
    Thomas N. Gadsden vs. George L. Raysor.
    In an action to recover damages for breach of a warranty of soundness of a negro, who died shortly after the sale, of some disease alleged to be of a vital organ, Held, that the Judge properly directed the jury to inquire whether the disease existed in a formed state at the time of tbe sale.
    A disease of any sort, if easily removed, but by neglect or maltreatment allowed to prove fatal, is not unsoundness within the meaning of the warranty.
    BEFORE WITHERS, J., AT WALTERBOROUGH, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ The action was upon a warranty, executed by the defendant upon the Bd day of March, 1852, by which he covenanted that the slave, Peter, sold to Gadsden, on that day, was “ sound and healthy in all respects.”
    “ The evidence was, that the slave was taken sick in a few, days after the purchase, and on the day he was taken sick, or the day following, Hr. Cobb was called to visit him On the 8th April, 1852, Hr. Thomas Y. Simmons was called into consultation, but found Peter in a dying state, and he did die that day. A post-mortem examination was made, at which Dr. Simmons was present, and he said the disclosures were, chronic affections of the liver, its adhesion to the diaphragm, effusion of the pericardium of the heart, the heart surrounded by a false membrane. ‘ I judge,’ said he, ‘ Peter must have been diseased for a length of time; how long, it is hard to state, I consider him to have been unsound on the 3d of March, 1852. I consider adhesion of the liver to the diaphragm as evidence of previous disease, it may exist without impairing the general functions of the system. It is not considered a fatal disorder, chronic hepatitis is the effect of previous acute inflammation, no.t necessarily a disease fatal and incurable. It is impossible to say of what particular disease Peter died, most probably of disease of the heart, though in such a complicated condition of the system, all must contribute somewhat to dissolution. He was beyond medical treatment when I saw him. Cannot say whether I could have arrested the disease when first attached.’
    “ The deposition of Dr. Michael was also adduced by the plaintiff, who also made a post-mortem examination of Peter’s body; he said, ‘there was chronic inflammation around the heart, no disease of the heart itself. The other organs were healthy, nor was any appearance of the internal organs that could sufficiently account for his death. I think he was unsound, judging from appearances at the post-mortem examination. I think he labored under an affection of the membrane around the heart; I cannot say of how long standing, it might have been three weeks or a year, nor can I say whether Peter was sound or not on the 3d of March,-1852. I think the liver did not endanger his life, and the affection of that was not beyond the reach of medicine; stomach and intestines appeared healthy; the heart itself was healthy. I think, but cannot positively affirm, that Peter died of pericarditis; the disease at his death was beyond remedies, but I cannot say what would have been their effect if applied at the inception of the disease.’
    “Both of these doctors said, ‘a man is unsound who has an organic affection existing, whether curable or incurable.
    “ Dr. Stokes, called for the defendant, said, that inflammation of the lining membrane of the heart, in an acute form would soon produce death, if not arrested; that blood-letting and blistering, reducing the system might cure it. In a chronic form, one might last a good many years, and suffer more or less, though in that form incurable. He said Peter seemed to be quite healthy in 1850, he then belonged to Mrs. Walker, of whom he was the family physician.
    “ Two other witnesses testified to the apparent robust health of Peter up to a period near the time of sale — one having known him for ten or twelve years;' and had him employed in helping him to roll logs, within two months before he was sold, and he worked well at that heavy labor, never complained, seemed perfectly healthy, and very valuable. The other had him on hire for 1851, and sent him home the last of the year. He performed good service throughout the year, except for a day or two in the summer, when he had a cold with slight fever removed by simple remedies.-
    “ The foregoing is a sketch of the material testimony:—
    “ I did not place this case upon Stephens and Ohappell. I alluded to that case as indicating a class of causes brought into Court that was not unsoundness — that is to say, a class where a physician would undertake to say that the seeds of an inflammatory fever were existing before a sale. I also told them, that predisposition to disease was not unsoundness; but the jury was expressly instructed, that the rule to control this case was this, to wit: Was there a disease of a vital organ existing in a formed state at the time of'the sale?. And in regard to what the doctors have advanced as a definition, I stated that I did not feel warranted in adopting their words, “whether curable or incurable,” for I thought, if a disease of any sort was easily removed, and by neglect or maltreatment, it was allowed to prove fatal, this should not be accounted unsoundness — and I give as illustration, what was usually called a cold; it might affect some vital organ, and be maltreated or. neglected, or subjected to reckless exposure, and thus produce consumption, or other fatal form of disease; but if easily removed in the inception, I should not think that such- affection even of a vital organ, unsoundness.
    “The material testimony having been carefully recited to the jury, they returned a verdict for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial on the grounds :
    1. Because it is respectfully submitted, that his Honor erred in charging the jury, that the disease of the slave Peter, must be proved to have been in a formed and developed state, at the time of purchase; whereas it is submitted, that if the seeds of the disorder existed, at the time, it was sufficient; and this being a chronic disease of the pericardium and liver, did not fall within the rule laid down in Stephens vs. Ohappell.
    
