GOGGLES IN SHEEP. 567 



in the cornea of the eye which caused shortsightedness, and that the halit 

 of shying might arise from this ; but that there was no disease in the 

 eye, the peculiar formation being congenital. His honour directed the 

 jury that if they thought that the habit of shying arose from a defect 

 of vision caused by natural malformation of the eye, this was unsound- 

 ness. The jury found a verdict for the plaintiff, leave being reserved 

 to move to enter it for the defendant, or for a new trial under stat. 20 

 & 21 Vict. c. 157, s. 10, and the Court of Queen's Bench confirmed 

 their finding. And i)er Lord Ckimplell C.J. : " The direction of the 

 Common Serjeant was wholly unexceptionable, being in eflfect that if 

 the shying arose from malformation of the eye, that was unsoundness, 

 although the defect was congenital. Although in the authorities cited 

 {Kiddell V. Burnard, Coates v. Stevens, Barley v. Forrest, and Brown v. 

 Elliington) for the defendant, the cases of supervening disease and 

 accident are alone mentioned, yet it is not from thence to be assumed 

 that the learned judges would have said, that if a congenital defect had 

 been found to exist, there would not have been a breach of the warranty 

 of soundness, the defect being such as to prevent the animal from per- 

 forming that which might reasonably be expected from him. Suppose 

 a horse to be born blind or with a contracted foot, surely that would be 

 a breach of warranty of soundness, although the deficiency or defect 

 existed before the animal was foaled. Then as to the point that this 

 was such a defect as the purchaser was bound to take notice of ; there 

 being an express warranty, he was not bound to examine so closely as 

 to ascertain whether the cornea were so formed as to produce short 

 sight ; the most prudent man could not be expected to do that. The 

 plaintiff had a right to rely on the warranty, and that I think was 

 broken." 



It would also seem, from the decision of Allott C.J., in Jolijf v. 

 Bendell, that the imrcliaser of sheep or cattle may have his action when 

 they prove to have some hereditary disease in them ivhich in-events them 

 from thriving. This was a case of assiifnjjsit on a sheep warranty, the 

 first count of which stated the sheep to be sound, and tlie second free 

 from goggles. Tlie sheep, 100 in number, were sold on the 12 th of 

 August, 1823. At the time of the sale they were apparently sound, 

 and continued so till the middle of the next October, when one or two 

 of them were seized with goggles, which exhibited itself in giddiness, 

 swelling of the eyes, and hanging of the head. They grew weaker and 

 weakei', and generally died in about a week or ten days after the 

 seizure, and on dissection, water was found in the head or brain. 

 About 50 had died, and 50 continued well up to the time of the trial. 

 There was no contagion, other sheep with which they were fed and kept 



