On the 2d of February 1894, a meeting was held, which was attended by two of the heritors. One of the heritors stated, that the period pointed out by the statute, both for the meeting of the heritors, and appealing to the quarter-sessions, had elapsed, and that any proceedings, therefore, on the matter were illegal and incompetent. Nothing was done at this meeting.

Another meeting was called, and held on the 15th November 1804, which was adjourned to the 15th December following, in expectation of a better attendance of the heritors. This meeting was attended by the clergyman of the parish, and by the factor of Mr Hamilton Dundas of Westburn; and the sum of 385 merks was given in augmentation of the schoolmaster's salary, and 14 in lieu of a certain deficiency of garden ground, making in all 400 merks.

The Duke of Hamilton and Mr Jackson of Spittal having declined to pay their proportion, the pursuer raised an action concluding for pay

ment.

The following defences were returned, "The meeting of the heritors at Cambuslang, held on 15th December 1804, had no power to aug❝ment the salary of the schoolmaster of that parish; that even although "said meeting had possessed the power of augmenting, yet the circumstances of the parish did not warrant their doing so.'

The case was discussed before the Lord Justice Clerk, Ordinary, who pronounced the following interlocutor (17th December 1807): " The "Lord Ordinary having considered the libel, with the defences, and act " of Parliament libelled on, and heard parties procurators, sustains the "defences given in for William Jackson, Esq. assoilzies him from the "conclusions of the libel, and decerns.'

The cause came by petition and answers before the Inner-House.

Several of the Judges agreed with the Lord Ordinary. It was observed, that the act had augmented the salary of all the schoolmasters in Scotland to 300 merks; and any further augmentation could only be obtained by calling a meeting of the heritors according to the form, and within the period prescribed by the statute. This period had expired, and nothing could be done for 25 years.

A considerable majority of the Court, however, were of opinion, that, in just and fair construction of the act, the claim of the schoolmaster was not foreclosed; a peremptory obligation is imposed on the heritors to meet within a certain period; but it is no where declared that if the schoolmaster shall acquiesce in a delay beyond this period, further proceeding should be null, or that it should, at a future period, be incompetent for the heritors to fulfill the obligation imposed on them by the statute.

The Court (9th July 1808) altered the interlocutor of the Lord Ordinary, and ordained the heritors to meet.

Lord Ordinary, Justice-Clerk. Act. John Connell.
Patison, W. S. and Jas. Wylie, W. S, Agents.

Alt. John Jardine. John
F. Clerk.

J. W.
No.

No. LXIX.

July 9. 1808.

JAMES RALSTON

AGAINST

ROBERT ROBB.

SALE. WARRANDICE.-The disease called the Running-thrush affecting the feet of a horse, constitutes unsoundness *.

ON

N Saturday 5th September 1805, the pursuer, a horse-dealer in Edinburgh, sold to the defender, a farmer at Meadowhead, a young gray horse, warranted sound, at the price of 51 guineas. Before concluding the purchase, the defender gave the horse a short trial, and employed a farrier to inspect him.

The defender, after taking home the horse, discovered that its feet were affected with the disease called the running-thrush, which rendered it unsound. The animal remained in the possession of the purchaser during the intervening Sunday; and was returned on the morning of Monday the 7th September to the pursuer's stables. The defender having thus declined to keep the horse, and refusing to pay the price, the pursuer instituted an action to recover it.

On the 24th October 1805, the defender, on being served with the summons, applied to the Sheriff for a warrant to sell the horse by public roup. The warrant was granted accordingly; the horse was exposed to sale; and was purchased by a Mr Craig merchant in Edinburgh, at the price of L.36 Sterling.

The action came before the Lord Justice-Clerk, Ordinary. The pursuer offered to prove that the horse was sound at the time of the sale, had been sound from the period of its birth, never had been known to be lame while in the possession of the various individuals to whom in succession he had previously belonged, and was at that moment the property of a gentleman who considered it to be perfectly sound.-On the other hand, the defender offered to prove that the animal was unsound at the time of the sale, in consequence of being affected with the disease in his feet called the running-thrush.

