DEFINITION OF UNSOUNDNESS. 707 



does at the time, or in its ordinary effects will diminish the 

 natural usefulness of th^horse, such a horse is unsound." 



A fault of conformation — '' turned-out toes," for instance — which 

 does not unfit a horse for present work, however much calculated 

 it may be to do so in the future, is not unsoundness. If, on 

 the contrary, it interferes with the horse's present usefulness, it 

 is unsoundness. The following will explain this point : — " A 

 defect in the form of the horse, which had not occasioned lameness 

 at the time of sale, although it might render the animal more 

 liable to become lame at some future time, was not a- breach of 

 the warranty " (Lord Chief Baron Abinger in " Brown v. Elking- 

 ton," '-Meeson and Welsb/s Reports," vol. 8, p. 132). "The 

 horse could not be considered unsound in law merely from badness 

 of shape. 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 unsoundness " (Mr. Baron Alderson, " Dick- 

 enson. v. FoUett," "Moody and Robinson's Reports," vol. 1, p. 299). 

 Respecting the case of " Holyday v. Morgan " (" Law Journal," 

 vol. 28, part 2, p. 9, New Series), which was an action for breads 

 of warranty of the soundness of a horse that had the habit of 

 shying on account of excessive convexity of the cornea, Lord 

 Campbell, C.J., ruled as follows : — " I am of opinion that the direc- 

 tion of the learned Common Serjeant was wholly unexceptionable, 

 being in effect that if the shying arose from malformation of the 

 eye, that was unsoundness, although the defect was congenital 

 Although in the authorities cited, the cases of supervening disease 

 and accident are not alone mentioned, yet it is not from thence 

 to be assumed that the learned judges would have said that if a 

 congenital defect had been found to exist, there would not have 

 been a breach of the warranty of soundness, the defect being such 

 as to prevent the animal from performing that which might be 

 reasonably expected from him. Suppose a horse to be born blind 

 or with a contracted foot, surely that would be a breach of warranty 

 of soundness, although the deficiency or defect existed before the 

 animal was foaled." Weightman, J. : " If the congenital defect 

 had merely a tendency to produce unsoundness so as not to render 

 the animal unfit for present reasonable use, the dicta cited might 

 apply; but here the congenital defect had actually rendered the 

 horse unfit for the reasonable use for which a horse may be 

 employed. An actual defect is not the less unsoundness that it 

 has existed froin the birth." Erie, J. : "I think the direction per- 

 fectly right. The animal had a defect of vision which diminished 

 his natural usefulness at the time of sale; that, I am of opinion, 

 was a breach of warranty; and I dissent from the proposition 

 that no congenital defect can come within the definition of un- 



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