696 SOUNDNESS. 



at the time, or in its ordinary effects will diminish the natural 

 usefulness of the horse, such a horse is unsound." 



A fault of conformation — " turned-out toes," for instance — 

 which does not unfit a horse for present work, however much cal- 

 culated it may be to do so in the future, is not unsoundness. If, 

 on the contrary, it interferes with the horse's present usefulness, 

 it is unsoundness. The following will explain this point: — "A 

 defect in the form of the horse, which had not occasioned lameness 

 at the time of sale, although it might render the animal more 

 liable to become lame at some future time, was not a breach of 

 the warranty " (Lord Chief Baron Abinger in " Brown v. Elking- 

 ton," "Meeson and Welsby's Reports," vol. 8, p. 132). "The 

 horse could not be considered unsound in law merely from badness 

 of shape. As long as he was uninjured, he must be considered 

 sound. When the injury is produced by the badness of his action, 

 that injury constitutes unsoundness " (Mr. Baron Alderson, " Dick- 

 enson V. Follet," "Moody and Robinson's Reports," vol. 1, p. 299). 

 Respecting the case of " Holyday v. Morgan " (" Law Journal," 

 vol. 28, part 2, p. 9, New Series), which was an action for breach 

 of warranty of the soundness of a horse that had the habit of 

 shying on account of excessive convexity of the cornea. Lord 

 Campbell, C.J., ruled as follows : — " I am of opinion that the direc- 

 tion of the learned Common Serjeant was wholly unexceptionable, 

 being in effect that if the shying arose from malformation of the 

 eye, that was unsoundness, although the defect was congenital. 

 Although in the authorities cited, the cases of supervening disease 

 and accident are not 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 performing that which might 

 be reasonably 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." Weightman, J.: "If the con- 

 genital defect had merely a tendency to produce unsoundness so 

 as not to render the animal unfit for present reasonable use, the 

 dicta cited might apply; but here the congenital defect had 

 actually rendered the horse unfit for the reasonable use for which 

 a horse may be employed. An actual defect is not the less un- 

 soundness that it has existed from the birth." Erie, J. : "I think 

 the direction perfectly right. The animal had a defect of vision 

 which diminished his natural usefulness at the time of sale; that, 

 I am of opinion, was a breach of warranty ; and I dissent from the 

 proposition that no congenital defect can come within the definition 



