
    Edmund Scarborough vs. W. L. Reynolds, Administrator of Benjamin Pack.
    A crooked arm, rendered so by a dislocation in infancy, where the defect is palpable to the naked eye, is not unsoundness within the meaning of a written warranty of soundness.
    In an action of assumpsit on a written warranty of soundness, the jury may render a verdict for less than twenty dollars, and if it be for thirteen dollars it will carry costs.
    In actions in form ex coniraeiu, if the plaintiff shows no right to recover more than twenty dollars, or if he show such right and the amount is reduced to twenty dollars or less by proof of payment, he should not be allowed to recover; but where the damages are uncertain, as in case of a warranty of soundness, or where they are reduced to twenty dollars or less by any other defence than that of payment, a verdict for twenty dollars or less may be rendered, and if it be for twelve dollars and eighty-four cents it will carry costs. 
    
    
      Nanee vs. Palmer, 2 Bail. 88, ruled the law correctly upon the point last . stated, and the subsequent cases in conflict with that decision are erroneous.
    BEFORE O’NEALL, J., AT SUMTER, FALL TERM, 1859.
    This was an action of assumpsit for breach of a written warranty of soundness of a negro girl, purchased by the plaintiff from the intestate of defendant for nine hundred dollars. Ilis Honor tbe presiding Judge’s report of tbe case is as follows:
    “ In this case, which was the warranty of a mulatto woman, one of the pretences of unsoundness was an arm dislocated in infancy, and which was badly set, rendering the arm crooked, but which did not affect her in labor ; she could hoe and chop with an axe as well as women .generally can. In the opinion of the witnesses it would affect her value on sale.
    "I charged the jury that this was not such unsoundness for which the plaintiff ought to have a verdict.
    "The jury found for the plaintiff thirteen dollars, which was that much too much, for the plaintiff ought not to have recovered.
    "The foreman of the jury came in after the jury had been out for some time, and asked me what sum would carry costs. I answered thirteen dollars, and they soon came into Court with that verdict.
    “ This case does not fall within the cases which have been decided, that if the plaintiff did not recover over twenty dollars, no judgment could be rendered for him. This case was one of uncertain damages.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor, it is respectfully submitted, erred in charging the jury that a dislocated arm, where the dislocation had never been reduced, and which, in the judgment o£ the witnesses, impaired the value of the slave to the amount of one-third, was not unsoundness.
    2. Because the jury erred in supposing they could find a valid verdict for the plaintiff for thirteen dollars and thereby entitle the plaintiff to costs.
    The case was twice argued: first at November term, 1859, and again during the present term.
    
      J. S. Gr. Richardson, for appellant,
    submitted the following authorities:
    On first ground. A bone spavin in the hock of a horse— that is, a bony deposit in the interior of the hock — held to be unsoundness, although it had produced no lameness up to the time tbe action was tried. It was unsoundness because, in tbe opinion of the witnesses, it lessened the value of the horse; and because they thought he might at some future time become lame. Watson vs. Denton, 7 Car. & P. 85, 32 Eng. C. L. E. 512. A hernia is unsoundness; Stucky vs. Glyburn, Ohev. 187. A nerved horse is unsound; Best vs. Osborne, 2 Oar. & P. 74. Tender back not necessary; Parker vs. Pringle, 2 Strob. 249.
    On second ground, Vaughan vs. Gacle, 2 Eich. 49.
    
      Moses, contra.
    
      Spain, in reply,
    cited: Oslow vs. Barnes, 2 Stark. 81; Shillitoe vs. Glaridge, 2 Chit. 425; Kiddell vs. Burnard, 41 Eng. C. L. E. 162; Act 1824, 6 Stat. 239 ; Act 1839, 11 Stat. 79; Smith vs. Rice, 1 Bail. 648.
    
