Lester v. Graham , 8 S.C.L. 182 ( 1817 )

Johnson, J.

delivered the opinion of the Court.

If this question was now open for consideration, I should, from a conviction of its propriety, labour much to establish the affirmative as the best means of guarding against fraud and imposition. But 1 consider it as conclusively settled by the case of Timrod v. Shoolbred, 1st Bay, 319, determined in this Court in 1793, and confirmed by the subsequent case of Whitefield v. M'Leod, 2 Bay, 380, determined in 1802.

From the time of the decision of the case of Timrod v. Shoolbred, and I believe long before, up to the present day, selling for a sound price has been regarded as raising an implied warranty on the part of the seller that the thing sold was free from all defects; and thousands of nisi prius cases (for they are very common) have been determined, upon the authority and principle of that case, and now may be regarded as the settled law of the land. If, therefore, I was even disposed to think that the rule was not warranted by the Common Law, I should not feel disposed to disturb a principle so long and so universally acted upon in this state.

Richardson, for the motion.

I am therefore of opinion that the motion for a new trial in this case ought to be granted.

The other Judges concurred.