
    
      E. Stephens, adm'r. v. John Chappell.
    
    Uiisoundness of a slave, consists in some organic disease in a formed state, evidenced by symptoms, or in some clearly contagious disease, such as measles or small pox, the infection of which existed in the system at the time of the sale.
    On appeal, the Court held, that an inquiry proposed to be made of the physicians as to how long a disease had existed in its incipient state, was properly overruled by the Circuit Judge, as irrelevant to the issue of soundness.
    
      Before O’Neall,- j.- at Newberry, Spring Term, 1848.
    This was an action of assumpsit, brought on a note of hand made to the plaintiff’s intestate by the defendant for $600, with interest from the 1st January, 1846, due and payable 1st. January, 1847. The consideration of the note was a negro woman, Clarissa, who was warranted to be sound. The bill of sale was dated the 18th day of August, 1845.
    The defence was that the woman had typhoid fever, in its incipient stage, when sold. She was sold on Monday, she came home on Tuesday. Henry Chappell, the son of the defendant, said she had then her head tied up, and was complaining of head ache. A man of the name of Adams said, passing through Chappell’s field in warm weather, he saw a woman sick, lying down. She and the other hands, he said, were picking cotton: he knew all the other hands save this woman. The overseer, Abner Peterson, said she was well, when she came home, and that she continued well, until Saturday evening, working in the mean time, with the other hands, picking out cotton. On Saturday evening, she was not well: on Sunday she was very sick; on that day (the 24th) Dr. Peterson of the Thomsonian school was called in: he treated her for a day or two; on the 27th Dr. Gilder of the same school was called in; he treated her, and attended on her 27th, 28th, 29th and 31st August, and on the 2d, 3d and 4th September. She died on the 5th. They both stated the disease was typhoid fever: and from their description of the disease, the regular physicians said, they had no doubt, it was typhoid fever. The treatment pursued by Drs. Gilder & Peterson was skilful.
    It appeared that in the family of Mr. Lewis, the intestate, there had been one case of typhoid fever before he sold Clarissa. It was the case of a negro man named Cato, who according to Mrs, Attaway’s proof died 10th August 1845, but according to David Rogers, Mrs. Adams and Mr. Adams, died 30th July 1845. This woman Clarissa was not his nurse, and there was no proof that she inhabited the same house — the probability is she did not. She tvas several months gone in pregnancy. David Rogers, Mrs. Adams and Mr. Adams saw the negro woman, Mrs. Adams on the day of sale, her husband a week or two before, and Mr. Rogers Tuesday morning after the sale: they all said she was perfectly well. They were near neighbors, and knew the woman very well. The physicians, including Dr. Gilder, stated that typhoid fever was only contagious under particular circumstances. None of them thought it was like small pox, or other settled contagious diseases. One of them, Dr. Higgins, said if one nursed a patient or slept in the same room or bed, it might be communicated. Dr. Landrum said after the case became putrescent it might be contagious. Dr. Yarborough said it was slightly contagious. Dr. Ruff said it is not settled whether typhoid fever be contagious. The other physicians said some of the medical writers said it was, others that it was not. Dr. Gilder said, some times all who were in the same atmosphere, house or room, had it: but that was not uniform, and he mentioned an instance in his own family, which showed it was as he stated. They all agreed it was very uncertain how long the disease might be in what they called its latent state: and they said although there might be even premonitory symptons, it did not always follow that the disease would develope itself.
    After Drs. Peterson and Gilder stated the symptoms of the case, it was proposed to ask one of the regular Doctors bow long the disease in its incipient state had existed. The question was objected to, and overruled.
    They were told by the circuit Judge that “such a thing as typhoid fever being considered like small pox, as having a beginning before the symptoms are discovered, cannot be.” He put the question to the jury, had the woman the disease when sold ? He told them very plainly, that the disease must be in a formed state, evidenced by symptoms, before it could affect the sale. They were referred to the testimony of Henry Chappell and Mr. Adams, and told if they believed, from their testimony, that the woman had typhoid fever, when she came home (Tuesday,) they might regard her as diseased when sold, (on Monday,) and find for the defendant. In this particular, I since think, says he, I placed the defendant too favorably before the jury. For if she was well on Monday, the day of sale, and about that there does not seem to be room to' doubt, and next day took the typhoid fever, there would be no ground to affect the sale. The jury were -however told, that if on comparing Henry Chappell’s and Mr. Adams’ proof with that of the overseer Peterson, they were satisfied that Peterson was right, and the others mistaken, and that the woman was well Tuesday, Wednesday, Thursday, Friday and Saturday, then he thought there was no ground for the defendant’s defence. The jury found for the plaintiff the debt and interest.
    The defendant appealed, and moved for a new trial, on the following grounds:
    1st. Because the Judge erred in instructing the jury that there was no such thing in typhoid fever as contagion, notwithstanding several physicians swore that such disease was contagious.
    2d. Because his Honor erred in saying to the jury that unless the disease existed in a formed state at the time of the sale, the defence could not avail; although the physicians swore that the disease might be latent from one to four weeks, before it would develope itself.
    3d. Because the Judge charged the jury that if they believed the testimony of Abner Peterson, there was an end to the defence and they should find for the plaintiff, though it was manifest from the testimony of the physicians and that of Henry Chappell, Mr. Adams and Mrs. Attaway, that the disease existed at the time of the sale.
    4th. Because the evidence fully established the unsoundness of the negro at the time of the-sale, and that the question of unsoundness should have been submitted to the jury upon the whole evidence as one of fact.
    5th. Because the Judge refused to permit the physicians, after hearing the evidence of the Thompsonian physicians and others as. to the facts in relation to the disease, to give their opinion, as to the period of the origin of the disease and, its character.
    IBay, 319. Dud. 97. Cheves, 87. Brev. Rep.
    6th. Because he charged the jury that there was no such thing as an incipient stage of the typhoid fever, or what is usually termed seeds of the disease, and unless the disease existed in a formed state at the sale, the defence could not avail.
    7th. Because from the case made, the verdict should have been for the defendant.
    Sullivan, for the motion.
    
