by R S Surtees
On finding this to be the case, I went to the dealer and told him he must take his horse back, for the trick he had rendered him quite useless as a hunter, for which purpose he had been bought; and I added that I considered he was vicious.
This, of course, the dealer denied, and, after talking some time about it, he gave me the following piece of advice “You should, Sir,” said he, “have added free from vice to the warranty: but even then I should not have taken him back, for this is not vice, but playfulness.”!!!
It was rather rough play certainly; but the words being omitted, we did not feel ourselves in a situation to try whether the Judge would agree in the construction our friend put upon his warranty of soundness, and therefore made the best of a bad bargain, and exchanged the horse for another, taking care to add the words in the next receipt Whether this would have been considered by the Judge to be vice, or merely a disagreeable trick or habit, is, I think, doubtful; though there is no denying that a horse with a belly full of water is ill able to perform the duties of a hunter.
Another case of a similar nature occurred to me a few years ago.
I purchased a horse at an auction-mart for a friend, which was “ warranted sound and quiet to ride,” and though it answered both the specifications, yet when my friend came to ride it, owing to some fault or other in the breaking, it would only turn to the right side, consequently when the rider wished to go to the left he was obliged to wheel quite round. However, we did not consider it a case where we could return the horse upon the warranty.
I think the following receipt and warranty, though somewhat prolix, would guard against most circumstances “London, July 1, 1830.
“Received of A. B. the sum of fifty pounds for a chesnut gelding, which I hereby warrant to be only six years old last grass; and also that he is sound, free from vice, restiveness, and faults (particularly crib-biting and wind-sucking), and that he is quiet to ride (or drive), and without a blemish. “£50 O 0— “C. D.”
It may be as well to add, that not many people will give the above receipt; therefore I advise a purchaser to get as much of it as he can, and to examine the horse particularly to see if he has any of the faults or propensities about him which the owner objects to warrant him free from.
N. B. Receipt Stamps necessary if money be paid by promissory notes, &c.
COPEING.
There is a species of swindling carried on in London under the cloak of horse-dealing, called couping, or copeing, of which persons living in the country have no conception, and are therefore frequently the dupes.
A party of scoundrels purchase a fine-looking horse to which has happened some accident, perhaps become blind or broken winded, or who has something the matter with him, which, while it renders him perfectly useless, is not apparent at first sight If, which may sometimes be the case, he is a well-known hunter or racer, he is advertised as such, and that he is to be sold a bargain. If his fine looks are his only recommendation, they frequently fix upon some well-known horse to which he bears a resemblance, and advertise him as such, generally taking care to word the advertisement so as to leave what they consider a loop-hole to creep out at For instance, the following one appeared in the Times newspaper of the 19th of July last; “For sale, that brilliant short-legged hunter Clinker, well known in the Leicestershire Hunt, beating nine crack horses in the Steeple Chase. Clinker is seven years sold, fifteen hands three inches high, equal to fifteen stone, and he defies any horse in England to surpass him — he can top the highest fence ever made, and tall the fleetest hounds. He is a treasure to any sportsman, and why parted with will be explained. Inquire, &c.
The person referred to is generally one of the gang, whom they establish in a small shop with a few pounds worth of spectacles, fruit, or any thing to make a show of; or else he is advertised as a private servant, with directions to inquire for. Charles or John at such and such a place.
The stable (which may be either a blackguard sort of lively or commissioned one, or perhaps a private one, such as a petty tradesman requiring a horse to draw his cart would have) is in the immediate neighbourhood of the shop or place of reference, where, or in the stable, the person who acts as owner and a groom are to be found.
A gentleman of my acquaintance, being struck by the advertisement respecting Clinker, went out of curiosity to see him, and found things arranged as I have described.
The pretended owner, a clean neatly-dressed respectable-looking man, was in the stable, and stated that the horse was Captain Ross’s Clinker, to whom he said the gentleman might write for information. That his (the owner’s) brother was a farmer and breeder, residing at Atherstone in Warwickshire, and had received Clinker from Captain Ross in exchange for another horse, and that he had him from his brother. That he was himself a corn merchant, and merely kept horses to go in his corn cart, for which purpose he thought Clinker too valuable, that he would sell him for eighty pounds, warrant him sound, allow any reasonable trial, and take a bill for the money.
Another gentleman, knowing who the fellow was, went to him on the following day, and asked where he could meet him at a certain hour; to which he replied that he was going to the corn market, but should be back by a certain time. However the gentleman somewhat puzzled him by telling him it was not corn market day.
He then produced a letter, saying that it was from Lord Anson’s groom, stating that his Lordship had seen the advertisement respecting Clinker, and wished to purchase him, and that the writer would be in town a few hours after the receipt of the letter for that purpose. Unfortunately, however, though purporting to have come by the post from Warwickshire, the letter was without a post mark.
