
    Missroon and Timmons v. Waldo and Freeman.
    A sound price implies a sound commodity; and though the discovery he made in a foreign port, yet an action will he supported to recover back for the failure of consideration, 
    
    It is not only the civil law rule, hut the view of the common law, which has always been adopted in this State, ut semble. 
      
    
    This was an action brought for the value of four barrels of bread, together with the freight to Havana, and the duties there paid.
    Oaptain John Pratt was the only witness produced. He proved that he, with Oaptain Orocker, was called *on, in Havana, by Mr. Drake, a merchant of that place, to examine twelve barrels of bread, which the defend- L ‘ ‘ ants admitted were purchased of them. That on examination, it appeared that these barrels were fraudulently packed ; that at both ends was new bread of English stamp, but in the middle the bread was old, musty, and not fit for hoys to eat; that the bread was turned out on deck, and they separated the bad from the good ; that the bad, which was totally worthless, filled four barrels ; and that it was thrown overboard, being unfit for any use ; that the freight charged was at a fair price, and he believed the duties were higher than estimated in the plaintiff’s demand.
    The judge charged in favor of the plaintiffs.
    The jury, however, found a verdict for the defendants.
    A motion was now made for a new trial, on the ground that the verdict of the jury was contrary to law and evidence.
    
      
       Should be England’s, the name of a famous baker.
    
    
      
      
         See Barnard v. Yates, 1 Nott & McCord’s Rep. 142; also, Smith v. Mc Call,
        
         Col. May, 1821, in which case it was held that the law does not imply any warranty of the moral qualities of a slave.
    
    
      
      
        Vide, ante, vol. 1, 152, note a; and see the above opinion of Smith v. Me Gall, wherein Judge Nott says, “I have no idea, myself, that the judges, who first established the doctrine, intended to introduce a rule of the civil law in opposition to the common law. I believe it was then considered as a rule of the common law.” His Honor referred to Judge Grose’s opinion in Parkinson v. Lee, 2 East’s Rep. 321, where it is said, that the doctrine of implied warranties was unsettled, until Lord Mansfield said, “there must either be an express warranty of soundness, or fraud in the seller, in order to maintain the action.”
      The case alluded to as having been decided by Lord Mansfield is the case of Stuart v. Wilkins, Doug. 18, which was decided in 1778, during our revolution. So that when the rule came to be settled in this country, not having heard of the decision in England, our Court took their own view of the subject.
      Since we have experienced the benefit and evil of the doctrine, we believe that there are few judges or lawyers in the State who do not regret that the view adopted should ever have been taken. Nothing is more common than to hear it deprecated at the bar; and yet, as we have said before, Cooper and Kent, 'two very wise men, have expressed their approbation of the reasoning of the civilians; and God knows the language of the former is strong enough. R.
      See Commiss’rs v. Smith., 9 Rich. 515 ; Post. 538.
    
   The opinion of the Court was delivered by

Richaudson, J.

It is the unanimous opinion of the court that the verdict is contrary to evidence. The doctrine is now established, that whenever a fair price is given, the commodity sold, with or without an express warranty, must be sound.

The whole doctrine, though sometimes considered new, is nothing more than the practical use of the plain moral maxim, that honesty is the best policy. I deem it, in truth, the common law rule and no more ; dispensing with what may be justly called the habit of the common law decisions, in requiring direct proofs of a warranty, expressed at the time of sale; as though the common law did not allow, in this one instance, of its favorite circumstantial evidence, which, as we are ’so often reminded by the best common law judges, cannot lie, nor even ’of the evidentia rei. At all events, if a doctrine can be established* and known, I believe 1 J this is settled and known. Sometimes doubted, it is true, by some individual judges, but again settled under almost every change of the bench, uniformly in the same way, as in the foundation case of Timrod v. Shoolbread, 1 Bay 324. Guarded, as it is, by the caution recommended in the case of Rouble v. M’Carty, 1 Bay, 480, these adjudications have triumphed over every variety of opposition, and settled this law in South Carolina.

In the case before us, the only evidence adduced; showed a total failure of consideration, and afforded even suspicion of fraud.. At both ends of the barrels wore loaves of England’s stamp, which, in the inspection of bread and biscuit, is perhaps equal to the old English sterling stamp ; but in the centre was a musty collection which was equal to, and perhaps worse, than a mixture of base metals within pure silver. And though no forgery, yet, if the artifice of concealing unwholesome provisions within sound, could be brought home to an individual, it is questionable 'if an indictment for swindling would not lay. Policy, as well as honesty and law, forbid us countenancing the mistake, that, unless the examination be within our ports, the evidence must fail. If such shipments to the Havana were so encouraged, the Spaniards might well repay us in the like coin, and transmit us tobacco stems for best segars, or clay within their white sugar. All imaginable fairness must be required in commerce, especially where custom and convenience do not authorize a perfect inspection of every package. Such rules are especially wise in us, who are an importing people, and therefore look for great integrity from foreign merchants. If a case were required to illustrate such principles of common, honest, and obvious policy, that of Barnard and Yates, 1 Nott & M’Cord, 142, sometimes called the Gurry Case, would be in point, where this moral doctrine is reconsidered, and we scrupled not a moment in making the foreign trader retake his blubber. Let us, then be as severely just, when the sides are *changed, and give the world no excuse for treating us ill.

A new trial is, therefore, ordered.

CoiiCooK, Hott, Gantt and Johnson, concurred. 
      
       Post. 288.
     
      
       See 1 MoC. 221.
     
      
       1 McC. 220.
     