by R S Surtees
(Enter Simpkins, to find Jorrocks on the floor, pale as death and trembling from head to foot.)
Simpkins. O! Day and Night! O! Here’s a pretty go!
I fear my Jorrocks finds himself so-so.
Jorrocks. Oh! Peter Simpkins! Don’t I look unwell?
Simpkins. White as the inside of an oyster-shell!
Take my advice, dear Jorrocks, and be bled, Bolt a black dose and tumble into bed.
Lean on my arm and onward let us go.
“I do remember an Apothecary—”
Jorrocks (screams lustily). — Oh!
See! Here it comes again!
Simpkins. — Where, Jorrocks? Where?
I nothing see but incorporeal air.
’Tis nothing but the dreaming of a heated brain, And to no purpose both mine eyes I strain.
Be calm, great Jorrocks! Try to take it easy.
Go look to-night at Malibran or Grisi —
Soft music sure will soothe thy troubled breast And laud’num-like will lull thee into rest.
Jorrocks. I’ll go — I’ll go — I feel I’m better now, Far better. Zooks! I’m ready for a row; A little funk’d ’tis true — but what of that?
I’ve won —
Simpkins. What much you wanted, too! Jorrocks (vehemently). A HAT!!!
[Exeunt.
The Non-Fiction
The statue of Jorrocks by John Mills, in Croydon, which commemorates John Jorrocks’ ride to Croydon to join the hunt
The Horseman’s Manual
CONTENTS
DEDICATION
INTRODUCTION.
CHAP. I.
CHAP. II
CHAP. III.
CHAP. IV.
CHAP. V.
ADDENDA
The first edition’s title page
DEDICATION
TO
RALPH JOHN LAMBTON, ESQ.
MERTON HOUSE, DURHAM.
MY DEAR SIR,
THE accurate knowledge you possess of all that is connected with that noble animal the Horse induces me humbly to offer to your notice the following pages on the laws relating thereto, trusting to your well-known liberality for overlooking all errors and imperfections.
That you may for many years continue to occupy the distinguished position you have so long held in the Sporting World, is the sincere wish of,
My dear Sir, Your very faithful and obedient servant,
R. S. SURTEES.
Lincoln’s Inn Fields, Nov. 1830.
INTRODUCTION.
THE GLORIOUS UNCERTAINTY of the Law has long been proverbial; but to no one of its multitudinous branches is tins saying more applicable than to the uncertainty of the law of warranty on the purchase and sale of horses.
Owing to the nature of their profession, the Judges have not those opportunities of acquiring information, oat of ascertaining by experience the various peculiarities and qualifications of the horse, which are necessary to be known in order to arrive at a proper conclusion on points connected with them. Many of their decisions are founded more in theory than practice; and even their theory is oftentimes the dicta of Veterinary Surgeons and other practical men. — :
But their ignorance of the economy of the home is not the only disadvantage under which their Lordships labour when forming an opinion on what is commonly called a “horse cause.” The contradictory evidence, not to say perjury, and the stabularian and technical terms which are made use of, tend much to heighten the embarrassment under which they are placed.
Far be it from me to say anything disrespectful of their Lordships. On deep and intricate questions of law no country possesses Judges more competent to decide than we are blessed with in England; and while I assert their general ignorance with respect to horses, I must also admit that it is a species of knowledge almost incompatible with the grave and laborious duties which they have to perform.
But if to the administrators of the law’ the subject is one of difficulty, how much more perplexing must it be to the ordinary citizen of the world, who, in addition to his own opinion, has frequently to contend with adverse doctrines promulgated by the Judges, without in many instances knowing where to find the decisions!
Important as is the law of warranty on the sale and purchase of horses to a numerous class of persons in this country, it is matter of surprise that no attempt should have been made to collect in a small compass and practical form the various decisions on this subject which lie scattered through the whole body of law reports.
With the exception of a short anonymous treatise, intitled “The Law’s relating to Horses,” and which, though professing to be intended “for practical as well as professional reference,” hardly notices this most important part of the subject, the author is not aware of any work which treats at all copiously of the Law of Warranty of Horses.
So contradictory are many cases, and so unsettled even at the present day is the law of warranty, that any endeavour to reconcile the conflicting opinions of the Courts would serve rather to obscure than to elucidate the subject.
The only object which the writer of this little treatise has in view’ is, by arranging the decisions in a systematical form, to enable the reader to draw his own conclusions as to their leaning and tendency: to assist in doing which, and also to enable him to form an opinion upon points where no legal authority is laid down, the author has had recourse to the writings and opinions of eminent Veterinary Surgeons of the past and present day.
To these gentlemen, particularly to Professor Coleman of the Veterinary College, and Mr. Mavor of New Bond Street, the author’s acknowledgements are due; as also to the members of his own profession, who have so kindly aided his endeavours, particularly to his friend Edward Loraine, Esq.
27, Lincoln’s Inn Fields,
Nov. 1830.
CHAP. I.
