," they said, "the horse must be fed, by which the innkeeper hath gain; otherwise, if ho left a dead thing." If a guest desire the innkeeper to put his horse out to grass and the horse is lost or stolen, the innkeeper is not liable. He is only liable for the loss of a horse from within the hostelry, and that only by the custom of the realm (;;) ; but if the innkeeper puts the horse out to grass without the owner's request, then he is liable {q). However, if the horse be stolen from the inn stable by means of a (A) Fell V. Knight, 8 M. & W. 270. (/) Broadwood v. Granara, 10 Exch. 423 ; 24 L. J., Ex. 1, (wj) Jelly V. Clarke, Cro. Jac. 188 ; Bac. Abr. Inns, c. 5. («) Bennett v. Mellor, 5 T. R. 273. (o) Salk. 388 ; 2 Lord Raymond, 868. {p) Saunders v. Plummer, Orl. Bridg. 226. (?) Cahje'scase, 8 Coke, 32 b ; Moseley v. Fonset, 1 Rol. Abr. 5 ; niehmond v. Smith, 8 B. ./). An inn- jjorfe"^^*'^ keeper should remember that if he detains a horse for its meat, he cannot use it, because the deten- tion is the custody of the law, and a distress can- not be used by the distrainer {z). By the custom Except his of the city of London an innkeeper may take London, the horses of a guest who owes liim money as his own, upon the reasonable appraisement of four of his neighbours (^/). But now, since the Inn- or under 1 Aiio'-i/iN •! 11 c Innkeepers keepers Act, Ibtb (6), an mnkeeper should, alter Act, 1878. giving proper notice as in that act is pro\ided, sell and dispose of by public auction any carriages or horses which may have been left in the coach- house or stable of the house he keeps, and repay himself for the keep and expense of any horse left {x) Johnson v. Hill, 3 Starkie, N. V. C. 172. (y) Bhms v. Fiffffott, 9 C. & P. 208. (:) Wcstbrook v. Griffith, Moor, 876 ; Bobiuson v. iral/er, 3 Bulstrodo, 270. {a) Baldwatj v. Onxtcr, 1 Vent. 71 ; JFcstbroo/: v. Griffith, Moor, 876 ; .Vos.i v. Tounsetid, 1 Bnlstr. 207. (/') 41 & 12 Vict. c. 38, s. 1. 102 IIOUSI; W.MUIANM. with or standing; at livory in the stable or fields ocoujiiod l)y sufli iimkoopcr. Whore goods or cliattels of a guest have been aotually dflivorod to an innkoopcr, or to liis sor- vauts, the latter cannot discharge himself from responsibility by showing that the goods were afterwards stolen outside the inn, if he hiraself put them in the si^ot from whence they wore taken. In Jones v. Tyler (r) the facts were as Liability of foUows : — Tho plaintiff, a farmer, drove his horse foriiis'' "^ find gig to an inn on a market da}-, and the ostler carriage ^°"^ *^^^ liorse out of tho gig and put it into a stable, lie then placed the gig outside of the inn yard, in a ]iart of the open street, where tho inn- keeper was in the habit of placing the carriages of his guests on market days, and tlie gig was stolen liy some person and could not be found. It was lield that the innkeeper was responsible for the loss. Mr. Justice Taunton said, "If tho innkeeper wished to protect himself ho should have told the plaintiff he had no room in his yard, and that ho would put the gig in tlie street, Init c«juld not bo answerable for it. Not having done so, h'^ is ])ound by liis common law liability." An inn- keeper is liable for an injury done to u h<»rse if taken (»ut of the inn ;nid iiiiiiioderately ridden and whipped, though it may not appear by whom {d). (e) 1 A. Jl !•:. .VJ2 ; .V. T., .3 N. & M. 676. (rf) Stituniun v. Davim, 1 Salk. KU. RIGHTS AM) J.IAlill.HTE.S OF INNKElirKRS, ETC. 1U(J IIo is also lial)lo for an injiuy done to a horse of If pticst's a guest Avliile in liis stable, if due care be not taken j'.^r'ca at' of (111' anini.il according to express directions (,/'). genccby'' Where a guest's horse is injured at an inn, there Jmikecpnr . "' presumed. is always a presumption of negligence against the innkeeper. AVhether this negligence can bo re- butted, by anything short of actual negligence by the guest is doubtful. In Daicson v. Chamnc]) (g) evidence was given of such skilful management on the part of the innkeeper, that the jury were of opinion that the damage could not have been occasioned by his negligence, and we find in Addison on Torts, 4th edition, p. 500, that " The innkeeper is not responsible for injui'ies which the horses of guests inflict upon each other in the stables of the inn, provided he has taken all due care to prevent the introduction into the stables of vicious and kicking animals." Perhaps this view of the law is too naiTOw, and the reader should con- sult Morgan v. llavci/ (//), where C. B. Pollock, in delivering the judgment of the Court of Ex- chequer, said, " AVe think the cases show there is defaiJt in the innkeeper whenever there is a loss not arising from the plaintiff's negligence, the act of God, or the queen's enemies." (/) Lcggc v. Tucker, 1 II. & N., Exch. 500. (y) 13 L. J., Q. B. 33; .3Q.B. IGo; 7 Jurist, 1037; D. .*c M. 34S ; Cashlll v. Wrii/ht, 6 Ell. & B. 896. (/f) 30 L. J., Exch. 131 ; 6 H. & N. 2Go. 104 HORSE WAKRANTY. Horses of (jiu-st can- not 1)0 (lis- tniiiiwl by iiiii- kci'iM'r's lauolord. Livery Rtablu kL'oi)er has no lien by coinmou law. TIkj hoi'ses of a guest standing at an inn cannot bo distrained (/), nor can the horeo of a guest at an inn, if put into a strange stable on account of there not being sullicient room in an inn stable (/r). A livery stable keeper has not the same common law right of lien over a horse standing in his stables for its keep (/), nor for money paid to a veterinary surgeon for medicines for a horse while in his stable (;;/) ; but, of course, ho can have a lien if he have a special agreement, as where a marc was placed with a livery stable keeper, who ad- vanced money to her owner, and it was agreed that she should remain in the livery stalile keeper's stables as a seciuity for the repayment of the money advanced and for the expense of her keep, it was held that the livery stable keeper had a lien on the animal for the amount due {ii). i>o, too, the lien of a livery stable keeper may continue, even after a horse has been fraiidulently removed from his stables (o), if tin to has been an agree- ment, f^peaking generally, then, it may be said thai an innkeeper has the right to detain, not to (i) Rol. Ab. 068 ; Co. Litt. -17. (X) Francig y. Jfi/alt, 3 Ikirr. 1 1'.'S ; and C'io.iiery.Tomkiii»on, 2 Ld. Kc-u. 439; see also Williamnx. Jlulmcn, 'I'l L. J., Ex. 281. (I) Judiou V. Ethaid.je, 3 Tyr. Ool ; 1 C. & M. 7-13 ; Yorkc V. Creniaufjh, 2 Ld. Ruy. 8G8. (m) (hrhardx. J!ii,/,!i(nnr, 19 Law J., C. P. 303. («) Jlonatti/ V. Ciouilrf, 11 M(Miro, '179. ('/) Jf'aUace v.h'ooilgutf, li. ic M. 193; and 1 C. i P. 576. KIGIITS AND I.IADILITIES OF INNKKErKRS, KTC. 105 soil, tbo horse of a guest at his inn for tlio keep of the horse or for tlio guest's hill, hut a livery stahlo keeper lias no sucli riglit. A liorso, moreover, at an innkeeper's ciuiiiot he taken in distress for rent duo hy the innkeeper, hut a horse standing at a livery stahlo keeper's is distrainahlo for rent(/?). An innkeeper would aj^poar to have certain larger rights than a livery stahlo keeper, hecause tho latter is saved from many of the inconveniences incurred hy the innkeeper, such as the hilleting of soldiers, the ohligation to receive a guest, and tho like. It is not an uncommon thing for farmers to Gru/.inrr take a certain numher of horses, cattle and sheep cattle, into theu" fields to graze during the summer months, and horses into their strawyards during tho winter months. Persons who do tliis are called in law *' atjidersJ^ It will ho convenient to use this word in treating of the rights and liahilities of such persons. An agister is in some respects better off than an innkeeper. He does not, Hke an innkeeper, insure the safety of the horse he takes in to graze or to keep in the straw- yard, hut an agister must use ordinary care. If a horse is taken from his premises, oris lost, hy an accident against wliich ho could not guard he is {})) Francis v. If'yatl, 3 Burr. 1498 ; r). Thus -where the defendant, a fanner, took in tlie plaintifT's horse to graze, and the horse in some way got out of the field and was lost, and it was shown that the gate was sometimes left open and that the fences were not good, although it eoidd not he proved tliat the horse eame out of the gate or through a Lrokeu pai-t of the fence, yet the jury gave a verdict for the plaintiff for the value of the lost horse. Generally, if the fences of a field in which horses are taken in to graze are defective, or there are holes or bogs from niai'sh in the field and an animal is lost or in- jured, the agister will be responsible (q). An agister has no lien over llic animals he takes in to graze in respect of the grass they may have eaten. Thus a farmer who took in milch-cows to drjtasture, tlie owner having the right to milk them wlien he pleased, was held to have no lien over them ^^•hen the OANner failed to pay for the rent (;•). If there is a special agreement that tho {/i) Ihoaduater v. Blot^ Holt, olT; and bcc Corbett v. rackvujtoit, C B. & C. 2C8, (7) Monclnj V. J'viistH, 1 Rol. Abr. 4 ; and soo Itooth v. WiLioii, I B. ic Aid. 69; und I'vurll v. Sahsbunj, 2 Y. i J. 391; Groucott V. Wiltiaim, 32 L. J., Q. B. 237. (»•) Jackion v. Cumiiiina, 5 ^I. A: "W. 312 ; C/iajman v. Alltit, Cro. Car. 273. lUGIirs VNl) l.I VKIMTIKS OF IN NIvKKrKRS, KTC. 107 liors(! or any oilier aiiiiniil shall not bo romovod until thcii' keep is paid for, then, of course, thoro may be a lien (s). Horses put into a field to bo agisted may be distrained by the landlord (/), but not if put in only for one night by a drover or cattle dealer (?/), although it was once held differently (.r). Many questions arise between farmers and railway companies, by reason of the trains of the latter running over horses and cattle getting on the line. There is no special law or rule on this subject. The great point for farmers or agisters to prove is, that they have not been guilty of negligence, in leaving their fences broken or unmendcd. Every man is bound to keep his horses or cattle properly confined; if they get out, it will bo for him to prove that their escape was due to accident and unavoidable. («) Uichards v. f>>jmoits, 8 Q. B. 90. (0 Jones V. roiccU, 5 B. & C. G17 ; S D. & R. 41G. (m) Tate V. Glccd, C. B., H. T., 2 Suimdcrs, 290. {x) Fowkes V. Joi/cc, 2 Vent. 50. 108 HOUSK WAKKAMY, ('iiAiTi:i: vir. THE LAW ]n:i.ATINf; TO I.KTTINC; AM) HIKING HOUSES. In tlio present day, Avlien so many people prefer ■what is called, joLLing tlicii" camagi'S and horses, that is, liiring tliem from a jobmaster, it is of some consequence to know a few of the plain rules of law which affect this class of contracts. To prevent trouLles with servants and to avoid the risk which always attends hoi-sekeeping, par- ticidarly when horses are kept out late at night, many persons, even noblemen of the first rank, hire their hoi-ses by the year or for a shoi-ter period from keepers of horses, who for this pur- pose are called, and call themselves, jobmastci's. These last are, as a class, a most respectable body of tradesmen, and the horses and e{pii]>ages they send to their customers are equal to any turned .T'.i.- out of private stables. They inciu- certain liabili- ih.'?r*riuii«8 ties and have certain rights. I'l-rhaps the chief and Uabih- jjuljiiity j^ ,,n(. n,,! always clearly recognized, namely, that wlnn a jxixm lets out a hoi-se or caiTiage for ajiy ] articular jmrjiose he warrants that the horse or carriage so let out is reasonably ties LETTING AXI) IIIRIXf; HORSES. 