
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1806.
    Vaughan v. Campbell.
    A bill of sale or receipt for a negro, expressing a sound price, implies a warranty of the soundness of the property; and the verdict of a jury, who are the proper judges of the matters of fact, will not be disturbed.
    Motion for a new trial. Assumpsit to recover the price paid for a negro, which negro (as the plaintiff insisted) was unsound at the time of the sale, tried before Trezevant, J., in Sumter district. At the trial plaintiff produced defendant’s receipt for the price paid for three negroes, including the one in question, which receipt imports a sale of the negroes by the defendant to the plaintiff, and a- warranty of the title, without saying any thing’relative to the soundness or qualifications of the negroes. The receipt was for $ 1012. There was a name subscribed as witness to the receipt. It was objected on the production of evidence to prove the handwriting of the witness, that the witness himself ought to be produced. Proof was then adduced of the residence of the witness being out of the State. Letters were produced, written by the witness, dated in another State; and a witness was examined, who swore that he lived in another State. This evidence was deemed sufficient to let in proof of the handwriting of the subscribing witness. The defendant’s handwriting was also proved. One of the negroes mentioned in the receipt is named George. There was no evidence to identify negro in question positively. It was proved that soon after the time when the receipt bears date, plaintiff had an old negro fellow name£¡ Qeorge) wjj0 appeared to be diseased, and that he died not long afterwards. Plaintiff’s brother swore that plaintiff sent him a negro George to stay with him awhile. That plaintiff bought and sold negroes by way of trade or speculation, and would occasionally send negroes he had purchased to stay with witness until otherwise disposed of. This negro George was sick; swelled when sent to witness; was forty or fifty years of age; unable to work ; died soon after. The overseer of the same witness, under whose immediate direction the negro was, swore to the same effect.
    Dr. Howard testified that he examined the negro as to the state of his health ; but this gentleman was not sober when giving his testimony, and gave a confused account of the negro’s complaint. It appeared, however, to have been a malady of long standing.
    There was evidence given, that at the time of the sale, good negroes sold for four hundred and six hundred dollars, and that a negro of the age and appearance of George, if a sound negro, would have sold for about three hundred dollars. There was no evidence how much particularly was given for George. Nor was there any evidence that the plaintiff had offered to return the negro. It appeared, after the trial, that one of the jurors who brought in the verdict, was a cousin to the plaintiff.
    Tkezevant, J., in his charge to the jury, seemed to consider the identity of George fully made out; and also, that a sound price had been given without a knowledge of his unsoundness. He laid it down that the bill of sale, or receipt, imported and expressed a sound price, and required a sound purchase. That the objection insisted on as to the proof the receipt was strong presumptive evidence of the identity of the negro. The receipt implied a war. ranty of the soundness of the property. That the jury might give the average value of the negro when compared with the value of the other negroes, &c.
    The jury found three hundred dollars and interest for plaintiff.
    Branding, in support of the motion.
    The juror being a cousin to the plaintiff, though not a ground per se for a new trial, yet, connected with other circumstances, ought to have some weight. It was proved the plaintiff traded in negroes, and he might not intend to warrant the soundness of such as he sold. The circumstances of the cape rendered it highly probable that he did not do so in this case. The state of the negro’s health at the time — the omission in the receipt of the warranty of soundness, when the title is expressly warranted expressio unius, &c. The judge, in charging the jury, was decisive in his opinion and direction; whereas, he ought to have laid these matters before the jury for their decision, upon due consideration, and after weighing every circumstance of doubt and difficulty. The jury did not consider themselves at liberty to doubt on these points, and, therefore, did not deliberate upon'them. The objection taken to the evidence offered by plaintiff . was justifiable upon legal principles, and ought not to have been urged to the prejudice of the plaintiff’s cause on the merits. The zeal of counsel ought not to injure the client. The witness to the receipt could have explained the bargain, and the state of the negro’s health at the time. The receipt imports a consideration sufficient to validate the sale, but cannot be construed to ascertain the amount thereof; nor can it be inferred from the receipt whether the plaintiff knew of the unsoundness, or was ignorant thereof. It is extremely probable he was not ignorant of the state of the negro’s health. The jury should have been instructed to judge of such probability. Cited 3 Bl. Com. 451, new ed. Bay 319. Trials per pais, 189.
    Richardson, on the other side.
    The negro did not appear at first view to be diseased. Cited 2 Morg. Ess. 52, 66. The evidence was fairly left to the jury. 1 Fonbl. 108, 334. Sufficient consideration expressed in receipt.
   Waties, J.,

delivered the opinion of the majority of the court, viz., himself, Grijike, and Bay. That the judge at the trial had acted and laid down the law correctly, and the jury having decided in favor of the plaintiff on matters of fact, their verdict ought not to be disturbed.

Wieds, J., had been of counsel in the case, and, therefore, gave no opinion.