A proof was accordingly taken; on considering which, the Lord Ordinary found,

"Finds it proved that the gray horse had running thrushes in his "feet, particularly in the far fore foot, at the time when he was sold by "the pursuer Ralston to the defender Robb: Finds, that the disease cal

* On the same day, a seemingly opposite judgement was pronounced in another case; but the Court proceeded, in that case, on the specialty that the horse had not been returned debito tempore, and that the right of recourse had thereby been lost. 25th May 1808, Elliot against Douglas.

"led running thrushes, although capable of being cured, and sometimes "easily and speedily cured, does at the time render a horse unfit for tra

velling on the high road; therefore, without pretending to understand "whether such a horse can be considered as a sound horse, 'finds that a "horse which cannot travel on the high road is not a marketable com❝modity, fit for the purpose for which he is intended: Finds, that every "seller is bound in law to warrant that his goods are marketable, fit for "the immediate use for which they are usually intended: Finds, that the "circumstance proved that the defender Robb did employ the farrier "Kinnell to examine the horse at the time of the bargain, is not relevant; "as any such examination by a purchaser either of horses, or of any "other commodity, does not prevent his claim of warrandice against the "seller, that his goods shall be marketable, and fit for sale, unless war"randice be expressly waved; therefore assoilzies the defender, and de66 cerns; finds expences due, and allows an account to be given in."

The cause came before the Court by petition and answers.

In point of fact, the Court was satisfied from the proof that the horse at the time of the sale was affected by the running-thrush. The legal effect of this circumstance was debated.

Argument of the pursuer.

ness.

The disease of running-thrushes does not of itself constitute unsoundThis disease exhibits itself in an infinite variety of degrees, from a mild stage, in which it produces no inconvenience, to that acrimonious stage, in which it causes absolute corruption and destruction of the frog. It arises frequently from carelessness and inattention to cleanliness, and is prevented or removed by regular diet, cleanliness, and exercise. This habit, too, is not unfrequently reckoned by skilful persons to be useful . to horses of a particular temperament. It operates as an evacuation and relief to foul and gross constitutions, and prevents the occurrence of various diseases. Such is the opinion of scientific farriers. (Taplin, vol. ii. p. 394.)

In the understanding and practice of those concerned in the trade of horse-selling, and in that of gentlemen of the turf, this disease is not accounted unsoundness, unless it produce actual lameness.

Argument for the defender.

The defender purchased a scund horse, and to this effect received warrandice. "The general acceptation of the word sound has ever been "and still is intended to convey an honourable and unequivocal assur"ance of the perfect state both of the frame and bodily health of the subject, without exception or ambiguity." (Taplin, vol. i. p. 15.) That running thrushes is a disease is admitted; and to argue that it is easily cured, is to acknowledge the previous existence of disease. At any rate, it is treated of as a disease in all works of farriery (Taplin, vol. i. p. 94; Elane's Cutline, vol. ii. p. 718; D. Laintet, p. 140.) Whether the disease may originate in an imperfection in the general habit of body; whether it may arise from an injury induced on the feet from accident or carelessness; whether it may exist in a mild or virulent degree; and whether

it

it may admit of an easy and expeditious, or of a difficult and tedious cure; all these questions are totally irrelevant. The purchaser means to buy a sound horse, fit for the present purpose of the road, or field, and not requiring care and attention beyond that which is to be expected from a servant of ordinary skill.

This point has already been decided by the Court in a recent instance, involving circumstances much more unfavourable to the seller than those which accompany the present case

Some of the Judges were of opinion, that a running thrush in its early stage, and in its mildest and most innocent form, and where it did not produce actual lameness, did not, in the contemplation of law, render a horse unsound; and ought to be numbered among those slighter and more immaterial imperfections, of which the concealment did not void the sale, and to which warrandice did not apply.

* Mr Jardine W. S. against Major Campbell, 15th January 1806. This case is not reported; but the following are the facts, in which it occurred.

On the 29th of April 1804, Mr Jardine writer to the signet, major of the First Regiment of Edinburgh Volunteers, purchased from Major Campbell of the 27th regiment of foot, a horse, intended for a charger, at the price of L.57. 15s. under an express warrandice of soundness.

Mr Jardine, before concluding the purchase, rode the horse; and upon this trial expressed himself perfectly satisfied, and paid the price.

After the horse had been in his possession for ten days (till the 9th May) it became lame; and on examination it was discovered that the animal had running thrushes.

