
    Chilton vs. Jones
    the" m” o,f a yamy bj c, that to1L™w!i'eI»oa0i¡S iñff\hiM'nuühcMm" sound,&e «huí (ii< Uaws Xirn’r^d.^the ^ gontof.isaid íhn«-5°"invp»IIV»í S'í'uw'i'óír von'ioT-í 'oí »h™°"-oí:i',¿imfit S&2 ""''(iiem^'ího 8K™tih<'ii"viW to somiit". ih'vo which Ik- repM, they sive 9<mml to the best of my know-ifvlovli tiif'shves '■'f'the Slaves was ímsonmi at the Ira-*<i'.'*yj"oirereJbe togivoincvjdeiu-e^ojj lite declarations oí 2), made «•orne time
    proiing1 that he knew the slaves to be unsound before nj>d at the time of their deliven — f/eWi that* the evidence was inadmisible- Held also, tlmt the eireum lance that the mother 'of ihe siavts ht vine died with the king'"* evil, or serophu-a, was not oí* itseli' .sufficient evidence oi the tinsoundness * i any <>f her children, to entitle J to recover in this action.
    The declaration m the./V.yi count stated, that C, by Ids bill obligatory, obliged himself to pay to J ?3H0 the amount to be paid oil in slaves to be vameu, kc*. 'Umt C, in <lheliar|y« of the bib, <lul deli, ver certain s’twe», and ihev were valued, fee. which slaves C undertook and promised .1 were found *nd hr nitljv; in con.ideranon thereof J delivered up the bill obligatory — averment, tbar the «¡hvos were not sound and heal’hj, and tlial C knew them not to be so,but falsely, ore. to deceno J- did not; vecavd his pu mi<e% b) rtasou whereof tlie slaves were of no me and value to .1 The second count was on a wananty. tluu cm tain slaves sold, fte were «ouml and Jnaiiln, knowing them to be muoimd and unbea'.thj, Kce, no damages were Imd in the declaration— Held, that on the evidence above stated .Í-was not entitled to recover’on ins declaration.
    Appeal from Montgomery County Court. This was an action on the case. The declaration contained two counts — 1. That on the 21st of October 1808, the defendant, ("ow appellant,) by bis bill obligatory, promised and ob-himself to pay to the plaintiff, (now appellee,) £380 8 '4. the amount to be paid off, in negroes, to be valued by two persons, as they were selling in 1807. Tliattliecle-i(1 payment and discharge of the said bill, on the 31st of December 1810, did deliver to the plaintiff certain nearoes, and they were delivered and valued, that is to saJ* a neST() b°y named John at the sum of, &c. which said negroes the defendant undertook, and then and there faithfully promised the plaintiff, were sound and healthy. That ^1e í''a'ntiff, in consideration thereof, delivered up the said bill obligatory. Averment, that the negroes w'ere not sound a,K' healthy, and that the defendant knew them not to be s0 but falsely, fraudulently, and craftily, to deceive . , . ,..v, .< . , - . ;V . , ,* . p the plaintiff, did not regard Ins said several promises, cue. hyt reason whereof the said negroes were of no use. and va-^ue die pUxiiitiiT. 2.' On a warranty that certain negro slaves sold, ¿tc. were sound and healthy, knowing them to unsound and unhealthy, &c. The defendant pleaded assumpsit, and issue was joined. J J
    
