564 WHAT CONSTITUTES UXSOUNDNESS. 



that the plaintiff had no action of assumpsit against the defendant 

 for the unsoundness of the horse which belonged to him, declaring as 

 upon a sale of one horse, since the contract concerning the two was 

 entire. 



The doctrine as io ii-lutt consiiltdes wisoumhiess was very early laid 

 down by EUeiibwough C.J. in Elton v. Brogden, where the defendant 

 allowed that the horse was lame at the time of the sale, but said that 

 such lameness was only temporai'y, and that he was noiv quite sound. 

 His lordship said, " I have always held, and now hold, that a warranty 

 of soundness is broken if the animal at the time of the sale had any 

 infirmity \\\)ou him which rendered him less fit for present service. It 

 is not necessary that the disorder should be permanent or incurable. 

 Whilst a horse has a cough I say he is unsound, although that may be 

 either temporary or may prove mortal. The horse in question ha^'iug 

 been lame at the time of the sale when he was warranted to be sound, 

 his condition subsequently is no defence to the action." In Etton v. 

 Jordan, where a witness for the defendant admitted that he had 

 landaged one of the horse's forelegs ~beccwse it teas ivcaker than the other, 

 his lordship repeated this definition. It was, however, laid down by 

 Coleridge J. in Boldm-o v. Brogden, that if a horse were sold with any 

 ailment on him which might be reasonably expected to give way to 

 f-light medical treatment, and to leave behind it no seeds of future 

 disease, he was not unsound within the meaning of a warranty. This 

 decision, and one to the contrary effect by Parlce B. in Coates v. Stevens, 

 were both brought under review in Kiddell v. Barnard in the Court of 

 Exchequer, and the question finally settled. 



The above was an action of assum[)sit to recover back the money for 

 three hidlocl^s which hcul Iccn ivarrantcd sound. Adam Bryant, a man 

 in the plaintiff's employ, had purchased them for him at Lew Down 

 fair, in Devon, for £40, a fair price if they had been sound. At the 

 time of the sale Bryant had complained of the badness of their colour; 

 and the defendant said, " I will warrant them sound." It was also 

 proved by witnesses that all three appeared more or less unsound at the 

 time of sale, and two of them after a resale turned out to be so ; and 

 the plaintiff had to pay £20 as compensation to the purchaser, while 

 the other died on its road to Leicestershire. Eighty-three bullocks of 

 the plaintiff's had been taken by his drover from Devonshire to North- 

 ampton by stages of fourteen and fifteen miles per da}^, and all with the 

 exception of these three stood the journey well. Erskine J, said, " The 

 third question is, were the cattle unsound at the time of sale? The 

 l)laintiff must prove that the beasts had some disease or seeds of disease 

 at the time of the sale, which rendered them in some degree unfit or less 