    2. Because his Honor erred in instructing the jury, that the unsoundness of a slave can only exist, in cases where the disease' is incurable, in direct opposition to the testimony and professional opinion of Drs. Thomas Y. Simons and Michael.
    3. Because the verdict was directly against the testimony and opinion of Dr. Thomas Y. Simons, the attendant physician, and unsupported by law and all the facts of the case.
    
      Perry, for appellant,
    cited Stuckey vs. Glyburn, Chev. 188; Schoolbred vs. Timrod, 1 Bay, 324; Venning vs. Gantt, Chev. 87; Bell vs. Jeffries, 13 Ired. 356; Oliph. on Horses, 33 Law Lib. 29-, 38, 45.
    
      'Williams, contra,
    cited 1 Bail. 648.
   The opinion of the Court was delivered by

Withers, J.

The testimony in this ease was wholly for the arbitrament of the jury, since there was such evidence on both sides as to make them the exclusive tribunal for the decision of the matter of fact.

The question for this Court is, whether the following instruction was fight, to wit: “Was there a disease of a vital organ, existing in a formed state, at the time of the sale ?”

2. “ A disease of any sort, easily remoYed, if by neglect or maltreatment allowed to prove fatal, should not he accounted unsoundess.”

1. The difficulty of applying a standard of law is not just cause of complaint against the law itself, or of dissatisfaction with the tribunals that are charged with its administration. Rules we must have, they must be general, to be true in themselves and to be fitted to embrace the infinite variety of individual instances to which they are to be applied. We must define unsoundness, in the physical, as we must malice and fraud and deceit, and so forth, in the' moral nature. If the special circumstances present a difficulty in adjudging the presence of the one or the other, this is to be imputed either to insufficiency of evidence, or to our natural incapacity to explore with the certainty of science matters that lie deeply buried in obscurity; or to both these causes. Hence comes the imperfect result of our efforts to ascertain, in a given case, with satisfactory certainty, the unsoundness of a slave or a horse, under any rule of law that ever has been or can be devised. The jury are necessarily to play a chief part in this numerous, increasing and troublesome class of cases.

The proposition laid before the jury, in the present case, has been announced as the guide for them in a vast multitude of instances, since it was authoritatively adopted. This was done in Smith vs. Rice, 1 Bail. 648. In that instance Judge Evans charged the jury thus, “ It did not seem that the negro in question was otherwise diseased than by a disorder, which a physician, who attended her, testified, was perfectly within the control of medicine, and did not permanently affect her value.” The jury were instructed, if they agreed to this, to find for the vendor, which they did. Uponappeal no error was detected, and in the opinion pronounced this language is used. The property sold should appear to be subject to “ some permanent physical defect, calculated materially to affect its value.” Although a recision of the contract was then in view, yet a reduction in price, for a partial unsoundness, was also in question, for the alternative was presented'to the jury, and the same definition of unsoundness was applied, and was, indeed, necessarily applicable to either branch of the enquiry.

In Stephens vs. Chappell, 3 Strob. 83, it was said, “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 sale.” Evidenced by symptoms was a material addition in that case, because it was intended to determine, that in eases of unsoundness, developed after the sale in the form of inflammatory fever, the symptoms of that form of disease should be co-existent with the transfer of the property, else the inquiry as to the seeds of such description of unsoundness being then planted, should be shut out; because full experience had shown how completely conjectural was all testimony upon that subject, by scientific witnesses or others. Gadsden, the present plaintiff, was not held to show symptoms obvious and observed, but no more than an existing disease of a vital organ in a formed state.

