WHAT CONSTITUTES UNSOUNDNESS. 93 



the question of unsoundness is one peculiarly fit for the jury 

 and the court will not set aside a verdict on account of a pre- 

 ponderance of contrary evidence.^ ^^ 



34. Specific Forms of TJnsoundness — Mere badness of shape 

 though rendering a horse incapable of work is not unsound- 

 ness. "As long as he was uninjured, he must be considered 

 sound. When the injury is produced by the badness of his 

 action, that injury constitutes an unsoundness." ^^^ There- 

 fore, a defective formation which has not produced lameness 

 at the time of the sale, though it may render the horse more 

 liable to become lame at some future time (as, for example, 

 "curby-hocks" or thin soles) is not an unsoundness.'^® But 

 a malformation of a less obvious kind existing from birth and 

 rendering the horse less fit for reasonable use at the time of 

 sale, such as an extraordinary convexity of the cornea of the 

 eye, producing short-sightedness, as a result of which the ani- 

 mal is liable to shy, has been held an unsoundness.'^^ So is 

 the want of an eye,'*® and a cataract,'^® and glaucoma.''"' 

 And the plaintifif has been held not guilty of contributory 

 negligence so as to defeat recovery where he uses the animal 

 so as to increase the injury to the eye.'*' 



Temporary lameness rendering a horse less fit for present 

 service is an unsoundness.'*^ So a horse is unsound when 

 one of its legs is weaker than the others.'** It is said, how- 

 ever, in a Massachusetts case: "Lameness may or may not 



™ Lewis V. Peake, 7 Taunt. 153. 



"° Dickinson v. Follett, i M. & Rob. 299. 



™ Brown li. Elkington, 8 M. & W. 132; Bailey v. Forrest, 2 C. & K. 131. 



"' Holliday v. Morgan, i El. & El. i. 



"" Butterfield v. Burroughs, i Salk. 211; House v. Fort, 4 Blackf. (Ind.) 

 293. 



"° Higgs V. Thrale, Oliph. Horses (sth ed.) 67. 



"" Settle V. Garner, Oliph. Horses 81. 



'" Riddle I'. Webb, no Ala. 599. 



"^ Elton V. Brogden, 4 Camp. 281, per Lord Ellenborough. 



"' Elton V. Jordan, i Stark. 102. And see the extract from Lord Ellen- 

 borough's charge in § 33, supra. 