      1. At tfie trial the plaintiff’ offered in evidence, that the ímgroes were sold to him by the defendant tor money due from the latter to the former; that by agreement, 11. Lyles and J. Sprigs• were to appraise them; that some of the ue-groes were at the house of S. Davis, and were there ap-•praisod by the said appraisers, and taken by the agent of the, plaintiff at that appraisement. The plaintiff’ also provr ed, that after the negroes had been appraised, and were about to be delivered, the agent of the plaintiff said to the defendant, Do yo» deliver those negroes as sound? The defendant answered, I know nothing of them — f refer you to Mr. Davis. The plaintiff’s, agent then said to Davis, Are those negroes sound? To which.he replied they are sound to the best of my knowledge, except a burn on one of them, which he showed. Davis then delivered the negroes to the agent of the plaintiff. The plaintiff’ further proved, by another witness, that when the agent of the plaintiff asked the defendant if he delivered the negroes as sound, he replied, Mr. Davis will deliver them — í got them from him — I did not know any thing about them till now. The witness further stated, that it pressed upon his mind that the defendant said to the agent of the plaintiff something amounting to this- — That he delivered the negroes through Mr. Davis. The plaintiff further offered in evidence,, that the defendant had said that Davis was to furnish negroes to pay a debt due to the plaintiff. The plaintiff also offered in evidence, that one of the negroes above mentioned, was unsound at the time they were delivered. The plaintiff then offered to give in evidence, declarations of the said Davis, made some time before the sale to the plaintiff, for the purpose of proving that he knew the negroes in question to be unsound before they were agreed to be taken as above stated, and at the time of their delivery. The plaintiff further offered in evidence, that a memorandum of the names and prices of the negroes,so appraised, was given by Davis to the plaintiff’s agent, who gave it to the attorney for the plaintiff, who copied it exactly in the declaration, and lost the said memorandum. To the admission of which evidence the defendant objected; but the court, fHarwood and MidgeJy, A. J.] were of opinion, that the evidence was admissible, and permitted it to go to the jury. The defendant excepted.
    2. The plaintiff then offered in evidence, that the mother of the negroes in question was severely afflicted, and died with the scrophula, and that the witness, who was the family physician of Davis, had told him the disorder was hereditary, and that he would not have any of the children; but the witness never knew of any of the negroes in question being sick while in the possession of Davis, and never heard Davis say they were. The defendant then offered in evidence, by J Spngg, one of the appraisers, that some time on the day the negroes were so appraised and delivered, Davis said in the presence and hearing of the plaintiff’s agent, that thfiy were motherless children, and ' he parted from them on that, account; and to the best of the witness’s knowledge added, that the mother had died with the king’s evil, or scrophula. .One of the appraisers, at the time of appraising them, knew they were' the children of a woman who had died with the scrophula or king’s evil, and the other appraiser heard it on the same day, and made no alteration in bis appraisement. The appraiser who knew it, did not know it was an hereditary disease, and the other appraiser now considered that it would have made a difference in the valuation if he had known it. The plaintiff proved by two physicians, Doctor Lyles, one of the appraisers, and Doctor Brewer, that the king’s evil was an hereditary disease, and that the childreu of a parent so diseased, could not, with propriety, be appraised or valued as sound negroes, even though the disease might not have appeared upon them. The defendant then prayed the opinion of the court to the jury, that the circumstance of the mother of the children in question having died with the king’s evil, or scrophula, is not of itself sufficient evidence of (lie unsoundness of any of her children, to entitle thé plaintiff to recover in this action; which instruction the court refused to give; but were of opinion, and so directed the jury, that if they believed that at the time of the appraisement and delivery, the negro children were affected, or might be affected, with a latent disease, and that they were not so valuable as if descended from an healthy mother not afflicted with the scrophula, the plaintiff is entitled to recover damages on account of them, although the said latent disease may not have appeared on, at or since, the said delivery. The defendant excepted.
    S. The defendant then prayed the opinion of the courf3 that upon the evidence stated, the plaintiff is not entitled to recover on his declaration. Which opinion the court refused to give. The defendant excepted; and the verdict and judgment being against him, he prosecuted this appeal.
    The cause was argued before Chase, Oh. J. and Nicholson, Earle, Johnson, and Martin, J.
    
      Taney, fnr-the Appellant,
    contended, 1. That the declarations of Davis, stated in the/irsf bill of exceptions, made when he was not the agent of the defendant, ought not to have been received as evidence. It is not stated that Davis was -present; and as he had no authority at that time to act for the defendant, his declarations could not be evidence to charge the defendant.
    2. It was assumed by the court below, in the second bill of exceptions,- that Davis had a right to bind-the defendant by a warranty of the soundness of the negroes. The war-ranfy, if made, was that the negroes were sound at thetime of their delivery, and not that they were descended from heal thy parents. If there was no actual existing disease, fhecontract was complied with. 2 Com. on Con!. 266, 267, cites Parkinson vs. Lee, 2 Nasi, 314. The court below, by refusing the defendant’s prayer, decided, that if the mother was afflicted with, and died of the king’s evil, it, was sufficient evidence of the unsoundness of the children; and they declared, that if the children might be affected with a latent disease, at a future period, then the plaintiff might recover. It is denied that the warranty of Davis could bind the defendant; and it is contended that the sale was made by the defendant himself. There is nothing in the case which shows that Davis was the agent of the defendant. Pasley vs. Freeman, 3 T, II. 52. The action should have been brought against Davis. The plaintiff was referred to him; for the defendant expressly said he knew nothing of the ne-groes. The opinion of the court below was founded upon a warranty, and not upon a fraud. A mere opinion expressed, is no warranty. If it was intended as an affirmance of the fact, then it might be a warranty. Ibid. 57.
    
    3. There are two counts in the declaration. The first is on a special contract, and (here was no evidence given to prove it; the prayer in the third bill of exceptions, that the plaintiff could not recover on it, ought to have been granted. The second count is on a warranty that the ne-groes were sound. There is no consideration stated for the warranty. The sums of money for which the negroes were sold are stated, but it is not said they were paid for. Every declaration should state a sufficient consideration upon which to ground the assumpsit. 1 Chitty's Plead. 395.
    4. The verdict and judgment are for damages; but there are no damages laid in the declaration. It is not necessary to cite authorities to show that this is fatal.
   The Court dissented from the opinions of the County Court in all the bills ef exceptions.

•HIRGMEOT REVERSE»»  