by R S Surtees
Mr. Bracey Clark, a veterinarian of considerable research and experience, says, that “The crib-biting horse has generally a lean constricted appearance, the skin being contracted about the ribs, or a sunken watery eye, or else too dry; the muscles of the face also, as well as the skin, drawn up with rigidness.
“When unemployed in eating, his almost constant amusement is to grasp the rail of the manger with his front teeth, then to draw himself up to it, as to a fixed point, by a general contraction of the head, neck, and trunk; at the same time the effort is attended with a grunting sound.”
CURBS.
A curb is a disputed point as to whether constituting unsoundness or not, without having any legal authority that I am aware of laid down on the subject.
It is a considerable swelling below the hough, rather on the outside and back part of the leg.
Mr. Mavor says he considers them unsoundness, unless it can be proved that the horse has been performing all the duties which are required of him for at least three months without producing lameness; he should then, he adds, only consider that they amount to blemishes.
CUTTING, or Interfering, arises either from excess of action, called the speedy cut, or is a sign of weakness.
I am not aware that it has ever been the cause of an action, though the case is by no means an uncommon one.
Shoeing may remedy cutting from weakness a little; but a plain leather boot is most to be depended upon, for, as Bracken observes, “a goose will always go like a goose.”
Mr. Mavor says, he does not consider cutting to constitute unsoundness if it can be prevented by shoeing or ordinary care.
HEREDITARY DISEASE
There are no cases reported wherein hereditary diseases in horses have been the subject of action. The following one, of Joliff against Bendell, relates to sheep, the verdict in which may be some guide to persons bringing actions where horses are concerned.
The sheep, one hundred in number, were sold with a warranty of soundness. At the time of the sale they were, in appearance, perfectly sound and thriving, and continued so for two months after, when one or two of them exhibited symptoms of a disease called by farmers the goggles. The sheep affected shewed signs of giddiness, swelling of the eyes, and hanging of the head. From the time they were first seized they grew weaker and weaker, and for the most part died in about a week or ten days; and, on dissection, there were signs of water in the head or brain. On the whole, about fifty of the sheep had died under the same appearances; the rest continued apparently well up to the time of trial. There was no contagion — other sheep with which they were fed and kept having continued healthy. Several farmers and others conversant with sheep were called for the plaintiff, who stated the goggles to be, in their opinion, an hereditary disease, arising from breeding in and in, or from relations; and that sheep so disordered would thrive, and seem, to be in sound health generally until two or three years old: that there were no means of discovering by the appearance, or otherwise, that sheep were so affected: that it was generally fatal, and no cure or prevention known for it, and reputed amongst farmers an unsoundness. The evidence for the defendant went to shew that the sheep were of a pedigree free from “breeding in and in.” and that others of the same sort and older were perfectly sound. The warranty was proved without dispute, and the sheep were all of the same breed.
For the defendant it was contended, that the sheep having been healthy and thriving at the time of, and for two months after, the sale, must be considered as sound at that time: that, inasmuch as there were no previous symptoms to connect the disease of which they died with their former state of health, there was nothing to shew that the disease existed at the time of sale: and that an hereditary liability to a particular disorder was of too uncertain a nature to be capable of proof, and could not be legally considered as an unsoundness existing at the time stipulated for in the warranty.
Lord Chief Justice Abbot left it to the Jury to say, whether at the time of the sale the sheep had existing in their blood or constitution the disease of which they afterwards died; or whether it had arisen from any subsequent cause?
Verdict for the plaintiff for 1201., the value of the sheep which had died, the defendant agreeing to take back the remainder.
The above case reminds me of the following lines of Lord Byron — Don Juan, Canto 1, v. 57.
“She married (I forget the pedigree)
With an Hidalgo, who transmitted down
His blood less noble than such Mood should be.
At such alliance his sires would frown,
In that point so precise, in each degree,
That they bred in and in, as might be shewn,
Marrying their cousins — nay, their aunts and nieces,
Which always spoils the breed If it increases.”
NERVING
is an operation performed upon a horse, which, while it neither renders it less fit for present use, nor is it certain of rendering him less serviceable for a permanency, has yet been decided to be a species of unsoundness; on the correctness of which decision a difference of opinion exists in the veterinary profession.
It is an operation invented by “Mr. Sewell, the Assistant Professor of the Veterinary College, of which, perhaps, I cannot give a better description than by relating the evidence adduced on a trial when the question was put in litigation.
The action was brought by Best against Osborne, and the cause was tried at Westminster in 1825.
It was proved that the horse had been nerved.
Several eminent veterinary surgeons were called, who stated that the operation of nerving consisted in the division of a nerve leading from the foot up the leg, and that it was usually performed in order to relieve the horse from the pain arising from a disease in the foot; the nerve cut being the vehicle of sensation from the foot:
That the disease in the foot would not be affected by the operation, and would go on Increasing, or not, according to its character:
That horses previously lame from the pain of such a disease would, when nerved, frequently go free from lameness, and continue so for years: that the operation had been found successful in cavalry regiments, and horses so operated upon had been for years employed in active service: but that, in their opinion, a horse that had been nerved, whether by accident or design, was unsound, and could not be safely trusted for very severe work; and that it was an organic defect. The horse in question had not exhibited any lameness.
