
    Charles J. Colcock Exor. of Robert Reid vs. Robert Goode & John Rose.
    The doctrine of implied warranty arises as well on a contr act for hire as upon the sale of a slave.
    If a person sell a flock of sheep or drove of horses, the law will not imply a warranty that every member of the flock or drove was sound; but that taken in the aggregate they were so.
    The same rule will apply to the sale or hire of a gang of slaves. The extent of a warranty implied, in such case is, that as a body they are ordinarily good, and have not been picked and culled for the purpose of deception.
    So, where at a letting to hire by auction, by an executor, the defendant bid olf six slaves at $480 per annum, without any stipulated price as to any of the number, and no particular representation of the qualities of any one of them, he willnot be allowed to sett-off the value ofthe services lost by one of the slaves, who was in bad health and incapable of doi»,,- as much as if he had been well.
    A warranty has never been implied, in any case, of any thing more than soundness and tille-, to make a vendor further liable there must be either fraud or an express warranty.
    So, where upon the hire of several slaves, without any particular representation of the qualities of any one of them, for an aggregate price, the law will not imply a warranty that one of them was a carpenter.
    Tried before judge James, at Barnwell, April term, 1826.
    This was an action of assumpsit on a note or agreement, of which the following is a copy: “ On or before the 1st January next we or either of us promise to pay Charles J Colcock, executor ofthe estate of Reid, four hundred and thirty dollars for the hire of Sam, Silvia, Big Peter, Dorcas, ¡Savannah and his wife for one year from this date, and w.e bivd ourselves to tax, feed, shoe, and clothe them and to pa}-doctors bills and to deliver them in this place on the first Monday in January, 1823.”
    Coosawhatchie, January IT, 1822, Robert Goode.
    
    
      John Rose.
    
    .f 4-36 endorsed) 1822, Sept. 10. Received fifteen dollars in part. C. J. Colcoch.”
    
    The execution of the agreement being admitted on the, part of the defendants they went into the defence.
    Benjamin Coleman testified that he lived witli the defendant Goode the latter part of the year 1822. Cavannab was a jobbing carpenter; he was often unable to work. He appeared to be ruptured. His hire was worth but little. Nothing of consequence. If sound he would have been valuable.
    Benjamin Cross said he lived with Goode, three, four, or five months of the latter part of the year, Cavannah did some work; about half work. A good carpenter would hire for about ‡ 150 per year.
    William Wooton said, he thought defendant hired Ca-vannah as a carpenter. On bringing him home defendant brought him to the mill, and put him to work as sucio Tho’i Cavannah worked about half his time. He complained of his arm, and witness thought him ruptured. A good carpenter was worth about $ 150 per year.
    Cross-examined — Witness did not know whether Cavannah was hired as a carpenter or not, witness commenced living with defendant in February, 1822.
    D. Ford, proved that the day after the defendant bro’t Cavannah home, he put him to work as a carpenter. A few days after, Cavannah complained of being sick. Witness examined him and he was in a bad way. He could not retain his urine, nor lift. From February till July he did not work half bis time.
    Chisolm was present, the negroes were hired out at public out-cry at Coosawhatchie.
    