BeevaRd, J.,

gave his opinion as follows: In this case I am of opinion a new trial ought to be granted. This was stated to be an action of assumpsit, brought to recover back money paid for a negro slaye, who, it is alleged, the plaintiff purchased from the de. fendant as a sound negro, but who was unsound, as it was after, wards discovered. The doctrine on the subject of sales, I take to be this: Where the property sold is expressly warranted to be sound, or free from defect, there an action lies on the express warranty. So where the seller knows of the unsoundness, and latee advantage of the buyer’s ignorance of the defect, or unsound. ness’to °5tain a greater price than otherwise, the buyer would have given, if he had had the same knowledge that the seller had, there an action lies for the deceit. In both these cases the seller is liable to damages for deceit. But where there is no express warranty, and where the transaction has no tincture of fraud ; where the buyer and seller are equally ignorant of the latent defect, which, at the time of the sale, is inherent in the thing sold, and which, if it had been known, would have diminished the price, and sunk the value of the article in the estimation of both parties ; there, although according to the modern decisions, an action can be maintained, but cannot be maintained for damages, as for a deceit, but on the principle of an implied warranty, or a warranty in law. In such case, the action for money had and received, is the proper remedy to recover back the money paid, as money paid by mistake, or on a consideration which has failed ; which money, according to equity and good conscience, the seller ought not to keep, but is bound to refund. Before the plaintiff can recover in such an action, however, it is incumbent on him, within a reasonable time, after the unsoundness is discovered, to give notice thereof to the seller, that he elects to rescind the contract, and return, or offer to return, the thing sold, if it is capable of being returned, or use due diligence for that purpose. Without this, the seller is not bound to consider the contract as rescinded, and,.therefore, will be warranted in retaining the price. If this be the correct doctrine on the sub ject, we should consider how far the evidence given in the present case entitled the plaintiff, upon the principles of this doctrine, to recover. There was no evidence in this case of any offer to return the negro, or of' any diligence used to make known to the seller the intention of rescinding the contract, until after the negro was dead, which was an unreasonable length of time after the sale, considering the relative situation of the parties, and other circumstances. Nor was any evidence adduced to prove how much money was paid for the negro ; and, of consequence, how much the plaintiff was entitled to recover. If the action had been for damages for the deceit, the jury would not have been restrained to any particular sum ; and, therefore, might have regulated the quantum in some degree by what the buyer might he supposed to have given ; but where the action is to recover back the money paid, and not for damages for an imposition intentionally committed, it seems to me clear, that the price or sum paid, ought to be certainly proved, at least, so satis, factorily as to satisfy the jury that so much was actually paid, and pot less.

Note. Warranty cannot be tiled in an action of assumpsit, for money had and received. (Jowp 819. But plaintiff may declare in assumpsit, on the express warranty-. Doug. 18.. To maintain assumpsit on 'an express warranty, it is not necessary the thing purchased should be'returned, or notice of the de-fsetgiven to the seller. 1 fct. hi. Rep. !7. 1 Esp Dig 13 Selling for a sound price, without warranty, a ground for assumpsit Doug 20 But in stlch case, it ought to be laid, that the defendant knew of the unsoundness 16. Quare. If necessary to lay it, uec-’ssary to prove it. Therefore, deceit must be proved ? Scienter, not necessary with us, in implied warranties. Trespass on the case lies lor injuries for deceits in sales — for warranties, or frauds, false affirmations, &e. See Esp Dig. 629, 630 If, on account of a horse warranted sound, the buyer should sell him again at a loss, an action might, perhaps, be maintained against the original seller, to recover the difference of price. Per Bd. Longhb. 1 H. i.l 19. Where the action is for money had aud received, an immediate return of the thing sold is necessary. Per Heath, 7. lb.

Let it he admitted, however, that in this form of action, it is allowable to the plaintiff to go for damages over and above the price paid, on the ground of an implied warranty, yet, it seems to me, the evidence given in this case was wholly insufficient to prove the necessary facts. It seems to me, from the report of the evidence, that the buyer could not have been ignorant at the time of the sale, of the unsoundness of the negro. The plaintiff’s brother, and his overseer, in whose care the negro was,'directly alter the sale, gave such evidence as excites the strongest suspicion, that the plaintiff did know of the unsoundness before the bargain was made. The bill of sale, or receipt, for the money paid for the negro, affords no evidence to my mind, that the negro was bought with the impression of his being sound, but rather the contrary ; for, as the bill of sale warrants the title, and says nothing as to the qualities of the negro, it is not unfair to presume, the qualities, or soundness, were not intended to be warranted ; and that the probable unsoundnes3 was taken into consideration, and guarded against in the contract. I think the evidence as to this point, ought to.have been submitted, as a doubtful question, to the jury. But this was not done, and, therefore, I think there ought to be a new trial.  