Major Campbell refused to take back the horse, conceiving that, in the circumstances of the case, there could not be in law any recourse against him.

Mr Jardine raised an action, concluding for restitution of the price; and the cause was discussed before Lord Dunsinnan, Ordinary.

A proof was taken, wherein it was established, to the satisfaction of the Lord Ordinary and the Court, that previous to the sale, the horse had running thrushes.

In the mean time, the horse was sold by mutual consent; and was purchased by Colonel Fullarton at the price of L.39 Sterling.

The Lord Ordinary pronounced the following interlocutor (14th May 1805.) "Finds that "the horse in question, when purchased by the pursuer, as warranted sound, and paid for "as such, was affected with an ailment in his feet, known by the name of running thrushes; ❝ which in a certain degree does impair the soundness of a horse, and consequently ought "to have been, but was not made known to the pursuer; therefore, finds the. pursuer "entitled to repayment of the price which he paid to the defender, with interest thereof " from the term of payment, and the expence of keeping him until the horse was sold by "mutual consent, together with the expence of process: Finds the defender entitled to "receive the price which was paid for the horse by Colonel Fullarton, and decerns."

The defender reclaimed to the Court; and, besides an argument on the import of the proof, maintained, Ist, That running thrushes, unless causing actual and present lameness, do not constitute unsoundness. In support of this proposition was adduced the evidence of many persons familiar with the treatment, and acquainted with the peculiar maxims and principles which obtain in the sale of horses. Many very respectable persons deponed, that in their opinion, and in the understanding of the trade, running thrushes, not producing present lameness, did not constitute unsoundness; and was reckoned among those qualities or imperfections of a horse which might, or might not, affect the price, according to the caprice of the purchaser, and of which the concealment was honest and justifiable: 2dly, That there could be no recourse, as the horse had been kept by the pursuer for ten days, and was not therefore returned debito tempore.

The Court, however, on advising the petition, without answers, refused the desire thereof, and adhered to the interlocutor reclaimed against

And, on advising a second reclaiming petition, with answers, the Lords adhered.

A majority of the Judges, however, were of a different opinion, adopted the principles of which the interlocutor of the Lord Ordinary contains a summary, and observed-Under the warrandice of the sale, whether derived from the payment of the market price of a sound and unblemished horse, or from the express stipulation of the parties, the purchaser is entitled to have a horse immediately fit for its purpose. He is not understood in law to go to market with the view of purchasing a commodity of which he cannot have the immediate use,-which may require a course of medicine and care to render it fit for its purpose, and which demands the exhibition of more than ordinary skill and expence to preserve it in a state of usefulness, or perhaps from utterly perishing. If, as alleged by the pursuer, the disease is so insignificant as to produce no inconvenience, or lameness, the communication of the fact to the purchaser will not reduce the price of the commodity in the market. If, on the other hand, it is a disease which, being known, diminishes the value and consequently the price, which is intimately and necessarily connected with lameness, of which a course of medicine and attention is required to accomplish the cure, and extraordinary skill to prevent the recurrencethe concealment of it must and ought to void the sale.

The peculiar principles of concealment which are vulgarly believed to obtain in transactions in the trade of horses, cannot receive any sanction in a court of justice. If such are really admitted and acted upon, they ought to be reprobated. The legal warrandice in the purchase of a horse must have the same extent as in the purchase of any other commodity, and cannot be cut down by distinctions which are more nice than honest. The prevention or abolition of concealments may tend in no slight degree to increase or restore the respectability of that department of trade.

Running thrushes are a disease which, whether considered as arising from a local injury or from a vicious habit, it required a certain degree of extraordinary care to prevent, alleviate, or remove; and while the disorder existed, the soundess of the animal, or its freedom from lameness, could not be depended upon for a day or an hour.

The Court (25th June 1808,) pronounced the following interlocutor : "The Lords having resumed consideration of this petition, and advised "the same with the answers thereto, they refuse the desire of the peti❝tion, and adhere to the interlocutor complained against."

And, on advising a reclaiming petition, (5th July 1808,) without answers, the Lords adhered.

Lord Ordinary, Justice Clerk.

Act. F. Jaffrey. Alt. David Monypenny.

Rob. Grahame, W. S. and Alex. Ponton, Agents.

W. Clerk.

J. W.