6 2 UNSOUNDNESS. 



proved in mitigation of damages, (a) There are three import- 

 ant Scotch cases upon this matter. In Dykes v. HiU,(b) 

 a horse was sold under a warranty of soundness. Though 

 suffering from a cold, it was held sound at the date of sale, 

 notwithstanding that two days afterwards the symptoms 

 were much aggravated, and the cold passed into strangles, 

 extensive internal abscesses Avere formed, and the animal 

 died in twenty-one days. Lord Benholme observed : — " The 

 question is, at what period of time did the cold pass into 

 the other disease ? For a cold and sore throat do not con- 

 stitute unsoundness, although, under peculiar circumstances 

 and treatment the one may rapidly pass into the other." 



In Ne/idands v. Legged (c) a question arose regarding 

 unsoundness of a mare arising from cold, whicli the pursuer 

 was barred from pleading owing to his own treatment of her. 

 Lord Mure observed: — " It may be that a cough will entitle a 

 purchaser to return a horse if it is unfit for the work for 

 which it has been bought. If a horse has a cold with a 

 consequent loss of appetite, and is feverish and requires to be 

 blistered, he is for the time unfit for work, and a buyer 

 misfht be entitled to return him," 



These cases may be contrasted with Gardiner v. M' heavy, {d) 

 in which it was held that a mare affected with a severe cold 

 at time of sale, which developed in a few days into pleuris}^ 

 congestion of the lungs, and bronchitis, amounted to 

 unsoundness, though the mare was ultimately cured. The 

 terms of the warranty were, " sound, free from vice, steady 

 in sinorle and double harness," When the cold was discovered 



o 



to be serious, the mare was treated for three or four weeks 

 by a veterinary surgeon. Eepeated notice was given to the 

 seller, but he never went to see the mare. She Avas sold 

 after recovery. It was held on the evidence that she was 



{a) Kiddd v. Burnard, 1842, 9 M. and W, 668,- overruling in one jjoint Bolden 

 V. Broyden, 1838, 2 ]\I. and Rob. 113. 

 [h) hyJces V. UUl, 1860, 22 D. 1523. 



(c) Ncwlands v. Leggat, 1885, 12 E. 820. 



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



