518 
VETERINARY JURISPRUDENCE. 
fetlock was more swollen than it had been on the Saturday. The horse 
had received no injury to cause this in the interval.” 
Mr. MTntosh says: “ I found the fetlock-joint much enlarged, con¬ 
siderably more so than on Saturday, and the horse showed slight lame¬ 
ness in that leg. The lameness passed off after the horse had been run 
for a short time.” And then he proceeds very minutely to describe the 
symptoms of unsoundness which he found on examination. Now, here 
are three witnesses who speak to a fact which requires no professional 
skill to discover. If there had been no swelling produced by the ex¬ 
ercise, the Sheriff-substitute would have had to balance the professional 
evidence alone, and the task would have been more difficult. It is to be 
kept in view that the defender was pleased with the horse and meant 
to keep it, provided it was passed as sound by Mr. MTntosh. There 
was therefore no reason for either of them trying to make out a ground 
for returning the horse. Defender was even willing to keep the horse 
if afterwards Professor M c Call had pronounced it sound. How does 
the pursuer get over this evidence ? In the first place, he has called 
veterinary surgeons, Mr. Paterson and Mr. Tait, who examined the 
horse on the 3rd February, one day later than Mr. MTntosh. Mr. 
Paterson’s evidence to some extent confirms that of Mr. MTntosh. He 
says : “ There was a slight enlargement of the hind fetlock, which was 
principally caused by a thckening of skin. I could not detect any injury 
to the tendon, but there was a slight fluctuation under the skin indicat¬ 
ing the presence of synovial fluid.” 
"This is spoken of by all the witnesses as an indication of inflammation. 
Mr. Tait says that he saw no indication of this, and that the horse was 
sound. Mr. Paterson at first said, “I considered the horse sound for all 
practical work, and would neither have rejected him myself nor recom¬ 
mended a client to do so,” and afterwards that he was perfectly sound. 
It must be remembered that neither of these gentlemen had seen the 
horse before that day, at least after it came into defender’s pos¬ 
session, and therefore had no means of telling whether exercise had had 
any bad effect, and neither of them saw the horse ridden or driven. 
The next person who examined the horse on behalf of the defender was 
Professor M‘Call, and he subjected it to a similar test as did Mr. 
MTntosh. After examining him he declined to give a decided opinion 
until he “ had the horse galloped, and seen what the result would be the 
next morning.” This was done, and the next morning he “ found the 
fetlock-joint more enlarged than on the previous day, and the horse 
decidedly lame.” 
None of the pursuer’s witnesses put the horse to any such test, at 
least till long after this, and many of them examined it so long after that 
their evidence is useless to contradict the evidence above referred to. 
The dogmatic, conceited way in which some of them delivered their 
opinions, and the testy manner in which they resented cross-examination 
gave them more the appearance of partisans than skilled witnesses. The 
question then, as the Sheriff-substitute views it, is this, was the defen¬ 
der, having received a warrant of soundness, obliged to keep a horse 
whose injured leg became swollen whenever it was used, and who as a 
consequence was stiff or lame the next day ? He thinks not. The 
defender was entitled to have a horse of which he could get the full 
use, and he was not bound to wait until he got better, which might very 
likely be the case after rest and the use of remedies. It is mentioned 
that the horse is all right now. That may be so, and the Sheriff-sub¬ 
stitute has given no decision upon that point. But the defender was not 
bound to keep the horse to see if it got better. This principle was 
