William J. Isabell vs. Elisha Peters, etc.: Chancery Cause, Amherst County (Part 2 of 3)
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any fact known to him that would impair his value - He did not affirm positively that the slave was sound & healthy but believing him to be so he stated him to be so far as he knew or believed
Peters by his answer affirms that the boy was sound & healthy so far as he knew or believed And if it were otherwise which he does not admit denies all knowledge of it. He denies all fraud misrepresentation or deceit . It is proved that the slave died in four or 5 months after the sale and that he renderd int little service or was of little value to the plaintiff from the date of the sale to his death. But this testimony is certainly of a very unsatisfactory and inconclusive character. Instead of calling in medical aid a course of conduct reqd. by policy as well as humanity he has suffered the slave to languish & die without an effort to save him and then relies upon the opinion of unprofessional witnesses & for the most part not very intelligent ones founded upon mere casual observation to establish the unsoundness, when by doing his duty he might have furnished the test evidence the case was susceptible of - on the part of the deft. a host of intelligent witnesses have deposed in favor of soundness up to the date of sale If their testimony is not conclusive of the fact. It strongly justifies the presumption and as strongly negatives the presumption of knowledge and concealment on the part of the defts. Upon the motion to dissolve the court proceeding with its usual caution rejected the motion & upon the hearing directed an issue to try whether at the date of the sale the slave was unsound and
if so whether such unsoundness was unknown to Halsey or Peters. The jury that tried the issue have found that the slave was unsound at the date of sale but that the defts. Halsey and Peters or either of them had no knowledge of that fact. Upon the issue of soundness or unsoundness at the date of sale I think the correctness of the verdict questioned to say the least. Upon the question of knowledge to the defts of unsoundness if in fact it existed I entirely concur with the finding. What then is the law of this case, conceding the whole verdict to be correct . The general rule of the common law is caveat emptor and the buyer whatever may be the defects of the article purchased cannot recover but upon a warranty or upon the ground that fraud and deceit have been practicesed. Judge Green in pronouncing the opinion of the court of appeals in Hilson & Shackelferd 4 Ram 7 thus lays down the common law which he affirms to be our law "That the vendor is not answerable for the thing sold unless he either warrants its quality or makes some false representation in respect to it or knowing of the defect omits to disclose it in which case the suppression of the truth is fraud. By the civil law the vendor who sold property at a sound price was held bound to warrant against all secret defects whether they were known to him or not and the civil law rule at one time prevails in Connecticut North & South Carolina. It has been repudiated & made to yield to the common law in the two first named states and is now said to be in a state of vileation in the last. so we find the common law doctrine established in every state of the confederacy with the exception of one. And in that a strong deposition manifested to adopt it. It has recd. the sanction of the supreme court of the U States in the case of said law in organ. And