
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1807.
    Furman v, Miller.
    The defendant was sued, on an implied warranty, in the contract of sale of an African slave, for a good price. It was proved that the slave must have been in an advanced stage of the dropsy at the time of the sale, though, from her appearance, she was thought to be only a little swelled, from being confined in irons. The action was held to lie, to recover back the money paid, though the plaintiff had his choice of a . number of slaves, and though the defendant was ignorant of the slave’s complaint, and was under an impression that, without a special warranty, he would not be answerable for the unsoundness of the slaves he sold, or the qualities of their mind, &c. There is no. custom established in this trade, which exempts the vendor from liability on an implied warranty of sound property, as in other cases.
    Motion for a new trial. The action was assumpsit, to recover $200 from the defendant, for so much paid him for an African girl, who appeared afterwards to have been unsound when sold to the plaintiff.
    It was admitted at the trial, before Wilds, J., in Charleston, that at the time of the sale by the defendant to the plaintiff; and after-wards, when the money was paid, the plaintiff notified the defendant that the negro girl was sick, and that in case she died, he should look to the defendant for the money paid. It was in evidence, that, when the girl was brought first to the plaintiff’s house S^6 WaS S'C^’ a ^ever anc* a cough 5 that she lived about sis weeks, during which time she continued sick, was swelled, and ap--peared to labor under a fatal disease. Doct. Ramsay swore that he was called in to attend her, and that she had the dropsy, of considerable standing, as he believed, although there were no external symptoms which, to a common observer, would exhibit the nature of her malady. The doctor said that the dropsy is, in most instances, gradual in its advances; and particularly, in this instance, he thought it had taken possession of the system of the patient prior to the sale; that Africans, when first brought into this country, many of them, are swelled in the extremeties for want of exercise ; and. that it is not easy for a person, not conversant with diseases, to discriminate between these cases and cases of dropsy. It did not appear that the girl was considered diseased when sold, and an abatement made in the price on that account. The defendant’s counsel, at the trial, relied chiefly on the circumstance of this being a contract in the course of a peculiar and new branch of traffic, which, from the nature of it, does not admit of an implied warranty ; and that the maxim, ceveat emptor, was the rule in this description of contracts. The presiding judge, however, seeing nothing to vary this from other contracts, charged the jury in favor of the plaintiff, for whom they found. There was no evidence given of the usage of trade, in regard to the sale of Africans.
    
      Note. Though usage is often resorted to foV explanation of commercial instruments, and other purposes, it never is, nor ought to be, received, to contradict a settled rule of law. See 3 Bur. 1216.
    J. Ward, in support of the motion,
    contended, that as the purchaser had a choice among a great number of slaves, of a girl of the description of the one he did purchase, at the same price, he depended on his own judgment, and not on any warranty of the seller; that it was a mercantile transaction, and governed by the particular usage of trade, which had always been to sell without warranting the quality of the slave, or his soundness of body or mind.
    The counsel for the plaintiff was stopped by the court.
   Per curiam,

all the judges present, except Wilds, J. There was no proof of the usage of this particular trade; and no other argument has been urged, which ought to take this case out of the general rule of law.

New trial refused.  