Chief Justice Best (now Lord Wynford) told the Jury that it was difficult to say that a horse in which there was an organic defect could be considered sound; that sound meant perfect; and a horse deprived of a useful nerve was imperfect, and had not that capacity of service which is stipulated for in a warranty.
I cannot go quite the length the Chief Justice did in considering “sound’ to mean perfect I should rather say it meant perfect as far as regarded the nervous and organic system; for although a horse may be minus an ear or his tail, yet no one would say that he was an unsound horse on that account, though the word “blemished” would be properly applied to the defects; The operation of nerving being a production of the Veterinary College, I need scarcely add that the members of that establishment are dissatisfied with the verdict in the cause I have mentioned. However, I may add that I have found more veterinary surgeons who approve of it than the contrary.
QUIDDING.
There are some infirmities which have been repeatedly the subjects of actions at law, but on which, from the conflicting nature of the evidence adduced, the Judges have found it impossible to lay down any general rule.
Among these may be classed what is called Quidding.
Mr. Mavor says it arises in consequence of the processes of the teeth growing jagged, or from one or more of the teeth in one jaw becoming indented into the teeth of the opposite jaw.
“Extreme cases,” he says, “may constitute unsoundness, if it prevents the proper mastication of the food for the purpose of digestion, so that the bod
y is deprived of sufficient nourishment “This complaint sometimes passes by the name of gagg teeth.”
ROARING
is a point upon which one Judge has delivered two opinions — the latter upsetting the former, and establishing it to constitute unsoundness.
The first opinion was given in an action, Bassett against Collis, in 1810, where a roarer had been sold with a warranty of soundness; and Lord Ellenborough, before whom it was tried, said —
“It has been held by very high authority that roaring is not necessarily unsoundness; and I entirely concur in that opinion.
“If the horse emits a loud noise, which is offensive to the ear, merely from a bad habit which he has contracted, or from any cause which does not interfere with his general health and muscular powers, he is still to be considered sound horse: on the other hand, if the roaring proceeds from any disease or organic infirmity which renders him incapable of performing the usual functions of a horse, then it does constitute unsoundness.
The plaintiff has not done enough in shewing that this horse was a roarer: to prove a breach of the warranty, he must go on to shew that the roaring was symptomatic of disease.”
The plaintiff in this action did not recover; but in a subsequent case,- of The Hon. Mr. Onslow against Eames, tried in 1817, when Mr. Onslow came before the Court he profited by the hint thrown out by his Lordship, and accordingly brought Mr. Field, the veterinary surgeon, to prove the real origin, or cause, of roaring.
Mr. Fields in his evidence, stated it “Tobeoccaskmedbythecircumstanceoftheneck of the windpipe being too narrow for accelerated respiration; and that the disorder is frequently produced by sore throat or other topical inflammation; and that the disorder was of such a nature as to incommode a horse very much when pressed to his speed.”
Mr. Marryatt, who was Counsel for Eames, relied upon the old story of a very high authority having decided that roaring did not constitute unsoundness; and I dare say (from the previous judgment given by the same Judge, in Bassett against Collis, as was trying the present cause), felt confident of a verdict for his client.
But Lord Ellenborough said —
“If a horse be affected by any malady which renders him less serviceable for a permanency, I have no doubt that it is unsoundness; I do not go by the noise, but by the disorder.”
And from that time down to the present day roaring has been admitted to be a species of unsoundness.
Being on this subject, I will just add Mr. Mavor’s opinion on roaring, and also on the subject of high blowers, contained in an answer to the following question “What is the difference between a roarer and a high blower; and do you consider them to constitute unsoundness?”
“The difference between a roarer and a high blower exists only in variety of the same disease: the latter arising from disease of the larynx or its appendages, and the former more frequently is the effect of general inflammation in the organs of respiration.
“Either I hold to constitute unsoundness.”
SPLENTS
have been the subject of several actions; but, for the same cause as that assigned with respect to the cases relating to Quidding, no account of them is to be found in the law reports.
They are defined to be hard excrescences of different shapes and sizes on the shank bone, and I believe are not considered dangerous unless situated near the joints, or appear very large upon the back part of the bone, or press against the back sinew.
Mr. Mavor says he does not consider them to constitute unsoundness unless accompanied by lameness, or are likely to cause lameness by per forming such duty as the horse is calculated for.
STRING HALT, or a singularly high motion or twitching up of the hind legs, I believe, is not considered to constitute unsoundness; but there are no recorded cases in point. It is, however, a most palpable blemish.
TEMPORARY LAMENESS
seems to be an injury which will not support a. general warranty of soundness.
