Action on the case for deceit in the sale of a pair of oxen.
The allegation was that the defendant, at the time of sale, knowingly, designedly and falsely represented the oxen to be "all right.”
The alleged defect, proved by the plaintiff and admitted by the defendant, was that one of the oxen was a "drooler.” The principal question of fact submitted to the jury was whether that was a defect.
One of the instructions to the jury was that they "had a right to call into requisition, in a case of this sort, their practical experience and knowledge, if they had any, relating to cattle of this kind;” which was clearly erroneous and perhaps prejudicial to the plaintiff’s right to maintain his suit, for we cannot know that the instruction did not thus injuriously influence the jury; and the plaintiff has the right to consider himself thereby aggrieved. Douglass v. Trask, 77 Maine, 35 ; Gas Light Co. v. Graham, 81 Am. Dec. 263 and note and cases there cited. And as this gives a new trial, we need not consider the other exceptions. Exceptions sustained.