638 



LEGAL DEPARTMENT. 



he is liable for the defect. For where an action on the case was brought 

 when a horse warranted sound had turned out ' ' shoulder-tied ' ' it was 

 contended that an action would not lie because the defect was visible. 

 But Sir Henry Montague, C. J. , said : ' ' This was the ground, that the 

 plaintiff wished to have ridden the horse," but the defendant said, "I 

 will warrant him sound," and Noy, J., said, "That is the distinction, 

 where the defect is visible." (Dorrington v. Edwards, 2 Rol. 188.) 



In the United States a general warranty was held to extend to patent 

 defects, where access to the horse was prevented by the seller by 

 means of a trick, the buyer being unaware of the defect. This is un- 

 doubtedly correct, as the maxim, caveat emptor, would not apply to such 

 a case. (Margetson v. Wright, 5 M. & P. 610.) 



But to warrant a thing that may be perceived by sight is not good. 

 (Bailey v. Merrell, 3 Bulst. 95. ) 



DEFECTS WHICH CONSTITUTE UNSOUNDNESS OF HORSES. 



Glanders, corns, bone-spavins, blindness, or any organic defect, back- 

 ing when a confirmed habit, biting when dangerous, crib-biting, affecting 

 the health, have been held by various courts to constitute unsoundness. 

 Bad formation which does not produce disease or lameness at the time of 

 sale is not usually considered unsoundness. 



WATER RIGHTS. 



Every owner of land upon a natural stream of water has a right to use 

 the water for any reasonable purpose, if it does not interfere with similar 

 rights that are vested in the owners of the land above, below, or beside 

 him. He may take water to supply his dwelling or water his land, or 

 for the use of his cattle, may use it for manufacturing purposes, such as 

 running water wheels or supplying steam boilers, so long as the amount 

 taken does not injuriously affect the volume, but it is the mere privilege 

 that goes with the land and not of the water itself. If the stream is very 

 small and does not supply water more than enough to answer the natural 

 wants of the different owners living on the stream, no one of them can 

 use the water for free irrigation or manufacturing, thereby depriving the 

 other owners of its use. But for domestic purposes or watering the 

 stock he would be justified in consuming all the water. Chief Justice 

 Shaw states the general doctrine as follows : ' ' Every person through 

 whose land a flowage of water courses, such person has a right to the 



