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of the lungs was known sometimes to begin and 

 iterminate in mortification within three days. On 

 the other hand, a farrier, called on behalf of the 

 plaintiff, imputed the sleekness of the horse's 

 condition to water under the skin, arising from 

 dropsy in the chest. On this conflicting evidence 

 the plaintiff succeeded at the trial ; but the court 

 held that he ought to have been nonsuited ; " for on 

 the warranty of a horse it is not sufficient to give 

 such evidence as to induce a suspicion that the 

 horse is unsound ; if the plaintiff only throws 

 soundness into doubt, he is not entitled to recover; 

 he must positively prove that the horse was un- 

 sound at the time of sale." 



The next case is very important, not merely for 

 its general principle, but in reference to the mea- 

 sure of damages to be taken by the juiy 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 profes- 

 sional men as well as others ; namely, that sound- 

 ness is a question of fact for a j ury, and not of law. 

 In a note to this edition at page v., I have alluded 

 to an anonymous work pubhshed ten years ago, 

 on the Laws relating to Horses : the last case that 

 I have cited is quoted also in that work, and the 



