
    WOOD & KIMBROUGH vs. FOWLER.
    [ACTION ON NOTE GIVEN EOR 3PUB.CHASE-MONEY OE SLAVE.]
    3.. Set-off; nonsuit on veriliet for less than $50. — In an action on a note given for the purcliase-moucy of a slave, damages for a misrepresentation or breach of warranty of soundness constitute a good set-off, (Code, § 2240;) and if the amount of the plaintiff’s recovery is thereby reduced to less than fifty dollars, he cannot be nonsuited under section 2365.
    Appeal from the Circuit Court of Wilcox.
    Tried before the Hon. Nat, Cook.
    This action was brought by D. C. Fowler, against John B. Wood and Burrell Kimbrough; and was founded on the ■defendants’ promissory note for $452, dated the 16th April, 1856, and payable on the 1st January, 1858. The defendants pleaded the general issue, and a special plea in these words : “ And for further plea defendants say, that the note sued on was given as a part of the purchase-money of a slave named King; which said slave was sold by said plaintiff to the defendant Wood on the 16th April, ] 856, and which said slave the plaintiff then and there warranted to be sound in body and mind, when said slave was in fact, at the time of said sale, unsound both in body and mind.” The jury returned a verdict for the plaintiff, for one dollar as damages-; and the defendants thereupon moved the court to dismiss the suit, on the ground that the verdict was for a less sum than the court had jurisdiction of, while the amount of the plaintiff’s recovery had not been reduced “ by a set-off successfully made.” The court held, that the defense made under the special plea above copied, constituted a “ set-off” within the meaning of the statute; and therefore overruled the defendants’ motion. The defendants excepted to this decision, and they now assign it as error’.
    Watts, Judge & JacesoN, for appellants.
    D. W. BaiNE, contra.
    
   A. J. WALKER, C. J.

Damages for breach of warranty, or misrepresentation of the soundness of a slave, may, under section 2240 of the Code, as construed in Holly v. Younge, (27 Ala. 203,) and Gibson v. Marquis, (29 Ala. 668,) be set off against the note given for the slave, when sued upon by the seller. The defense that such damages have been sustained, when thus brought forward, may with strict propriety, under our system, be denominated a set-off; and we must understand it as being a set-off within the meaning of section 2365, in order that that section, and section 2240 may have a harmonious operation-

Judgment affirmed.  