of the law.

UNSOUNDNESS AND VICE.

Present state In buying and selling Horses, it is of the utmost importance to ascertain what constitutes Unsoundness, and what habits are to be considered Vices. Until comparatively lately there had been much perplexity on these points; no correct rule as to unsoundness had been laid down, and a difference of opinion existed among the Judges whether or not a temporary disease was, during its existence, a breach of a warranty of soundness. The law on these subjects has been in a great measure settled by the Judges of the Court of Exchequer, where Mr. Baron Parke laid down a rule with regard to Unsoundness, by which, so far as the nature of the subject will admit, all future cases will be governed, it being the result of the deliberate consideration of the Court (a). The same learned judge

(a) Kiddell v. Burnard, 9 M. & W. 670; Coates v. Stephens, 2 M. & Rob. 157. These cases have been followed in America in Kornegay v.

White, 10 Ala. 255; Roberts v. Jenkins, 1 Foster (N. H.) 116; Thompson v. Bertrand, 23 Ark. 730.

also in another case expressed an opinion as to what constitutes a Vice (b), and keeping this in view a correct estimate may be formed of what will be considered a breach of a warranty of "freedom from Vice."

It is a difficult matter without the use of negatives to Definition of explain, fully and briefly, the meaning of the word Soundness. "Sound," as applied to Horses. Chief Justice Best, in the case of Best v. Osborne (c) held that "sound" meant perfect. In Kiddell v. Burnard (d), Mr. Baron Parke said, "The word 'sound' means what it expresses, namely, that the animal is sound and free from disease at the time he is warranted." And in the same case Mr. 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."

We may define a Horse to be "SOUND" when he is A Sound free from hereditary disease, is in the possession of his natural Horse. and constitutional health, and has as much bodily perfection as is consistent with his natural formation.

The rule as to Unsoundness is, that if, at the time of Rule as to sale, the Horse has any disease, which either actually Unsoundness. does diminish the natural 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: or if the Horse has, either from disease (whether such disease be congenital or arises subsequently to its birth (e)), or from accident, undergone any alteration of structure, that either actually does at the time or in its ordinary effects will diminish the natural usefulness of the Horse, such a Horse is Unsound (f). This very much resembles the definition of Unsoundness given in an excellent work, on the Construction of the Horse and the Treatment of his Diseases, by the late Mr. Youatt, published by the Society for the Diffusion of Useful Knowledge, and which will be used as an authority in the description of those diseases and bad habits to which the Horse is subject. But in that work Unsoundness is referred to disease only; namely, to that alteration of structure which is connected with or will produce disease, and lessen the usefulness of the animal; and any alteration

(b) Scholefield v. Robb, 2 M. & Rob.

210.

(e) Best v. Osborne, R. & M. 290. (d) Kiddell v. Burnard, 9 M. & W. 670.

(e) Holyday v. Morgan, 28 L. J., Q. B. 9; see post.

(f) Per Parke, B., Kiddell v. Burnard, 9 M. & W. 670; Coates v. Stephens, 2 M. & Rob. 137; Smart v. Allison, Appendix.

The term
"Natural
usefulness."

Important decision as to

Unsoundness.

of structure from accident is not comprehended within the definition there given. This, however, is an important omission, because when the Court of Exchequer laid down the rule as to unsoundness, Mr. Baron Alderson on this point said, "It is, however, right to make to the definition of Unsoundness the addition my brother Parke has made, namely, that the disqualification for work may arise either from disease or accident" (g).

The term "Natural usefulness" must be borne in mind. One Horse may possess great speed, but is soon knocked up; another will work all day, but cannot be got beyond a snail's pace; one with a heavy forehead is liable to stumble, and is continually putting to hazard the neck of his rider; another with an irritable constitution and a washy make, loses his appetite, and begins to scour if a little extra work is exacted from him. The term Unsoundness cannot be applied to any of these; it would be opening far too widely a door to disputation and endless wrangling. The buyer can discern, or ought to know, whether the form of the Horse is that which will render him likely to suit his purpose, and he should try him sufficiently to ascertain his natural strength, endurance and manner of going ().

The following is a most important case on Unsoundness in animals:-An action of Assumpsit was brought on the warranty of three bullocks, and under the direction of Mr. Justice Erskine at the trial, a verdict was found for the plaintiff. In refusing a rule for a new trial, Mr. Baron Parke said, "The rule I laid down in Coates v. Stephens (i) is correctly reported, that is the rule I have always adopted and acted on in cases of Unsoundness : although, in so doing, I differ from the contrary doctrine laid down by my brother Coleridge in Bolden v. Brogden (j):

"I think the word 'sound' means what it expresses, namely, that the animal is sound and free from disease at the time he is warranted sound. If, indeed, the disease were not of a nature to impede the natural usefulness of the animal for the purpose for which he is used, as, for instance, if a Horse had a slight pimple on his skin, it would not amount to an Unsoundness; but even if such

(g) Kiddell v. Burnard, 9 M. & W. 671.

(h) Lib. U. K. "The Horse,"

361.

(i) Coates v. Stephens, 2 M. & Rob. 137; and see "Rule as to Unsoundness, ante, p. 71.

(j) Bolden v. Brogden, 2 M. & Rob. 113.

a thing as a pimple were on some part of the body where it might have that effect, as, for instance, on a part which would prevent the putting a saddle or bridle on the animal, it would be different."

"An argument has, however, been adduced from the slightness of the disease and the facility of cure; but if we once let in considerations of that kind, where are we to draw the line? A Horse may have a cold which may be cured in a day; or a fever, which may be cured in a week or a month; and it would be difficult to say where to stop. Of course, if the disease be slight, the Unsoundness is proportionably so, and so also ought to be the damages and if they were very inconsiderable, the Judge might still certify under the statute of Elizabeth (), to deprive the plaintiff of costs."

"But on the question of law, I think the direction of the Judge in this case was perfectly correct, and that this verdict ought not to be disturbed. Were this matter presented to us now for the first time, we might deem it proper to grant a rule, but the matter has been, we think, settled by previous cases: and the opinion which we now express is the result of deliberate consideration."

And Mr. Baron Alderson said, "I am of the same. opinion. 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, is affected with something which will have the effect of impeding that use. If the disease be one easily cured, that will only go in mitigation of damages. It is, however, right to make to the definition of Unsoundness the addition my brother Parke has made, namely, that the disqualification for work may arise either from disease or accident; and the doctrine laid down by him on this subject, both to-day and in the case of Coates v. Stephens (1), is not new law; it is to be found recognized by Lord Ellenborough and other Judges in a series of cases" (m).

diseases.

The rule as to Unsoundness applies to cases of disease Temporary and accident, which from their nature are only temporary, it not being necessary that the disorder should be

(4) 43 Eliz. c. 6, s. 2.

(1) Coates v. Stephens, 1 M. & Rob.

(m) Kiddell v. Burnard, 9 M. & W. 670.