VETERINARY JURISPRUDENCE. 
516 
portance, and before the bargin was concluded, warranted the horse 
to be sound in every way. 4. That upon the day after its arrival the 
horse was tried by being driven about fourteen miles. 5. That the effect 
of this was that on the second morning after the trial, when the horse 
was examined by a veterinary surgeon, the swelling was found to be 
considerably increased and the horse slightly lame. 6. That on the 
same day the defender intimated to the pursuer by letter, No. 10/1 of 
process, that he would not take the horse as it had been pronounced 
unsound by a veterinary surgeon. 7. That the pursuer having been 
from home did not write a reply, but called on defender on 11th 
February, when he refused to take back the horse, which was then put 
up at livery, and subsequently sold by public roup by mutual arrange¬ 
ment of the parties. 8. That the defender has not paid the price of the 
horse. Finds in law, 1. That the condition of the horse’s off hind fetlock 
at the time of sale constitutes unsoundness. 2. That the horse being 
disconform to warranty the defender was entitled to refuse to keep him 
or to pay the price. Therefore sustains the first plea in law for the 
defender. Refuses the prayer of the petition, and decerns. Finds the 
pursuer liable in expenses; allows an accoufit thereof to be given in, 
and remits the same when lodged to the auditor to tax and report. 
(Signed) David Boyle Hope. 
Note .—Three persons were present when the horse was brought, viz. 
the pursuer and defender and Mr. John Berwick. Two grooms who 
were present when the horse was looked at were examined for the pur¬ 
suer, but their evidence on the question of warranty is of no moment, 
because the sale took place in the house when they were not present, and 
it is there the defender says the warranty was given upon the faith of 
which he bought the horse. Both he and Mr. Berwick distinctly affirm 
that the pursuer warranted the horse sound in every respect, and against 
their word there is only that of the pursuer, who avers that he only said 
the horse was sound so far as he knew ; and that even from that statement 
he excepted the fetlock in question. Even if this were all the evidence 
the Sheriff-substitute could not help finding it proved that a warranty 
of soundness was given. But there are one or two circumstances which 
give a coroboration derived from inference. The defender and his clerk, 
John Clark, aver that when the pursuer called on the defender on 11th 
February, the latter said that he had bought the horse as sound, and that 
the pursuer did not deny this, but maintained that the horse was sound. 
Further, John Craven, the defender’s servant, says that when pursuer 
brought the horse to his master’s stable, he asked if he (Craven) could 
get a veterinary surgeon, as he wished him examined before he left 
Dumfries. He says he was about to go when the pursuer said he would 
go himself, and that when he came back he said that Mr. MTntosh was 
from home, and that the horse would be examined next day. The pur¬ 
suer denies that he said anything about getting a veterinary surgeon, 
but admits that “ something may have been said” by Craven about 
that. He does not, however, state what was said. Mr. MTntosh says 
that a message was left at his house that day for him to come and ex¬ 
amine the horse, but that he was from home. He does not know who 
sent or brought the message. The Sheriff-substitute does not think 
that the inference necessarily is that the pursuer gave the message. He 
rather thinks it must have been the defender (who was not asked if he 
did so), because he says that when the pursuer called on him that day 
along with Mr. Mather lie told him that Mr. MTntosh was from home. 
Mather says that the defender told the pursuer that he was going to 
