590 LEGAL DEPARTMENT. 



Some of our States follow the English rule, which seems logical and 

 reasonable, and that is: Any infirmity which renders an animal unfit 

 in any degree for present use, is unsoundness. In the case of Elton v. 

 Brogden, 4 Camp. 281, it was proved that the horse was lame at the 

 time of the sale, but the defendant undertook to prove that the lame- 

 ness was of a temporary nature, and that the animal had become 

 sound. The presiding justice said: " I have always held, and hold 

 now, that a warranty of soundness is broken if the animal at the time 

 of sale had any infirmity upon him which rendered him less fit for pres- 

 ent service. It is not necessary that the disorder should be permanent 

 or incurable. While a horse has a cough he is unsound, whether that 

 proves temporary or mortal. The horse in question having been lame 

 at the time of sale, when he was warranted sound, his condition subse- 

 quently is no defense to the action." 



This doctrine has long been followed in Massachusetts and some of 

 the other States. In Brown v. Bigelow, 10 Allen, 242, it was held that 

 the bill of sale of one horse, sound and kind, is a guaranty of sound- 

 ness, upon which the person who sold the horse is liable if the horse 

 prove to be permanently lame, although the purchaser knew he was 

 lame before he purchased the animal, and the seller then refuses to 

 give a warranty. The chief justice said: "The doctrine that the 

 warranty of soundness does not include or cover obvious defects, rests 

 on the reasonable presumption that the parties could not have intended 

 the warranty to apply to the defect rendering the horse unsound, which 

 was seen and known to both parties at the time of the sale, but here 

 the appearance of the horse did not disclose actual unsoundness, the 

 unsoundness was not apparent. Lameness may or may not make a 

 horse unsound. If it was only accidental and temporary, it would not 

 be a breach of v/arranty, or if it was permanent, arising from causes which 

 were beyond the reach of immediate remedies, it would be clearly a case 

 of unsoundness. The reasonable inference is that the warranty was 

 intended to guard against the liability of loss, in the event that the 

 lameness proved permanent and serious." In N. H., Judge Woods, in 

 Roberts v. Jenkins, 21 N. H. 116, said: " If the horse be afflicted 

 with an infirmity which renders him less fit for immediate use than he 

 otherwise would be, less able to perform the proper and ordinary labor 

 of the horse, it would seem but reasonable that it should be regarded 

 as an unsoundness, if the party selling the horse warranted its sound- 

 ness, he should be held responsible. Such an infirmity may well be 



