
    Luther H. Washburn vs. Patrick Cuddihy.
    Books of medical or veterinary practice cannot be read to the jury in argument. Cribbiting, affecting the health and condition of a horse, so as to render him less able tc perform service and of less value, is unsoundness.
    Action of contract on a warranty of soundness of a horse exchanged by the defendant with the plaintiff for another horse. Trial in the court of common pleas at October term 1856, before Briggs, J., who signed this bill of exceptions :
    “ The unsoundness alleged was, that the horse was a cribber, and that he was so affected by that complaint or disease that he was rendered much less valuable. The plaintiff offered evidence to prove the warranty in that respect, and as to the character of the horse in other respects ; and he also offered evidence tending to show that said horse was a cribber before and after the exchange, and that his health and flesh were injuriously affected, by cribbing. The defendant offered no evidence on this point. The plaintiff also offered evidence tending to prove that said horse was vicious in double harness.
    “ In opening the defence, the defendant’s counsel contended that the cribbs, or the habit of cribbing, was not an unsoundness in a horse, but a habir, and was proceeding to read to the jury, from Dr. Dodd’s Veterinary Surgeon, a description of the habit of cribbing in horses, as a better mode of showing what cribbing was, but not, he said, as evidence in the case. The plaintiff’s counsel objected to his thus reading, and the court sustained the objection and refused to let him proceed in reading.
    “ The defendant’s counsel also asked the court to instruct the jury, as a matter of law, that cribbing was not an unsoundness in a horse, for which an action could be maintained in an alleged breach of warranty of soundness. The court declined so to instruct the jury.
    “ But the court did instruct the jury, that whether the horse in this case was a cribber or not, and, if he was a cribber, whether his health and condition were so affected by it as to render him less able to perform labor and service and of less value, were facts for the jury ; and if they were satisfied from the evidence that the horse was injuriously affected in his health and flesh, so as to be less able to perform service and rendered of less value, he would be entitled to recover, as damages for that defect, the amount that he was so affected; that the burden of proof was on the plaintiff to show that the horse had the cribbs, and that he was rendered less valuable by them. To which rulings and instructions the plaintiff excepts.”
    
      J. E. Field Sf J. Price, for the defendant.
    
      W. T. Filley, for the plaintiff.
   Thomas, J.

1. In refusing to allow the counsel to read from works of medical or veterinary practice to the jury, the presiding judge conformed to the now well settled practice in this commonwealth. Ashworth v. Kittridge, 12 Cush. 193. Commonwealth v. Wilson, 1 Gray, 337.

2. The court rightly refused to rule as matter of law that cribbing was not unsoundness in a horse. As indications of approaching disease fall under that term, it would be difficult to say cribbiting was not unsoundness. A cribbiter will not retain his condition or be fit for constant work. Stephen’s Adventures of a Gentleman in Search of a Horse, (Amer. ed.) 243. Onslow v. Eames, 2 Stark. R. 81. Oliphant on Horses, 38, 39.

The question of unsoundness was a mixed question of law and fact, and submitted to the jury under instructions correct in principle and carefully and accurately stated.

Exceptions overruled.  