58 UNSOUNDNESS. 



tively to prove that the horse was unsound at the time of 

 the sale, not merely to raise a susj)icion of unsoundness, (a) 



Thus, it is advisable always to obtain a Avritten warranty 

 of a horse, because the parties are bound by it alone, (6) and 

 it cannot be extended by implication, (c) 



46. The Nature of Unsoundness. — In the case of 

 Gardiner,{d) it was urged that " unsoundness " has a wider 

 meanmg in England than in Scotland, because the buyer can, 

 in certain cases, retain his horse and claim damages for dis- 

 conformity to Avarranty, a remedy incompetent in Scotland. 

 On this point Lord GitFord observed : — "There may be room 

 for the distinction, although I am not aware of any case in 

 Avhich it has been recognised." Accordingly, the construc- 

 tion of the word " unsoundness " accepted in England is 

 valuable, and is practically the same as that of the Scotch 

 law. A very distinct proj)osition was laid down in the case of 

 JDundas v. Fairbairn ; "it is obvious that one who buys a 

 pair of horses for his carriage, covenants for animals which 

 are to be depended on for immediate service, and not for 

 such as may become serviceable with the help of time and 

 training. When he furnishes a pair of horses for such a 

 purpose, duly spoken out, the seller truly undertakes a war- 

 randice of them in that respect." (e) This w^as followed by 

 the case of Ralston v. Eobb,(f) in which it was held that, 

 " under a warrandice of the sale, whether derived from the 

 payment of the market price of a sound and unblemished 

 horse, or from the express stipulation of the parties, the pur- 

 chaser is entitled to have a horse immediately fit for its 

 purpose. He is not understood, in law, to go to market with 

 the view of j)urchasing a commodity of which he cannot have 



(rt) Eaves v. Dixon, 1810, 2 Taunt. 343 ; Wrif/ht v. Blaclcwood, 1S33, 11 S. 722. 

 ih) Pickering v. Doicson, 1813, 4 Taunt. 785. 



(c) Dickson V. Zizinia, 1851, 20 L.J., C.P. 72. 



(d) Gardiner v. M'l.cavy, 1880, 7 R. 612. 

 (c) Dundas v. Fairhairn, 1797 ; Hume, 677. 

 (/) Rcdston V. Rohb, 1808, M. r. Sale, Appx. 6. 