109 fit for such purpose (*■/), nor will this warranty Ijo Joimastor weakenod by tlio fact, that tlio gentleman or other duRo war ' person hiring that carriage and horse, has selected J;'" purposo out of the owner's stahles a particular horse, as ^"red. the latter hy allowing the horse to go out has ini])lied that the animal is fit for the work for wliieh he is selected. On the other hand, the hirer has no business to use the horse for any other purpose tlian tli;it for wliicji llio animal was hired. If a gentleman liircs a horse as a riding horse, he must not put the animal into harness ; if he does so and an accident happens the hirer is liable. Also the hirer should remember that, although as a nde, which will bo more fully ex- plained, horses hired are at the risk of the owmer and letter, and that the latter is liable for almost any accident or loss, still if the hii-er keeps the animal longer than the time stipulated iov letting, then he is answerable in almost any event. As was said, as a rule the owner of a horse letting it out for hire is answerable for every loss and accident sustained. At all events he is an- swerable unless he can prove positive negligence b}' the hii-er. Thus where one hired a horse which fell down and broke its knees while being driven by the hirer, the o^NTier failed in his action to recover compensation, although he proved the horse was a good horse and not a stumbler, but (rt) C/ww V. Joiics, 10 L. T. 231, 308. drive it. ] 10 HORSE WAUUANTY. lie could not prove acluiil nogligonoo by the de- fondant, antl must run the risk of a horso falling owing to loose stones, ioe, slippery pavement, or llie like {!>). But a hirer has no right to ovor- Avork a horso or to pursue a journey with a horse unfit for -work. In C/ieir v. Joiics, quoted ahove, it was held that if a horse falls lame on a journey Hirer of ^Jjq lii^er may leave him at the nearest stable, liorso must . '^ , i i -i. • j. net ovir- giving notice to the owner, whoso duty it is to send for him. But in Brai/ v. jrat/no (c), where a hirer continued to drive a horse after it was exhausted and refused its food, it was held that the hirer had done wrong, and he was fixed with the price and value of the horse which had been overdriven. A hirer of horses gives an implied undertaking, when ho hires the animals, that he will use the same degree of care which a prudent man would use towards his own hoi*scs (a. LETTING AND TIIRINO HORSES. JIl for all injuries rosultiiig from Iho careless and neg'ligont driving of the conveyance, although under the control and in the possession of the liircr (c) ; but if the hirer choose to drive himself, or if lie appoints the coachman or supplies the horses, the owner of the carriage cannot be re- sponsible for the negligence or want of skill of the coaclimau (/). Speaking generally, where the owner and letter supplies the servant to ride or drive the horses, all the hirer has to do is to see that no injury is done by himself or friends to the inside of the carriage, assuming the whole turn-out to be hired. lie is not answerable for damage done by the negligence of the jobmaster or letter's servants. Quannan v. Burnett {g) is a leading Quarman case on this point : there two ladies, ha%'ing a ^ ' ^"''"^'^^ carriage of then- ovra, hired a pair of horses from a jobmaster, who also supplied the driver. The ladies were in the habit of gi^•ing the di'iver a present every day, and provided him with a livery hat and coat to drive out in. These last he was accustomed to leave at the ladies' house. After driving them for three years without any acci- dent, one day, as the driver was taking off the livery coat in the haU of the house, the horses started (e) Laugher v. Pointer, 5 B. & C. 547. (/) Croft V. Alison, 1 B. & Aid. 590 ; HaU v. Pichard, 3 Camp. 187. {{!) G M. & W. 507. 112 TldRSE -SVAnUANTY. ofT nnd injured the plaint ifT Quamian : it was held tliat the defendants, the two ladies, wcro not re- pponsiLle, as the coachman was not their servant, hut the servant of tlio johmaster. In giving judg- ment in this case, Baron Parke remarked, that there may he special circumstances in -which a hirer of jobhorses and servants may become responsible for the negligent acts of the servant, though not liable by virtue of the general relation of master and servant. As, if the hirer takes upon himself tlio actual management of the horses, or order the Maclaugh- servant to drive in a particular manner. So if rlmr. directions are given by the liircr of horses to the driver or postilion of a can-iago to break through a line of carriages and to take up a particular position, or to do any unusual, improper or aggres- sive act, or if ho interferes so as to take the actual management into his own hands, he is responsible, and not the o-sMier or letter, for any damage done by the driver while carrying out the directions given (//). A common error exi.sts amongst job- masters, that if the liirer sits outside beside the driver, then their liability ceases. There is no other foundation fortius notion, than some remarks of the judges in giving judgment in the case last refcrrecl to, where the hirer was sitting outside and directing the postilions. It is always a (]ues- tion for the jury, whether the coachman is acting (A) Maclaughliu v. Fnjor, 1 C. k Marsh, 351 ; 1 M. & G. 48. T.KTTINO AM) IITUINn IIOUSKS. 1 1 -i ns tho servant of tlio owner, or tlio servant of tlie liiror, and it is almost impossible; to lay down any fixed rule on the subject, other than was mentioned above, namely, where the hirer does nothing and says nothing, tlio jobmaster's coachman is tlie servant of the jobmaster, and the owner, the job- master, is answerable for any negligence of his servant (/). If a person hires a horse and chaise iiiicrofa and allows himself to be driven by a friend, he is ^""0 liable responsible for the negligence of the driver, as for f,''.^,Hj|,pnt his owTi negligence (/.•). iinvmK^of Whilst jobmasters are, to some extent, put under certain disadvantages by reason of their coachmen or servants, often having to please two persons — one, their actual master, and the other, who may be termed their employer for the time being, it should be remembered that a jobmaster, like any other master, is only liable so long as the servant is properly doing something within the scope of liis employment. If a servant wrong- fully takes a carriage for his own pui*pose, and drives against another carriage, the master or owner is not responsible (/). AVlien the defen- dant's coachman was driving the defendant's car- (i) See Lord AV)ingcr'.s remarks in Bradij v. GUea, 1 M. & Rob. 496. {h) Whcatley v. Patrick, 2 ^r. .<;: W. 6o0 ; WiUlams v. Holland, 10 Biusr. 112. (/) Mc.Vanxs v. Cvichtt, 1 East, 106 ; Slcath v. irUson, 9 C. i: P. GOT. L. I Ill HORSK W A UK AMY. To make mai^ter liable, ser- vant must be actinia within wojM'of his i'ni]il(>3'- meut. ringo throufjh a narrow street, wliicli was blocked up by a lufxpa*:;!* van containing the goods of tlio ItlaintilT, which tho latter was unlnading and taking into his house, and the plaintill's gig stood beliind tho van, and tho defendant's coachman (there being no room for tho carriage to pass) got off his box and by leading on the van liorso moved the van, and so caused a large paeking-caso to fidl on the shafts of the gig and to break them, it was held that the defendant (the master) was not liable for the injury, tho coachman at tho time not doing his master's work and not having moved the van in the execution of his master's orders (ni). It is not always easy to determine what acts are, and what are not, within the scope of the servant's employment. In Storey v. As/if on («), the defen- dant, a wine merchant, sent his carman and cU^k with a horse and cart to deliver wine, and bring back empty bottles. They delivered the wine and received tlie bottles, but when tliey p*^i within a quarter of a mile from home, instead of driving there straight and depositing tho empties, tho carman was induced by the clerk to drive* in another direction on business of the clerk's. While they were doing this the cannan drove over tho plaintiff, and the court held that the defendant (m) Lamb v. Palk, 9 C. & T. 029 ; but 8CO fnije v. Dr/riri, 7 Bout & Smith, 139, in which Blackburn, J., said "at the trial I thotigrht Liimb v. /'aM- wa» not law." («) L. R., J (^ B. J7r.; 3H L. .7., ii. B. 'iJ3. I.KTTINT. AM) irilUNf; IIOUSl.S. 110 was not liaLlo, as tlio injury coinplainod of was not done by the carman in the course of liis em- ployment. In connection with the case last quoted sliould be road Wliatman v. Pearson (o) : the de- fondant, who was a contractor, oraployed men with horses and carts to load earth. The men were not allowed to leave their horses and carts at dinner time, but were supposed to remain at hand while the horses baited. One of the men, however, went home to his dinner, some little distance from the work, with liis cart, and left it standing at his own door, with no one to attend to the horse. Tlie horse ran away and ran the cart against the plain- tiff's fence, thereby injiu'ing it : the court hold that it was properly loft to the jury to say, whether the carter was acting within the scope of his em- ployment, and that the jury were justified in say- ing that ho was. This case of Whatman v. Pearson would appear also to overrule Sleath v. Wilson {p)y a case much quoted to show a master's liability, and which had been previously modified by Sey- mour V. Green icood (q). There an omnibus pas- senger, slightly intoxicated, refused to get out and pay his fare to the conductor when the omnibus arrived at its destination ; the conductor drajrffed ' Co him out and caused him to fall under the wheel of a passing cab ; the omnibus proprietor was held (o) L. R., 3 C. P. 422. Ip) 9 C. & p. 607. (v) 6 H. & N. 359 ; affii-med, 7 H. & N. Soo. i2 uc llOUSK \\ AKK \N 1 \. Limpiii V. London General Omnibus Company. responsililo, tlio jury finding' tluit the injury was done l»y tlio servant (the conduotor) in the course c»f liis cTuploymeut nhout liis master's business, and llio court remarking tliat tlio master jmt the conductor in his i)lacc. Again, where an omnibus company gave written instructions to their drivers " to tb-ive at a steady pace, and not on any account to race with or obstruct other onmibuses," and a (biver disobeyed these instructions and wilfully obstnicted another omnibus, by drawing across the road and ran against it and upset it : it was lield, in the Exchequer Chamber, that the instructions given by the omnibus company to their servants would not exonerate the former from responsibility for the wilful and malicious act of their servants while carrying passengers for the benefit of the company (r). Generally speakini^, and it must bo remembered the question is a dillicidt one, for it is a question of implied authority, in all cases of negligent and rash driving b}- a servant employed to drive, the master will be held responsible if the servant was driving about his master's business or using the carriage and horses for the master's benefit ; and the master will not bo excused by shcjwing that the servant was acting contrary to his orders. Anyone liiring a horse should bo careful not to (r) Umpw V. London Gen. Om. Co., I H. & C. 626, and 32 L. J., Kxch. U. I.F/ITING AM) HIKINf; HOUSES. 117 doctor tlic animal himself, in case it should fall ill or injure itself. It has boon heLl that if a hired Not pm- horse is taken ill on the road and the hirer calls i,irerof in a farrier, then the former is not responsihle ; but '^'"/^in^t ^q if he chooses to prescribe himself and the horse physic it. die, he is liable to the owner for the loss. In Deane v. Keatv (s). Lord Ellenborough said, " Had the defendant called in a farrier he would not have been answerable for the medicines the latter might have administered, but when he prescribes himself he assumes a new degree of responsibility, and prescribing so improperly I think he did not exercise that degree of care which might be ex- pected from a prudent man towards his horse, and was in consequence guilty of a breach of the im- plied undertaking he entered into when he hired the horse from the plaintiff." (s) 3 Campbell, 4. 