198 
VETEll! NARY JURISPRUDENCE. 
last, tliat this horse was a ‘‘whistler,” because he had no opportunity of 
trying him. 
Mr. Spooner and Mr. Varnell, Professors at the Veterinary College, 
stated that they examined the horse in May, and found that it was a 
“ whistler,” and they thought the disease was not of recent development, 
but must have existed for some months. Mr. Spooner was of opinion 
that the “whistling” did not come on from paralysis of the nerves after the 
4th of April, or, at all events, such a case would be a very exceptional one. 
For the defence it was urged that no warranty was given at the time 
of the sale, and that the defendant then believed that the horse was sound ; 
that the illness of the horse before the purchase had been much exagge¬ 
rated, and the blemish in the neck, arising from bleeding, had been seen 
by Mr. Quartermaine before the sale. Colonel Morris had given direc¬ 
tions to the livery-stable-keepers to sell the horse for 250/., but not to 
warrant it, although he fully believed it to be sound. 
The Defendant said that he bought the horse in 1861, from Mr. Sewell, 
of Pimlico, and gave 105/. for it. It was then rising four years old. He 
bought it for riding, but latterly used it in a brougham. A very short 
time after he bought it the horse was attacked with strangles, and it also 
suffered from lameness. Last March the horse was also taken ill, and 
Mr. Williams, who was called in, said it had slight congestion of the lungs, 
advising mustard poultices, but defendant had the horse bled, and it soon 
got well. He denied altogether having told the plaintiff that he had 
bought the horse in Yorkshire, or that it was as sound as any horse in 
the kingdom. He did not allege that the horse had always been sound, 
but only said that, so far as he knew, the horse was sound, and that if 
plaintiff was not satisfied he had better take it to Mr. Mavor, or any 
other veterinary surgeon, and have it examined. Plaintiff never, as he 
represented, said to him, “ Of course you warrant the horse sound?” 
After the sale he saw the plaintiff, who expressed himself satisfied with 
the horse, and said he was able to make it step considerably higher than 
when he first had it. Defendant contradicted the statements made by 
the plaintiff and his son as to the alleged warranty, and declared that 
Mr. Quartermaine never asked for a warranty, and that nothing was said 
about a warranty. 
The Defendant'8 groom corroborated, in some material points, the state¬ 
ment of Colonel Morris, and several livery-stable-keepers and horse- 
dealers were called to prove that the horse had not been seriously ill in 
March, and that, so far as they had observed it, having had opportunities 
of doing so, they had not noticed the alleged unsoundness. 
It was also contended, on the part of the defendant, that the “ whistling” 
spoken to by the veterinary surgeons might have originated in a sudden 
attack of nerve-paralysis, which the animal might have had after the sale 
to Mr. Quartermaine. 
The Lord Chief Justice, in summing up, said the questions for the jury 
to consider were—first, whether there was a warranty of soundness at the 
time of the sale; secondly, whether the horse was unsound then ; and, 
lastly, whether the horse was unsound at all. He did not remember a 
more painful case of the kind, for it was impossible to reconcile the testi¬ 
mony of the adverse parties by any of those rules to which the Court was 
always too happy to resort with a view to reconcile opposing testimony. 
It was difficult to conceive here that there could be such mistake, or mis¬ 
conception, or want of recollection, on either side, as would account for 
the discrepancies in the evidence ; and it must, therefore, be left to the 
jury to determine which of the parties—Mr. Quartermaine and his son, 
or Colonel Morris—was telling the truth. 