A post-mortem examination might show that, in relation to a chronic disease of such an organ, and his evidence tending in that direction, with all to the contrary, was heard and i*e-solved by the jury.

There are “ organs vital,” and those that are not, although it may demand professional knowledge to discriminate between them, and the use of those words is only another mode of expressing the doctrine of Smith vs. Rice, for surely a cut upon a finger cannot, in itself, be a permanent disease, or one materially impairing the value of a slave.

2. The second point stated is really but another mode of expressing the first, or contains but an illustration of it. If a temporary ailment of a negro should be accounted unsoundness, what would be the consequences? In avast proportion of cases, there would be a reclamation: or recision; on refusal there would be a law-suit. If fatal consequences followed, it is plain, that a vendor, who had parted with the control of a negro, who is a volunary agent so far capable of heedless or reckless mischief to himself as to be withdrawn to a degree from the stringent rule fixing the liability of a common carrier, who can expose himself to causes that shall convert a trifling ailment into fatal disease, would be held responsible for such consequences as he could avoid or control, and the more likely to be visited upon him, if the purchaser knows that any existing ailment is to be regarded unsoundness, and knowing it, chooses to consider himself released from that care or prudence, in the management of the slave and his ailment, which no rule of law ought to suggest or encourage. And to which if no more than a technical rule shall bind him, as intimated in Williams vs. Vance, Dud. 99, it will be truly difficult for the vendor to enforce.

But it is enough to resort to our own case of Rivers vs. Gruget, 2 N. & McC. 265, where we find the following language by Johnson, J., “ Every slight or temporary defect will not warrant a recision of the contract, or a recovery of the price paid; it ought to be of that character which renders the thing sold permanently less valuable, either as to duration or extent: any other rule would tend to the utter dissolution of all contracts, as there is scarcely any article of traffic which will not exhibit some mark or blemish which might escape the notice of a close observer.”

To the same effect is the opinion of Chief Justice Eyre, in Garment vs. Barr, 2 Esp. 673; and of Coleridge J., in Bolden vs. Brogden, 2 M. & Rob. 113. .The English courts have since departed from such position, and regard any temporary defect in a horse, unfitting him for the time for his natural usefulness (as they express it,) to be unsoundness: vide Kiddell vs. Burnard, 9 Mees. & Wels. 668, (marg.) They even go so far as to use the test, whether a cough actually made a horse, at the time of sale, less capable of immediate work. Yet Parke, B. (as maybe seen in the same case,) who seems to have the strongest impressions upon the subject, admits, that “ were this matter presented to us now for the first time, we might deem it proper to grant a rule, but -the matter has been, we think, settled by previous cases, and the opinion which we now express, is the result of deliberate consideration.”

As our previous cases and inveterate circuit practice settle the contrary, and as we are right, Baron Parke himself being the judge, we may imitate his court in pursuing our track, for the reasons assigned by himself.

We have been referred to the case of Bell vs. Jeffreys, 13 Iredell, 356, wherein it is decided that myopy or near-sightedness, is unsoundness. Such a position was taken at Edgefield, at the Fall Term, of 1852, and overruled, whereupon an appeal was taken, and either it was abandoned before the hearing, or if not, it was dismissed: it is not distinctly recollected which.

The position of the Court of North Carolina, was maintained by a majority; Ruffin dissentimg, and assigning such reasons as are not easily answered, and such as are very agreeable to the course of those of our cases which may be regarded as furnishing analogies. The observations of Justice Pearson, who spoke for the majority, are quite in the train of the English example already' referred to, and which may be found exhibited in Oliphant on the Law of Horses, chap. 3. Stress was laid upon the word “ healthy” which was coupled with the word “ sound,” (as it is in the case now before us,) by Judge Pearson. We are not prepared to adopt the views expressed as to the efficacy of that word. It is sufficient for this occasion to say, that at any rate, there was no more evidence to prove the negro, now the cause of action, not healthy, at the time of the sale, than to prove him not sound, allowing there is a difference in the legal import of the words.

Wherefore as we discover no error in law, upon the circuit, and feel no warrant to supersede the action of the jury upon the facts, the motion for a new trial must be dismissed, and it is ordered accordingly.

O’Neall, Whitner, Glover and Munro, JJ., concurred.

Wardlaw, J., absent.

Motion dismissed.  