90 SALE AND MORTGAGE. 



a horse at the sale not calculated to diminish permanently his 

 usefulness, and from which he ultimately recovers, is not an 

 unsoundness. The horse in that case had influenza but recov- 

 ered before the trial. This opinion, however, is opposed to 

 that universally held at present. Lord Ellenborough said in 

 Elton V. Jordan: "To constitute unsoundness, it is not es- 

 sential that the infirmity should be of a permanent nature ; it 

 is sufficient if it render the animal for the time unfit for service, 

 as, for instance, a cough, which for the present renders it less 

 useful, and may ultimately prove fatal. Any infirmity which 

 renders a horse less fit for present use and convenience is an 

 unsoundness." ^^^ 



So in Coates v. Stephens,^^^ Parke, B., said: "I have al- 

 ways considered that a man who buys a horse warranted 

 sound, must be taken as buying for immediate use and has a 

 right to expect one capable of that use, and of being imme- 

 diately put to any fair work the owner chooses. The rule as 

 to unsoundness is that, if at the time of the sale the horse has 

 any disease, which either actually does diminish the natural 

 usefulness of the animal, 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 accident, undergone any al- 

 teration 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." And he said in Kiddell 

 V. Burnard,^23 "j ^i^jj^]^ ^j^^ ^^^.^ -sound' means what it ex- 

 presses, namely, that the animal is sound and free from disease 

 at the time he is warranted to be sound. If, indeed, the dis- 

 ease were not of a nature to impede the natural usefulness of 



was held that a horse is not unsound because he labors under temporary 

 injury from an accident, as here from lameness in one leg. 



'"' I Stark. 102. And he spoke to the same effect in Elton z: Brogden, 

 4 Camp. 281. See also Kornegay v. White, lo Ala. 255 (the case of a- 

 slave). 



"''2 M. & Rob. 157. And see Scholefield v. Robb, Ibid 210 



='=9 M. & W. 668. 



