b« WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE. 



ness cannot be applied to any of these ; it would be opening 

 far too widely a door to disputation and endless wrangKng. 

 The buyer can discern, or ought to know, whether the form 

 of the horse is that which will render him likely to suit his 

 purpose, and he should try him sufficiently to ascertain his 

 natural strength, endurance and manner of going {h). 

 Important The following is a most important case on unsoundness in 



imsoundiiess animals : — An action of assumpsit was brought on the 

 warranty of three bullocks, and under the direction of 

 Mr. Justice Erskine at the trial, a verdict was found for 

 the plaintiff. In refusing a rule for a new trial, Mr. Baron 

 Parke said, " The rule I laid down in Coates v. Stephens («') 

 is correctly reported, that is the rule I have always adopted 

 and acted on in cases of unsoundness : although, in so doing, 

 I differ from the contrary doctrine laid down by my brother 

 Coleridge in JBoklen v. Brogden (,;' ) : — 



" I think the word ' sound ' means what it expresses, 

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

 the time he is warranted sound. If, indeed, the disease 

 were not of a nature to impede the natural usefulness of 

 the animal for the purpose for which he is used, as, for 

 instance, if a horse had a slight pimple on his skin, it would 

 ■not amount to an unsoundness ; but even if such a thing as 

 a pimple were on some part of the body where it might 

 have that effect, as, for instance, on a part which would 

 prevent the putting a saddle or bridle on the animal, it 

 would be different." 



" An argument has, however, been adduced from the 

 slightness of the disease and the facility of cure ; but if we 

 once let in considerations of that kind, where are we to 

 draw the line ? A horse may have a cold which may be 

 cured in a day ; or a tever, which may be cured in a week 

 or a month ; and it would be difficult to say where to stop. 

 Of course, if the disease be slight, the unsoundness is pro- 

 portionably so, and so also ought to be the damages : and 

 if they were very inconsiderable, the judge might still 

 certify under the statute of Elizabeth (k), to deprive the 

 plaintiff of costs." 



" But on the question of law, I think the direction of 

 the judge in this case was perfectly correct, and that this 

 verdict ought not to be disturbed. Were this matter pre- 



(A) Lib. U. K. "The Horse," ness,'' ante, p. 63. 

 361. (7) Solden v. Brogden, 2 M. & 



(i) Coates v. Stephens, 2 M. & Eob. Rob. 113. 

 137 ; and see " fiule as to Unsound- (Jc) 43 Eliz. 0. 6, s. 2. 



