
    John D. James vs. Mary Herring.
    Where in an action for breach of warranty of soundness of a slave, the proof was that, shortly after the sale, the slave was attacked with dysentery, and died, notwithstanding careful treatment, and the attending physician testified that, for various reasons given by him, he believed the slave was of scrofulous habit, and died of scrofula existing before the sale; and there was no other medical evidence given, but on the other side, the testimony of several witnesses, that they had known the negro in Virginia for years, where he was sound and healthy, with no development of scrofula and the slave had been brought from Virginia to Natchez in this state, but a few months prior to his death, and the jury found for the plaintiff; held, that the weight of positive evidence was greatly against the verdict, and apart from the opinion of the attending physician, there was no evidence to support it; and from the testimony alone, the court were inclined to be of opinion, that a new trial should be granted.
    If, in an action for breach of warranty of a slave, it appear in the proof that the slave was brought to this state as merchandise, and for sale, and sold here in violation of the law prohibiting such sales, the sale will be void, and the warranty of soundness, as part of the contract, likewise void, and cannot be made the foundation of a recovery ; and the high court of errors and appeals will so decide, though the point be not made in the argument.
    If a slave be brought to this state as merchandise, and for sale, and sold here in violation of the law prohibiting such sales, the date of the bill of sale in Louisiana will be an ineffectual effort to evade the law, if in truth the transaction took place in this state.
    In error from the circuit court of Adams county; Hon. Wiley P. Harris, presiding judge.
    Mary Herring sued John D. James for breach of warranty of a slave named Egerton; the sale took place on the 5th day of February, A. D. 1846; the bill of sale is dated at Yidalia, La.; the price given for the slave was $650. The trial took place in May, 1848, when the jury found for the plaintiff, and assessed her damages at $700.
    A new trial was moved for, but refused, when the defendant embodied the evidence in a bill of exceptions.
    
      I. P. Newman, for plaintiff,
    Proved that as agent for her he purchased Egerton of Samuel Davis, the agent of James, and took him to the residence of plaintiff in Franklin county; three or four weeks after, the slave was taken sick with diarrhoea, a doctor was sent for and he got better; about ten days afterwards he became worse, and died about the middle of June. Every possible care was taken of'the slave by the plaintiff. Before he purchased the slave he examined others offered for sale by defendant, and also by other traders; he examined Egerton by looking down his back, and saw no sores or eruptions upon him; there was a scar upon his neck; he selected this boy because.he liked his countenance. He was the son-in-law of plaintiff; never told James of the sickness of the negro.
    S D. Johnson, the overseer of plaintiff, proved, that when Egerton came home he put him to work for about three weeks at ploughing, then to mauling rails, afterwards to cutting timber for rails, at all of which he was awkward; about four or five weeks after the purchase, he was taken with the bowel complaint, and continued to have it until he died; he complained of not having enough to eát; his rations were doubled, and he still complained; his belly looked swelled, and he complained of his insides. On cross-examination, he stated that he whipped Eg-érton once, about three months after he came there, gave him about five or six cuts; he never whipped slaves when they were sick.
    Dr. B. D. Knapp stated, that he was a regular physician; saw and examined Egerton the third day after his purchase' by Mrs. H. He had a large head, turned upper lip, a small neck, with a scar denoting a former scrofulous ulcer, a small chest, abdomen hard and protuberant, and his extremities very small. From these appearances was satisfied that the slave was unsound, and that the disease existed prior to the time of sale to Mrs. Herring.' He was called in to see the boy about the middle of April, after he was purchased, found him emaciated ; had diarrhoea, voracious appetite, abdomen very much enlarged; he prescribed for him with some temporary relief; he saw him again in about a week, and almost daily’afterwards; the diar-rhoea still continued; had some fever; appetite variable; abdomen very much enlarged and hard, with enlargement of the mesenteric glands. The diarrhoea and fever, with occasional interruptions, continued with other symptoms, showing a gradual decline until his death, which occurred about the middle of June next after his purchase. That Mrs. H. took him to her house, and into her own or adjoining room, and showed him every necessary attention during his sickness. He thinks it was worth about thirty dollars a month to take care of the slave as Mrs. H. did. That his services as a physician for attending said slave, were worth from seventy-five to one hundred dollars. On cross-examination he stated, that the slave had a scar on his neck, but no ulcer. That scrofula is a disease of nutrition, with a depraved state of the constitution, in which some of the glands almost always suffer.. The diarrhoea and fever from inflammation or irritation of the bowels, with the affection of the mesenteric glands, were probably the immediate cause of his death.
    On the part of the defence, N. Glenn swore that he knew the slave Egerton; that in 1843 he was sold with a warranty of soundness, in six months after this sale he was sold again with a warranty of soundness, and that in Richmond, Ya.', in 1845, he was sold to Cochran & James, (who were partners,) with a warranty of soundness; soon after Cochran sent him to Natchez; he had not seen the boy since then -; the boy was entirely sound and healthy; had full opportunity of knowing the health of the boy.
    On cross-examination, stated he'never knew the boy to be sick at all, and never heard of his being so. Is no practitioner of. medicine.
    Michael Hancock stated, that, as the agent of his son, he sold the boy Egerton to Cochran & James, who were partners. The slave was in his possession twelve months previous to August 16, 1845, at which time he was sold to Cochran & James. The-boy was perfectly sound and free from disease of any sort; he paid particular attention to every slave under his care; and had this slave evinced the least symptom of disease, he would have discovered it, and is certain there was none; he employed him as a farm hand, mauling rails, &c., and he always performed his duties faithfully ; he sold him for no fault, but with regret; his son warranted him sound; he was the property of his son, and he sold him as his agent, having no pecuniary interest in the transaction; had full opportunity to know the condition of his health.
    David D. James stated, that he was in Richmond, Ya., when the boy was purchased; came out with the drove in which this boy Egerton was; was with him two months, saw him every day; witness came with the drove from Richmond to Natchez as assistant The boy was delivered to John D. James by B. F.' Cochran; they left Richmond about the 21st of August, 1845, and reached Natchez about the 3d or 4th of October following. Egerton was purchased about ten days before they left Richmond. There was no other boy in the drove by the name of Egerton, nor had John D. James any'other negro of that name. Never heard said boy complain, nor knew him to be sick. The boy walked all the way from Richmond to Natchez.
    
