
    Lewis Leau vs. Daniel O’Hara.
    A, sold B. a negro slave, and gave a bill of sale in these words, Viz: — «I have bargained, sold, and delivered, and by these presents do bargain, sell and deliver, a certain negro fellow, noto in Georgetown gaol, to have and to hold, &c.” Held, that in assumpsit, the vendor might prove that the bill of sale was dated the 8th, yet it was not delivered 'mtil.the 15th, and that the negro escaped from gaol on the 14th, a day before the delivery of the bill of sale, but that the purchaser bough I and took upon himself the risk of getting possession of the slave.
    TCtflS was an action of assumpsit, to recover back g 150, paid the defendant on account of the purchase of a negro man slave, called Charles..
    The declaration, in addition to the usual money counts, contains two special counts, in which the plaintiff charges, substantially, though with a different modification, that he purchased the negro Charles, for, and at the price of g 350, and that the defendant, in consideration thereof, undertook and promised to deliver the said negro to the plaintiff. The breach assigned is, that he did not deliver him.
    On the trial qf the base below, the plaintiff gave in evidence a bill of sale, made by the defendant, and under his seal, to himself for the negro Charles, dated the 8th June, 1807", in which, after acknowledging the receipt of the consideration, in the usual form, proceeds in the following manner: “ I have bargained, sold, and 'by these presents do bargain, sell and deliver to the said Lewis Leau, a certain negro fellow, called Charles, n£>w in Georgetown gaol, to have and to hold, &c,” and concludes with a general warranty of property in the negro. From the parol evidence adduced on the trial, it appeared that 'this bill of sale, although dated oh the 8th, was not delivered until the 15th of June ; and that the negro escaped from gaol on the 14th, one day before the delivery of the hill of sale; and that he had not since been retaken, and was lost to the plaintiff.
    It also appeared that it was known to the plaintiff that Charles was a run-away, and on that account, the defendant consented to take for him much less than his appearance and qualities ought to have commanded ; and the defendant propounded the question to the witness, whether the plaintiff did not agree, at the time of the contract, to take upon himself the risk of his being in Georgetown gaol, and of his escaping from it before he received him ? To this quéstion the plaintiff objected, on the ground that k tended to contradict the biil of sale, and was therefore inadmissible. The presiding Judge being of that opinion, rejected the evidence.
    The jury found for the plaintiff the amount claimed; being all that had actually been paid. And a motion was made for a new trial, on the ground, amongst others, that the witness ought to have been permitted to answer the question propounded on the part of the defendant.
   Mr. Justice Johnson

delivered the opinion of the Court.

There can be no doubt about the correctness of the principle, on which, the plaintiff resisted the admissibility of the evidence offered on the part of the defendant. All the authorities support the position, that parol evidence is not admissible to contradict a deed ; and this court has so ruled in numberless instances. But it certainly is not applicable to ■ the present case. The declaration, it will be recollected, is in assumpsit, and not covenant on the bill of sale ; and the breach assigned is, that the defendant did not deliver the negro according to the terms of the contract set forth. Now the bill of sale contains no covenant for the delivery, but on the contrary, supposes a previous or at least, a cotemporaneous delivery. “ I have bargained, sold, and delivered, and by these presents do bargain, sell, and deliver, &c.” are the terms of the deed. The proof of the plaintiff’s case, therefore, did not arise out of the deed, but must be adduced aliunde ; and I confess I am unable to discover, from the report of the eases any evidence going to establish the contract set out by the plaintiff. If it arises out of the deed, as has been’insisted, the answer is, that he ought to have brought covenant on the bill of sale, for he cannot maintain assumpsit when he may have an action of covenant. (1 Const. Rep. 265, 329. 1 Johnson's Rep. 413, 503. 2 Term Rep. 100). And the deed itself was improper evidence ; and if aliunde, it must have been by parol, and surely parol may be admitted to Contradict it. The error appears to me to have originated in permitting the biil of sale to be given in evidence to prove the gist of the action of assumpsit, although it may ' be. admissible to prove a collateral fact: and it can be no objection to legal evidence, that illegal evidence had be» fere been admitted.

Prioleau for the motion,

J)e Saussure, contra.

It is said, however, that this objection ought not now to avail the defendant, because it was not made in the Court below. The answer is, that in any view of it, the plaintiff has not made out the case stated in the declaration.— Admit that the bill of sale was admissible, that, as I belore' remarked, contains no covenant for a delivery; the not doing of which is the breach assigned. And in the absence of this, there is no proof of such a contract.

The motion ought, I think, therefore, to be granted.

Justices Arott, Gantt, Huger, and Richardson, concurred,.  