IN SEARCH OF A HORSE. 325 



The next case is very important, not merely for 

 its general principle, but in reference to the measure 

 of damages to be taken by the jury in an action upon 

 a warranty ; but I quote it in this place to ground an 

 important principle, and one which in considering the 

 doctrine of warranty of soundness, is too frequently 

 lost sight of by professional men as well as others : 

 namely, that soundness is a question of fact for a 

 jury, and not of law : in a former note to this edition, 

 I have alluded to an anonymous work published ten 

 years ago, on the Laws relating to Horses : the case 

 that I have just cited is quoted also in that work, 

 and the inference which its author draws from it, 

 confirms the importance of the principle which I have 

 here presumed to lay down. He observes that "it 

 will not impeach the warranty, if the purchaser can 

 only produce doubtful evidence of unsoundness, even 

 of proper judges." 



That this inference is sustained by the authority, I 

 do not deny ; but in my judgment, the authority is 

 itself questionable. That it is a question for the 

 court above, whether a verdict is against evidence, 

 no lawyer will dispute ; but what is the value of 

 doubtful evidence is entirely a question for a jury, 

 • 28* 



