VETERINARY JURISPRUDENCE. 
627 
defendant for breach of warranty. The horse being found entirely 
unsuitable, Lord Churchill sought first to return the horse to Mr. 
Topham, who very properly said that he had nothing to do with the 
warranty of the horse, and that the plaintiff must go to the defen- 
dant. The horse was sold by auction to Mr. Joseph Toilet for 
£22 Is. — a difference of £57 19s. on the original price. Then 
there was the carriage from York to Oxford ; the fees paid to the 
veterinary surgeons, about £8 ; the keep of the horse till sold, £5 
5s . ; and last the fee paid to the defendant — all put together making 
a total of £80 3s. 3d. As to the last item he did not know how 
much of it his learned friend would claim in respect to the other 
horse with which Mr. Day had to do, and which had turned out all 
right. The defendant was in this dilemma— he was either most 
careless in his examination, or he was grossly ignorant in his pro- 
fession. In either case bis client had a right to recover. 
Mr. Powell said he would take the damages from his Lordship ; 
all they desired to try was the question of liability. 
Lord Randolph Churchill said he generally resided with his father, 
the Duke of Marlborough, at Blenheim Palace. On the 1 9th Decem- 
ber last he was at York, and saw Mr. Topham, with whom he ne- 
gotiated for two horses. One was a brown gelding. He asked 
£120 for it. He took Mr. Day, who had been recommended to 
him, with him to see it. He never asked Mr. Topham about the 
condition of the horse. He told Mr. Day he should buy the horse, 
if he (defendant) would pass it sound. Mr. Day had examined two 
other horses in a yard where a sale was going on. Defendant 
examined the horse there and then. He told Mr. Day he would 
give .£80 for the gelding if it was sound. Defendant left York that 
night, but before he left Day at the station, told him Topham would 
not accept the £80. Witness said perhaps Topham might alter 
his mind, and he had better let him know. After telegrams between 
witness and Day, he met Day at the station on the 22nd. (On the 
20th December Day telegraphed that £80 had been accepted and 
Lord Churchill told him to take the horses to his stables and look 
well after them.) On the 22nd Day produced the certificate pro- 
nouncing the gelding “ sound in every respect;” witness gave him 
a cheque for the horses and his own fee, 5 gs. About ten days 
after he saw the gelding walked and run out at Blenheim ; Colonel 
Thomas was present. Witness saw the unsoundness in the hocks. 
He afterwards gave directions, and it was sold by auction. Mr. 
Wadlow, Mr. James, and Mr. Sabin had examined the horse. 
Cross-examined. — Mr. Day was with witness and Mr. Yeoman 
looking for horses. He gave him £5 5s., meaning to include his 
examination and trouble. He said his fee for each examination was 
1 0s. Witness looked at the horse on the first occasion. It was 
extremely cold later on. He presumed the horse travelled from 
York to Oxford by train. Looking at the letter produced, he re- 
membered that the certificate was sent by Mr. Day in answer to 
a letter dated 1st January. Mr. Wadlow examined the horse 
with others on its arrival at Oxford, in pursuance of special in- 
