#### HUGH SIMPSON *vs.*ARCHIBALD McKAY.

In the sale of a slave, a warranty of soundness includes soundness of mind as well as of hody.

The soundness of mind meant in the warranty of a slave, means only such, a degree of mental capacity, as renders him fit to perform the ordinary duties of a slave.

Appeal from the Superior Court of Law of Bladen County, at the Spring Term, 1851, his Honor Judge Manly presiding. .

This was an action of covenant, brought for several breaches assigned oí the covenants contained in the following instrument:.



Bladen County, N. C., May 13th, 1846.

“Received of Hugh Simpson Four Hundred and Fifty Dollars in payment for a negro boy, named Graham, about seventeen years of age ; which negro I warrant both as to soundness and right of property, except a small rupture on said Graham. In witness my hand and seal,

ARCHD. S. McKAY. (Seal.)

Test. Wm. Bryant, Jr.”'

The plaintiff alleged, that the covenant was broken, in that the said Graham had a large' rupture instead of a small one, had other bodily diseases, of some one of which he finally died, and that he was of unsound mind. • Upon all these points the plaintiff offered proof; and, among other things, proved, that before the sale, a witness, who had examined the negro,, discovered that the • negro’s feet had been severely frost-bitten, and that they sometimes'became swollen and subjected the negro to inconvenience: but there *142was no proof that this was communicated to the plaintiff, or that it was otherwise known to him before the purchase.

The counsel for the defendant objected, that the warranty of soundness contained in the covenant did not extend to mental soundness; and if it did, that the extent of unsoundness, proven by the plaintiff, was not such as to constitute a breach of the warranty of soundness. Upon those points and the extent of the rupture and the general tinsoundness of the negro, the argument was mainly conducted on both sides before the jury ; the defendant insisting, that there was no breach of the warranty, and that, from the evidence, the negro died from the maltreatment of the plaintiff himself and his other slaves, and was ndt unsound beyond a small rupture.

Among other things, his Honor instructed the jury, that the covenant extended as well to soundness óf mind as of body, and it was for them to say, from the evidence, and especially from the opinion of the medical witness, whether the rupture was a large or a small one, and,’ if large, how far the difference between a small rupture and the one proven, if they found any difference, impaired the- value of the slave, and how far he was otherwise diseased, either in mind or body, and how far any such diseases, if they existed,, impaired the value of the slave: that as to the frosted feet,, if that was a permanent injury and diminished the slave’s-capacity for labor, they must take that into consideration r that the soundness of mind meant in the warranty of a slave-was only such a degree of mental capacity as rendered him fit for the ordinary duties of a slave: that this did not imply that he was very bright or intelligent, and if, from the evidence, they believed, that the slave, although dull and below-the ordinary standard of human intellect, yet that he possessed sufficient capacity to perform the ordinary duties of a slave, the warranty in tliat respect was not broken ; otherwise, it was; and it was for them to estimate She amount, *143to which his value was impaired by such mental incapacity, if found by them to have existed.

A verdict having been returned for the plaintiff, the defendant'oblained a rule for a new trial, upon the grounds, First, of an error in the Court upon the question of mental -capacity, which the defendant insisted, was not embraced in the warranty ; Secondly, because the Judge had said any thing about frosted feet, which, the defendant insisted, was not embraced in the warranty, being a patent defect, if it existed at all.

The rule for a new trial was discharged, the Court being of its original opinion, respecting the warranty of the mental soundness 5 and as to the last point, that no such objection had been taken on the trial, and, if it had, that there was no evidence, that the negro at the time of the purchase was with or without shoes, or in any way that the defect was such as must have been known to or observed by the plaintiff.

Whereupon the defendant appealed to the Supreme Court.

*Strange,*for the plaintiff.

*Banks,*for the defendant.

Person, J.

The, bill of sale has this clause, “ which negro I Warrant both as to soundness and right of property, except a small rupture.”

We Concur with «Iris Honor in the opinion, that this warranty included soundness of mind as well as body ; and we agree with him as to the degree of mental incapacity, which would amount to unsoundness of mind in a slave.

The valpe of a slave depends as much, if not more, upon his having sense enough to do the work ordinarily done by slaves, as upon the soundness of his body, and if there had been simply a warranty of soundness, without question, it would have included soundness of mind as well as body. The exception, as to the small rupture, cannot have the ef-*144feet of restricting the general term, “ soundness it merely qualifies the warranty in regard to the soundness of the body and has no bearing whatever in regard to the soundness o mind.

The second exception is also untenable. It is not necessary to consider how far the fact, that a defect is so apparent that it must have presented itself to the notice oí the purchaser, (as if the slave has but one leg,) will justify such ri construction of the warranty as *to*exclude the particular defect from its operation, under the idea that the parties could not have intended to include it, because there is no evidence to raise the question. It does not appear that the condition oí the negro’s feet was apparent, or that the plaintiff’s attention was called to it. Ide was prudent enough to require a warranty and has a right to the benefit of it.

Pee Curiam. Judgment affirmed.