#### *F. Y. Porcher ads. Richard Caldwell.*

1. Where the unsoundness of a slave is known to a purchaser at public sale, he cannot maintain an action on the implied warranty of soundness.

3. Where a purchaser of a slave takes a bill of sale, or written warranty, and *omits*to insert a clause warranting the soundness, it is a reasonable inference that no warranty of soundness was intended. The presumption of warranty, however, is not conclusively rebutted, but it is a circumstance which should always be submitted or presented to the jury.

*Tried in the City*Court, *July*Term, 1841, *before his Honor the Recorder.*

This was an action of assumpsit on an implied warranty of soundness of a negro woman named Lucia, and the following is the testimony taken by the Recorder, on the trial of the case:

“ *Thomas Ryan*sworn — Said he has - seen this woman; $350 is a large price for her, if she were sound. *Cross examined*— thinks the price of $350 large, because she is at least forty-seven years of age; some 'at forty-five are worth less; he has had a great deal to do with negroes in the last eighteen months. *In reply*— he said he is an auctioneer, and has sold a great many negroes ; his opinion is formed from the sales he has made, and from what his neighbors have made.

*Dr. Waring*sworn — Said he was called to see Lucia 15th March last; attended until 22d. She was laboring under suppression of urine ; he directed some mild measures ; returned in two hours and inserted the catheter, and found it was not what he supposed; not a wine-glass of water came from her; thought it then local irritation depending on diseased uterus; examined the mouth of the uterus, and could throw it up by putting the hand on the lower part of the stomach; her stomach was afflicted with a disposition to vomit, which confirmed his opinion as to the character of the disease. When he took out the catheter, something passed on it like matter ; the woman at that time was sickly looking; since that time she has put on a more improved appearance ; this disease is the commencement of cancer; he would not have giyat^. $50 for her; her disease will be a protractedu^^^lcUPlBnded *330with great expense, requiring frequent applications; her appearance now is to he attributed to the mildness of the weather; it will require free secretions to allay the pain. The disease is incurable; it brings the patient down to emaciation ; his food is opium. There is nothing in her looks to indicate such a disease ; she is delicate looking; witness notified Dr. Porcher of it;• he was not aware of the seat of the disease; he knew her to be unsound; he had frequently attended her. Gadsden informed witness about that time, that a first rate cook would be worth $500; don’t think this negro worth $350 if she had been sound; he examined her two afternoons since, with Dr. North ; he entertains the same opinion of her disease; the disease must have existed more than thirteen years. *Cross-Ex-*aminedhe said she may live fifteen years; but her sufferings will increase, and her ability to bear them will decrease.

It was here admitted that the negro was tendered. Bill of sale dated 27th January, 1841. Here the plaintiff’s testimony closed-

*Defence.*

*Dr. North*sworn — Said he has seen Lucia lately; never saw her before ; the disease must have existed fifteen years. She might live fifteen years, but in increasing pains ; she is looking very well now; she is capable of service. A disease may exist a long time, and a patient go off by some other disease; this is not usual; it is difficult to say what may be the result of this case. *Cross-examined.*— He said Dr. P. said he had never examined the woman ; had attended her, but not for this disease; this disease may lay her up for a year; this is usual; she may die suddenly ; this attack must have been more violent than usual, as Dr. P’s. attention was not attracted; the pain increases with the duration of the disease.

*Copy inventory*of Mrs. Rebecca Drayton’s estate was produced, and *Duda*included.

*W. B. T. Schroudy*sworn — Said he knows Duda, she belonged to Mrs. Drayton; he collected the wages of this woman from William A. Caldwell, in Mrs. Drayton’s lifetime, in 1839; as agent for Mrs. D., he' put her in Stock’s hands for sale; *Colcock*would have given $600, if she had been willing to live with him ; witness would have given *331$600 for her ; she was a long time in the employment of Caldwell. *Cross-examined*— He said in 1839 she left Caldwell and went to some one else.

*Thomas JV. Gadsden*sworn — said he was employed to sell the estate of Drayton; *Lucia*was part of it. *Caldioell*applied to him to purchase Lucia; he asked him $500 for her; he refused to give that, said she was unsound, and that could not be got for her. At auction the woman declared she was unsound ; Caldwell bid $350 ; witness run her up to $395, and knocked her down to Caldwell; he refused to take her at that, but proposed to take her at his bid of $350. He said he knew the negro well, *she was unsound;*she had been in his employ; he communicated Caldwell’s proposition to Dr. P.; he assented; when he told Dr. P. that Caldwell said she was unsound, he did not seem to know it; witness could have got $500 for her if she had been sound. *Cross-examined.*— He said he run her up to $395, and put the bid to Caldwell; he refused to sanction this, but offered his old bid of $350. Witness said nothing at the sale about the unsoundness of Lucia ; he was one of the appraisers of Mrs. Drayton’s estate ; nothing was said of Lucia particularly at that time.”