A contrary opinion formerly prevailed, founded upon the doctrine laid down by Sir James Eyre, when Chief Justice of the Common Pleas, in an action brought by one Garment against a person of the name of Barrs, in the year 1798, on a general warranty of a mare.
The evidence shewed, that at the time of sale Garment observed that she went rather lame of one leg, which Barrs said was occasioned by her taking up a nail at the farrier’s; and his Lordship said, that “A horse labouring under a temporary injury or hurt, which is capable of being speedily cured or removed, is not for that an unsound hone; and when a warranty is made that such a horse is sound, it is made without any view to that injury: nor is a horse so circumstanced an unsound horse within the meaning of the warranty.”
Elton against Brogden was also an action brought cm a general warranty of soundness, and the plaintiff proved that the horse was lame at the time of sale.
Brogden, the defendant, admitted this, but undertook to prove that the lameness was of a temporary nature, and that the horse afterwards recovered, and had since been in all respects sound.
Lord Ellenborough, before wham the action was tried, said —
“I have always held, and now hold, that a warranty of soundness is broken, if the animal at the time of sale had any infirmity upon him which rendered him less fit far present service. It is not necessary that the disorder should be permanent or incurable.”
THOROUGH PIN.
A thorough pin is an enlargement on each side of the hock, and in appearance resembles a wind gall. In its earlier stages it does not produce lameness, and generally yields to blistering, it not taken in time, firing becomes necessary; but at no time can a horse with one be safely sold with a general warranty of soundness.
THRUSH.
There have been several cases tried respecting “Running Thrushes,” as they are commonly called; but the reporters say there was always so much contradictory evidence adduced that the Court found it impossible to lay down any general rule.
Mr. Taplin says —
“A thrush is a varicose state of die frog, which becoming perforated in different parts bears the appearance of rapid decay and rottenness, occasioned by an ichorous corrosive discharge, frequently the evident effects of neglect in suffering the horse to go badly shod till the frog, by repeated bruises, lose its original property and becomes diseased.
“To inattention,” he says, “the complaint is generally owing; and by early care it is generally cured — though (he adds) there are undoubtedly instances of such defects being what are termed natural blemishes.”
Professor Coleman ridicules the idea of a thrush being considered as unsoundness; though he says, that in the case of a horse being sent to the Veterinary College for examination with one, he should mention the circumstance in his certificate of examination.
Mr. Mavor’s answer to the question —
“Do you consider thrushes unsoundness?”
Says —
“I do not consider a horse unsound with a thrush if it is only a slight discharge from the cleft of the frog, without any alteration in the structure or appearance of the frog; but if the frog is altered in its structure, I then pronounce it unsoundness.”
WEAVERS.
Weaving is merely a trick of moving the fore part of the body from side to side in the stall, resembling a weaver throwing the shuttle.
It is not considered injurious.
WIND-SUCKERS..
Wind-sucking is nearly the same as crib-biting, only the horse does not take hold of the manger. Some consider it worse, others not so bad: no one, however, considers it a recommendation, and many people require a warranty against it.
CHAP. III.
VICE.
I HAVE not been able to find any cases wherein the question has been tried whether a general warranty of soundness will be construed, according to Mr. Taplin’s definition, to extend to vice and blemishes, or to either; neither do I find any cases arising out of the sale of vicious horses: but die anonymous writer on the “Law of Horses,” who I
mentioned in my introduction, says —
“So, where the warranty extends to freedom from vice or blemish, it is sufficient that the animal has any disposition or habit incompatible with the safety of an ordinary rider to make it a breach of warranty.”
He does not, however, cite any authority in support of his assertions.
It may be observed, that he talks of cases where the warranty does extend to assurance against vice and blemish; but as horse-dealers (and they are the people who generally make use of warranties) seldom or ever introduce more than the words “warranted sound” into their receipts for the price of the horse, unless expressly desired, I recommend all purchasers to insist upon the addition of the words, “free from vice, and without A blemish.”
But even with these I fear a purchaser can scarcely consider himself secure.
A curious case occurred to me some years ago, arising out of the omission of the above words.
My brother being in want of a hunter, we were walking together through a public horse-fair held in the streets of a country town, when our attention was attracted by a very neat-made chesnut horse rode past by a dealer.
We stopped him, and, after riding the horse and approving of him in every respect, my brother purchased him for some fifty or sixty guineas, taking the usual receipt for the money, which I wrote out, adding the words “ warranted sound in every respect.”
The horse did very well at first, but he was soon discovered to have a trick of drinking at every watering place he came to; and so resolute was he in his determinations, that, if checked, he would rear and walk on his hind legs up to the trough, and very likely place his fore-legs in it, to the risk of breaking his knees (the troughs being all made of stone in that country); and on the last day ray brother rode him, he had been obliged to let him almost burst himself with water at one, lest he should take into his head to walk into a deep river along the banks of which he had to pass.
