1. We deem it unnecessary to go into a detailed examination of the several charges refused and given, as we consider the law applicable to warranties of slaves, as substantially settled by the decision of Hogan v. Thorington, 8 Porter, 428. There, the evidence shewed the slave warranted was subsequently cured, although unsound when the warranty was made. The judgment was reversed, because the court, under that state of proof, instructed the jury, the measure of damages was the difference between the real value of the slave at the time of the warranty, and what would have been its value, if sound, with interest on that difference ; we then held the true measure of damages was the actual injury sustained by the purchaser, in consequence of the false warranty.
In this case, although there was evidence on the part of the defendant that the slave was cured, yet no specific instructions were asked on this point, nor do any of those actually given lead to the conclusion that the instructions were given in-connection with the fact that the slave was cured. *259We must then understand the court as declaring the general law as applicable to warranties of slaves, and we are unable to perceive any error, either in the charges given, or in the refusal to give those which were asked.
2. In every suit for a breach of warranty, the evidence must be more or less positive ; but there is no reason why it should be more so in this class of actions than in others. In Lewis v. Peake, 7 Taunt. 153, it is said questions of this kind are peculiarly fit for the consideration of a jury, and the court refused to set aside a verdict, although it was conceded the evidence preponderated against it.
3. It would scarcely be contended, we will suppose, that the small pox would not be a disease provided against by a warranty of soundness, and that is not a disease of a permanent nature. It is too clear to require illustration, that a warranty covers all diseases which affect the value of the thing warranted.
4. The bill of exceptions shows the plaintiff did not proceed upon the contract as rescinded, but as continuing, and in this view it was wholly immaterial, whether the plaintiff offered or did not offer to return the slave. The court properly refused the charges in this connection, as they had nothing to do with the case as presented.
5. The charges under which the case was submitted to the jury, conform substantially to the rules laid down in Hogan v. Thorington. So far as the slave itself was concerned, the plaintiff was entitled to recover to the extent that his value was impaired by the disease, and the jury was authorized to take into consideration the bill paid by the plaintiff to the physician for necessary medical attention induced by the disease.
6. With respect to the charge that the jury might allow interest on the difference between the real value and the purchase money, we can perceive no error. The party has the right to recover all damages resulting from the false warranty, and in estimating them interest upon the sum which the plaintiff has been induced to pay, more than he should by the false warranty, is certainly not improper to be considered by the jury. 'Such is the general rule in actions of trover, and *260we seé no reason to duubt its proper application to suits of this character.
Judgment affirmed.