1 IS HOlLSIi \VARU\M V. CIIMTKli VIII. ON RiniNc; AND 1)HIV1N(} HORSES. It is not tlio puqioso of this work to attonipt to teacli people how terienco of him. There must be horses without number ridden every day in London, of wliom tlif ridt-rs know nothing. A varit'ty of cir- cumstances will make a lioi*se restive. The mere fact of restiveness is not even prima fiicie evidence of negligence." It may be assumed, generally, tluit where horses run away and a person is in- jured, then the driver is not answerable (c) ; but of course tliis may bo rebutted, as by showing the horse, or one of a pair, had ran away on a pi*oviou8 (r) (libbon* v. J'rpi>rr, 1 Ij<1. Knyinuiid, 3H. Cv) H C. B., N. 8. rjH8; HI L. J., C. V. I'JS). (j) Rex V. Timmini, 7 C. & P. 600 ; Oibbutm v. f'lppcr, Kiipr.i. uiDiNf; AM) nuivixf; horses. 121 nroasion to tlio drfondanrs knowledge, or that tlio driver liad been Hogging them. So, too, if a horse, not known to be of a vicious disposition by the rider, kieks ont and injures a bystander, the rider will not be responsible ; but there is negli- gence, and a want of ordinary care, if a person riding a \ieious horse, spurs it when close to a by- stander, and the horse kicks out and injures him {(i). Although the remarks of C.J.Erie in Uammack To make V. White, above quoted, would show that, in some rider liabif cases, an action is not sustainable against a person ucViH^ence for riding an imruly horse in a public place of ^'"** ^® resort, there may be cu-cumstances where such conduct woidd render a diiver or rider liable for injuries done {h) ; and the better plan is to try horses in more open spots, where the oppoiiunities of inflicting injury are not likely to occiu". The rule in all cases is, that there must be some affirma- tive proof of negligence on the part of the de- fendant to suppoi-t an action. If the balance of evidence is perfectly even, and fails to distinguish which side, the plaintiff or defendant, has failed to take proper care, the plaintiff must fail in his action, as he founds his claim on the imputation of negligence and fails to establish it {c). {a) North v. Smith, 10 C. B., N. S. 572. (i) Michael v. Alcstrcc, 2 Lev. 178. (c) Cotton V. Wood, 8 C. B., N. S. 571 ; 29 L. J., C. P. 333 ; Kearnei/ v. London and Brighton Hail. Co., L. K., 5 Q. B. 411 ; and 6 L. R., Q. B. 759. 122 HoKsi: wAiin \MV. Somctiinos an injury is ihnw ]>y tlio driver or rider of n liorso, wlit-ro tlio iraniedijito cause of the injury or accident is due to something else, as where tlie rider or driver of a restive or runaway liorse becomes nervous and loses his head and pulls the horse in the wrong direction. Sometimes a nervous driver makes his horses nervous ; some- times the horses, bolting or kicking, frigliten the driver and ho contril)utes to injuries to himself or Fhun V. to liis carriage or team. In Floircr v. Adam {d) the facts were as follows : — Some bricklayers, em- ployed by the defendant, had wrongfully laid a large heap of lime rubbish opposite the defen- dant's door and on the side of the highway. AVhilst the plaintill" was passing in Ids chaise the wind blew about the rubbish, and the dust frightened the plaintiff's horse, causing it to shio on one side, when the plaintiff, to prevent the chaise running against a waggon, pulled the horse sharp round, and in doing so drove over a lime heap oi)posito another man's door. This ciiused the shaft to break, and the horse becom- ing more frightened, ran away and upsetting the chaise threw the ]>l:iiiitilF out and injured him: it was held, that though the dffendant was to Idaiiii' for jmlting the rubbish beside the road, yet if tin* iilaintiU'M running against the second lieaj) was owing to his pulling the horse shar]) round, the immediate cause of the injury (rf) 2 Taunton, 314. RIDING AND DRIVING HORSES. 12'' was his own iinskilfiilnoss in driving, rather than the original act of the defendant. Again, where the defendant hired the plaintiff witli his horses to carry a load of timber to Ipswich, and the plaintiff took the timber as agreed, but by reason of the defendant not giving directions where to unload the timber, the horses — which were heated with their journey — by waiting took cold and some died, it was held the plaintiff's action was not sustainable. If the defendant was wrong in not finding a place to deposit the timber, the plaintiff was to blame for not taking his horses out and putting them into a stable {c). But while these cases go to show that a plaintiff riaiutiff will not be entitled to compensation for injury covorlnTe where he has shown nec-liffenco or misconduct, 'i^sshowTi ^ ° ° ' uegugeuce. that negligence or misconduct must be such as the plaintiff is legally responsible for, and co-operate in inflicting the injury (/). As where the de- fendant left his horse and cart standing in the street without any person to watch them, and where some little boys were at play and some of the boys got into the cart, and another boy led the horse on to give them a ride, and one boy fell and got his leg crushed under the wheel, it was held that the defendant was responsible for the fall and broken leg, as it was the natural conse- {c) Virtue y. Adam, 2 Lev. 196. (/) See ou this Ahhott v. Macfe, 33 L. J., Exch. 177; Maiigan v. Atterton, L. E., 1 Exch. 239. 124 HOK'^F. WAKHANTY. quonoo of his iniscomluct in leaving tlio cnrt unattentloJ, and tlio Loy, from his ngo nnd tho circumstances, couhl not l)o considered legally responsihlo, so as to he pro(lud<'n the risk of all the consequences tliat result from leaving the Imrse unattended. In such case, lidtli the owner who left the carl, and the ])ersoii win* struck the horse, are liable for the injury (//). (^) Lynch ▼. Nurdin, 1 Q. B. 36. (/i) ///i/A/f V. Goodtrin, 5 C. & P. 190. UiniNf; AND 1)RI\ INf; iiorsks. 125 Ono of tlio most dillicult questions to dotormino in trying actions of collision by vehicles, is the question of contributory negligence. The diifi- Contribu- cidty does not arise so much in the Superior Courts, lifrffncediK- where a case is generally well sifted in Chambers [^,"[1,^6^'"' by summons, eitlier for fui-ther and better par- pt-'.-souto ticulars, or the like, but in County Courts, where ordinarily there are no pleadings, and the question has to bo settled then and there from the state- ments of the advocates for the parties, and the evidence of their respective witnesses. The rule of the road is well understood, and an inference may be drawn, where one party is shown to have been on the wrong side of an imaginary line in the middle of the road, that the collision was owing to that party's negligence. Thus, if it is shown, or admitted, that the plaintiff was driving at a reckless pace on the right-hand side of the road, and his vehicle came into collision with another vehicle coming in the opposite direction, the driver of which was not looking out, the inference would be that if the plaintiif had been on his own side, the collision woidd not have taken place, and that if he sustained injury it was his own fault. In legal phraseology, he would have been guilty of contributory negligence, and a plaintiff cannot recover damages, if but for his own negligence, or that of the person who represents him, the accident would not have happened, although IJG IIORSK W \UUAM Y. A (li'foiiil- aiit winiiot 8ft up cou- tributory no(;li<»ouce if such iK'^tlifji'iico indirect. thoro was nogligoncc nii tho ]iart of the defen- dant (/). There may bo, however, and frequently are, cases where tho negligence on the ]tart of the plaintiff is so remotely connected witli the cause of the ijijury, tliat it cannot be called "contri- butory negligence" in tho legal sense; in other words, where the negligence of the plaintiff, al- though admitted, did not actually contribute to the accident or injury, — the question then is, could the defendant, by tho exorcise of ordinary skill and care, have avoided inflicting the injury ? If he could, the indirect negligence of the plaintiff cannot be set up by tho defendant as an answer to the action (A) : as where tlie plaintiff negligently left his donkey on tho public highway, and tethered by the forefeet, and the defendant carelessly drove over and killed tho ass with his horse and waggon in broad daylight — the donkey not being able to get out of the way, — it was held that the negli- gence of the plaintiff in leaving the ass on the highway was no answer to the action ; for although the animal might have Ijoen wrongfully there, tho defendant was bound to travel on the road with (i) Jlatrkina v. Cuoprr, 8 C. & P. 473 ; M'aUr v. North EnsUrn Rait. Co., VAX. B. & EU. 710; 27 L. J., Q. B. 417; 28 L. J., Q. n. 25H; Unihje v. Grand J. Hail. Co., 3 M. & W. 211; AdUIl(l to Imvo fjood ham ess. party is not to oast himself upon an (dtstniotion wliicli lias boon niado by tlio fault of anotluT, and avail himself of it, if he do not himself use common and ordinary caution to l>o in the right" (»). If the risk is obvious, the plaintill' ought not to incur it, but should remove any obstruction or take legal proceedings for its removal. Of course a heap of any rubbish which might bo seen by day woidd not bo seen by night, and the same reason- ing would not apply. The owner of a cart or carriage is bound to have strong and proper harness on the horse or horses used to draw the vehicle, and he is answer- able for any accident that may occur through the harness breaking, — as where the chain trace of a cart broke, and the horse getting frightened ran away and did an injury {(>) ; and where, in conse- quence of reins breaking, a foot passenger was run over and injured, as Patteson, J., said in Cot fori I V. Sfdrhrt/ ( p), " If a person (b'iving along the road cannot pull up because his reins break, that will be no ground of defence, as ho is botmd to have proper tackle." So, again, where the de- fendant was driving down hill, and the horse he WJLS driving, although usually (juiet, commenced kicking and ran away, and at last the shafts broke, and the cart coming into collision with the plain- (m) Jhifln/irlii v. Fonmfrr, 1 1 Kant, 60. (o) n'rhh V. Lnurfnce, 2 Chitty, 'U\'l. (p) 8C. kV. 693. RiniNf; AM) nun iNf; horses. ]'2i) tifT's gig injured it, it was liold that the breaking of the shafts raised a presumption of negligeneo in the owner of the cart, and he was held liaLle (q) . A foot passenger is not hound to keep on the Foot pas- foot pavement ; he lias a right to walk in the have i? carriageway, and is entitled to the exercise of ^v^^ikiuthe reasonable care on the part of persons driving carriage- carriages along it. In Coffcril v. Starhcij {>•) the Court told the jury " a foot passenger has a right to cross a highway, and persons driving carriages along the road are liable if they do not take care, so as to avoid driving against the foot passengers who are crossing the road." And it was held in And it is Williatm V. Richanh (.s) that *' it is the duty of drivers to persons who are driving over a crossing for foot slowly at a passengers, to drive slowly, cautiously and care- crossing, fully ; but it is also the duty of a foot passenger to use due care and caution in going upon a cross- ing, so as not recklessly to get among the car- riages." But it would appear that the Courts do not hold that the rule of the road applies to foot passengers. *' The rule as to the proper side of the road does not apply with respect to foot passengers ; and as regards foot passengers, the {q) Temphman v. ITatjdn, 12 C. B. 507. (»■) 8 C. k P. C93: see also Boss v. Litton, o C. & P. 407 ; and Lloyd \. Oghbii, 5 C. B., N. S. 6G7. («) 3 C. & K. 82; and see Erie, C. J., remarks in Cotton v. Wood, 8 C. B., N. S. 571. L. K 130 IIOUSi; WAlUt \M Y. carrlap:os may f^o on Avhifliovor sido ihoy ]>lon5e"(/). Uuloof ]^ut tho rule of tlio road as to keeping tlie proper ;ipi'iio'j»hio side applies to saddle horses as well as to carriages, '.'u'.'cre.'"