289 
Vtttvimvv! SuriepniUenc^, 
IS TEMPORARY DISEASE UNSOUNDNESS? 
Warranty of a Horse.—Topham v. Milling. 
Mr. Newton, clerk to Mr. Hostage, solicitor, at Northwich, 
said he was, on the llth of November, at a public-house at Dun- 
hara-on-the-Hill. Mr. Topham and Mr. Milling were there. 
They were speaking of exchangins: horses, and both of them said 
they had agreed to do so. Mr, Topham was to give £25..10s 
and his bay mare, which he rated at£9..L0s value, to Mr. Mill¬ 
ing for his brown horse, on certain conditions, viz. that Mr. Top¬ 
ham was to take the horse, and give him a fair trial, and 
Milling w'arranted him sound in every respect; and, besides w'ar- 
ranting him sound, if Mr. Topham did not like him after trial, 
Milling would take him back, and return the £25..10s and the 
mare, or the value that Topham put upon her. Milling said that 
the horse would trot ten or twelve miles an hour, and he had 
come a distance of five miles that day in half an hour. Witness 
went home with Mr. Topham in his gig. Mr. Topham drove 
the horse to Northwich; the way they went was about eighteen 
miles from Dunham; the horse was driven at a very moderate 
pace, and they were about three hours and a half performing the 
journey. 
On cross-examination, he said he did not hear defendant say 
to plaintiff when they were making the contract for the sale of 
the horse, take him to Youde, the farrier, and let him be ex¬ 
amined ; don’t take my word for it.” The defendant said the 
gelding was perfect in all respects, and a good hunter. They 
had drunk a little gin and water, but all the parties were quite 
sober. 
J. T. Mainwaring lives with Mr. Topham; is a ward of his; 
is very fond of horses; he recollected Mr. Topham bringing 
home the brown gelding, and went to look at him: he did not 
look very well ; he looked poorly ; he put his head under the 
manger; there was food in the manger, but he did not feed so freely 
as he ought to do, or like another horse. Went to him the next 
morning, but he had not eaten his food, and did not look well 
then; he was a very bad feeder; witness exercised him almost 
every night for about a quarter of an hour; he stumbled very 
much, and was much frightened at any thing he met on the road. 
He made a great noise in breathing when he was trotting. Mr, 
Holford examined him about a week afterwards, who gave wit- 
VOL. viii. R r 
