
    Mary G. Smith vs. The Bank of the State of South Carolina.
    Heard before Chancellor Desáússíjiie, Charleston, April Term; 1835.
    The complainant became the purchaser at public salé, of cer« tain slaves sold under á mortgage, which had been assigned to the Bank, and gave a fair and full price for them. The Bank made na representations, as to the condition of the slaves, biit gave a bill of. Sale to the purchaser, without a warranty, and indeed striking out the warranty, which had been inserted in the bill oí sale, before the execution thereof. The complainant alleges that one of the slaves had the fever and ague, at the time of the sale; and continued ill for 6 or 7 months, and then died of díopay. The Bank being about to enforce the mortgage, to compel the payment of that part of the purchase money, which was on credit — the complain» ant asks for an injunction to restrain the Bank, on the ground, that there was an implied warranty of soundiiéss; which had failed. The argument of the complainant is; that there is an imphfed warranty bf soundness, on evéry sale; The doctrine on this point has undergone a great deal of change; Formerly it never was considered that there was auy such implied warranty; in conformity with the English law. When many impositions had been practised in the sale of slaves, and purchasers who gave full prices, were deceived either by the fraud of the sellers concealing defects, or by the healthy appearance of slaves, Who were affected with deep rooted disease, almost necessarily mortal, and even unknown to tho sellers; it* was thought to be sound policy to adopt the rule of the eivil law broadly, to give relief in süch cases, on the ground of implied war-, ranty. The great increase of litigation from the broad adoption of the civil law rule, taught the courts the danger of these changes, and the judges have been more and more inclined to restrict the, relief to cases of wilful and fraudulent concealment by venders, of, deep seated and severe diseases, existing at the time of the sale, of a character which necessarily led to death, though unknown to the seller. In this case it might be sufficient to say, that the absolute refusel to give a warranty; by actually striking out the warranty; which had been prepared, negatives the implied warranty. It Was'd refusal that there should be any warranty. There is, however, a stronger objection ; the disease alleged to have existed at the time of the sale, was fever and ague, which wont on increasing and ended in dropsy, and death, in 6 or 7 months' after the sale. Now it is notorious, that fever and ague is not mortal in one case,, in many hundred cases. It would render the sale of slaves uncertain in the highest degree, if slight diseases existing at the time of the sale, should be decided to be fatal, to the validity of the sale, at an indefinite after period. It would diminish the value of slaves at all sales. The court, therefore, would not give relief in such a c«sé; 
      even if the allegations were fully made out. It is ordered and d'ei> creed that- the bill be dismissed.-
    HENRY W. DESAUSSUREv
    
      Grounds of Appeal'.
    
    
      Í. That on the case submitted, complainant was entitled to th©' relief claimed.
    2. That his honor the chancellor; should have directed and re-(Juired the Bar k to prosecute an action at' law on the bond, to have' enabled complainant to'establish her defence; in‘ that coart, where' the character of the warranty, and the nature and extent ol the Unsounduess,.could be'more properly inquired into and established.
    WM. RICE, ¡Solicitor for Complainant.'
    
    Rice, for motion.
    AttoRneí General, contra.
    Filed 21st March, 1837.
   Chancellor J. Johnston

delivered the opinion of- the court.

The charge in the bill is not, that the slave had fever and ague,' at the purchase, which ' was subsequently attended' with dropsy but that she died of dropsy, which disease existed at the- time of the sale.

If, therefore,- the plaintiff could derive any benefit from proof of Unsounduess, she should be allowed an opportunity to produce it.-

But it was decided, 1ft years ago, at Columbia, in Sligh vs. Green-way, that a refusal'to warrant negatives all implication of warranty t a doctrine not doubtful before that decision; and one, which, I never heard doubted since.

The striking the warranty out of the bill of sale was a refusal' to warrantand to imply a warranty would be to change the con-' tract of the parties.

A vendor, although he exempts- himself from- the implication ?of warranty, by refusing to warrant,-is nevertheless, liable for fraud, if he wilfully conceals a material defect of which he has knowledge, and of which the vendee is ignorant. But that is not charged or pretended in this case.

The motion is dismissed.

J. JOHNSTON.

"We concur,.

DAVID JOHNSON,

WM. HARPER.  