that he is a person whose reading and skill required his opinion to be taken as evidence.

Akin, another overseer, also testified concerning the unsoundness of Albert, as he regarded his condition; and his testimony, as the mere opinion of an incompetent person, should, like the theoretical part of Hart's deposition, have been excluded from the jury upon the objection of the defendant.

Hart and Akin both testified to the value of the boy as if sound, and in his actual condition, according to the price of negroes at Pine Bluff, as may be inferred from the testimony of Akin, and as is expressly stated by Hart. The value should have been estimated by the worth of Albert at the place where he was sold. McDaniel vs. Crabtree, 21 Ark. 436; Morton vs. Scull, 23 Ark.

The objection to the testimony of Scull cannot be sustained. Saying that one is a physician by profession, is equivalent to saying that he is a physician by practice. In the sense in which the witness used the word "profession," it means "a calling"an employment," and this is one of the legitimate meanings of the word. To make an opinion upon disease competent testimony, it must be given by one skilled in the science and practice of medicine, as this court held in Tatum vs. Mohr, 21 Ark. 354; but what Scull said of himself, brings him within the rule of qualification.

We do not perceive any error of the Circuit Court in giving or refusing the instructions asked by the parties. The single instruction of the plaintiff is conformable to previous decisions of this court. The fifth and sixth instructions of the defendant were well refused, for it cannot be the law, as it is not the fact, that a negro is sound unless afflicted with an incurable disease.

A substantial compliance with a warranty, or any contract, will satisfy the law, but there was no evidence for such an instruction, on the part of Thompson, to be founded upon, and so the court did not err in refusing the defendant's fourth instruction.

Part of the third instruction was correct, as accordant with

this opinion in confining the value of the negro to Pulaski county, and if this had been the whole instruction, the court would have given it, or, in refusing it, would have erred, but it embraced another proposition, that is, to exclude the consideration of all evidence of unsoundness of the negro, but that of the knees, which was incorrect, and the instruction, as a whole, was properly refused.

Jordan vs. Foster, 6 Eng. 141, does not sustain the first instruction of the defendant. That case only affirmed the proposition common to the text books, that an express warranty does not cover a defect that is so apparent as to be obvious upon careless inspection, and to every observer, requiring no skill or pains for its detection. 3 Black. Com. 165; Story on Contracts, sec. 532; Smith on Contracts, 355. Though Bertrand might, by ordinary diligence in examining the negro, have discovered the defective knees and ankles, he was not bound to strip the boy; he might rely upon the warranty.

The testimony of Scull alone was sufficient to justify a verdict for the plaintiff, so far as the unsoundness of Albert was concerned, but the evidence of Hart and Akin, on the same subject, that should have been excluded, was well calculated to increase the damages, and must have been taken into consideration by the jury. This does not present such a case as the fact in Sharp vs. Johnson, 22 Ark. 86, which was established by legal evidence, and could not be hurt by the accumulation of illegal testimony. Here the verdict depends upon the estimate the jury put upon inferences and opinions of witnesses, and no testimony but what is strictly competent should be allowed to become an element to ascertain the unliquidated damages for which the plaintiff sued.

For the error indicated, the judgment of the Circuit Court of Pulaski county is reversed, and the case must be sent down for a new trial.

All of the points that seem to us important to be noticed are included in the foregoing opinion, although we have not, one

TERM, 1861.]

Miller vs. Fraley and Greenwood & Co.

by one, followed the needlessly numerous questions made upon the record.

MILLER VS. FRALEY AND GREENWOOD & Co.

The discretionary power of the court to allow amended or supplemental answers to be filed, unless abused or exercised in violation of established rules, is not the subject of review.

Whether the receipt upon a judgment and the entry of satisfaction upon the execution thereon, be a valuable consideration for land, or not, the payment of over two hundred dollars in money, in addition to such receipt and satisfaction, would be a valuable consideration; and equity will not enquire whether it is an adequate consideration; at least, in favor of one who had purchased at a merely nominal price. The court can find no adjudged case nor is it laid down in the text books, that a purchaser must hold under a general warranty deed to entitle him to protection as an innocent purchaser without notice; but it is no doubt the law that where a person bargains for and takes a mere quit claim deed, or deed without warranty, it is a circumstance, if unexplained, to show that he had notice of imperfections in the vendor's title, etc.