The horse, I am told, was a very fine-looking animal, fully answering the advertisement, though certainly not Captain Ross’s horse called Clinker, which it was the object of the advertiser to make the reader believe: however, there is no doubt but he was ruined in some way or other, and merely doctored up for the occasion.
The advertisements are differently worded, but generally in the style of the one I have given. Sometimes they assume the philanthropies, and state, “that price is not so much an object as to get the horse into good hands, and where he will be well taken care off!!”
The stables are situated in different parts of town, and, in fact, it is now becoming a regular business.
To men who have passed their lives in the busy world of London a notice of this nature may appear superfluous; but the plans of these swindlers are really so deeply laid, and managed with so much dexterity, that the most cautious may be disarmed by the speciousness and apparent honesty of the scoundrels. In proof of which I need only say, that two gentlemen, both members of the legal profession, and possessed of more than ordinary penetration, though expressly told that the thing was a cheat, after seeing the man and hearing him talk they began to doubt the truth of their information.
I must, however, add, that the man they saw was the prince of the gang, though many others only want his tact to be equally bad, their deficiency in which luckily makes them less dangerous. A purchaser, under these circumstances, cannot hope to recover his money in an action against the swindlers; and his only remedy is to indict each person, who appeared either as principal, agent, or accessory, for a conspiracy to defraud, by doing which he will confer an infinite service upon the community.
AGE.
In purchasing horses the age is a matter of great importance, inasmuch as the value of a horse greatly depends thereon, and, like most other things of consequence, is a very difficult matter to agree upon.
Talking of knowing a horse’s age by his teeth, the same writer I have before quoted (Mr. Taplin) says —
“Much multifarious matter has constantly been written relative to the age of a horse by his mouth, when (after all the observations upon the subject) it becomes an acknowledged fact by every writer, each sign is doubtful, and liable to deception in the various arts and designs of dealers, who, by engraving and burning artificial marks in some tee
th, and totally extracting (or beating out) others, render the horse any seeming age most applicable to their purpose. And these faults cannot easily be discovered but by grooms or judges who are in the constant habit or practice of making such remarks and observations.
“Nor is there any matter in a horse requiring a nicer discrimination in judgment than to ascertain to a certainty the age of a horse by his teeth only, having absolutely seen two men of abilities and experience on the opposite sides of a horse’s mouth at the same time declare him of different ages, when by exchanging sides each changed his opinion, and the horse proved by the common rule to be coming a year older on one side than the other. These doubts in respect to the certainty of age being admitted, one fixed rule is incontrovertible —
“That after the mark (which is the general guide) is obliterated, the longer the teeth are, and the narrower the under jaw is towards its extremity, the more the horse is advanced in years.”
There was a cause tried before Lord Kenyon, Dunlop against Waugh, where Dunlop stated, at the time he sold the horse, that he knew nothing of his age save from a written pedigree; and his Lordship decided that it could not be construed into warranting him to be of a certain age.
But there is no doubt that any express age specified as of the parties’ own knowledge would equally amount to an assurance that he was of that precise age, as a general warranty would that he was sound.
TRIAL.
With respect to the length of time to which a warranty shall extend (or rather, what shall be considered a reasonable time for trying whether the horse answers the warranty given or not), there does not appear to be any general rule on the subject; and indeed it is almost impossible to lay down any thing like one.
Judge Blackstone in his Commentaries says, that “a warranty can only reach to things in being at the time of the warranty made, and not to things in futuro — as, that a horse is sound at the buying of him, and not that he will be sound two years hence.”
This doctrine has since been doubted; and Lord Mansfield declared, in a case where the above opinion was quoted, “that there is no doubt but you may warrant a future event.”
However, this is not a very likely case to occur; for most people, I believe, consider themselves very fortunate if they can warrant their horses safely at the time of sale, without diving into futurity.
“Trial,” say the law books, “means a reasonable trial,” leaving us just as much in the dark as ever.
We have seen that the warranty must be given at the time of the purchase or sale of the horse, in order that it may be considered as part of the contract; we have also seen that fraud practised at the time of the sale, whether the horse prove sound or not, will vitiate the contract; and it has been expressly laid down by Lord Loughborough, in a cause of Fielder against Starkin —
“THAT NO LENGTH OF TIME ELAPSED AFTER A SALE WILL ALTER THE NATURE OF A CONTRACT ORIGINALLY FALSE.”
The following are the particulars of the case Starkin sold Fielder a mare, which he “warranted sound, quiet, and free from vice and blemish.”
Soon after the sale Fielder discovered that she was unsound and vicious; viz that she was a roarer, had a thorough-pin, and also a swelled hock from kicking: — nevertheless he kept her three months, physicking and using other means to cure her; at the end of which time he sold her, but had her soon after returned as unsound; when he passed her back to Starkin, who refused to receive her.
