LEGAL DEPARTMENT. 635 



The question of vice or soundness is purely a jury question, and in 

 judging of it the jury must consider whether a horse warranted sound was 

 at the time of delivery unfit for immediate use to an ordinary person. 



Lameness, temporary or permanent, constitutes unsoundness. The 

 law in regard to temporary disease is laid down in the following case : 

 On the trial of an action on the warranty of a horse, where evidence was 

 very contradictory, but a witness of the defendant's admitted that he had 

 bandaged one of the fore legs of the horse, but not the other, because 

 the one was weaker than the other. Lord EUenborough used practically 

 the same words as in the case of Elton v. Brogden cited above. "To 

 constitute unsoundness, it is not essential that the infirmity should be 

 of a permanent nature. " In a previous case it was said to have been 

 held that a warranty that a horse is sound is not false because a horse 

 labors under a temporary injury from an accident at the time the defend- 

 ant warranted it sound. But the warranty there appears to have been a 

 qualified one, because, when bargaining, the plaintiff observed that the 

 mare went rather lame on one leg. The defendant replied that it had 

 been occasioned by her taking up a nail at the farrier's and, except as to 

 that lameness, she was perfectly sound. 



WHAT CONSTITUTES A WARRANTY. 



It is not necessary that any particular form of words should be used to 

 create a warranty. The word "warrant" may not be used at all, nor 

 the word ' ' soundness. ' ' Thus : The seller of the horse who says he is 

 all right in every respect, or similar words, indicates and expresses a war- 

 ranty. A statement at the time of sale of the horse that the animal 

 is of specified age is a warranty that he is no older, but any statement 

 that he is sound and right, or sound and perfect, will include a warranty. 

 The statement that a horse is well broken might or might not include a 

 warranty of gentleness, and the statement that the horse is sound every 

 way, perfecdy gentle, would not be a guaranty that the horse is well 

 broken or suitable to plow or do any other particular work. The war- 

 ranty should not be construed beyond its reasonable signification, thus : 

 A bill of sale of one gray horse five years old, which I warrant sound and 

 kind is a warranty of soundness and kindness only, and the first expres- 

 sion is a matter of description. It is much better, both for the buyer and 

 seller, that the latter states whether he prefers to warrant or not ; because, 



