472 
VETERINARY JURISPRUDENCE. 
the plaintiff. He stated the case of his client to be, that he 
had made a bona fide and reasonable sale of horses, and that 
he had qualified his statement to the defendant as to their 
soundness, by giving it subject to the opinion of a veterinary 
surgeon. Having observed upon the evidence and characters 
of the witnesses by whom the evidence had been given, the 
learned counsel referred to Oliphant on the law relative to 
horses, to show that “ even the positive recommendation of a 
seller was not, from the nature of the case, to be regarded as 
a warranty, but merely an expression of his belief or opinion 
on a matter on which he could have no certain knowledge,” 
and that if a warranty were given without a qualification, that 
warranty bound the person by whom it was given ; but if the 
qualification were given, it was not a warranty but a repre- 
sentation. Counsel also cited cases in 1st Starkie and 4th 
Campbell, to show that unsoundness meant any present infir- 
mity which rendered a horse less useful. He also commented 
on the absence of Mr. James Farrell and Mr. William Dycer, 
both of whom, he was justified in saying, would have corrobo- 
rated the opinion of Mr. Watts. The case of the plaintiff was, 
that the horses had been sold, subject to the opinion of Mr. 
Watts, which opinion was to the effect that the horses were 
sound ; they had, likewise, as to the contract, the evidence 
of Mr. Foote, Mrs. Foote, Mr. Revell, and the conduct of the 
parties in reference to that contract. In conclusion, the learned 
counsel said that there was one observation which he wished 
to make — namely, that one of the issues reflected upon Mr. 
Foote, as being aware that the horses were unsound at the 
time he sold them : on the former occasion, that issue was 
abandoned. He (counsel) did not know what the defendant’s 
counsel intended doing upon the present trial. 
Mr, O' Hagan, Q. C., said that he had not pressed that view 
of the case, and did not mean to rely upon it. 
The Chief Baron charged the jury. His lordship read the 
issues v T hich raised these questions for the consideration of the 
jury — Was there an agreement; if so, what was its nature? 
Was the sale of the horses subject to the opinion of Mr. 
Watts? Did the plaintiff give a general warranty ? As to 
the issue ascribing to the plaintiff a knowledge of the un- 
soundness of the horses, the jury need not trouble themselves 
with it ; they should find for the plaintiff upon that issue ; but 
as to that issue there w ? as no controversy, and it had not been 
pressed upon the present or previous occasion. There, how- 
ever, was a controversy as to the w ords and meaning of the 
contract, and it would be their duty to w 7 eigh the testimony 
that had been given. As to a general usage it w as this — a 