ON SALES BY PRIVATE CONTRACT, AND THE LAW OF WARRANTY.
WARRANTY, AS APPLICABLE to horse-dealing transactions, may be divided into two kinds — the one, A GENERAL WARRANTY, extending, according to the doctrine laid down by Lord Mansfield, to all faults known and unknown to the seller:
The other, A QUALIFIED WARRANTY, extending equally to all faults known and unknown to the seller, except certain ones specifically mentioned and excepted in the warranty.
Having premised thus much, I shall first mention the requisite to constitute a sale by private contract; and shall then proceed to shew in what condition the law requires a horse to be with which a general warranty is given, and which is as applicable to sale by public auction as by private contract.
To constitute a binding contract or agreement for the sale of any goods, wares, or merchandises (under which terms horses are included) of the value of ten pounds or upwards, the 17th section of an Act of Parliament passed in the 29th year of the reign of King Charles the Second, chapter 3, commonly called the “Statute of Frauds” — meaning thereby the Statute against frauds — enacts, “That the buyer shall accept part Of the goods so sold, and absolutely receive the same, or give something as earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the bargain be made and signed by the parties to be charged with such contract.”
For instance: if I agree with a man for the purchase of a horse for fifty pounds, but no delivery takes place at the time, nor is any thing given to bind the bargain, and there is no written memorandum made respecting it, the owner is at liberty to resell the horse to any person he may afterwards meet, and with whom he may be able to make better terms for himself; and I have no remedy against him for this breach of faith.
While, on the contrary, had given him a penny, or any thing else, to bind the bargain, or reduced the terms of it into writing, on proving the payment of the earnest, or on production of the memorandum of agreement, I should be entitled to recover damages against the seller for this departure from his bargain.
This custom of giving money to bind the bargain on the sale of horses has fallen into disuse in many parts of
England; but in the northern counties it is still preserved with great strictness, and in them a horse-dealer would as soon think of appearing in a fair without his whip in his hand, or a straw in his mouth, as without his pennies to “hansell,” or bind his bargain.
Blackstone, in his Commentaries on the Laws of England, says, that “Anciently among all the northern nations shaking of hands was held necessary to bind the bargain — a custom which we still retain in many verbal contracts. A sale thus made was called hand-sale — venditio per mutuam manuum complexionem — a sale by the mutual joining of hands: — till in process of time the same word was used to signify the price, or earnest, which was given immediately after the shaking of hands, or instead thereof.”
As soon as the bargain is struck, the law considers the property of the horse, or whatever else is the subject of it, is transferred to the buyer, and that of the price to the seller; but the buyer cannot take him away until he pays, or offers, the price agreed upon.
But if he offers the money to the seller, and he refuses to deliver him, the buyer may seize the horse, or bring an action against the seller for detaining him.
And if the sale has been regularly made as prescribed by the Statute, and though there has been no delivery, yet the property in the animal is absolutely vested in the purchaser.
And if A. sells a horse to B. for thirty pounds, and B. pays him earnest, or signs a note in writing of the bargain, and afterwards, before the delivery of the horse, or money paid, the horse dies in A. the seller’s custody, still A. is entitled to the money, because, by the contract, the property was in the buyer.
If, therefore, it were only to guard against this one case, it were well for the seller to make the bargain binding.
The case of Alexander against Comber shews the disadvantages accruing to a buyer by not doing the same.
The subject of the action was a flock of sheep of the value of fifty pounds, which Alexander had verbally agreed to buy of Comber at Lewes fair in Sussex, and to take them away at a certain hour.
It appeared that there was not any money paid, any memorandum made respecting them, or any sheep delivered; and Alexander not coming at the appointed time, or sending for them, Comber resold the sheep to another person, whereupon Alexander brought his action.
The Court held, that the terms imposed by the Act of Parliament had not been complied with by Alexander so as to vest the property in him, there having been neither earnest, delivery, nor agreement in writing; and, consequently, he could not maintain his action.
It not unfrequently happens that horses are exchanged: sometimes one is given for another without any farther consideration; but more generally there is a sum paid in addition to the horse given, by one of the exchangers, to make up the difference in value.
There is no difference between sales and exchanges; but a delivery on one or both sides is essential to establish the contract.
If the exchange be made without any pecuniary consideration, but it is agreed that one horse shall be warranted sound, and the other shall not, this ought to be expressly stated in writing, and signed by the person warranting.
Where there is a sum of money paid in addition to the horse given, the parties may reckon the price according to their own mode, as in the case of Hands against Burton, where the action was brought on the warranty of a horse stated as having been purchased for the entire sum of thirty guineas; whereas the proof was of an agreement to purchase at that price if the defendant would take another horse at fourteen guineas, and the difference, only be paid by the defendant; and it was held to be but one deal, and that the parties were at liberty to consider the horse given as the sum of fourteen guineas in their mode of reckoning.
Supposing us to have purchased a horse under a general warranty of soundness, and that the bargain is completed by delivery, we will proceed to examine what the Judges say on the subject of soundness.