^" ''^"'^ if ^ carriage and liorso are to pass, a carriage must keep its proper side, so must a horse ('/). Still, as before said, tho rule of tho road, that a driver should keep on his own side, is not ab- solute. If a driver does not do so, he must bo cautious, and the degree of care sufficient for a driver on his own side, will not be sufficient if ho is on the -wTong side (.r). »So a person has no business to diive on the wrong side of the road in the dark ; if ho does so, and injures tho carriage of another person, ho is answerable for it (y). It is generally better to keep on tho proper side in diiving, in any event, but there may be circum- stances where by pulling over to tho wrong side a collision may be avoided, such as where a driver meets a loaded conveyance coming down a hill, which is too heavy for the horses; or where a carriage is seen approaching, the horses of which are manifestly running away ; for although horses will of themselves keep their proper side and avoid cctntact witli other veliicles, although their driver may be asleep, it is otlierwise wlion horses are running away; their doing so is generally tlu^ (I) Ootfrrill V. Tiipp, nhi Hiiprn, by Mr. J. Pnttoson. (m) TJom v. T.ittoH, ft C. & V. J 07. (x) J'luckwell V. //'i/jtwi, 6 C. k V. 376; and Lloyd v. OyUbij, b C. B., N. S. fi07. (y) Chaplin V. Ilatm, 3 C. & P. ri54 ; IfamhjBide v. Wihoti, 3 C. A: r. olio ; Latmc v. Lroy, 3 Eiiet, h'Xi. KiniNo AM) nuiviNf; ironsES. l-Tl result of ft>ar, and a friglitenod liorso often be- comos totally unnianageaLlo, and it may bo said, forgetful of all he has ever learnt or practised. In Clay V. WooMFA*TS OF HOUSES, ETC. any part of a horse. AVTien then an action is commenced on the advifo of sucli men it often fails, for in giving scientific evidence they mako exhibitions of themselves which are very ludicrous. In Dorking County Court a farmer once brought an action against a smith for ill-shoeing and kill- ing a horse of his recently purchased. The actual facts were, the horse was bought with long stand- ing laminitis, or fever in the feet, and without shoes ; in shoeing the animal it is possible he was pinched and the disease intensified and the horse died ; but the farrier produced in court the coffin bones of one of the horse's feet much corroded and eaten with disease, which he supposed, and said, were so injui'ed by the nails used when shoeing the unfortunate animal, as if that was possible. To afford, then, some sort of guide to any one alleging that a horse sold to him as sound, is, or was unsound, it will be useful to consider from the S3-mptons, or from the statements of the veterinary surgeon — is the disease one which con- stitutes unsoundness in law ? and have there been any decisions to that effect in relation to such particular disease ? It may be taken for granted that most horses rejected for breach of warranty, ai-e so rejected because of lameness, and lameness arises from defects, diseases, or malformations of the feet or legs. As a nde, a horse that is lame in its forelegs is injured in the feet, and if it is lame in the hind Lit IHiKni; WAIUIAN TY. logs tlio cause is somowlicrc in the stillu julut or hock, the kiico of the hind leg-. The reiisou of this is obvious. If a gentleman uses a straight walk- ing stick when going about his grounds, ho will find the stick wear at the point, so the straight or foreleg of a horse wears at the point. If, however, a crooked stick, or one with a joint, is used, it will be observed to bond and give at the joint, leaving the point wholly unworn, and it is so with a horse's hind leg ; the wearing and injury usually occur at the joint of that leg, the foot remaining uninjured. And it is well to remember this, because a person rejecting a horse for lameness should be able to say something, though not technically, of his reasons for doing so. To say that a horse is lame in his hind feet, but is sound on his forefeet, although possible, does not impress a jury of farmers as a connnon sense remark ; they know, although they cannot tell why, tliat such a thing rarely happens — that if a horse goes sound in front and is lame behind, and the cause is in tlie foot, that it has been pinched in shoeing, or liad a blow, or has suffered some temporary injury there, which thc'v will not look upon as unsoundness, but as an injury easily remedied, and arising from the buyer's own fault. Th an DISEASES AND AUGMENTS OF HORSES, ETC. l'}7 imsoimd horse, nerving being an organic defect. See Best v. Osborne {a). Laminitis, or Chronic Fever ix the Feet. — Laminitis, This disease, as it alters the structure of a horse's oL *^"^ '°" foot, is undoubtedly unsoundness. Sometimes this defect is called, chronic founder. Properly- speaking, fever in the foot is the commencement of laminitis, which is, really, inflammation of the sensible lamincc, which connect the coffin bono witli the crust of the foot. More horses are re- jected as imsound on account of this disease than from any other cause, and not always with reason, as the development of fever is very rapid. It happens that a horse is kept well to prepare the animal to go to a sale or fair. It is known that the majority of horse buyers think more of condi- tion of flesh than of condition of muscle ; so flesh is put on a horse before it goes for sale, by all sorts of food, at the expense of possible inflamma- tion. Even dealers think a fat horse, with a sleek skin and a long tail, more worth looking at than another whose ribs may perhaps show, but whose crest and withers feel like real condition. The consequence is, many horses sent for sale are pre- disposed for fevers of all kinds. After standing about in rain or snow for hours, and after havinjr been run up and down, as the saying is, they go (fl) R. & M. 290 ; 2 C. & P. 74. ViS IIOUSK WAKUAM Y. Acute and «iib-a<;uto lamiuitis. to tlio Luyer sound, but with tlio seeds of disease. Thou the now owner cannot make too mucli of or feed his purchase too well. In a few days, or l)erhaps next morning, the horse shows signs of inflammation in tlio foot. In such a case a.s this, it is prohablo that a disappointed buyer will fail to recover on alleged breach of warranty ; it may bo that disease is no fault of the seller, or, at all events, had care been taken, no fever would have come on. In most works on farriery a distinction is made with reference to laminitis, this complaint being divided into two stages and called acute laminitis and sub-acute laminitis ; as a fact, acuto laminitis is fever of a violent character in the feet of a horse — sub-acute is the chronic stage, and whether these can be cured or not is of little mat- ter, for they detract from the natm*al usefulness of a horse, and are unsoundness. It is, however, material that a person before he goes to law, should consider the grounds on which he founds his com- plaint. If the disease has como on since the pm-- cluise, and from any of the causes above hinted at, he, as was said before, may fail to recover back his money from the seller ; on the other hand, if the disea,se was of long standing, the horse hius been sold uns(jund, and, if warranted, can be re- turned or IIk' money recovered back. Assuming that such is the case, and a buyer thinks he has been defrauded or wronged, what are the symp- toms wc should look for as differing, altliough DISEASES AND AILMENTS OF HORSES, ETC. 139 only in degree, from a disease contracted at the time of, or subsequent to, the sale ? In the case of recent injury, not chronic, the animal may como into the stable, looking fresh, and feed well ; the hoofs will appear of the proper size and shape, and everything appear right until the morning after the new horse has come home; it will then be found with staring coat and eyes, resting the weight of the body on the heels of the feet and refusing food ; or, probably, the animal will be Symptoms lymg down, especially if in a horse box, its sides nitis. will be heaving as if the wind was touched, and to the most inexperienced eye the horse will appear ill. These symptoms may also occur in a horse who has long had chronic laminitis; but there will generally be this great difference — the hoofs of a horse with chronic fever in the feet never remain shapely and open, but become contracted and nar- row ; often too, a horse with chronic foot fever has a bad thrush, or discharge from the centre, or split in the frog of the foot. Some hunters suffer after every hard day, more or less, from fever in the foot. An excellent Irish horse was ridden a long run with hounds, and the end of the run found horse and rider twenty-five miles from home. The horse, formerly ridden by a whip, came home at his own pace, which was the jog-trot at Avhich liounds like to travel on the roads. On coming through the lodge of the owner, the animal ap- peared so fresh and well that it made a playful 1 10 IIORSF. AV\UH\M V. spring and laslicd out at a boy who opened the patos, nearly unseating bis rider ; but as soon as the groom saw the animal's eye, ho foretold that it would be down with foot fever before the morn- ing, an opinion whicli was fully Vfrifit'd, and it was only by great care and watching that the horse was brought round again. This horse was sound the day of the run, but was not in a condition to sell as sound the day after, although in a fortnight he had quite recovered. .«iynii>(oins In chronic laminitis, a horse is always dull and liuniuitis.'^ stifY at starting and first coming out of the stable. This lameness, or stiiFness, will sometimes work oil", but it will come on again with rest. The animal's appetite, however, is not so much impaired as in acute fever. This disease is not always easy to discover. Sometimes it will bo days before even a veterinary surgeon finds out exactly the scat of the disease. It not unfrequently happens that a horse is bought in a fair or at a sah^ when warm, and shows no sign of lameness ; the buyer takes it home and next morning finds his purchase lame ; then any slight exercise, even the taking it to a veterinary surgeon, causes the lameness to jiii.'^s oil", and the buyer hesitates to rctm-n his bargain. May be, that the horse, being ccpially lame on both forefeet, does not sliow that droj) which is the pc<'uliarity of lann^ness in four-footed animals, and the buyer thinks ho wius mistaken and keeps the purchase a few days more. At last, DISEASES AM) AII.MKNIS Ol IIOKSKS, ETC. 141 lie comos to tlio conclusion tli.at the horse he has bouglit wai-rantcd as sound is unsound, and takes steps to get back his money when too late. It is a case of chronic laminitis ; but the horse is re- jected, after too long a delay, to obtain any remedy. The buyer of a horse Avith suspiciously contracted forefeet, or with a thrush, or with leather-shod forefeet, should always requii-o a warranty to last a fortnight. Tinirsii is an offensive discharge from the cleft Thrush, of the frog, which rots away the frog and causes the horse to feel tenderness when treading on a stone. It is produced by moisture and filth, and thus it is more common in the hind than the fore- feet. Sometimes it is produced in the forefeet by contraction and fever in the feet. A horse with thrush is unsound. Contraction of the Foot.