94 SALE AND MORTGAGE. 



make a horse unsound. If it was only accidental and tem- 

 porary, it would not be a breach of warranty; but if it was 

 chronic and permanent, arising from causes which were be- 

 yond the reach of immediate remedies, it would be clearly a 

 case of unsoundness." ^** Lord Ellenborough's rule is, 

 doubtless, the better one. 



Crib-biting has been held not to be an unsoundness, the 

 court saying : "It is a curable vice in its first stages, and this 

 horse was only proved to be an incipient crib-biter. It is a 

 mere accident arising from bad management in the training 

 of a horse, and is no more connected with unsoundness than 

 starting and shying." ^** Where it has not yet produced dis- 

 ease or alteration of structure, though not an unsoundness, 

 it is a vice.^** But in an American case it was held that 

 where it affected the health and condition of a horse so far as 

 to render him less able to perform service and of less value, it 

 was an unsoundness.^*^ 



A cough at the time of the sale, if it renders the horse less 

 useful, is an unsoundness;^** otherwise, of a cold that does 

 not af¥ect his general health. ^*^ 



Roaring was held not to be an unsoundness in a horse un- 

 less it were shown to proceed from some disease or organic 

 defect.i^" But in a later case Lord Ellenborough held roar- 



"* Brown v. Bigelow, lo Allen (Mass.) 242. 



"" Broennenburgh v. Haycock, Holt, 630. Kicking is also a vice: 

 Oliph. Horses (sth ed.) 83. 



"° Scholefield v. Robb, 2 M. & Rob. 210, cited also in § 33 supra, q. v.; 

 Paul V. Hardwick, i Chit. Contr. nth Am. ed. 655; Oliph. Horses 76. 



"'Washburn v. Cuddihy, 8 Gray (Mass.) 430. See Walker v. Hois- 

 ington, 43 Vt. 608, where the point is left undecided. 



In Hunt V. Gray, 35 N. J. L. 227, 234, it is said: "In some of the Eng- 

 lish decisions it is held that this is a vice, and not an unsoundness. It 

 would appear that the learned on this subject are not entirely agreed." 



"' Lord Ellenborough in Elton v. Jordan, I Stark. 102, quoted in § 33, 

 supra, q. v.; Coates v. Stephens, 2 M. & Rob. 157. And see Shillitoe v. 

 Claridge, 2 Chit. 427. 



"" Springsteed v. Lawson, 14 Abb. Pr. (N. Y.) 328. And see Bolden v. 

 Brogden, 2 M. & Rob. 113. 



"' Bassett v. Collis, 2 Camp. 523, per Lord Ellenborough. 



