
    Timrod against Shoolbred.
    Selling for a warrants a-IStí snddc-ítet-, lemnm or nnkamm to u,<• s,>! it. And aUKirng'» a rn-iii does ■th. iia^cvitv yet if h?íd djesrc-is 'fa disort n* m itirn nt the lime- of ralo, the ft-iior is ofitisdeatiir
    THIS was an action of assumpsit, brought for the value °* a «irmly of negroes sold at -public auction, viz. a rcliow ca^ct^ Stcpnsij, a ploughman, his wife, a young « ench, their daughter and her child, bid oil at 3 70h ' It appeared, in - -1 (-vitk n-v, that Stepney, the ploughman, broke out with the . , , , small po:., ihe clay aiter the sale, and t.ied ; and, conse-quentiy, must have taken the miection previous to the day °f sn^c" f'hc defendant offered, before this action was commenced, to pav for the other negroes, provided the o - • _ 0,1 plaintiff would deduct the price oí' Stcpneii, who was the ..... .... . ■ . , pnncipal object of she purchase, or to return the others of the family ; büt the plaintiff refused to accept either of these proposals, and chose to rely on his action for the whole price. It ivas also proved that the negroes were taken from a house where the small-pox had been, but it did not appear that the plaintiff knew that either of these negroes had taken the infection.
    
      Ward, for the defendant,
    argued, that it had been repeatedly determined in - this court, that soundness of price amounted to a warranty of soundness of goods, and that the juries of the country were bound, in justice and common honesty, to support and maintain this doctrine ; otherwise, innumerable frauds might be practised by one citizen on another, in their usual transactions,, That fraud might arise from, circumstances as well as from premeditation, in one of the parties in the contracto That although the plaintiff might not have known, at the time of sale, the defect of the negro, yet, if ht had the infection at the time, (though unknown,) it would be a' fraud on the defendant, to oblige him to pay for a dying negro, who had the disorder at the tmv of purchase. 1 hat there was a manifest distinction be* neen an action for decell, and assumpsit„ The former im¡ lied a knowledge of the defect, and an imposition on the part of the seller , consequently, vindictive damages might bt given. The latter supposed that the defect might be unknown to him ; in which case, the value only was recoverable. That the defendant, in this case, acted only on the defensive 5 but whatever tvas good ground for an action, if the money was paid, was good ground of defence when a demand was made for-the purchase-money.
    
      Marshall and Lee, in reply,
    urged, that this was a casualty that human prudence could neither guard against nor foresee. That the plaintiff had no knowledge of the indisposition of the negro 5 therefore, there could be no fraud on his part. That if a seller was to be made answerable for every accident or indisposition to which a negro might be subject after a sale-, there could be no such thing as a valid one ; every contract of that kind would be liable to be set aside. Such sales would become the constant sources of litigation, of which it was difficult to foresee any end. That the kind of warranty which the receipt of a sound price raised in law, on the part of the seller, on the sale of a negro, or other property, was of a two-fold nature ; the first relates to the title, that it was a good one ; the second to the qualifications, that the negro answered the description given of him, But it could never be construed so as to extend to longevi* Sy, or that he should live an hour or a day after the sale.
   The Court.

(Present, Burke, J. and Bay, J.)

In even-contract all imaginable fairness ought to be observed, especially in the sale of negroes, which are a valuable species of property in this country. It has been decided, often, in ®ur corats, that selling for a sound price, raises, in law, a warranty of the soundness of the thing sold ; and if it turns out otherwise, it is a good ground for the action of assutnp sit, to recover back the money paid. Powell, 150. This warranty extends to all faults, known and unknown to the seller ; and although, in general, it principally relates to title and qualifications, and not to longevity, yet, in some cases, it ought to be construed to extend to the latter. For if the negro sold had about him, at the time of sale, the seeds of a disorder generally difficult of cure, and which occasioned his death, it would be unreasonable to. say that the purchaser shall sustain the loss. Though if the disorder had been contracted afterwards, it must be at the risk of the purchaser.

The jury returned a verdict for the plaintiff, deducting the amount of the negro, Stepney.  