But first, as they, in their decisions of questions of this nature, are not only accustomed to attach much weight to the opinions of veterinary surgeons, but have even been known on their evidence to over-rule former cases; and following up my position, that their practical knowledge is generally derived from the evidence of this class of persons; I shall first state the opinion of Mr. Taplin, a veterinary surgeon of great experience, who wrote in the last century, respecting what were considered the requisites for a sound horse in his time: after which I shall give the ideas of an eminent practitioner of the present day; and then proceed to mention the different cases decided by the Judges, which constitute the law on the subject as it now stands.
Mr. Taplin, in page 14 of the first volume, 13th edition, of his book called the Gentleman’s Stable Directory, after treating of the age of a horse, thus proceeds —
“Then should follow a most minute and attentive inspection, or rather strict examination, of those points constituting the distinctions between imperfections, blemishes, and defects in general, doubtfully implied, and not always perfectly understood by the common assurance of ‘sound wind and limb’ — to ascertain the veracity of which technical phraseology much nicety of discrimination appertains.
“Amongst sportsmen (who are justly entitled to the appellation of gentlemen, and possess a high and proper sense of honour, and the principle of equity) the general acceptation of the word sound has ever been, and still is, intended to convey an honorable unequivocal assurance of the perfect state of both the frame and bodily health of the subject, without exception or ambiguity.
“It is meant to imply the total absence of blemishes, as well as defects (unless particularly pointed out and explained), and is really intended to confirm a bona fide declaration of the horse’s being (at the time) free from every imperfection — labouring under no impediment to sight or action. — This is the established intent and meaning of the word ‘sound’ amongst gentlemen and sportsmen: its explication and various uses, for the convenient purposes and impositions of grooms, dealers, blacklegs, and jobbing itinerants, are too perfectly understood (by those who have run the gauntlet of experience and deception) to require farther animadversion.”
Though not properly applicable to a work of this nature, I cannot omit the following piece of advice given by the same author, and immediately following the above quotation “However, as you can but very seldom possess the good fortune to purchase of a gentleman, it will prove no contemptible practice to adopt the sage old maxim, and ‘deal with an honest man as you would with a rogue.’ This precaution may pre vent a probable repentance, and palpably urges the necessity of putting your own judgment and circumspection in competition with the integrity of your opponent, however he may be favored by fortune, or sanctioned by situation.”
Mr. Mavor, of New Bond-street, a veterinary’ surgeon of great practical experience, in answer to the following question “What do you consider constitutes a sound horse?”
Says —
“I consider a horse to be sound which is perfect in structure and perfect in function.
“I also consider a horse to be sound, though with alteration in the structure, provided he has never been either lame or incapacitated (and is not likely to become lame and incapacitated) from performing the ordinary duties to which he may be subjected in consequence of such alteration, and can perform them with equal facility as if there had been no such alteration of structure.”
Alteration of structure is perhaps a technical term, and, as here applied, means any alteration in the original mould in which Nature formed the horse; and which alteration may be either the work of design or produced by accident — as for instance, the docking or arrangement of the tail to meet the fashion of the day; or the enlargement of a tendon, caused by a blow, or produced from over-exertion.
Looking through the various reports of cases, the reader will not fail to observe that by far the greatest number and most important cases relating to horses have been tried before the late Lord Ellenborough, who was rather celebrated than otherwise for possessing excellent horse
s, and who, in addition to great legal acquirements, had a better practical knowledge of them than any Judge of the past or present times.
In two causes tried before this Learned Lord (and to which I shall have occasion to advert by name more fully hereafter), the law as to what constitutes soundness is laid down in the following concise manner In the first one, he says —
“If a horse be affected by any malady which renders him less serviceable for a permanency, I have no doubt that it is unsoundness.”
And in the other —
“I have always held, and now hold, that a warranty of soundness is broken if the animal, at the time of the sale, had any infirmity upon him which rendered him less fit for present service. It is not necessary that the disorder should be permanent or incurable.”
Adopting, then, the doctrine of Lord Ellenborough, that any infirmity which renders a horse less fit for present service, or any malady which renders him less serviceable for a permanency, constitute unsoundness, we have ascertained what state a horse must be in to allow of the general warranty being given; and I think it will be seen on reference, that his Lordship complimented Mr. Taplin, by adopting as law in this century what that gentleman advanced as mere matter of opinion in the last one.
However, were the owners of all horses which do not answer his Lordship’s or Mr. Taplin’s definition of soundness to be precluded from selling them, I fear very few of the steeds in England would change masters (for I believe it is generally allowed that there are five unsound to every two sound horses): these, therefore, must be disposed of with a qualified warranty, or else without any warranty at all.
Before I proceed to speak of qualified warranty, I must do the Learned Lord the justice to say, that the doctrines expounded by him, particularly in the two cases from which I have quoted, have gone far to check that indiscriminate use of the general warranty which formerly prevailed; and very few gentlemen owners of horses of the present day warrant their horses at all, or at most only give qualified ones.