      Samuel H. Davis confirmed the statement of the last witness about the health of the boy, and farther stated, that at the time he was sold he was examined thoroughly by plaintiff’s agent, his coat was taken off, and his breast and back under his shirt were examined. The agent said he liked the boy’s countenance better than any other. The bill of sale was executed at Natchez,, and not at Vidalia, as it purported to be...
    This was all the testimony. There was also an affidavit filed by the attorney for defendants, in support of the motion, which need not be noticed.
    The defendant sued out this writ of error.
    
      Sanders and Hag gin, for plaintiff in error,
    Cited'Graham, New Tr. 162; lb. 169; Sims v. McIntyre, 8 S. & M. 326; Vannerson v. Pendleton, lb. 452; Civ. Code of La. Art. 2415.
    
      Jas. Carson, Jr., for defendant in error,
    Cited 1 Saund. PI. &. Ev. 135; How. & Hutch. 595, sec. 30-32; 1 S. & M. 157; lb. 381; lb. 400; Thompson v. Williams, 7 lb 270; Davis v. Presler, 5 lb. 459; 7 How. 365; 4 How. (Miss.) 13; lb. 11; lb. 338; 3 lb. 219; lb. 105; 2 lb. 772, 891; 1 lb. 19; 7 lb. 673.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action upon a bill of sale for breach of warranty of soundness. There was a verdict and judgment in the court below for the plaintiff.

The testimony was, that the slave was attacked with dysentery a few weeks after he was purchased by the plaintiff, and notwithstanding great attention was paid him, he died. The physician who attended him came to the conclusion, for various reasons which he assigned, that the negro was of scrofulous habit, and died in consequence of that disease, and that the disease existed before the sale. He gave testimony to that effect, and that was the only medical evidence in the case.

On the other side, there was the testimony of several witnesses who had known the negro in Virginia for years, that he was sound and healthy, and that there had been no development of any scrofulous affection. The boy had been purchased at Richmond, Va., and brought to Natchez in the October preceding his death. James paid a fair price for him, and took a bill of sale with warranty of soundness.

The change of climate might have produced a more rapid development of a disease which had been previously lurking in the system, or it might have produced the disease which occasioned the death. The process of acclimation consequent upon a change from a northern to a southern' latitude, sometimes gives rise to fatal diseases. The weight of positive testimony in this case was greatly against the verdict, and apart from the opinion of the attending physician, there was no evidence to support it. On the testimony alone, we should incline to believe, that the'justice of the case required the granting of a new trial.

Rut there is another point in the cause, which appears to be still more conclusive, and which we cannot overlook, though not made in the argument.

This sale took place in Natchez on the 5th of February, 1846. The bill of sale bears date in Vidalia, La., but the evidence is, that the sale was made, and the bill of sale executed in Natchez, that the negro was there, and the w-hole transaction took place in this state. It was also in proof, that the defendant was a negro trader, and that this slave was brought from Virginia to this state as merchandise and for sale. The law prohibiting transactions of this character, was then in full force, though repealed in a short time afterwards. By that law, the whole contract was void, according to repeated decisions of this court. If so, the warranty of soundness, as part of the contract, was likewise void, and cannot be made the foundation of a recovery. Collins v. M’ Cargo, 6 S. & M. 133. The date of the bill of sale in Louisiana, was an ineffectual- effort to evade the laws, if in truth the transaction took place in this state. But as this point was not made in the court below, and the proof seems not particularly directed to it, the plaintiff by possibility may establish the contrary.

On the whole, the judgment must be reversed, and a new trial granted.  