Caldwell v. Wallace , 4 Stew. & P. 282 ( 1833 )

Taylor, J.

Two questions are raised by the assignments of error.

1st. Is there a misjoinder of actions?

2d. Does the contract induce a -warranty of mind, ■as well as body?

The first objection lias net been insisted on; and, indeed, it could not have been. There arc two counts in the declaration — one in case, on the warranty, the other in trover. They are both in tort, and therefore, may legally he joined. On the other question, we feel as little difficulty. The hill of sale warranted the negro to he sound in person: the proof was, that she was of unsound mind. The counsel for the plaintiff in error insists, that this vvaraniy only extends to diseases or defects of the body: we do not think so. The best lexicographers give the word “ person,” as meaning the whole man. 1t is true, that in common parlance, it is frequently applied to the outward or visible man: yet, its correct meaning conveys the idea of the mind, as well as the body; and it is a term used to contradistinguish raiionahfrom irrational creatures, and thus applied, seems to refer peculiarly to the mind.

But in this case, the breach laid in the declaration is, that the negro was of unsound mind: and upon this declaration an issue is formed. It is true, that if this issue is immaterial, we should be bound to reverse the judgment: but we cannot consider it so.

The usual warranty, when a negro is the subject of it, is, that he is sound in body and mind: here one word is used, calculated, and, we think, intended to include the meaning' of both. If if were doubtful, the construction should be most strongly against the warrantor; else he would, in all probability, be enabled to effect a fraud, by the insertion of this term, so novel in contracts and legal proceedings.

We are all of opinion, that the judgment should be affirmed.