      
       The point herein stated is believed to be correct, according to the opinion of the Court, but the point ruled by the case is fully stated in the next preceding paragraph of the abstract; and it may be worthy of consideration whether this case, being one where the amount of damages was entirely uncertain, does not form an exception to the general rule, instead of being within it. The general rule would then be, that, if the result of the evidence shows that the plaintiff is not entitled to more than twenty dollars, he must fail, the exceptions being — (1) Where the plaintiff’s claim is reduced to twenty dollars or less by discount or set off; and (2) where from the nature of the cause of action the amount of damages is wholly uncertain.
      It is stated in the opinion of the Court that, where the plaintiff’s demand is reduced by payment to twenty dollars or less, he is not entitled to recover. This being so, it is difficult to perceive why, if the amount be reduced by many other grounds of defence, a recovery should be had. The grounds of defence to an action on a contract arrange themselves under two general heads: (1) where the defence assails the validity of the contract itself; and (2) where, admitting it to have been valid, it sets up something subsequent in bar of the action. To the first class belong duress, gaming, illegality, fraud, insanity, intoxication, infancy, coverture, want of consideration in cases of parol contracts, and perhaps some others; and to the second class belong payment, satisfaction, novation, (that is, where a new contract is substituted in place of the old one,) merger, release, called in the civil law accéptilation, and prescription, (I adopt the civil law term, meaning thereby both the statute of limitations and presumptions arising from lapse of time.) Wow suppose a plaintiff sues upon two causes of action — the first a note for ten dollars, and the second a note for one hundred dollars; and at the trial establishes a prima facie right to recover on both by producing the notes and proving the signature of the defendant. If the defendant were to show that he had paid the note for one hundred dollars, it is conceded the plaintiff could not recover on the smaller note; and will it be said that, if ho were to defeat the plaintiff’s right to recover on the larger note by any one of the other grounds of defence above mentioned — as, for instance, by duress, fraud, gaming, or by release or the statute of limitations — that the plaintiff in such case could recover on the smaller note ? It would seem not. Suppose that a plaintiff was to sue upon but one cause of action — as, for instance, a promissory note for one hundred dollars — and at the trial defendant were to show that ninety dollars of the amount for which the note was given was a gaming debt, or that there was want of consideration to that amount, or that that amount had been released by the plaintiff, could a recovery be had for the balance, it being less than twenty dollars ? — R.
    
   . The opinion of the Court was delivered by

O’Neall, C. J.

The first question made in the case proceeded upon a false assumption of error in law in the charge of the Judge. His report tells us, that “one of the pretences of unsoundness was an arm dislocated in infancy, and which was badly set, rendering the arm crooked, but which did not affect her in labor; she could hoe and chop with an axe, as well as women generally can. In the opinion of the witnesses it would effect her value on sale.” In relation to this matter the Judge stated his opinion to be, that this was not such unsoundness for which the plaintiff ought to have a verdict.

In Smith vs. Rice, 1 Bail. 648, the Court stated that the defect, to entitle the party alleging it to relief, must be some “permanent physical defect.” This, pointed out by the proof here, was no permanent physical defect; when reduced, the arm might be not as handsome as it was before, but was strong and as useful as ever. The only matter of complaint was, that speculators thought she would not sell in foreign markets for as much as if her arm was straight.

The warranty was written, and it never could be held to embrace a defect palpable to the naked eye as this was.

The second question is, as to what sum will carry costs. It was instruction given in answer to the foreman’s question, and was the result of many years of practice, both at the bar and on the Bench, in conformity with our Acts. The rule I think has never been attempted to be laid down that three pounds, or thirteen dollars, will not carry costs. It is true decisions have been made (which I think erroneous) that the Court will nonsuit the plaintiff) or refuse to permit him to enter up judgment, when he recovers less than twenty dollars, under the notion that the plaintiff has his remedy before a magistrate.

Take this case as an illustration: how could the plaintiff maintain an action before a magistrate on a warranty of soundness involving one thousand dollars? The damages were uncertain. If it had been a case on a demand reduced by payments within the sum of twenty dollars, or never was more than that sum, then in such cases the party ought to have sued before a magistrate. Such were the cases of Seizhr and Davidson, and others following that case, in which it was held that where the plaintiff’s demand was reduced by payments below twenty dollars, or never was more than that sum, that he could not recover in the higher jurisdiction, and nonsuits were ordered ; and in those rulings I fully concur. But in Nance vs. Palmer, 2 Bail. 88, it was ruled, with my entire concurrence, that where the plaintiff’s demand was bona fide above twenty dollars, and was reduced by a defence below twenty dollars, that there he might still recover. The question of costs always depended on the sum recovered; according to the Acts of the Legislature, if three pounds or twelve dollars and eighty-four cents was recovered, he had his costs; otherwise not, unless the plaintiff’s demand was reduced by discount; then if he recovered any sum he was entitled to costs. This last exception was stretched far beyond propriety in Mitchum vs. Richardson, 3 Strob. 254. I know that the Court, in cases subsequent to Nance vs. Palmer, decided, as I think against law, that a plaintiff in all cases, except where a discount reduced his demand, must recover twenty dollars, or he could not have a judgment. Those decisions I always resisted as palpable violations of a former decision, and of the Acts of the Legislature on the subject of costs. Those decisions I know never met the approbation of even members of the Court who acquiesced in them, and I rejoice in being able to restore the symmetry of the law by restoring Nance vs. Palmer to the authority which it once held.

. The motion is dismissed.

Johnstone and Wardlaw, J. J., concurred.

Motion dismissed.  