PLEADING AND EVIDENCE FOR THE TLAINTIFF. 191 



the plaintiff must prove either an actual existence of Breacli of 

 Unsoundness at the time of Sale, or that from the appear- Warranty, 

 ance of the Horse afterwards he must have been Unsound 

 when sold. This, however, must be satisfactorily proved, 

 because a mere suspicion that the Horse was then Un- 

 sound is not sufficient (y). Where the Breach of War- 

 ranty is Vice, the plaintiff must prove the existence at 

 the time of sale of such a bad habit as in the eye of the 

 law constitutes a Vice {z). And where a Horse is war- 

 ranted fit for some particular purpose, he must be proved 

 to have been unfit for it in ordinary hands [a). 



It is not necessary that the plaintiff should inform the Notice of the 

 defendant of the natm'e of the Unsoundness, and he may mature of the 

 refuse to do so if applied to before the trial ; and the ^ ^^^^' 



Court of Common Pleas held that if the defendant wishes 

 to ascertain the nature of the Unsoundness, he should 

 take out a summons for that purpose {h). 



As there are a variety of particular causes of Unsound- Evidence as 

 ness {c),\hQ proof of it will vary according to the cir- *« Unsouud- 

 cumstances of the case. 



There are some cases which merely depend upon evi- Matter of 

 dence as to a certain Fact; for instance a Horse after ^^^t alone, 

 sale is discovered to be Lame from a Curb [d], and a 

 person giving his Evidence on the part of the plaintiff, 

 must actually have seen the Curb, either before or at the 

 time of Sale. 



Other cases may be proved either by Evidence as to a Either Fact 

 certain Fact, or by Veterinary opinion. As where the or Veterinary 

 Buyer discovers a Spavin (e) after Sale, he must either °P^^^°^- 

 prove its existence before or at the time of Sale by some 

 one who had then actually seen it, or he must produce 

 Veterinary testimony to show that from its present ap- 

 pearance it must have then existed. 



Other cases, again, may be compounded both of Fact Both Fact and 

 and Veterinary opinion ; as where a Horse has a Splint (/) ^^^^o^*^^^ 

 and is Lame, the question is whether the present Lame- 

 ness ( g) proceeds from the Splint ; and if it does, whether 

 the Splint actually existed or must have existed before or 

 at the time of Sale. 



(v) Haves v. Dixon, 2 Taimt. 343. {c) See Unsoundness and Vice, 



(z) Scholejicld v. liobb, 2 M. & Rob. ante, Chap. 4. 



210. ((/) Curb, ante, p. 85. 



(a) Geddes v. renningtoii, 5 Dow, {() Spavin, ante, p. 103. 



164. (/) Si^lint, ante, p. 103. 



[h) Attcrhury v. Fairmanncr, 8 [g) Lameness, ante, j). 92. 

 Moore, 33. 



opinion. 



