
    James Hughes ads. Jacob B. Banks, by his next friend, Elias Banks.
    An express warranty of title, under seal does not excludé an implied warranty of soundness, 
    
    In an action of special assumpsit, to recover back the price paid for any property, which proves unsound, there is-no necessity to prove a return of the property or any recission of the contract; if general inde-bitatus assumpsit be the action, it is then necessary. 
    
    Tried at Abbeville, March Term* 1822, before his honor Judge Colcock.
    
    This was an action of assumpsit, brought to recover back the price of a negro woman Rachael, sold by the defendant to the plaintiff, on the 8th October, 1819, on the alleged ground that the negro was unsound at the time of sale. There was a bill of sale of the above date, under seal, warranting merely the title.
    The principal evidence relied upon by the plaintiff, was that of Dr. Hammond, who proved that he was called in to attend the woman on the evening of the 26th of November, 1819, (about seven weeks after the sale,) when she was excessively ill, and died on the next evening1. That he examined her, and was under the impression that she died with the lues veneria. His attention,was directed to that disease from hearing the family say that she formerly had it; otherwise he confessed he might not. have formed an opinion of what disease she did die. Another reason however he gave, was that there appeared to be a slight discharge from die vagina, which he thought was venerinl. That she had no swelling of the groin, enlargement of the throat, buboes, chancres, or any other external appearance attendant usually on such a disease.
    The defendant proved by Willis Palmer, Michael Cro~ zzer, Jesse Campbell, Singleton Hughes, and others, three of whom were Hughes’’ overseers, and one of them the very year of the sale, and constantly in the habit of seeing her, and superintending her employment, that she was sound, and one of the best bands of Hughes’ whole gang of female slaves. That she had been perfectly well, and a valuable worker for ten or twelve years at least. That on the sale Hughes gave Banks the choice of his whole gang,; and that after the sale, Banks expressed himself at different times perfectly satisfied with his bargain. Indeed the defendant proved clearly that the negro was not only fat, , sound and hearty after the sale, but was so even within two weeks of her death. He proved by Collins and others, that he was an honest and fair man iii all his dealings»; by Isaac Halves and John Carr, that after said sale and death of said negro, Banks acknowledged in their hearing and presence, that his wife pressed him to sue Hughes, but he said that it would be unjust to 'make his neighbours pay for his misfortunes.
    
    
      Doctor Davis declared that the two diseases which Dr. Hammond thought were the same, were as distinct as possible ; but admitted that Hammond’s opinion was supported by doctors Hunter and Thomas, viz. the gonorrhoea, (with which he supposed the negro %vas afflicted, and which was proved by One of the witnesses,) and the lues •veneria. The one was local, the other general; and so ,agreed all die latest writers and physicians. That althq’ the latter .disease might be suppressed or lie dormant for a considerable time, yet it would shew clear and unequivo» cal external symptoms, such as buboes, chancres, blotches, enlargement of the throat, &c. before death coidd b$ the consequence of such disease. That he conceived it impossible that a human being should be well and hearty two or three weeks before, and be taken off by this disease ; the more especially whithout any of the external appearances -before mentioned.
    Doctors Arnold and Presley, were sworn and fully con- . firmed Dr. Davis’’ statement in every material point. The former supposed that there might be one case, in which a patient might die witho.ut any such external appearances, and one only, and that was, when a node might be formed on the bone near the brain, so as to press it, and produce a sleepy or comitose state; but this was. a slow, gradual formation, and would shew itself in sickness, debility, &c. long before death. That a negro could, not have been well and capable of work, and taken off hy this disease in two or three weeks- after. Even Dr? Hammond admitted that this complaint could not have carried off a person, healthy a short time before ; and it was not pre*» tended, that the woman had any other disease at the time of sale. Dr. Presley said that the neg-ro could not have died, from Hammond's own statement, which he heard sgiven in, and bpth the other physicians agreed with him, from the same undisputed statement. No other- physician but Hammond, wa§ called "in to visit the patient. It was proved by plaintiff, that Hughes acknowledged that the woman had had the venerial many ye'ars„(12 or 14) before, but had got entirely well; although some of her children had cutaneous eruptions, which were easily cured ; being a thing of nothing, as he expressecl himself.
    The jury brought in a verdict for 0600 and costs.
    A new trial was moved for, on the following grounds, viz :
    1st. Because there -was a bill of sale, under seal, accepted by tbe plaintiff, which rebutted the idea of any implica warranty, and murged the remedy by assumpsit.
    2nd. Because there was no proof of a vecision of the contract by a return or a tender of the property, though the parties lived near neighbours.
    3rd. Because his honor gave it as his decided opinion to the jury, that Dr. Hammond,’’ s views of the nature of the two diseases was correct, and that they were the same against tbe united opinion of the other physicians, and of the,most approved and latest authorities on the subject.
    4th. Because even Dr. Hammond himself, admitted that a person well and active, (as was proved in this case,) two or three weeks before, could not have died of this disease.
    5th. Because the verdict was against the whole weight of positive evidence given in, both of medical men and others.
    
      
      
         See Wells vs. Spears, ante 421.
    
    
      
      
         See Wharton vs, O'Harra, 2 Nott & McCord, 65. R
    
   Mr. Justice Colcock

delivered tbe opinion of the court.

The court has repeatedly decided the first and second grou'nds taken in this case. An express warranty of property does not exclude a responsibility on the implied warranty of soundness. (Tunno vs. Fludd, and a number of other antecedent cases.)

■In an action of special as.sumpsit, to recover back the price paid for any property which proves unsound, there is no necessity to prove a return of the property, or any recision of the contract. If general indebitatus assump-sit be the action, it is then necessary as in the case of Fowler & Williams.

The third ground cannot avail the defendant; for it is competent for ajudge to express an opinion on the facts of any case ; and in the present instance the case did not in any wise depend on the fact on which the presiding judge expressed his opinion.

The.fourth ground assumes a fact as proved, which was one of the facts submitted to the jury, and is negatived by their verdict.

On tbe fifth and last' ground, I can only repeat the lan - guage which has been so often reiterated by this court; that where there is evidence on both sides, the court will not interfere with the verdict, and here, independent of the evidence of Ur. Hammond, there were circumstances which proved conclusively, the unsoundness of the woman.

McDuffie,-for the motion.

JSfoblc, contra.

The motion is therefore refused.

Justices Noll, Richardson, Hager, Gantt and Johnson, concurred.  