— When this is suffi- Diseases of cient to cause lameness in a horse, the animal is ^^^^' unsound. It is in itself very often the result of imsoundness, more especially of fever in the feet. Eings in the hoofs are often supposed to be marks of uusoimdness ; they may be, but are not neces- sarily so. Eings come on horses' hoofs in this way : when a horse is feverish in the feet or system, be the cause what it may, the hoof gets hot and dry and does not grow. As the fever lessens, or, as the body cools from other reasons, such as bein"- 141i IIOUSF, WAUIJAMY. lurnod out to grass, or a chnngo from heatinp; to cool food, tlio horn of tlio lioof will make a sikUU-u start anil grow very rapidly ; and, if from any oause this growth is again stinted, a ring will bo formed, more or less In'uad, as the growth has liad AavftntnRo moro or less time to develope. It is surprising unguciits. how the applieation of some unguents to a horse's lioof, comLincd with green food, will develope the growth of horn. The well-known Iloplemuroma of Mr. Clark, commonly called " Hops " in stahlo parlance, if rubbed into the coronet of a hoi-se's lioof s regularly, will sometimes occasion so rapid a growth of honi as to look like a diseased pro- tuberance, while all the while the horse operated on is perfectly .sound and improving in the feet. Kings are not, therefore, always signs of disease ; still, as a rule, anything abnormal in the feet, such as a ring or a contracted castlchoof, indicates, more or less, disease or fever in the feet of long stand- ing, and, if combined with lameness, may be dis- tinctly classed as unsoimdness. Some other defects and diseases of the feet are patent and visible to tijo eye of an ordinary observer, such as sandcrack and grease. There can be no concealment of cither one or the other of these diseases ; both may iiniiair I lie naluial usefulness of a hoi-se, and, llicrefore, be unsoundness; but botli can be cuhmI, and an^ generally i]w result of low condition, caused by bad grooming and insudicient food. Sandrrarh is a crack or split in llic lioof of a horse, DISEASES AM) AILMENTS OF TIOKSES, ETC. M'} from tlio solo upwards, somotinios oxtonding up the whole length of tlie hoof, from the solo to coronet. Seedi/too is another form of sandcrack, hut comes on at the toes of the liorso only, as its name indicates. No horse can ho said to be sound with either one or the other of these defects, and it is only where a horse is bought on a warranty, without being seen, that questions are likely to arise in eitlier of these diseases. Fahcquartcv is a term applied to sandcracks where they have been much developed ; but, as a fact, it is not always due to that cause. A wound or injury to the coronet of the foot will occasion a disunion and a sore between tlie foot and the leg, so tliat the foot is no longer of use in supporting the weight of the body. This, when it happens, lames a horse, and is necessarily unsoundness. Grease is another disease affecting, generally, Grease in the heel of a horse's foot, and more usually the tS.'^ hind feet than the forefeet. Grease is often the result of neglect and dirt, but sometimes arises from over-feeding. It is generally preceded by swelled legs ; after a wliile the heels become red and dry, the natural oiliness of the heel and of the skin under the pastern joint seem to dry up, and, unless attended to, the part ultimately becomes idcerated and very painful when the horse moves. If a horse is bought with this disease on him and witli a warranty of soundness, it can be retimied ; 1 j { IIOU^F, \SAKK\N1Y. for although this disoaso can he easily cured, it is a serious detraction from the animal's utility until so cured. Grease is not always the result of nerjlect ; an injury to the tender skin of a horse's heel "Nvill Lrinf]^ on inllammation and grease. One case, in Avhich a hunter cut himself with a flint \mder the near hind pastern, turned to grease and took months to cure. Another ease, where a four year old colt got his forefoot over the halter strap and cliafed the skin undrr the pastern joint, resulted in such a Lad attack of grease that it threw the colt out of work and blemished him for ever afterwards. Any natural malformation of the foot is not imsoundness ; thus, some horses are very flat- footed, and thereby are bad travellers, and if they tread on a stone, go lame for a few steps. Tliin soles So, also, some horses have very thin soles to their souiulncss. feet ; if these are incautiously pared by a shoe- ino'-smith, who is ignorant of the fact, or of his business, a horse may go very lame for awhile. A ease of this kind was tried before Mr. Justice Cresswell {Bailcij v. Forrest) (/>), where ho pointed out to the jury that if this defect did not produce lameness at the time of sale, the peculiar formation — tliat is, thin soles — was no breach of the war- ranty tlml tlio h(irse was sound. Diseases ok a House's Legs. — The principal (6) 2C. &K. 131. DISEASES AND AILMENTS OF HORSES, ETC. 1 1 . defects and diseases affecting a liorse's legs arc splints, spavins, and ringbone, swelling and strains of the tendons. Broken knees are more the elfeot of accidents than disease, but they undoubtedly are defects. Ringbone is a disease mostly affecting the Ringbone, pasteni joints of horses; it shows itself in an enlargement of those parts, and ultimately causes the whole leg, from the hoof to the knee, to appear as one piece without any joint, having no bend or flexion. This is necessarily unsoundness. Most horses employed about railways become badly affected with ringbone on the hind pasterns. The heavy coaches and trucks they are required to move, when making up a train, glide easily enough when once set going, but it strains horses fearfully to start them, and sooner or later destroys the horse's motion of the hind legs. Splints. — A splint is a bony deposit or ex- Rpiints. crescence on the leg of a horse, between the knee and the pastern joint, sometimes on the splint bones, sometimes on that bone called a horse's cannon bone. A horse with a splint may or may not be unsound, as the splint causes, or does not cause, or is not Kkely to cause lameness. If this bony deposit or lump is well forwai'd out of the way of the tendons, and not near any joint, it will not affect a horse's action, and is not unsoundness. L. I. 14G HORSE ^VAUUA^TY. The cannou mul Pi>Hnt Lonos of a horse arc tho Bamo as tlio sliiii-Lono of a man, and would ap- ]icar to Lo voiy sensitivo to injury or pain, bo tliat a Llow received by a liuuter in poing tlirougli instead of over a gate, or in toxicliiug the top stones of a wall, will often result in a splint that will in no way impair- tlio animal's usefulness. "Where, however, this bony lump occurs at tho back or hind part of tho bone, or near tho joints of the leg, so as to interfere with a horse's action, then a splint is imquest ion ably a defect which is imsoundncss. Splints are, with many horses, he- reditary. In a part of tho country where a thorough-bred horse with bad sjilints was much used, all his stock were liable to splints, and some foals even threw them out before they were broken. A splint, although well forward and out of tho way of sinews and joints, may 1)0 unsoimdness. A gentleman had a hunter, an excellent horse, but which was apt suddenly to fall dead lame. Tho veterinary surgeons were at a loss to iind out what was tho cause of this lameness, which did not continue for long, but spoilt many a run ; for although tho horse had a sjilint on tho leg which gave out, it was so far forward as not to interfere with any tendons. It was suggested to tho gentle- man that possibly the horse when leg weary, struck the splint in his gallop with the other foot, and tlio pain caused tho temporary lameness. After thai, tiio horse was ridden with a side boot on tho DISEASES A\n AlLAfENTS OF HOUSES, ETC. 147 splint, and altliougli it novov dropped quito so lanio as before, it was no cure, and tlio way tlio Loot wore sliowed the suggestion to liavo l)oen correct. »Suoli a splint would bo unsoundness, as it would boa structural defect affecting tlio horse's action. Splints usually appear, on the inside of the forelegs of a horse, and on the outside of the hind leg. Some veterinary surgeons attribute this to the fact that there are more veins and arteries on the inside of the foreleg and the out- side of the hind leg, and that these defects follow the distribution of blood. This may be so, but it is also probable that blows or kicks in action, which certainly cause splints, are received more on the inside of the forelegs and outside of the hind. The leading case on splints on horses legs is Mar- fjctson V. Wrifjlif {c). Si'AviNS. — This term is applied to certain en- Spavin. largements of the stifle or hock joint of a horse ; a bone spavin is in reality a splint or excrescence on the splint bone of the hind leg. A spavined horse is said to be imsound whether the spavin cause lameness or not, and it was so held in Wat- son V. Denton {d) ; but it is doubtfid if such would be held as good law now. Spavins do not always detract from the natural usefulness of a horse, ((•) 7 Bingham, G03 ; Didy»so>i v. Fvlhtt, 1 JIoo. & R. 299. {(I) 7 C. & P. 8G. l2 lis 7I0RSE WAUKSNTY, Spavin not .ilways easily de- tected. which is, as has been often said in tlioso papos, the tost of sonndncss or otherwise. Many good racers and almost all seasoned hunters have spavins, which neither detract from their speed or jumping qualities. A good judge will perhaps guess a horse is spavined by the action of the hind leg, even without feeling the hock, and on examination of the liind foot will find the too unfairly worn, as is the case with spavined horses generally ; but to an ordinary observer the action is all that is necessary or wanting. Still, if a spavin causes actual lameness, or makes the horse come still out of the stable, or when starting, especially if such a spavin be high up and near the joint, such a horse must be said to be unsound. Another defect in a horse, occasioned by spavin, when near the joint, is that the animal does not like to lie down. However diseased a horse may bo in his forefeet, it will lie down and rest ; but a horse with a stilf hock is afraid to rest on its side, the strain on the liock joint in rising, no doubt occasioning great l)ain, and ])roventing the animal getting that relief which rolling and lying give. For this reason, a team of coach horses with diseased forefeet will do half as much work again as a team spavined, and with still hind legs. Tlie place to look for a spavin is inside the hock, and as many horses do not like a stranger lingering them about that part of tlu' hind h'g, a iktsoti wisliing to satisfy himself thiit tlie iiiiiiiial he is rejecting really has a bone DISEASES AND AII.MKNTS OF IfORSES, ET('. Ill spavin, should have one of the liorse's forefeet lield up during the examiiuition. There are other sorts of spavins, called bog spavin and also blood spavin ; these are not hard or bony excrescences, but look like wind galls or bladders, and are occasioned by hard work — such a defect is not unsoundness in itself ; if a horse is lame from such a cause when sold with a wan-anty it would be, but many horses throw out these puffy excrescences both on the hind and forelegs, without ever suffering any in- convenience from them. CuRH. — A cui'b is an enlargement or lump at Curb, the back of the hock of a horse, generally about three or foiu- inches below the point of that joint. A horse with a curb is unsound, although not lame ; in fact, many horses with curbs are not lamo. If a horse is sold with a general warranty and has a ciu-b, the animal can be returned to the seller. If llic curb be pointed out at the time of sale it will be a special warranty, and the buyer must look out. It is seldom that both hocks of a horse are similarly cm-bed ; if, therefore, the buyer stand at right angles to a horse behind and sees this swelling or enlargement, he should require a warranty against futiu'e lameness within a reason- able period, as well as against present lameness. Veterinary surgeons call a certain kind of hock a curby hock, and allege that horses with hind legs of that character invariablv tlirow out curbs at loO HORSE ^V A UK AMY. 601110 time or other. In liroicn v. Elhimjton {c), the jtlaiiitifr Lroiiglit an action for breach of warranty on the ground that at the time of sale he ohjoctod to the horse's hocks as weak and as likely to throw out curbs. There was no special warranty given by the defendant, but a general warranty was admitted. A few days after the sale the horso threw out a curb ; there was no allegation of lameness, but the plaintiff relied on the scientific evidence of veterinary siu'geons that curbs arc un- Bad .shape sounducss. Tho judgc, in summing up, told the soimducss. jury " that a defect in the form of a horse at tho time of sale, although it might render the horso more liable to become lame at some future time, was not a broach of warranty;" and on a now trial being applied fur on the gnnind of misdirection, tho court refused to grant it, and quoted Dickenson V. Follvtt ( /'), the judgment in wliioh laid down that badness of shape was not unsoundness, so long as it was badness of shape only ; where tho shape produced an injury, then, and not till then, was the horse unsound. This brings us to another defect in a horse caused by malformation, namely, cutting or hrnshiny the fetlock joint of one leg by tho shoo or foot of tho other. Tliis is soinotinios caused by bad shoeing. The writer will never forget tho satisfaction of a country smith on its being shown to him that if ho (f) 8 M. i: W. 132. (/) 1 .AI. \: K. 299. DISEASES AND AILMENTS OF TIORSES, ETC. 1-jl paroil the outside of a pony's hoof instofid of tlio inside, so as to make the animal stand slightly bow or bandy-legged, the foot and shoo of the other leg would not touch it, and a bad cutter he quite cured. Broken Knees of a horse are, as their name Broken kiiccs indicate, the result of an accident or fall, and when the knees are so badly broken as to allow the joint oil, called the synovial oil in farriery, to escape, the horse becomes imsound. Sometimes even when this is not the case a horse cannot be said to be sound, because the action of the knees become impeded from the skin over the knees thickening. This, however, only occurs when a horse has fallen down very often, and, it may be said, that when that frequently happens, the knee joints get opened and the horse becomes radically unsound. Broken Down. — A horse is said to have broken Broken down when it has suffered such a strain on the fined.' sinews and tendons of the leg as to cause tem- porary lameness and swelling of those parts. If a horse has recently broken down the injury can- not be concealed, because the part aifected becomes very much swollen and inflamed ; but, by careful fomenting, it is possible to reduce the swelling so as to conceal it from an ordinary observer. A broken down horse is decidedly unsound ; any en- largement of the tendons must be a structui'al 102 IKMISK WAUllANTY. injury (o ;i Ikh-so, and nioro or less impair his natural usci'ulness. Stringhalt. SriuNonAi/r is a curious jerky action of tho hind legs of a horse, which cannot bo mistaken if once seen, and is incurable. A horse with this defect is unsound. Diseases of Diseases of tiik Body and Lungs.— It is not the txKiy and lungs, probable that many of tho diseases of a horse's body will boconie tho subject of dispute in case of a breach of warranty ; for this reason, they arc generally diseases which show themselves at once, and are of such a nature and character t^^at no pei-son of ordinary intelligence could help remark- ing them at time of sale or as soon as they saw the aninial in question. For instance, colic and gripes of the stomach are evidently so painful to a horse that it throws itself on tho <,n-ound when attacked and rolls in ;ip)ny, and so with other internal complaints of tho.se organs. From this class, however, a distinction may bo made in tho case of iir})hri(is, or inllaiiiination of the kidneys, or any disease of the urinary oi'gans. No animal is more subject to diseases of this class than tho horse, and there are many reasons for it. The water given to hor.scs is often drawn from all sorts of sources rather than from a ])ond, the natimd watering ])lace of a hoi-se. The liay used for hoi'ses is, as a ruh-, so mtoms which, combined with a heaving action of tho Hank, may be talcen as fair indications of broken wind — one is a peculiar cough, os]iecially if after drinking; anotlicr, that the horse wlicn eating its corn and chalf, never clears its nose. If a sound hf»rso is listened to in tho stable, it will be heard constantly clearing its DISEASES AND AILMENTS OF HORSES, ETC. 155 nose witli a sort of snorting sound, to get rid both of the dust, hay seeds, and other light particles Hying about. A horse slightly broken- winded, touched in the wind as the saying is, may do this ; Ijut if it does not do it, the animal may bo put down at once as so diseased. It is said that dealers are able to give horses something that will tem- porarily relieve a horse with broken wind, and so enable them, to sell and get rid of them to the un- wary ; and this is very possible, for a horse on grass will not show broken wind in anything like the same degree as it will if kept in a stable ; still, this is a disease which is at once recognised by an expert. Pinching a horse in the gullet and making him cou2:h is no test of broken wind. The sound- est colt bred will cough if half throttled, and so, probably, would a man also. Broken wind is un- known among horses in India. Coughs. — Horses are very subject to coughs. Coughs, whether arising from inflammation in the head and throat, or from the Imigs, or when the seat of disease is broken wind. A horse with a cough is unsound. In Boldcn v. Brogdcn, a different doc- trine was laid down, and for some time it was held as law that if a horse suffered from a temporary injury, as in this case, only, such as a cough, it was not unsoundness ; but since Baron Parke's direction to the juiy in Coatcs v. Sfccens (g), it has {ff) 2 M. & R. 157. 156 HOKSF, UAUllANTY. been lu'ld otliorwiso, aiul tliis is to Lo noted ho- ciiuso from the evidence it would appear tluit the cough, which was the alleged breach of warranty in that ease, liad been cured before trial, A cough is a disease which need not be described, its syni]>- toms are plain enough ; but a person dissatisfied with a bargain ho has made in liorsellesh should bear in mind that a cough may be contracted by u horse in a few hours after the time of sale, for, as has been before stated, the place and conditions of the localities wdiere horses are often sold, are provocatives of inilammation and colds. Some horses, especially nervous animals, always catch a cold if they are a night away from their own box. Roaring IvOAKiXG AXD "WiusTLiNG are discases of hoi-ses whistling, generally the result of a cough or cold. The noise made by animals aifected with these com- plaints is caused by a contraction of tlie larynx and windpipe, after strangles or bronchitis, in- iluenza or such like ills of horseilesh, Some old cases in the law books are quoted to show that roiiring is not unsoundness, but it is submitted that these decisions are not in accordance with common sense. A roarer is not to bo depended on, its structure is injiired more or less, and no ]iorsons know this better than racing men. If a Derby favourit<; is heard to make a noise, it goes back in th«' betting at once. It is known DISEASES AND AILMENTS OK HORSES, ETC. l07 tlio animal is sufTcrinf^ from structural injurv, and, as has beeu repeatedly shown before, that is a certain test of unsoundness. On this defect the case of Ons/oic v. Eames {/i) should he read, where it was decided that roaring was a malady which rendered a horse less serviceable for a per- manency, and, therefore, unsound. This decision was qualified in Bnnnctt v. Coll is (/), but the latter case is doubtful. Diseases of the Head and Throat. — In treating of broken wind, reference was made to coughs. These may proceed from the lungs or intestines, as in broken wind, or from the throat, as in bronchitis, and it will not bo necessary to say anything further here respecting coughs than that they are unsoundness. The principal disease affecting a horse's head are glanders, strangles, influenza, catan-h and blindness. Glanders are, of course, unsoundness. The Gianciera symptoms in the advanced stage are unmistake- Jlounced to able. The disease is incurable ; but sometimes a ^f »"cur- ' able. horse is alleged to bo glandered when it is only suffering from strangles or catarrh. A horse does not become glandered in a few hours, that is, witli the disease fully developed ; the complaint is one that takes some time to come out. If, however, a (/() 2 Starkie, X. V. C. 81. (,) 2 Campbell. .V22. 158 IIORSK >VARUANTY. buyer finds liis purchnso ruiiiiiiip: at tlio nose -witli tlmt peouliiir discliargo ^\llic•ll a faiTier tolls liiin is glanders, ho should take steps to rescind the bar- gain and get liis money hack. A person with a glandercd horse should not attempt to re-sell it ; ■when the animal is pronounced to have this disease it must be destroyed, and the buyer can recover the full price, and, possibly, damages also from the seller, if it can be proved that the latter knew, or ought to have known, the horse he was selling had this fatal complaint. stroiiRics Straxgi-es are a disease common to all horses, an^orecsr especially young animals, and is often mistaken for glanders. To the inexpert the symptoms are the same, but more violent in strangles while they lust. The horse appears to have a bad cold, its head and throat swell, and after a while a copious discharge takes place from the nostrils. It is sometimes dillicult to get a young horse in con- dition before it has had strangles, at least, in the same condition as after strangles. It would ap- pear as if this complaint canicd off some \iruB in the system, and is a great relief to young horses. A horso with strangl(>s is unsound; but it is a complaint which comes on very .-^uddonly, and the same circumstancos which give a horso a cough or cold at, or just before, the time of .'^ale, are likely enough to bring on strangles. If a piux'haser thinks the animal ho has bought has strangles, he DISEASES AND AUGMENTS OF HORSES, ETC. 159 should consider well wliat lio docs. In more tlian ono case, ■\vliicli has oonio under the observation of the writer, a young horse has been sold sound, that is, with no cough or cold out, and taken to the home of his new master ; when there, strangles have come on, which would have been easily got over had the animal been properly nursed and fairly treated ; but, owing to the disputes usually arising out of such a cii'cumstauce, the horse has been neglected, and that which would have been the means of relieving the animal's system, and perhaps cming it of incipient blindness, has, un- happily, by neglect, turned into chronic cough or indigestion, and perhaps total blindness. No per- sons know better than farmers, of the class who compose juries, the symptoms of strangles, and they are not disposed to lean towards anyone who loses a young horse in this complaint, and who sticks too closely to a warranty under such a state of circumstances. Still, just as has been said of a temporary cough, so it must bo said of strangles — they are both unsoundness, only a complainant should be cautious in dealing wdth a case of warranty where the alleged breach is certainly strangles. Blindness. — All affections of the eyes, which Blindness, detract from then- normal state and make a horse more or less blind, are unsoundness. 