
    Waddill ag’t Chamberlayne.
    S. C. Jeff. 10.
   The Pit. declares that the Deft, fraudulently and deceitfully Sold to him a Slave for a great Price 25£. knowing the said Slave at the Time and for a long Time before laboured under an incurable Disease not discovered by the Pit. and was of no value There is a Verdict for the Pit. and I have moved in arrestof Judgment that this action will not lie without a Warranty.

This is an Action upon the Case in Nature of Deceit and such Actions I agree will lie in some cases but not in this The Charge here is no more than selling a Thing of Small Value for a great Price and not discovering the Defects. And however inconsistent this may be with natural Justice It is tolerated by the universal Consent of Mankind where buying and selling is used The principal advantage in the way of Commerce is to sell dearer than you buy And as to the Quality or Goodness of a Commodity the Law has left it at large pretty much to the Conscience of the Seller who too often takes advantage of the Buyer’s Ignorance. The Law has provided a Guard against those Impositions to those who are Prudent enough to make use of it that is a Warranty from the Vendor of the Goodnes Value &c. But without such Warranty no Action will lie for any little Fraud Or Overreaching in the Value or Goodness of the Thing sold But in such cases the Rule is Caveat emptor And if the Law was otherwise there would be no End to Actions but every Contract almost in buying and selling might produce one.

There is no Rule of Law perhaps more universally known than this It is in every one’s mouth What Frauds are [44] practised every Day in the sale of Horses yet I never heard of an Action brought without a Warranty No man thinks himself obliged to discover the Defects of the Thing he sells and unless the Buyer is prudent enough to exact a Warranty I take it he is without Remedy.

1 will not deny but there are some Instances where an Action will lie for Deceit in a Sale without express Warranty as where it is a Thing unlawful in itself as the selling of bad Victuals 9 H. 6. 53. b. 11. E. 4. 6. b. Kel. 91. Cro. Jac. 197. 470. but the Reason given in all these Cases is that it is prohibited by Law to sell bad Victuals which proves the Action would not lie but for that reason.

2 Ro. Rep. 5. 6.

So if I sell a Thing affirming it to be mine when it is anothers this affirmation amounts to a warranty if I am in Possession otherwise not 1 Salk. 210. Medina ag’t Stoughton So are divers other Cases which prove there must be either an express Warranty or something that amounts to it in Construction of Law And it is evident from the Case of Medina &c. that if sell a Thing out of my Possession affirming it to be mine (tho’ this is an apparent Fraud) no Action will lie for there Caveat emptor says the Book.

Cro. El. 44 Cro. Jac. 474. 1 Ro. Ab. 90. 3. Mod. 261. Show. 68.

There is a Case that I suppose will be quoted against me And if That is Law then this Action will lie but I humbly conceive it is not 9. H 6. 53. b. in 1 Ro. A. 90. If a man sells a Piece of Cloth knowing it not to be well fulled an Action of Deceit lies for this is a Warranty in Law says Rolle but the Book says no such Thing nor indeed is the Point adjudged in the case but cited to be adjudged in another Case. It is only a saying obiter of one of the Judges and can carry no great authority with it especially as it is not supported by any subsequent Resolutions but the whole Current of Authorities since is contrary.

There is the Opinion of Frowick in Kelw. 91. and of Popham in new Dier 75 Margine Chandler ag’t Lopus in Favour of this Point but the first is a single Opinion And as to the second tho’ it was adjudged in the K’s Bench according to the Opinion of Popham yet that Judgm’t was reversed in the Excheq’r Chamber Cro. Ja. 4.

If a man sells a Pipe of Wine that is corrupted [45] and does not warrant it to be good no Action lies F. N. B. 94. c. Bridgman 12. 7. and 1 Ro. A. 90. con. is not warranted by the Book for it appears in the Case there was a Warranty It is said indeed the Warranty is not Material but what is the Reason given why because it is prohibited to sell corrupt Victuals Bridg. 127. Southern ag’t How Case of a Counterfeit Jewel which the Deft, knew to be so Adjudged no Action lay without a Warranty In the Report of this Case Cro. Ja. 468. the Council for the Pit. labour this Distinction where the Deceit is sciens or not No Judgm’t is given by the Report there but in Bridg’m Judg’t was given for the Deft because the Action would not lie without a Warranty except in the Case of bad Victuals which goes upon another Reason as I have shewed.

Pop. 143 s. c.

If a man sells a Horse that is lame or diseased without Warranty no Action lies F. N. B. 94. c. Bridg. 127. 1 Ro. Ab. 90. 4. This is a Common Case and what every Body knows and was never yet denied Nay if there is an actual Warranty it extends only to secret Infirmities not such as are visible and apparent as the Want of an Eye or any other Defect within the Knowledge of the five Sences as the Book of 11. E. 4. 6. b. expresses it So is the Civil Law 1 Domat 85. 10. Yet it is a Fraud and Deceit in the Seller not to discover this Defect to the Buyer but here Caveat emptor 1 Sal 211. Butterfield ag’t Burroughs is not con. but rather warrants this Opinion for there the Court said they would intend it a secret Infirmity being after a Verdict.

This Case of a Horse I take to be directly in Point for where is the difference between a Horse and a Slave as to this Matter If an Action will not lie in one Case neither will it in the other as I conceive.