      His honour the presiding judge in his charge to the jury told them that they might presume, that the negro man Cavannah was hired as a carpenter at an adequate price, and that on the principle, that a sound or adequate price warranted sound property, they might make a deduction according to what a negro of that character if sound was worth.
    That the presumption arose from the acts of the defendant, who brought Cavannah to his mill and put him to work as a carpenter immediately, while he sent the other negroes to work in the field at a considerable distance. Hé said he did not think the doctrine, that a sound price required a sound property should be much extended, but ifthe jury were of opinion that the value of a carpenter of that discretion was $150 per year, and Cavannah worked but half his time they might find half his worth. That there was no evidence upon what terras defendant made the payment of $15, but being made before the note was due and for so small a sum it was not conclusive against defendant’s defence.
    The jury accordingly found a verdict for the plaintiff for $340 with interest from the first January 1823, allowing the defendants a discount or deduction of $75.
    The plaintiff moved for a new trial.
    1st. Because there was no evidence to warrant the jury In making a deduction from the note.
    2nd. Because in as much as the defendants failed to prove that they were to give more than $72 for the hire of Cavannah, and proved that his services were worth $75 the verdict was contrary to evidence.
    3rd. Because there was no evidence that Cavannah was hired other than as an ordinary half hand.
    4th. Because his honour the presiding judge mistook the evidence and law, in charging the jury, that they might presume that the negro man Cavannah was hired as a carpenter at an adequate price, and that on the principle that a sound or adequate price warranted sound property-they might make a deduction according to what a negro of that character if sound was worth..
   Nott, J.

I concur with the presiding judge in this case that the doctrine of implied warranty arises as well from a'contract of hire as' on the sale of a slave. And that it must be applied in the one case precisely as in the other. On this-subject we cannot derive the same assistance from the English decisions as in móst other cases; because the English judges do not recognize that principle of the civil law to the . extent that we do, that a warrant}' of soundness is to be i n-plied from the price paid for property. It is only where there is actual fraud or an express warranty that the vendor is. there held liable.

In policies of'insurance, however, even the English judges have adopted the civil law rule. Every person offering a vessel for insurance is considered as warranting the soundness or sea-worthyness of the vessel, without any express stipulation to that effect. But it is not' therefore understood that every spar, rope and bolt is perfectly sound. The en-quiry always is,, whether taken in the aggregate the vessel is able to sustain the ordinary perils of the sea. The same rule must apply to the sale of property where the principle of implied Warranty is admitted. If a person should sell a flock of sheep or á drove of horses the law would not imply a warranty that every member of the flock or drove was sound. But that taken in the aggregate they answered the description that was given of them. The same rule will apply to a gang of negroes. The extent of the warranty implied is, that as a body they are ordinarily good and have not been picked and culled for the purpose of deception.

Let us now apply, the rule to the case under consideration. An executor has set up the negroes of an estate for hire at public out-cry. The defendant bid off six of them at four hundred and thirty dollars. There was no stipulated price with regard'to any particular one of the number. There does not appear to have been any particular representation of" the qualities of any one ofthcm. If therefore one of the gang bad been entirely worthless, if the other five were worth the money given, the defendant would not have been entitled to any deduction. The implication of warranty arises from ■the hire. And where a gross sum is paid, the warranty is considered as applying to the whole gang and not to any particular member of it. The rule therefore adopted in this case •is not only an entirely mistaken view of the.principle, but if carried to the extent to which it is susceptible, would be subversive ofthe principle itself.

There was no evidence in this case that the negro in question was represented as a carpenter. “That'presumption” (says the presidingjudge,) “ arose from the acts of defendant who brought Cavannah to his mill and put him to work as a carpenter, immediately while he sent the other negroes to work in the field at a considerable distance.” A deduction was therefore made, which amounted to something more than the average price of all the negroes.

Now suppose all the other negroes had been employed in some particular trade-or occupation, and had been found unqualified. . It would have furnished the same presumption that they were thus recommended and would have entitled the defendant to a similar deduction. The consequence would have been, he would have paid off his note and brought the plaintiff somewhat in debt after having had a year’s service of the negroes.

But if it had been proved that Cavannah was represented as a carpenter the presumption would be that his services had been estimated in the contract as equal to the average price of the other negroes which was actually less than the jury have now allowed. It therefore furnished no ground for a deduction.

But we have never suffered a warranty to be implied in any case of any thing more than soundness and title; to make a vendor further liable there must be either fraud or an express warranty. There was no express warranty in this case bat Cavannah was a carpenter and it ought not to have bee® mplied.

Patterson for the motion.

Martin contra.

A new trial must therefore be granted.  