244 DISEASES OF BONE. 



" The question upon this application for a new trial, is, whether 

 this finding of the jury sanctions the verdict for the plaintiff or 

 not; that is, whether the Court can see with sufficient clearness 

 that the jury thought that the horse was unsound at the time of 

 the contract, and, consequently, that the warranty was broken. It 

 appears that the evidence before the jury was, in substance, that the 

 splint might or might not be the efficient cause of lameness, accord- 

 ing to the position which it occupied, and its size and extent ; that 

 this splint was in a very bad situation, as it pressed upon one of 

 the sinews, and would naturally produce, when the horse was 

 worked, inflammation of the sinew, and consequent lameness. The 

 jury, therefore, drawing their attention to this particular splint to 

 which the evidence related, appear to us to have intended that 

 this individual splint, though it did not at the moment produce 

 lameness, was, at the time of the contract, of that sort, and in that 

 situation, as to contain, in their language, the seeds of unsoundness, 

 that is, the efficient cause of the subsequent lameness. If the 

 lameness comj^lained of had proceeded from a new or different 

 splint, or from the old splint taking a new direction in its growth, 

 so as to affect a sinew, not having been on one before, such a 

 lameness would not have been within the warranty ; for it would 

 not have constituted a present unsoundness at the time of the 

 warranty made. But the jury find that the very splint in question 

 is the efficient cause of the lameness. 



" On the former motion, our attention was not called to any 

 evidence, if any such was given, as to the different nature and con- 

 sequences of splints, which the learned Judge reports to have been 

 given upon the present occasion; but it now appears that some 

 splints cause lameness, and others do not, and that the consequences 

 of a splint cannot be apparent at the time, like those of the loss 

 of an eye, or any other blemish or defect ^dsible to a common 

 observer. We, therefore, think that, by the terms of their written 

 warranty, the parties meant that there was not at that time, a 

 splint which would be the cause of future lameness, and that the 

 jury have found that it was. 



'^We therefore think that the warranty was broken." 



In " Smith v. O'Bryan " ("The Law Times," vol. ii., New Series, 

 p. 346) the horse which was warranted sound, had a splint, that, 

 at the time of sale, did not cause lameness. The fact of the animal 

 subsequently becoming lame, on account of this splint, was held 

 to be a breach of warranty. 