160 HousK w \nn \nty. Vice. Yicp:. — A liorsc is said to ln' vicious vvlion it has a (Uiiujerously bad habit, that is, dangerous to those who have to do with the animal, or dangerous to itself. Hearing, kicking, and biting are mani- festly vices, as they are dangerous to persons who have to attend to a horse; so, too, jibbing and running away are vices, if habitual. Some people class rolling in the stable, turning round in the stall, and such like proceedings of a horse as vices ; but it would be difficult to persuade a jury that thoy were dangerous or injurious habits, and therefore, they will not be here put down in that category'. Crih-hititxj and gnawing the manger are bad habits, and are sometimes classed as vices, as they are supposed to injure the horse itself. If they do so they are unsoundness, because anything which renders a horse less useful tlmu natm-e sug- C-csts, is unsoundness. There are many other diseases and defects in horses than those before enumerated; but, prac- tically, it will be found that the diseases and de- fects mentioned in the foregoing jtages are the diseases in ninety-nine cases out of a hundi-ed which fonu tlic caus(» of dispute in buying or .sell- ing horses. In all disea.ses of duinb animals, a great diiliculty must occur from tluir not being able to tell tlie tale of their own symptoms; but farriery or the veterinary art has of late years so much developed, that a comi)lainant should have DISEASES AND AILMENTS OF HOUSES, ETC. IGl no difficulty in procuring evidence to tell a judge or jury wliat is tlio matter ^\■it]l tlio horse lie would roJL'ct, and in offering a comparison between the symptoms of disease in the object under dispute and the diseases of otlier horses which have been subject to judicial decisions, and where such diseases have been held to be unsoundness. I.. U''2 IIOltSE "NVAKUANTY. ciiArTEn X. Trow TO PROCEKn IN CASE OF DISPTTK IN A HOUSE DEAI,. PRocKniRE IN THE CouNTY CouKT. — Tlio pre- ceding chapters of this work have been devoted to an exi)Osition of the law respecting the wan-anty of liorses. It is now proposed shortly to state the hest method to proceed in County Com-ts, where a person having bought a horse afterwards finds it not up to the warranty given, or to the representa- tions made respecting it. If the horse which has been purchased is very valuable, the probabilities are that some solicitor will be employed for the person disputing tlie bai'gain, and, in that case, most likely tlie litigation will take i)lacG in the superior courts ; but as one of the great sources of litigation in rural county courts are disputes re- specting horses of a comi)aratively small value, it is hoped that this chaj)ter may bo of use. If, then, a person has bought a horse for any sum of money less than 5U/. — which is the highest sum that in a disjjute of this kind can be referred to a county court — and, when this horee was sold to him, was sold with a warranty, but on insjjec- tion and trial has been found not to bo of the TIOW TO I'ROf'KKD IN CASK OF DISPUTE. 103 natiu'o and cliaractor stated, and the buyer wishes to rescind tlio bargain ; tlie first step taken sliould be to call in an experienced veterinar}' surgeon, and to obtain from him a certificate of the ani- mal's unsoundness (if that is the point with wliich the buyer is dissatisfied) ; or, if the complaint is that the animal does not come U]i to the waiTanty and statements of the seller in other respects — as, for instance, if the horse was warranted free from vice, or to l)e quiet to ride and drive, and proves to be vicious or restive — then to take the opinion of some authority, such as an experienced coach- man or stud groom, Avith respect to the horse's %ace or restiveness, and, if possible, to get that opinion set out in a written report. Tliis being done, the buyer should at once either write and infonn the seller that the animal is not as war- ranted, or send the horse back to him, if he can, with a copy of the certificate or report ; or, if no note or writing can be got from experts, as above suggested, then with a letter from the buyer de- manding back his money. The buyer can, also, demand payment of such a reasduable sum of money as may be sufficient to cover the expenses inciuTed owing to the alleged breach of con- tract (r/). If the seller refuses to take back the horse, the buyer should then take prompt steps to (rt) If the purchaser sue upon the warranty he need not return the article bought, but the better course to adopt is that recomnieudcd at p. G4, ante. m2 164 TIOnSE WAnUANTY. BoU tlio animal by auction, giving due publicity to the sale, and thou sue tlio seller for the difference between the amount received on the sale of the horse, (having first deducted all fair expenses in- cident to the sale, i^e.,) and the price actually paid in the first instance for it. If any correspondence takes place, care should be had that all letters re- ceived, bo kept, and also copies of all letters sent, OS their production at the trial may help the Court in coming t<} a decision. It is of moment to remember, that if the buyer finds out that the horse he has bought, is not •what he considers he really shoidd liave got for his money, he should use proper diligence, as soon as he is certain that lie has been -wronged, in return- ing the horse to the seller, or in informing the seller that he had determined to rescind the sale {h), because if any article bought is not what the buyer expected or wanted, and he has been induced to purchase it through fraud or misrepresentation, tlie buyer is bound to return it or point out tho defects as soon as possible. Much more is this tho case in the purchase of live animals. A liorso may catch a sudden cold or fever in the feet and become ill or go lame* in a very few hours. To protect themselves against horses being retunicd after a certain lapse of time many large sellei-s, such 08 Messrs. Tattersall, require the horse, if ob- (A) A wummUtl liorsc, if rcj»K'tr action will be tried, lie- fore the complainant goes to the county court office to lodge his ])laint, he should commit to writing the particulars of his claim, for it is part of the statute law affecting county comis, that all claims of forty shillings (c) and upwards shall be ex- plained by the complainant, adding thereto par- ticulars, that is, by setting out in detail the several items constituting his claim. The claim then in this case we will suppose to be particularised in some such way, as thus : — Bnowx, plaintiff, rcnmn Ssrmi, defendant. Th(> plaintiff claims fruni the defendant tlie .sum of 2.V. 1 0.». Or/., on a breach of -wan-auty, of which the following arc the par- ticulars: — January, 1877. Cash paid defendant for brown horse £10 llorso sold at Lewes market on Feb. 10th for £17 Deduct eight days' keep . . XI 1 Vetcrinarj- Surgeon's Cer- tificate 1 1 Postage and other sums out of pocket .') •J 10 14 10 £2.) 10 (f) Couiivlidutc-d Oi-dcrs, li)75, Order vii. 1. now TO I'UOCEED IX CASK OF DISPUTE. Tho complainant should take three copies of these paiiiculars, one ho should keep for his own guidance, one other will be annexed to tho sum- mons (/') served on the defondant, and tho third ■will be attached to the plaint filed in the court, and will be for the use of the judge who tries the case. It can readily bo understood, how important it is, that these particulars should state the items of the demand in plain and simple terms. At the same time the complainant hands in these parti- culars, he should consider whether he requires his opponent to produce or show any letters which may have been written to him, and if he thinks such letters will be of value, he should give notice to the opposing party to produce them. As a rule, it is always v^dser to give an opponent notice to produce all documents {g). These preliminaries being arranged, tho complainant shoidd consider what evidence and "svitnesses A\ill be required to substantiate his claim, and if he thinks there arc any who will not attend at tho Court voluntarily, he can enforce theu* attendance by a subpama. The oflicers of the Coiu't will serve this if the addi'ess of the person wanted is given. The day for hearing the case having arri^•ed, and the parties in Court, the complainant shoidd have arranged in his mind the way he is going to tell (/) Consolidated Orders, 187-5, Order ii. 7. [g) Consolidated Order!?, IS7'), Order xiii. 1. IGS HOUsr, WAKKANTY. his story. In Courts of justice there is notliing like bringing tlic facts forward, step hy step. Many I)laint ill's think because they know all about it, therefore, the judge does, and commence where they should end. In a dispute of the nature we are now supposing, the complainant should first say that wanting a horse he went to a fair, or to the defendant's stable, as the case may be, that he was shown a horse, that the price agreed on was 40/., and that before he finally agreed to buy it he requested the defendant to wari'ant, which the defendant did in the manner and form in which the complainant alleged he did. If there has been a written warranty the proof will be easy enough ; because, as was said in a previous chapter, the decision of the court will depend upon the terms of the warranty, as ex- pressed in writing (//), and the fu'st really important step for the complainant to take in Court will be, to show that the warranty ^\•as written or made by the seller or his agent or servant. This can bo done by the evidence of the person who saw the warranty written out, or who received it from the seller. In like manner, if the waiTanty given was by word of moutli, the comi)lainant must prove that the horse was waiTanted to himself or his ogent or servant, before tlie bargain was struck (//) Tliis mid not be Ktuniptxl, Skime v, Elmorr, 2 Camp. 407. now TO PROCEED IN CASE OF DISPUTE. 1G9 and tlio horso sold — he Ihcii sliould prove pnyment of tlio price. The compluinant should be very careful to bo accurate in giving his evidence respecting the warranty, and to repeat tlio precise words used by the seller, for as has been shown before, there may be expressions which only amount to a representation and not to a warranty. A man may commend his goods as he pleases, and has a right fairly to puff them, whether a horse or other chattel ; he may, in short, praise them as ho likes so that he does not induce another person to buy by some statement of an alleged fact, which is untrue, and goes to the root of the bargain. The next step will be to prove the breach of warranty, that is, that the horse was, at the time of sale, unsound, or vicious, or restive, or was not as stated in the written warranty, or, as the com- plainant alleges, the seller told him when ho bought the animal. To do this he must call as a witness the veterinary surgeon, coachman or whom- soever it is he relies on, who saw the horse in dis- pute soon after it was bought, and get such wit- ness to give his testimony respecting the animal's unsoundness, vice, or restiveness, as the case may be. The certificate or written opinion of anyone is of no use in court, except to correct evidence ; it can be objected to, if by itself, for many reasons, if for no other because the person giving it has not been cross-examined. If anyone gives an opinion which should inliuence a Court of justice, he ought 170 lIOUSi; WAUllANTV. to be required to give it, so as to be cross-examined upon it, and tlius liavo tlie value of his evidence tested. After tlio veterinary surgeon or other authority has been examined, then the comphiinant sliould bring forward his evidence as to the price the horse sold for by auction, the expense he was put to in keeping the animal, and generally as to all the other items which make up his claim. If he can bring any witnesses to prove that the other side know that the horse was not of the character or quality warranted ; for instance, if the horse is found to be lame, anyone to whom the defendant tir seller complained of the horse's previous lameness, would be an invaluable witness; or if it is found to be vicious, the evidence of any person to whom the defendant has admitted tlie vice while ho owned the horse, or who has seen it do vicious