On her way back from Starkin’s she died, and upon examination it was the opinion of the veterinary surgeon that she had been unsound a full twelvemonth before her death; but it did not appear that Fielder had during the three months, though in Starkin’s company, ever complained of the mare being unsound.
Lord Loughborough said —
“Where there is an express warranty, the warranter undertakes that it is true at the time of making it.
“If the horse which is warranted sound at the time of sale be proved to have been at that time unsound, it is not necessary that he should be returned to the seller.
“No length of time elapsed after the sale will alter the nature of a contract originally false; though the not giving notice will be a strong presumption against the buyer that the horse at the time of the sale had not the defect complained of, and will make the proof on his part more difficult.”
I think it stands to reason that a person having purchased a horse under a warranty of soundness, or indeed any other warranty, on finding that he does not answer that warranty, and intending to return him, is bound to lose no time in doing so; though what will be considered a reasonable time must necessarily depend upon the particular circumstances of the case.
There is a cause of Adams against Richards, where Richards sold Adams a horse, with an agreement to take him back if he should be found fault)
Adams kept him six months after he discovered that he was restive, and he was not allowed to recover.
But whenever the horse is returned he must not be in a worse condition than when sold.
Curtis against Hannay is a case in point, and was decided by the late Lord Chancellor Eldon when Chief Justice of the Court of Common Pleas. Hannay had sold Curtis a horse, which he war-» ranted generally; and after the sale Curtis was informed that he had a defect in his eyes, but nevertheless he kept him for nearly seven weeks, in which time, suspecting the horse to have some defect in his feet, he had applied certain remedies, which produced a running thrush and a consider, able degree of lameness: it was, however, only temporary; and it was in evidence that the remedies applied to the feet could not have affected the eye.
Lord Eldon said —
“The question was, would the horse when returned to the seller be diminished in value by this doctoring?”
And he delivered the following opinion “I take it to be clear law that if a person purchases a horse which is warranted, and it afterwards turns out that the horse was unsound at the time of the warranty, the buyer may, if he pleases, keep the horse, and bring an action on the warranty, in which he will have a right to recover the difference between the value of a sound horse and one with such defects as existed at the time of the warranty: or, “He may return the horse and bring an action to recover the full money paid: but in the latter case the seller has a right to expect that the horse shall be returned to him in the same state he was when sold, and not by any means diminished in value: for if a person keeps a warranted article for any length of time after discovering its defects, and when he returns it it is in a worse state than it would have been if returned immediately after such discovery, I think the party can have no defence to an action for the price of the article on the ground of non-compliance with the warranty, but must be left to his action on the warranty to recover the difference in the value of the article warranted, and its value when sold.”
In Ellis against Mortimer the action was brought to recover thirty guineas, the price of a horse sold by plaintiff to defendant upon an agreement for a month’s trial, and to be at liberty to return him at the end of the month if he did not like him.
After keeping him about a fortnight, he said he liked the horse but not the price, upon which the plaintiff desired him, if he did not like the price, to return the horse: the defendant kept him ten days after this, and then sent him back within the month, but the plaintiff refused to receive him.
The Court held that the effect of the contract was that the defendant should have to the end of the month to decide, and that he had not determined the contract until he had actually returned the horse, and that the action could not therefore be supported.
Where a seller allows a trial, accidents may happen during the time, and yet no general rule can be laid down: each of these cases must therefore depend entirely upon their own merits.
For instance, if a person rides a horse on trial with hounds “which is warranted an excellent hunter and in good hunting condition,” and the horse dies in consequence of his exertions in the held; yet unless it be proved that he
rode him unfairly, contrary to his usual custom, or pressed him after he was exhausted, I take it the owner could not recover.
Circumstances may also occur to prevent a trial whether a horse answers his warranty, as in the case of one “warranted a good hunter.”
Now were a frost to come the day after he was purchased, and it was to continue for several weeks, whereby the purchaser was prevented from trying his qualities as a hunter, still he ought not to be precluded from returning it, if on the breaking of the frost he was not found to answer the warranty.
In warranting a horse a good hunter,” I believe the warranty is generally considered to refer to his fencing; and though he may be as slow as possible, yet if he is a good leaper, the warranty will be answered: not so, where he is warranted “a good hunter and fast.”
RETURNING.
Difficulty often arises in returning horses when discovered to be unsound, particularly when they have been purchased of dealers.
It is advisable in all cases to make an offer of the horse, because on that being done and refused, the purchaser will have a right to recover damages for the expenses of his keep in addition to the price paid.
However, it can always rest in the option of the purchaser whether he will return him or not.
If the horse is returned (and presuming he is not in worse condition or state than when sold) the purchaser will have a right to recover the price paid for him.
If he is not returned, the purchaser will have a right to recover the difference between his value and the price given; or if sold to a third person, the difference between the price received for him and the one paid in the first instance.
In the case of Caswell against Coare, where the action was brought on the breach of the warranty, but where there was no proof of the horse having been offered back, Lord Mansfield said —
