OPINION of the Court, by

Cock-ran sold to Bowles a negro man at the price of ¾550, and by the contract of sale promised that upon the reCeipt of a named sum (part of the price) he woüld make a bill of sale warranting the negro should sustain no injury from a disease in the mouth in appearance like a cancer. Bowles paid the sum stipulated; and although demanded, Cockran refused to give a bill of sale with Warranty, and for that refusal this suit was brought by Bowles to obtain compensation in damages.

There Can be no question but what Cockran by failing to make the bill of salé with warranty, has subjected himself to an action for a breach Of his promise ; but as the declaration in this case contains no charge of the unsoundness of the negro, it is contended the court below erred in admitting evidence at the trial as to the cOftdition of the negro’s mouth. .

Whether the evidence was or was not admissible, turns upo» the nature of the damages which it conduced to prove. If the damages necessarily arise from the facts charged in the declaration, then as they are implied by law, according to the rule that presumptions of law need not be averred or pleaded, without a special allegation of unsmmdness, the evidence was properly admitted ; but if the damages do not necessarily arise from those facts, then as they would consequently not be implied by law, to prevent the surprize which might otherwise ensue to the other party at the trial, a special allegation should be made before evidence conducing to prove those damages ought to be received, — -See 1 Chit-* ty on Plead. 387,

*234That the damages which the evidence objected to conduced to prove, do not necessarily arise from the facts charged in the declaration, we have no doubt. It is perfectly clear that this action might be maintained even were the negro in perfect health. The breach of promise forms the git of the action, and those damages only incident to that breach can be considered as necessarily arisingfrom it. To enable the plaintiff in the court below to prove the situation of the negro, we think therefore a special charge should have been made in the declaration ; and as that is not done, that court should have rejected the evidence.

The judgment must consequently be reversed, and the cause remanded to that court for new proceeding» not inconsistent with this opinion.

The appellant must recover his costs ⅛ this court.