Opinion of the court delivered by
Tompkins Judge.Jennings assignee, &c., sued Dooly & Kirkland on a not® before a justice of the peace; the justice gave judgment against him, and he appealed to the circuit court, where hs obtained a judgment, to reverse which the defendants before the justice, appellants here, prosecute this appeal. Oh the trial of the cause in the circuit court, much conflicting evidence was given. The note was given in consideration of a mare sold by Holmes, the assignor of Jennings, at pub» lie auction. The cryer of the sale stated that he declared at the sale that, for any thing known to him, the mare was sound. Several witnesses stated that Holmes had two sorrel mares, one of which they had heard him say was unsound, and that they believed this to he the mare. Several witnesses on the part of the appellant proved that they had known this mare for three or four years, had frequently seen her in use, under the saddle, and also both in the plough and in a wagon, and that they had perceived no evidence of unsoundness ; on the contrary, she had performed well. The court then, on application of the appellees, instructed the jury, that if they believed from the evidence that the mare was unsound at the time of the sale, and that Holmes was informed of that unsoundness, then they must find for the ap-pellees.. The jury finding a verdict for the appellees, .th® appellant moved for a new trial, because the verdict ryas found without evidence, &c., and because the court roMa-*63structed the jury. It is certainly the peculiar province of the jury to weigh and determine the worth of the evidence, and there was evidence on both sides. That weight of evi-deace oug.it to be much the greater, which should determine an appellate court to reverse a judgment, because the circuit court had refused to grant a new trial. In this case, the weight of evidence, as it seems to me, inclined towards the finding of the jury. Therefore its finding should not on that account be disturbed. But it is also insisted that the , „ circuit court mis-mstructed the jury. That court did tell the jury, on motion of the appellant, that if they believed from the evidence that the mare was unsound at the time of the sale, and that Holmes was informed of her ness, and that the appellee was also informed of the fact, 1 L they ought to find for the appellant, unless they also found there was a warranty of her soundess by Holmes. To this instruction I see no objection. The person who buys at a sale, with a knowledge of the defects of the thing purchased, can certainly pretend to no redress unless there had been warranty. A person who purchases an unsound horse, knowing him to be unsound, has need to be very particular in the language of a warranty against a known unsoundness; lest the warranty should not he supposed to extend this known unsoundness. On this account then it does T1-1 r l ■ ■ 11 seem that the judgment oi the circuit court ought to be reversed. The judgment is therefore affirmed, this court not perceiving that the circuit court committed error either in refusing a new trial, or in the instructions it gave
ince of the jli-Evidence & determina its worth. The judg- * in refusing to ,bo reversed by the appej-lato court, on ^“t^the^er-diet was with-Unless8’ evidence greatly preponderated in the reversal. edge °t the defects of the titled to re a warranty. purchaser of an unsound horse, knowing him to bo unsound, must be very particular in the language of a warranty against a known unsoundnesg, last tho warranty should net bs supposed to extend to suc!> known unsoundnosg.