The bill charged that K., a judgment debtor, made a fraudulent arrangement with F., by which the latter purchased the lands of the former, with his money, at execution sale, and held them for his use and benefit, to prevent the lands from being sold to satisfy other judgments against him, and that the defendants, subsequent purchasers of F., had notice of the fraudulent arrangement; which was positively denied by the answer; Held:

1. That in the absence of allegation and proof, as to the possession of the land, the presumption, if indulged in, is that possession was with the legal title.

2. That to make the insolvency of the judgment debtor a circumstance from which to infer notice of the fraud, it was necessary to prove that the defendants had notice of the insolvency at the time of the purchase.

Miller vs. Fraley and Greenwood & Co.

[DECEMBER

3. That though the acceptance of a special warranty deed may be a circumstance from which to infer notice, it is liable to explanation—as that the defendant's attorney, upon examination of the title, believed that a good legal title might be made to his clients-the payment of a fair price, etc.

4. That the facts, that the negotiation for the purchase of the land was made by K., the judgment debtor, and the entire consideration paid to him, and the deed executed by F., are strong circumstances from which to infer notice of the fraudulent arrangement between the parties; but the force of these circumstances is overcome by the positive denials of the answer and the uncontradicted testimony of the attorney, etc.

Appeal from Independence Circuit Court in Chancery.

Hon. WILLIAM R. CAIN, Circuit Judge.

ROSE, for appellant.

FAIRCHILD, for appellees.

Mr. Chief Justice ENGLISH delivered the opinion of the court. When this case was here before, it went off on the insufficiency of the answer of Greenwood & Co., to entitle them to the defence of innocent purchasers without notice, etc. See 21 Ark. 22.

On the remanding of the cause, Greenwood & Co. offered to file an amended answer, fully denying all notice of fraud, etc., supported by the affidavit of their attorney, who purchased the lands in controversy for them, stating that he prepared the original answer, and that it was his intention and effort so to frame it, as well and legally to claim and have for them the benefit of the defence of innocent purchasers, etc. They also offered to submit the cause upon the depositions, etc., already taken and on file. The court permitted the amended answer to be filed, a replication thereto was entered, the cause heard, and the bill dismissed for want of equity. Miller appealed.

It is assigned for error that the court permitted the amended answer to be filed, but the point is not insisted on in the argument of counsel. The discretionary power of the court to allow amended or supplemental answers to be filed, unless

TERM, 1861.]

Miller vs. Fraley and Greenwood & Co.

abused, or exercised in violation of established rules, is not the subject of review. Dig. ch. 28, sec. 54; Story Eq. Pl. sec. 896, and note from Mitford-also sec. 902.

It is submitted that appellees were not purchasers for a valuable consideration: that they did not buy with money or other things of value, but took the lands in payment of a debt.

The bill alleges that Kinman being indebted to Greenwood & Co., in order to extinguish said debt, or in consideration of a sum of money, and his indebtedness, sold, or attempted to sell the lands to them.

It appears from the answer and depositions, that previous to the purchase of the lands by appellees, they had obtained a judgment against Kinman for over eleven hundred dollars, upon which an execution had issued and was in the hands of the sheriff at the time of the purchase. That they gave $1400 for the lands, by receipting the judgment, causing the execution to be returned satisfied, and paying the balance in money.

In Padgett vs. Lawrence, 10 Paige 180; CHANCELLOR WALWORTH said: "As a general rule, a purchaser of the legal title, who receives his conveyance merely in consideration of a prior indebtedness, is not entitled to protection" [as an innocent purchaser for a valuable consideration]" because he has lost nothing by the purchase. But the relinquishment of a valid security which he before held for his debt, and which cannot be revived so as to place him in the same situation substantially as to security, as he was in prior to his purchase, may of itself be sufficient to entitle him to protection as a bona fide purchaser."

If this be law, to say nothing of the receipt of the judgment and the return of the execution satisfied, the appellees were nevertheless purchasers for a valuable consideration by the payof over two hundred dollars in money. Merrit vs. Northern Railroad Company, 12 Barb. Sup. C. Rep. 609; Love vs. Taylor, 24 Miss. 574. And the consideration being valuable, equity will not enquire whether it be adequate. 2 Hare & Wal. Notes Lead. Ca. Eq. 45, (60. But if equity would make such enquiry, the objection that the money paid for the lands by ap