VETERINARY JURISPRUDENCE. 
517 
have the horse examined by Mr. MTntosh, and sent him a cheque the 
next day. He also says that before the horse came to Dumfries the 
defender had told him that Mr. MTntosh was to examine the horse, and 
that he “ may have told that to the pursuer.” 
From all this it appears that the pursuer was quite aware that before 
he got the price of the horse it was to be examined, and the irresistible 
inference is that it was because there was a warranty. Further, when¬ 
ever the pursuer knew that the defender rejected the horse as unsound, 
he got veterinary surgeons to examine it, a thing which there was no 
occasion for him to do if he sold the horse without warranty. 
It was urged for the pursuer that the warranty is not proved, because 
the two witnesses do not state it in precisely the same words. Reference 
was made to the Mercantile Law Amendment Act, and to the cases of 
Robeson v. Waugh (2 Rette, page 68) and Mackie v. Riddell (2 Rette, 
p. 115). The defender’s is as follows: “Ithen asked the pursuer if 
lie would warrant the horse sound in every way, and he said that he 
would warrant him sound in every way, and that if he did not know 
him to be so he would not sell him to me.” 
Mr. Berwick says : “ In the course of conversation in the house, 
defender asked pursuer if he would warrant the horse sound and right 
in every respect, and he said that certainly he would, and that if he was 
not all correct he would not put him in his hands.” The Sheriff-substitute 
is of opinion that these versions agree so substantially as to meet all the 
requirements of law in reference to a verbal warranty. 
It was also urged that even if a general warranty of soundness was 
given the injured fetlock was necessarily excepted, because it was seen 
and even pointed out to the defender ; and there is a plea on record to 
the following effect: “ The defender having been made aware of the 
thickening of the skin of the fetlock by the pursuer prior to the sale, 
is barred from objecting thereto after having taken delivery of the 
horse.” The answer to this is that the defender did not reject the horse 
for the mere external blemish here referred to, but because the injury 
was deeper than the skin, and such as he could not discover himself 
either by eye or touch. And this leads to the second and most difficult 
branch of the case, viz. the question of soundness. The conflict of 
evidence is truly puzzling. The defender has produced eight veterinary 
surgeons, including two principals of colleges, and a lecturer, and other 
practitioners of eminence, who declare that the horse is unsound. The 
pursuer has produced eight also, including a principal of a college, and 
other men of eminence, who declare that the horse is perfectly sound. 
It is alleged by defender’s witnesses that there is spavin in one hock 
and some of them sav in both hocks. In the face of the evidence brought 
for the pursuer, the Sheriff-substitute is unable to find out whether the 
horse has spavin or not, and as the burden of proof lies upon the 
defender he has failed to establish this cause of unsoundness. 
But in regard to the injured fetlock, the Sheriff-substitute has had 
less difficulty in coming to a decision, although, on this point also, the 
evidence is most conflicting. He does not think it necessary to analyse 
the evidence at any length, because he has not based his decision upon 
anything except certain facts which he considers proved, and which 
theoretic evidence, or evidence of facts applicable to a latter date, 
cannot disprove. 
The defender says : “ Mr. MTntosh came on the morning of 2nd 
February, and found the thickness of the hind leg much increased. I 
had noticed this myself.” John Craven says : “ I was again present on 
Monday morning when Mr. MTntosh again examined the horse. The 
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