x999-1" type="majority"> Prentice, J.

The defendant seeks recovery upon a counterclaim for the breach of warranty of a horse. It is found that the warranty was made. The only breach alleged is one resulting from the fact that the horse was at the time of sale unsound. The unsoundness complained of is expressly alleged to have been unmanageableness while being shod. The issue presented to the court was, therefore, whether or not the animal was unsound for reasons substantially as averred. That *668 defendant’s counsel recognized this as the issue, and tried the case upon that theory, is apparent, and the court’s memorandum of decision is confined to a consideration and determination of it. Its conclusion, which was made the sole basis of decision, was that a warranty of soundness was not broken by the existence of the conditions which were found to have existed.

We have no occasion, therefore, to inquire whether or not the terms in which the warranty was couched, in their true intent and meaning, carried a more comprehensive warranty than that of soundness. It is our duty under the circumstances to accept the issue as framed by the pleadings, and review the court’s determination of it. »

Baron Parke, in Kiddell v. Burnard, 9 Mess. & W. 668, following the tenor of his ruling in the earlier case of Coates v. Stephens, 2 Moo. & Rob. 157, defined the effect of a warranty of soundness in a horse as follows: “The rule as to unsoundness is, that if at the timé of sale the horse has any disease, which either actually does diminish the natural usefulness of the animal, so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal; or if the horse has, either from disease or accident, undergone any alteration of structure, that either actually does at the time, or in its ordinary effects will diminish the natural usefulness of the horse, such horse is unsound.” This statement, concurred in by his associates, has ever since remained the settled rule in England, and been accepted and followed by the courts of this country and text writers as embodying the correct test to be applied under all ordinary conditions. We have looked in vain for authority which gives to the warranty a wider scope. It furnishes the test to be applied to the situation before us.

Applying it, the conclusion is inevitable that the *669 horse in question, when sold, was not unsound by reason of the unfortunate trait which it had acquired. It had no disease, incipient or otherwise, and, the eye aside, it had not, either from disease or accident, undergone any alteration of structure. It had a bad trait, which developed into a bad habit, which impaired its value. But such traits or habits constitute a vice rather than unsoundness. Not everything which impairs the value of an animal constitutes unsoundness. No such test is recognized by any authority which we have been able to discover. Language of opinions can be found which is susceptible of a construction to the effect that a physical condition, to constitute unsoundness, should be one which depreciated value; but nowhere is it held, we believe, that whatever depreciates value amounts to unsoundness, or that the conditions stated by Baron Parke need not be present. Alexander v. Dutton, 58 N. H. 282.

There is no error.

In this opinion Hall, C. J., Thayer and Roraback, Js., concurred.

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