acts when the defendant was i)resent, because siu-h evidence would be almost conclusive of fraud, and fraud, as lawyers say, vitiates everything, and jiroof of it will rescind any sale, whether there has been a warranty or not. After the plaiutilf and his witnesses have fiui.shed their account of the trans- action, the defendant is entitled lo tell the court his version of the athiir, :ind call his witnesses lo rebut or deny the account given by the plaintill', and, finally, the plaintiff may address the judge, or Ihc jury if there is one, on the whole case; but nothing said by any advocate can make uj) for careful preparation of the evidence to be given, HOW TO I'UOCEEI) IN CASK OF DlSl'UTK. and an accurate and truthful method of telling the story. After j udgment is given, if the complainant recovers more than 20/., ho will have costs as a matter of course (/) ; but if he recovers a less sum than tliat, he should apply to the judge for his costs and the expenses of his witnesses. These remarks are intended to be of service to defendants as well as plaintiffs in such like case, for it is evident that if a certain line of conduct is followed by the plaintiff, an opposite but similar line of defence should be followed by defendant. If a ^vl'itten warranty is given, the only defence would be, either tliat the animal is still, or was, when action brought, in the same state or condition as it was when warranted by the document given, or that the breach of the warranty is the com- plainant's own fault ; for instance, a horse may, immediately after being bought, bo shod and thereby lamed, or it may be put in a conveyance with harness too small or improperly fitting, or the vice alleged ma}' be brought about by fault of the buyer. If the warranty is not in "writing and the defendant denies it, lie should bring evidence to show exactly what was said; but the com- plainant must make out his own case first. Tho defendant will not be required to prove he did not warrant, until the complainant has made out a case showing that he did do so. Again, the defendant 171 ((•) 30 & 31 Vict. c. 142, s. o. 1 72 HORSi: •VVAllR \NTY. may show (liat Ihc horse was not returned to liini in duo time, or that the sale Ly auction was not properly conducted, or not puLlished, or, as before said, that there has been no breach of the warranty, that, in fact, the horse was sound when sold, or was quiet or free from vice or disease. In all these cases, whether on the part of the plaintiff or defendant, a simple statement of facte will be better than any technical or laboured address. County Court judges have ordinarily so short a time to dispose of cases, that when horse cases do arise, the man who tolls his story in the most simple and straightforward manner, is more likely to be listened to. If a party seeks to recover more than 20/. from his opponent, either side is allowed, Avhcther plain- tiff or defendant, in an action in the County Court (and it should be again noted that the remai'ks contained in this chapter will apply to either character), to administer iutcrrogatcjries (/.•) or, in other words, to question the other side as to tho nature or reality of the bargain, on any circum- stance connected with the bargain or sale in dispute. For instance, let us suiijwse a i^erson to have bought a horse fr<, IOC. should be careful of fences, 107. Auction, bidder at, may retract before hammer falls, 23. pufling at, illegal, 26. AUCTIONEEE, agent for buyer and seller, 16. clerk of, may be agent for buyer and seller, 16. agency of, depends on facts of each case, 23. agent of seller only at private sale, 23. becomes agent of purchaser when hammer faUs, 23. authority to sell implied, 24. has possession at repository, 24. L. N 178 INDKX. Auctioneer — continued. has lien for charges, 21, 27. sometimes stnkelioklor fi)r buyer and seller, 25. fraudulent statements by, may vitiate sale, 2'), 27. BiEQAnj, for ready money, implies no acceptance until money paid, 8. Baeo-un axd Sale defined, 2 BLixDXEsa in horse, any sort of, is unsoundness, 159. Bboeen down, defined, 151. is luisoundness In a horse, 152. Beoken Knees, described, 151. generaUy unsoundness, 151. Broken Wind, iu horse, described, 155. is unsoundness, 154. not always perceptible, S 1 . CoiDnTTEE of House of Lords on the subject of horses, 1S73. .83. Constructive acceptance and receipt under Statuto of Fraudu, 7. CoBXS, in horse's feet, unsoundness, 135. they are curable, 135. Couon-g, in horses, very conmion, 155. are unsoundness, 15G. County Court, how to proceed in, 1C2. CUBB, is unsoundness, 119. description of, 11 9. CuEOS, dociHion on, "9. Cuhtom of City of London, for innkeepers, 101. INDEX. 179 DEFEcrg, patent, in horse, nature of, G6. natural and accidental, 78. Dbiteb, should be cautious going round comers, 127. should drive slowly at a crossing in the roadway, 129. should kcci) his own side, 130. if ou wrong .side, there is presumption of negligence, 130. nde of roa^ for, 118. Earnest Moxey, nuist be current coin, 10. should be retained by vendor, 10. giving, alters property in thing bargained for, 1 1 . effect of gi\'ing, ou bargain, 11. Faesieks, right and liabilities of, when they take stock to graze, 106. "Faults," sale with all, effect of, CI, 63. Feaud, will vitiate any contract, 60. by more than one is a conspiracy, 60. Frauds, Statute of, 17th section, 5. requisites of, 5. first requisite, acceptance and receipt, 6. second requisite, payment of earnest, 10. third requisite, memorandum or note, 11. distinction between 4th and 17th sections, 12. Future Soundness may be warranted, 50. Glanders, in horse, incurable, 157. horse with, should be destroyed, 158. Grease, in horse's heels, luisoimdiiess. Ho. generally caused by dirt, 143. difficult sometimes to cure, 144. 180 TNPF.X. Haexess, owner of conveyance bound to have good, 12fi. HmEB, of horse and carringe liable for accident if friend driving, 113. of horse should not attempt to physic hired horse, 117. of horse or carriage must only use them for purpose hired, 109. not to detain horse hired beyond stipulated time, 109. only answerable for negligence, if accident to horse, 109. of horse must not overwork it, 110. of horse must take care of it, as prudent man would his own horse, 110. of horse and carriage, driving liimsclf, liable, if injury occurs, 111. not answerable, generally, where owner of "turn out" supplies driver, 111. of horse and carriage liable for accident, if he takes on himself the management, 112. HOESEDEALEE, definition of, 19. servant of, in warranting, binds liis master, 58. evidence of, before House of Lords, 1873. .85. HOESEDEAUNO, I)rohibitcd on Sunday, in certain cases, 19. private persons may buy and sell on Sunday, 21. IxJf, definition of, 98. Ia'xkeepeb, definition of, !)G. Act (2G & 27 Vict, c 41), as to liability, 97. bound to afford shelter and refreshment to man and horse, 97. duties of, as regards horses, 98. liability for gue.st's horse, 99. but only if within hosteliy, 99. has 11 lien on guest's liorse for keep, 100. cannot sell guest's horse, 101. lien of, mere personal rJKht, 101. liability for guest's carriage, 102. liable for injury done to guest's horse in stable, 103. INDEX. 181 JODJIASTERS, law roUiting to, 108. their rights and liabilities, 108. lotting carriage or horse, warrants them fit for purpose hired, 100. not liable to owner of another carriage for accident, if his servant not acting within scope of employment, 113, 114. liable for accidents caused by their servants driving carelessly, 116. Lameness, generally, cause of breach of warranty in hoi'scs, 133. in hind and forefeet distinguislied, 131. Lajedjitis, is unsoundness, 137. description of, 137. different kinds of, 138. LiVEEY Stable Keepee has no lien on horses standing at livery, 104. may be bound by his servant's warranty, 53. LoEDS, House of. Committee ou horses, 1873. .83. evidence before, 84. Malfoeslation of horse, natural, is not necessarily unsoundness, 144. Maeket Oveet, what is, 30. sale in, binds parties, 28. in City of London every day, 28. in countrj' on appointed diiys only, 28. held not to be, where sale of horee at repository out of London, 29. Misbepeesentatiox, if fraudulent, will rescind contract, 49. but not if innocent, 50. Naviculae Disease, is unsoundness, 136. symptoms described, 1 36. 182 INDEX. Neolioexce, Btristor liable for, 106. if agistor loses eattle, negligcnco presumable, 105. instances of , in driving, 119. contributory, disentitles plaintiff to relief, 123, 125. contributor}', cannot always bo set up by defendant, 126. guest's horse injured at inn, innkeeper's negligence presumed, 103. Note, to satisfy Statute of Frauds must contain names of parties to contract, 11. should also mention price, 12. but not necessary, unless there has been agreement aa to price, 13. sufScient may be made by letter, if forming one contract, 13. must contain name of party to be charged, 14. need not be signed in full, initials or stamp sufficient, 14. Oats, bad, prolific source of disease in horse, 153. Patent Defects, ■what are, 66. if existing, no warranty should be given, 67. Payment, if no time specified for, no property passes until made, 9. for ready money, requires money to be paid to pass property, 8. Pbice, of article, if not named in note under Statute of Frauds, parol evidence admissible to show, 13. PvTiciiASEE of horse without inspection may infer warranty, 77. Retbesentation, and warranty, distinction, IG, 17. mere, not a warranty, 48. Rl.vouONE is unsoundness, 145. ROAIUNO AND WU18TUX(», in hfirsos, descrilM-d, 150. is unsoundnes-H, 150. INDEX. 183 Rule of Road, 118. saino for riders and drivers, 130. does not apply to foot passengers, 129. not absolute, 130. circumstances may justify driver being on the wrong side, 131. Sale, of horse, may bo without warranty, 31. "out and out," 2. SEKVAJfT, general, selling horse, no authority to warrant, 51. of horsedcalcr may bind master, 53, 67. " Sound " meaning of term, 37. Soundness, future, may be warranted, 50. Spavins, unsoundness, if they cause lameness, 148. Splints, remarks on, 72. case on [Margelson v. Wright), 71. occasion unsoimdness, 145. Steanqles in horses, described, 158. Steinqiialt in horse, defined, 152. TmN Soles on horse's feet not unsoundness, 144. TnEUsn in horse's foot unsoundness, 141. Trial of horse means reasonable trial, 65. Unguents on horse's feet, advantages of using, 142. Unsoundness, temporary, is a breach of warranty, 93. rule as to, 94. and vice, 132. vice in horses, defined, 160. " "Waeilvnted," meaning of word, 37. tei-m not necessary to constitute a warranty, 37. Warranties, may be of different kinds, 39. by agents, 50. 184 INDEX. "Waiuuntv, written form of, 33. pnulont, if not necessary, in horse dealing, 32. ucod not be in writing, 33. no stamp necessary on form, 33. may be proved by parol, 34. statements to constitute, must be made before sale, 34. to constitute after sjilo, requires fresh consideration, 37. whether or not intended, is question for jurj-, 38. qualified, description of, 39. instances of, 39. liraitod, description of, 40. cases of, 40. special, description of, 43. in^stances of, 43. large price no proof of, 45. and representation, disting^shed, 4G, 47. test of, if intended, 48. may be of future soundness, 50. by horsedealer's servant, binds master, 58. by servant of private person would not do so, 51, 59. if in writing, cannot be varied by parol, 76. evidence respectmg (House of Lords), 87. "WOEDS. " sound," meaning of, 37, 88. " warranted," meaning of, 37. " g(K)d," 44. "with all faults," G3. "perfect," 89. "quiet to ride and drive," 91. "quiet in all respects," 91. " out and out " sale, 2. " price," 5. " value," 5. VifK. nut easily conooalcd, 90. rEDtTED BY C. P. BOWOBTU, SBEAK's BtTILDIXOS, B.C. IXW AN«f;i,|.>,- "^ ,.,pir:,nNAl LIBRARY FACI1.1TY AA 000 760 085 1 V 1