182 



PLEADING, EVIDENCE AND DAMAGES. 



Evidence as 

 to unsound- 

 ness. 



Matter of 

 fact alone. 



Either fact 

 or reterinary 

 opinion. 



Both fact and 



veterinary 



opinion. 



Veterinary 

 opinion alone. 



Evidence as 

 to vice. 



Evidence as to 

 unfitness. 



refuse to do so if applied to before the trial ; and the Court 

 of Common Pleas held that if the defendant wishes to 

 ascertain the nature of the unsoundness, he should take 

 out a summons for that purpose («'). 



As there are a variety of particular causes of nnsoitncl- 

 ness (k), the proof of it will vary according to the circum- 

 stances of the case. 



There are some cases which merely depend upon evi- 

 dence as to a certsdn fact ; for instance, a horse after sale is 

 discovered to be lame from a curb (/), and a person giving 

 his evidence on the part of the plaintiff, must actually have 

 seen the curb, either before or at the time of sale. 



Other cases may be proved either by evidence as to a 

 certaiji fact, or by veterinary opinion. As where the buyer 

 discovers a spavin («?) after sale, he must either prove its 

 existence before or at the time of sale by some one who 

 had then actually seen it, or he must produce veterinary 

 testimony to show that from its present appearance it must 

 have then existed. 



Other cases, again, may be compounded both of fact and 

 veterinary opinion ; as where a horse has a splint (w) and is 

 lame, the question is whether the present lameness (o) 

 proceeds from the splint ; and if it does, whether the splint 

 actually existed or must have existed before or at the time 

 of sale. 



Or a pure question of veterinary opinion may arise, as 

 where there is a dispute whether a horse is spavined {p) or 

 not ; or where the natural appearance of a horse's hock 

 is altered, and it is doubtful whether it is merely a capped 

 hock (§■), or a material alteration in the structure of the 

 hock joint. 



The proof of an alleged vice (r) may depend upon evi- 

 dence of the fact of its having existed before or at the time 

 of sale ; or upon proof of the existence of a certain habit 

 before or at that time, and then upon veterinary opinion as 

 to the effect of it. 



The unfitness (.s) for the purpose for which the horse was 

 bought must be clearly proved ; as, for instance, where a 



(i) Atterbury v. Tairmanner, 8 

 Moore, 33. 



(k) See Unsoundness and Vice, 

 ante, Chap. IV. 



U) Curb, ante, p. 77. 



hn) Spavin, ante, p. 94. 



(n) Splint, ante, p. 94. 



(o) Lameness, ante, p. 83. 



{p) Spavin, ante, p. 94. 



Iq) Capped Hocks, ante, p. 71. 



()■) See Unsoundness and Vice, 

 ante, Chap. IV. 



(s) Geddes v. Pennington, 5 Dow, 

 164. See Buckingham v. Meeve, ante, 

 p. 117. 



