
    John D. Williams vs. John Vance, adm’r. of Wm. Vance.
    Where the purchaser of a negro is informed by the vendor, that the negro has been exposed to the measles, and he afterwards takes them, and dies, the vendor is notifiable on an implied warranty.
    It seems, that where a slave dies of a disease which is not difficult to cure, but the seeds of which existed at the time of the sale, it is incumbent upon the purchaser seeking to avail himself of an implied warranty to show that he employed a prudent and judicious treatment in endeavoring to effect a cure.
    BEFORE BUTLER, J., AT LAURENS, FALL TERM, 1837.
    .This was an action of debt on a sealed note for eleven hundred dollars, given by defendant’s intestate for two negroes, Robin and Lucy — upon which intestate in his life-time had paid five hundred dollars. The defendant filed a discount, and contended that if he succeeded in his defence he was entitled to a verdict for seventy-five dollars. His defence was, that his intestate was to have given four hundred and twenty-five dollars for Lucy; that the payment on the note was more than sufficient to pay for her by seventy-five dollars, and that Robin had died of a disease, (the measles,) the seeds of which were in him at the time the plaintiff sold him, which was on the 3d of April, 1835.
    Robin had belonged to Jabez Johnson, and had run away for some time before a deep snow, which fell in the first week of March, 1835. . During the time the snow was on the ground, Robin came in to one Godfrey, under the impression that Godfrey had bought him. He was badly clad, and had no shoes; he had a slight cough, from cold. He continued at Godfrey’s for three weeks; during which time the defendant’s intestate repeatedly saw him, and made a proposition to bay him. It seemed that the intestate was well acquainted with the negro before, and was anxious to buy him. Williams, the plaintiff’ had no acquaintance with the negro before he bought him, which was about a week before he sold him to Yance; so that Williams was in possession of the negro only about a week; during which time the measles were on his plantation. He let Vance know that fact before tbe trade. Vance inquired of'Robin’s mother, whether Robin had ever had the measles, and she informed him that he had. After the inquiry the trade was consummated, on the 3d of April. Some short time afterwards, Robin was taken -with the measles. Dr. Young was called to attend one of Vance’s family, on the 21st of April. On that occasion he saw, but did not examine Robin, who was sitting, up at the time and complaining. Some of the family said that he had had the measles, but was recovering. On the 29th of the same month, Dr. Rook was called in to Robin. The doctor said he found him ill with secondary measles, (the sequoia of measles proper.) Before he prescribed, he inquired what had been done for Robin; and was informed that he had taken warm teas, and some aperients. The doctor did not disapprove of the treatment. On the first Monday in May, Vance, the intestate, met with the witness at Laurens, and asked him “'if he had seen "Williams — that he wanted to pay him for that dead negro.” Witness replied, “is the negro dead ?” Vance said, “ no, but he will die soon.” Some time between that conversation and June, Robin died; and not very long after-wards, the intestate himself died.' Upon the above statement of facts, the case went to the jury.
    His Honor, in his charge to the jury, said he did not think that the defendant should succeed in his defence. The negro did not die of the disease which is specifically known as the measles; but rather of its consequences ; and that it was not without some doubt, that these consequences might have been avoided by a prudent and judicious treatment. The measles was a disease not usually difficult of cure. Perhaps in ninety-nine cases out of one hundred it did not prove fatal. It was not like small-pox, cholera, scrofula, and other such diseases, which usually prove mortal, and against which no human prudence can guard. When a slave dies of such diseases as these — having the seeds of them in him at the time of sale, it was reasonable that the seller should be the loser. "But that the same principle should be extended with great caution to diseases that were not difficult of cure, when no blame could be attached to the seller, and where the buyer did not show that he had used all the prudence in his power. In this cafeé, no physician was called in for near a month after the disease broke out. And it was probable that the negro died at last of a pre-disposition to a lung complaint, from haying been exposed to the snow, which should have been especially guarded against.
    But the main ground on which he rested his objection to the defendant’s defence, was, that his intestate bought on his own judgment, and not on the plaintiff’s representations. He was better acquainted with the slave than the plaintiff, and knew that he had been exposed to the measles. He made his own inquiries, and should be governed by the doctrine of caveat emptor. The jury found for the defendant.
    The plaintiff appealed, upon the1 following grounds:
    1st. Because the measles, of which the negro died, and for whose price the sealed note, upon which this action was brought, was given, being easy of cure, was not such a disease as the rule of implied warranty would extend to.
    2d. Because the death of the negro arose from the negligence of defendant’s intestate, in not procuring medical assistance, ánd bestowing the necessary attention upon him in proper time.
    3d. Because the plaintiff having informed the defendant’s intestate before he purchased the negro, that the measles were in his family, and that the negro had probably received .the infection, he purchased with a full knowledge of all the facts necessary to put him upon his guard; the rule, therefore^ of implied warranty, did not apply, and there being no express warranty, the plaintiff was entitled to recover.
    4th. Because the verdict of the jury was against law, the evidence, and the charge of the presiding Judge.
    
      H. C. Young, for motion.
    
      Irby, contra.
   Curia, per Butler, J.

A new trial must be granted in this case. The intestate was put on his guard, and had no right to rely on an implied warranty. The plaintiff' in effect, said to him, caveat emptor; for he told him that the negro, Robin, had been exposed to measles; the plain meaning of which was that the plaintiff would not hold himself liable for any consequences from that circumstance, but that the intes: tate must decide for himself, and run the risk. 1 The intestate so understood it, for he bought after making his own enqui-ries, and exercising his own judgment on the subject. He must, therefore, stand to his own determination; and his representative cannot now be permitted to resort to any warranty arising from the mere implication of law; and more especially so, as the intestate did not resist the payment of the note in his lifetime, but seemed to regard himself liable under the terms of his contract. "It is the misfortune of the defendant, that the loss should fall on him, but it certainly is not the plaintiff’s fault. The principle laid down in the case of Hart vs. Edwards, 2 Bail. 306, sustains the. position taken by the plaintiff in this case. It should be the policy of the law to let parties rely more on their own prudence, and less upon the interposition of-courts of justice. Mischief may frequently be prevented or avoided, that cannot be justly remedied. This case furnishes an illustration of the remark. If the intestate had declined to buy, it may have been that the negro would not have died. I do not pretend to say that he died from negligence, but perhaps under the defendant’s treatment he might have lived. The negro was subjected to the treatment of the intestate, and the plaintiff had no control over it. Both may.be innocent parties, but let the loss fall on him who voluntarily encountered all the responsibility.

The motion is granted.  