As to the Difference taken where the Deceit is sciens or not it has its Foundation from that Opinion in 9. H. .6. 53. b. only cited as I have observed no one adjudged case since to support it but the whole current of Authorities as well as Common Experience ag’t it. I will agree this Difference is taken with respect to the Property in several Cases 1 Danv. 178. If a man sells a Thing knowing it to be anothers an Action will lie without Warranty but this Point is settled in Medina ag’t Stoughton cited before. ■

In my little Reading I could never -find a Precedent of such a Declaration as this but the Precedents are all upon Warranties and I believe no such Precedent can [46] be shewn And if there cannot it will go a great way to prove my argum’t Sr. E. Coke says an Argument drawn from Books of Precd’ts and Entries is very forcible.

In short Sir if this Action is maintainable a great deal of Learning we meet with in the Books upon the subject of Warranties might have been spared. It must be useless and insignificant And the rule Caveat emptor may be thrown out of Doors

I expect to be told that this is arguing in Favour of Fraud that this makes Buying and Selling a mere cheat and learned Lessons we shall hear no doubt concerning the Immorality of the Thing. But however such kind of reasoning may serve to gain popular applause and raise a High Idea of the Orator’s Integrity it will never I am sure prevail with discerning Judges

The Laws of Society and Civil Government are not founded upon the strict Rules of natural Justice public Convenience oft requires they sho’d be dispensed with The Punishment of Theft bears no Proportion to the Crime Yet it is found necessary to make it so severe I need not mention other Instances they are obvious enough

Therefore to make specious Harangues concerning the Morality or Immorality of an Action that is to be determined by the Laws of a particular Society is arguing neither like a Lawyer or a Politician

It is a Rule of all Governments I believe that the Good of the Majority is to be preferred Agreeable to this we have a Maxim in the Common Law Lex citius tolerabit privatum Damnum quam publicum malum Therefore the Judges in their Determinations do not so much regard what the Injury is to particular Persons but what the general convenience or Inconvenience Will be An Argument ab inconvenienti is very forcible in Law for the Rule is Omne quod est inconveniens est illicitum.

Now Sir 1 conceive the Inconveniences will be many fold if it be established for Law that an Action will lie for Selling a Thing of small Value for a great Price or for selling a Commodity without discovering the Defects which are the Charges in this Dec! It will tend to multiply suits without End Every Man that is displeased with his Bargain will have it to say The Thing is not so good or worth so much as I thought [47] And if this shall be a Foundation for an Action a desire of Revenge or Proneness to be litigious may produce a Law suit out of every Bargain that is made How much more reasonable is it that a particular person should sometimes suffer than such a general Inconvenience be introduced especially since the Law has put it in the Power of every man to secure himself against Impositions of this kind by requiring a Warranty And if he does not do it he suffers through his own Folly and Negligence and the Law is not to be blamed If this Action will lie every Vendor of Slaves imported will be subject to the same It frequently happens that there are Distempers among their Slaves but the Seller does not think himself obliged to publish this to the World Nor is it thought criminal even to use arts to conceal it Numbers of these distempered slaves have been sold and the consequences sometimes very fatal But I never yet heard of an Action being brought Tho’ we may expect for the future to see them very frequent if this is established as a Precedent.

I will beg leave to mention a Case adjudged here last Court Lewis v Golston It was in Chancery Lewis brought a Bill ag’t Golston suggesting the want of Witnesses to be relieved concerning the sale of two Slaves which he alleged the Deft, warranted to be sound but were in Truth distempered The Deft, denied the Warranty And tho’ it was proved the slaves had been distempered for some Time and till just before Lewis bought them and that the Deft, knew it Yet the Court denied any Relief because the Warranty was not proved

If Equity could not relieve in such a Case much less can an Action at Law be maintained I remember very well Sr. J. R. who was then of my side of the Question argued an Action would not lie without a Warranty He sayed those little arts which are used every day in the way of buying and selling and in putting off bad Commodities were no Grounds of an Action Nay he went so far as to say all Trade was a kind of Fraud How right he is in his Opinion I must submit but I am apt to think his Argument now will not be very consistent with his Doctrine then.

There is one Thing I have omitted to mention and that is the Rule of the Civil Law in buying and selling In pretio emptionis & venditionis naturaliter licet contrahentibus se circumvenire The Civil Law is universally allowed to be the most equitable perfect Law in the World And yet this Kind of Art and Overreaching in buying and selling [48] is tolerated and indeed there could be no such Thing as buying and selling if it was not.

I am perswaded then your Honours will not be induced from any plausible Pretence of the Immorality of the Thing to give Judgment ag’t the Law I take the Law to be clear in Favour of the Deft, and I pray that Judgment may be staied

Judgment was given in this Case for the Pit. in April 1735

OCTOBER COURT MDCCXXXV.

One was indicted for Stealing an Horse and found guilty In arrest of Judgment it was shewed that the Venire facias was awarded to a wrong County and thereupon adjudged to be a Mistrial.

Mr. Attorney moved the Prisoner might be remanded and a new Venire facias awarded He mentioned the Maxim that a Man should not be twice put in Danger of his Life but sayed here the Prisoner’s Life had not been in Danger the Jury that tried him having no Power to Convict him.

And he was remanded accordingly

Cited 6 Rep. 14. Arundel’s Case in Point and 4 Rep. 39. 40. 45. a. 47. a. where an Indictment is insufficient a Man may be indicted again See 2 Hawk. 377. s. 10. 379. s. 15.

4 Co. 44. 45. Vauxe’s Case 3 Inst 214.  