UNSOUNDNESS. G3 



unsound at the date of sale. Lord Gifford said: — " The exist- 

 ence of a mortal disease, that is, of a disease which ultimately 

 proved mortal, is certainly covered by the defender's Avar- 

 ranty. It makes no ditference whatever that in the present 

 case, the mare, instead of dying of the disease, ultimately 

 recovered, though with great risk and by means of skilful 

 and expensive treatment. . . . Where a warranty of sound- 

 ness is given, and where there exists at the date of the 

 warranty a disease which renders the horse unfit for work for 

 weeks or months, which exj)oses its life to imminent danger, 

 and which is only cured by skilful, protracted, and expensive 

 medical treatment, that disease amounts to unsoundness, "(a) 

 Lord Justice-Clerk Moncreiff also confirms the dictum of 

 Lord Benholme in Dykes v. Hill, that a cold and sore throat 

 do not constitute unsoundness in the ordinary case. " Where 

 a horse has a cold at the time it is purchased, if it is cured 

 in two or three days there is nothing in our law to justify 

 the contention that the cold amoimts to breach of warranty ; 

 but where the animal's constitution is unable to bear the 

 effect of the malady without danger to its life it will be held 

 unsound even though it recover." 



50. Roaring. — There can be little doubt that every roarer is 

 inconvenienced when in rapid action, and it would be difficult 

 to say in any case that it is merely a bad habit acquired 

 without some previous inflammation or alteration of structure. 

 In practice roaring is always very properly considered an 

 unsoundness. (6) Thus, in regard to roaring it was observed: 

 " If a horse be aftected by any malady which renders him 

 less serviceable for a permanency, I have no doubt that it is 

 an unsoundness. I do not go by the noise but by the dis- 

 order; "(c) and Lord Ellenborough said: "It has been held by 



(rt) Gardiner, cit. p. 617. 



(h) OHphant, p. 99. See a case of roaring held within the knowledge of a seller 

 of a horse warranted "sound as far as he knew," M^Michael v. APGeorge, 

 1886, 2 S.L. Rev. 446. 



(c) Onslow V. Eaincs, 1817, 2 Starkie, 81. 



