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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Sir James Ferguson v. Wordsworth. [1820] ScotJCR 2_Murray_371 (18 December 1820)
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Cite as: [1820] ScotJCR 2_Murray_371
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SCOTTISH_HoL_JURY_COURT
Page: 371↓
(1820) 2 Murray 371
CASES TRIED IN THE JURY COURT.
No. 55.
v.
PRESENT, LORD CHIEF COMMISSIONER.
Found that a horse was not unsound.
An action by the defender, for the price of a horse.
Defence.—The horse was unsound, and returned.
“Whether a grey horse, admitted to have been sold and delivered by the defender to the pursuer at Edinburgh, on the 2d day of June 1819, warranted as a sound horse, was, at the time of his being sold, unsound, by having a disease called the spavin, or by having another disease called the thoroughpins?
Whether the said horse, sold and delivered as aforesaid, was at the time of his being sold an unsound horse?
Page: 372↓
Whether, upon the 3d day of June 1819, the defender did agree to receive back the horse sold as aforesaid, on condition of the pursuer paying the King's duty, whether the said horse was sound or unsound?”
Walker, in opening the case, and Cockburn, in reply, stated—There may be difference of opinion as to the cause of the unsoundness; but the horse is proved to be unsound. This is a question of medical science, where opinion is to be taken as fact; and we have proved the case.
Jeffrey, for the defender.—The eye with which a horse is examined by a friend or foe, is very different; and there is frequently rash swearing. Here part of the evidence does not deserve so mild an epithet.
Lord Chief Commissioner.—It is said you ought to weigh, and not to number the witnesses, and in this I agree; but although I think a few might have been spared, I am not prepared to say, that in this case numbers have not some weight.
There are here three classes of evidence; and though there is contrariety of evidence, I cannot say that it is not honest. There is
Page: 373↓
Had the case depended on the first Issue, I must probably have entered into a detail of the evidence as to the different kinds of spavin; but the case is much simplified, as it appears to me to depend on the second Issue. I do not think the third Issue proved; and therefore the question is, whether the horse was unsound. The witnesses who considered the horse unsound, stated that there was the appearance of blistering; and this is an important circumstance, as it shews that these witnesses examined the horse under the idea that he had been blistered. Now, we have it proved, that during his whole life he never was blistered; so that finding they rest part of their evidence upon a mistake, that appears to me to explain the contrariety of evidence.
Verdict for the defender on all the Issues.
Counsel:
Cockburn and
Walker, for the Pursuer.
Clerk,
Jeffrey, and
Brownlee, for the Defender.
Solicitors: (Agents, Walker, Richardson, and Melvill, and John Jones.)