192 



PLEADING, EVIDENCE AND DAMAGES. 



Veterinary 

 opinion alone. 



Evidence as 

 to Vice. 



Evidence as to 

 unfitness. 



Proof of 



Rescission. 



Proof of 

 Tender. 



Or a pure question of Veterinary opinion may arise, as 

 wliere there is a dispute whether a Ilorse is Spavined (//) or 

 not ; or where the natiu'al appearance of a Horse's Hock 

 is altered, and it is doubtful whether it is merely a Capped 

 Hock (?■), or a material alteration in the structure of the 

 Hock joint. 



The proof of an alleged Vice [j) may depend upon 

 Evidence of the Fact of its having existed before or at the 

 time of Sale ; or upon proof of the existence of a certain 

 habit before or at that time, and then upon Veterinanj 

 opinioji as to the effect of it. 



The Unfitness (/.•) for the purpose for which the Horse 

 was bought must be clearly proved ; as, for instance, where 

 a Horse has been warranted to be a " thorough-broke Gig 

 Horse," the Jury must be satisfied that a person of ordinary 

 skill cannot safely drive him (/.-) . 



To prove a Rescission, the plaintiff must either prove that 

 the defendant accepted the Horse when tendered, or he 

 must show a Rescission by mutual agreement. 



The plaintiff may prove a Tender by showing that he 

 sent the Horse hack to the defendant, who refused to 

 accept it (/) ; or that he sent the Horse to Livevij, and 

 informed the defendant that he had done so {m). 



Admissions 

 by pleading. 



What must 

 be specially 

 pleaded. 



PLEADING AND EVIDENCE FOR THE DEFENDANT. 



Every allegation of fact in any pleading in an action, 

 not being a petition or summons, if not denied specifically 

 or by necessary implication, or stated to be not admitted in 

 the pleading of the opposite party, shall be taken to be 

 admitted, except as against an infant, lunatic or person of 

 unsound mind not so found by inquisition. (Ord. XIX. 

 r. 17.) 



By Ord. XIX. r. 18, the defendant must plead specially 

 all facts not previously stated on which he relies, and 

 must raise all such grounds of defence as, if not pleaded, 

 w^ould be likely to take the plaintiff by surprise, or would 

 raise new issues of fact not arising out of the pleadings, as, 

 for instance, fraud, or that any claim has been barred by 

 the Statute of Limitations, or has been released. 



{h) Spavin, ante, p. 103. 



(i) Capped Hocks, ante, p. 79. 



{j) See Unsoundness and Vice, 

 ante. Chap. 4. 



{k) Geddcs v. Pemi'mgton, 5 Dow, 

 164. See ante, p. 122, BtickingJiam 



V. Bcere. 



(0 See ToicersY. Barrett, 1 T. R., 

 138. 



()h) Chesterman v. Lamh, 2 A. & 

 E. 129. 



