
    
      CRUMMEN vs. CAVENAH.
    
    The admissions in an answer must be taken altogether.
    Appeal from the court of the sixth district.
   Matthews, J.

delivered the opinion of the court. This action is brought to compel the defendant to enter satisfaction on a decree or judgment, heretofore pronounced in this court, by which the plaintiff was required to deliver over to him a negro slave, of a certain description, as therein specified, valued at 1200 dollars, being the balance and remainder of the price of a tract of land, purchased from him by said plaintiff, and on which the seller retained a mortgage. The petitioner also prays, that the defendant may be compelled to cancel and release said mortgage. The cause was submitted to a jury in the court below who found a general verdict for the defendant, from which, and the judgment thereon rendered, the plaintiff appealed, having previously moved for a new trial on the usual allegations of the verdict being contrary to law and evidence, and that justice had not been done between the parties. 12 Martin, 306.

West'n District

Sept. 1823.

The original contract required the giving in payment a likely negro man, between the ages of 20 and 25 years. The judgment, which is based on this contract, pursues its terms strictly, and cannot be satisfied, unless by the tender of a slave, exactly answering that description. In the present case, the evidence, as to the age of the negro tendered and received by the defendant, varies from 24 to 30 years of age. From 25 down to 20, the age required, the contract and decree would he satisfied : above or below these ages; the slave would fail in this part of the description, as contained in the contract of the parties.

The jury, whose duty it was to determine this matter, upon the testimony adduced on the trial, may, in our opinion, have fairly come to a conclusion, that the slave tendered was older than 25 years, and consequently ought not to be imposed on the appellee by the plaintiff, as a discharge of the former decree against the latter.

The counsel for the appellant relies much on the judicial confessions of the answer, as amounting to an acknowledgment on the part of the defendant, that he received the negro who was tendered in full satisfaction of his judgment. We are unable to give such a construction to that part of the pleadings: It contains a general denial in the first instance; and qualifies the acknowledgment of the rest of the property, by denying that it was taken, except for so much as it might be worth, &c.

The answer must be considered altogether, so far as it is consistent; and thus considered (we are of opinion) it does not amount to a confession, that the slave in question was received in full discharge of the appellee’s claim.

This court, does not perceive that the verdict and judgment of the court below, are contrary to law and evidence, or that injustice has been done. The plaintiff not having made out his case,

Baldwin for the plaintiff, Scott & Thomas for the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and that judgment be here entered as in case of nonsuit, and that the plaintiff pay costs in both courts.  