      Pope, contra.
   Evans, J.

delivered the opinion of the Court.

In this case the presiding Judge said to the jury that “such a thing as the typhoid fever being considered like small pox or having a beginning before the symtoms are discovered, cannot be“that the disease must be in a formed state, evidenced by symptoms before it could affect the sale.” The main question which we are called on to decide, is whether this charge was correct. In looking through the cases heretofore decided, I do not find any thing which touches the present case. They are all cases of chronic disease, existing at the time, or cases where the negro had been exposed to the infection of some contagious disorder which developed itself afterwards. Timrod v. Shoolbred, was a case of small pox; Williams v. Vance, of measles; Venning v. Gantt, of diseased lungs; Furman v. Miller, was a case of dropsy. All these were cases of organic disease existing at the time of sale, or of contagious disorders developing themselves af-terwards, by fixed and well known laws of nature. As to whether' typhoid fever was or was not contagious, there seems to have been, as usual, a diversity of .opinion among the learned doctors who were examined at the trial. That those who breathe the impure air of a sick room, are more liable to take the disease, I can readily believe. So, also, those who are exposed to the malaria of our swamps, are more liable to bilious fever than those who are not exposed to it. Diseases in general, I should suppose, are the effect of the physical agencies with which we are surrounded. The functions of our bodies are checked and obstructed in their healthful action by exposure to cold, to heat, and to strong currents of atmospheric air. These produce derangements of that most complex machine, the human body; and hence, if not relieved, the whole system becomes disordered, or the disease fastens itself on some particular organ. In this way disease is produced, and when developed by symptoms perceptible to our senses, constitutes that state of the body which we call unsoundness. I apprehend no disease of the body springs up without the agency of some external cause, and in one sense it may be said that no disease ever developed itself, the geeqg 0f which did not exist in the system prior to its exter- nal exhibitions by symptoms, unless we may except those cageg from an original defect in organization, there never was a healthy action of the system. These external agencies, as they are more or less active, produce disease in a longer or shorter time, and not unfrequently their eifects are wholly counteracted by other agencies, either natural or artificial. Whilst, therefore, these causes or seeds of disease, as they have been called, exist merely in a latent state, there cannot be said to be any thing more than a liability or predisposition to disease, which may or may not ripen into actual disease. It is not so in small pox, or other contagious diseases. There the actual presence and existence of the disease is as well established as if the disease had already developed itself by external symptoms. We have the certainty of science, the fixed and unchangeable laws of nature for our guide. But it is not so in cases of febrile or other acute diseases. In these there is no certainty; all is conjecture and speculation. One learned doctor will tell us that typhoid fever and yellow fever are contagious in some cases; another, that they are slightly so; another, that it is an unsettled question ; and a fourth, that they are not at all contagious. I should conclude from this, that nothing is certainly known about it. A man of great wisdom and much personal observation may form conjectures, which may approximate to the truth, but never can determine with any certainty. Human tribunals should act on facts that are certain, and not on those which in their very nature are uncertain. When, therefore, we undertake to define that which affects the every-daybus-iness of life, we must do it with reference to what is within the compass of human knowledge, and not give it such definition as will admit, the speculation of the mere theorist, whose confidence in his opinions is often in direct proportion to his inexperience and ignorance of the facts upon which all theory ought to be based. I have heard it said that scrofula and some other diseases are hereditary, and of course the patient comes into the world with the seeds of the disease, or a predisposition to it; and if this be evidence of unsoundness, it will be immaterial whether the disease developed itself in one month or 20 years after the sale. I come, therefore, to the conclusion that there is no safety in adopting any other rule than that adopted by the Circuit Judge, that unsoundness consists in some organic disease in a formed state, evidenced by symptoms, or some clearly contagious disease, such as measles or small pox, the infection of which existed in the system at the time of the sale. This, judging from my own experience, and our adjudged cases, has been the general understanding of the profession on the subject. It follows from this that the question was correctly put to the jury, whether the negro had the typhoid fever at the time of sale ; and that the inquiry proposed to be made of the doctors, as to how long the disease had existed in its incipient state, was properly overruled by the Circuit Court, as irrelevant to the issue.

The motion is dismissed.

O’Neall, J. Frost, J. and Withers, J. concurred.

Motion refused.  