Here the testimony closed, and his Honor charged the jury that a sound price warranted a sound article, summed up the evidence on this point, and submitted the question to them.

His Honor further charged them, that if they came to the conclusion that the full value of the negro, if sound, had been paid for her, that still this afforded but a presumption of a warranty; and submitted to them, whether the other facts in the case did not rebut that presumption. If Gadsden’s testimony was to be believed, Caldwell knew that the negro was unsound; that she had been for some time in the employment of the family; that at the sale the wench had declared she was unsound; that plaintiff bid at the sale $350 dollars for her ; that Gadsden run her up to $395, and knocked her down to plaintiff, and tendered her to him at that price; that he declined this, but renewed his offer for $350, on the ground that she was unsound, and could bring no more; that the negro was' as well now as she had been for the last ten years,- and fnight live fif*332teen years longer. It did appear to his Honor, and he so charged, that with a knowledge of all these facts, the plaintiff, failing to demand an express warranty, ought to he regarded as assumiiig the risk of the result of the case upon himself, and that he had no claim for indemnity from the defendant.

The jury rendered a verdict for the full price paid for the negro.

The defendant appealed for a new trial in this case, on the grounds,

. 1. That there was no evidence of a warranty, express or implied; and that there was no evidence of notice ; so that the verdict is against all the evidence in the case, contrary to law, and against the charge of the court.

2. That the jury have found that the contract is rescinded without any evidence of a rescission.

Petigru *&*Lbsesne,' for the motion.

McCrady, contra.

*Curia, per*

Evans, J.

Our decisions, continued through a long series of years, fully establish, as settled law, that where a full price is paid for a negro, and it is afterwards discovered that the negro was diseased at the time of the sale, the purchaser may recover back the purchase money, or have an abatement in the price, according to the degree of unsoundness. This is equally the case, whether there be an express warranty or not; the law in the latter, case implies a'warranty from the fact that a full price has been paid. It is equally well settled, that the purchaser may recover on the implied warranty of soundness, although he has taken'-an express warranty of title. None of these decisions have I any disposition or intention to assail, although if the questions'were now made for the first time, the propriety of them might well be doubted..

The plaintiff’s right to recover rests upon a presumption of law ; the law, in the absence of proof to the contrary, presumes, from the fact that a full price was paid, that the seller intended to warrant the soundness of the property. But this, is a naked presumption,' and may be re*333butted by proof to the contrary, or by circumstances which may lead to a contrary conclusion. Thus there can be no doubt that an express declaration that the seller will not warrant, effectually destroys the presumption. So, also, it has always been held, that where the unsoundness was known to the buyer, he could maintain no action on the implied warranty. Besides these, there are many other facts which, although not so conclusive, go to rebut the presumption. Among these is the omission to insert the warranty in the written contract, where there is one. If the purchaser takes no written warrant, he trusts wholly to his implied warranty, both as to health and soundness; but where he takes a written-warranty of health, and omits the warranty as to soundness, it is certainly a fair argument to deduce from this the inference that there was an absence of intention to warrant beyond what is contained in the written title. I do not say that the presumption is conclusively rebutted by this; but it is a circumstance entitled to consideration, and should; be presented always to the notice of the jury. The evidence in this case is, that the disease was chronic, and had existed, the doctors thought, for thirteen years at least. Oaldwell told Gadsden he knew her well, she was unsound, he had her in his service, and the woman herself declared at the sale she was unsound. If these facts are true, there can be-no doubt that Caldwell took the risk of soundness on himself, and his omission to. have the clause of warranty of soundness inserted in the title, would seem to lead to the conclusion that no warranty of soundness was intended or expected. But it is said that every thing which happened at the time of the sale is established by the evidence of Gadsden, the auctioneer, alone, and that the jury were the proper judges of the extent to which they could confide in his recollection of the facts. This is' true, and if that were the only circumstance, I should be disposed to let the verdict stand, as we have done in many other cases. But there are other circumstances. It appears from the evidence of Schroudy, that she had been in the employment of Caldwell and his family, and it is a fair inference that the existence of this chronic disease was known to him, or at least that he Imew she was unhealthy, and should not have purchased *334without the security of a warranty. Besides this, it does not appear that the important fact, that he took a written warranty of title without a warranty of soundness, was brought to the view of the jury as one of the facts which, connected with the others, would lead to the conclusion there was no warranty intended or expected. The motion is therefore granted.

O’Neall, Butler and Wardlaw, JJ., concurred.

Earle, J., absent.