634 LEGAL DEPARTMENT. 



was proved that the horse was lame at the time of sale, but the defend- 

 ant undertook to prove that the lameness 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 ren- 

 dered him unfit for present service. It is not necessary that the dis- 

 order 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 subsequently is no defense to the action." 



This doctrine has long been followed in Ontario and some of the other 

 provinces. Oliphant in his work on horses says : ' ' We may define a 

 horse to be sound when he is free from hereditary disease, and in the 

 possession of his natural and constitutional health, and has as much bod- 

 ily perfection as is consistent with his natural formation. ' ' 



The rule as to unsoundness is, that if, at the time of sale, the horse 

 has any disease which actually does diminish the natural usefulness of 

 the atnimal so as to make him less capable of work of any description, 

 or which in its ordinary progress will diminish the natural usefulness 

 of the animal, or if the horse has, either from disease or from accident, 

 undergone any alteration of structure that either actually does at the 

 time or in its ordinary effects will diminish the natural usefulness of the 

 horse, such a horse is unsound. This rule applies to cases of disease and 

 accident which from their nature are only temporary, it not being nec- 

 essary that the disorder should be permanent and incurable. 



The horse suffering from acute disease such as fever, inflammation, etc. , 

 would be beyond dispute unsound during the time he is affected by 

 them. 



A vice is a bad habit, and a bad habit to constitute a ^■ice must either 

 be shown in the temper of the horse so as to make him dangerous or 

 diminish his natural usefulness, or it must be a habit decidedly injurious 

 to his health. (Scholfield v. Robb, 2 M. & R. 210.) 



Whether a certain thing renders a horse unsound depends on circum- 

 stances. For instance : if a horse had a slight pimple on the skin, it 

 would not amount to an unsoundness, but even if such a thing as a pimple 

 were on some part of the body where it might have the effect of impair- 

 ing its natural usefulness, as, for instance, on the part which would pre- 

 vent the putting a saddle or bridle on the animal it would be different. 



