
    Lewis’s Adm’rs, Appellants, v. Farrish & Stamp’s Administrators.
    On proof of sale of a species of property common in the country, the law will presume some value, and in absence of proof of the amount, a jury may find the average value at the time of sale.
    Omission by the jury to find the value of a negro on proof of sale, held good ground for a new trial.
    'THIS cause was tried before the Hon. James Walker, at the May term of the Wilkinson circuit court, 1836. It was a suit by Farrislrs administrators on-a medical account for 455 dollars, due from defendant’s testator in 1832.
    A plea of payment was relied on by defendant, and an offset proved of the sale of a negro woman sold by defendant’s testator to plaintiff’s intestate in 1832. The value of said slave was not-proved on the' trial.
    The jury found a verdict for the plaintiff to the full amount of the account sued on.. The defendant moved for a new trial, on the ground that the verdict was against the evidence, which motion was overruled, and an appeal granted to this court.
    Boyd, for appellants.
    It is clear that the jury wholly disregarded the testimony on behalf of the defendant, although it was not rebutted or impeached. The sale and delivery of the negro by defendant’s testator to plaintiff’s intestate was clearly shown. It is not shown what was the value of the slave, but it is shown that she was purchased by Farrish in his lifetime, and as an object of sale must be presumed to be of some value. On the sale of the slave, proved to have been made in 1832, the jury would have been warranted in finding the commerce value of female slaves in that year. The term imports a value. Proof of the sale and delivery of a bale of cotton without more evidence would warrant and even require the finding of the ordinary value. The descriptive words in the common language of the country are sufficiently definite to warrant some finding by a jury.
    In such a case, if the jury refuse to weigh the testimony, but on the contrary, throw it out of the account altogether, the party injured should be permitted to rectify their mistake or omission. 6 Peters’s S. C. Rep. 632. A much feebler case than the present is frequently the ground of a new trial; when by the inadvertence of counsel in the hurry of court, a material omission of proof occurs, and it is evident to the court, that without their interference, great injustice may be done, they always lend a favorable ear to applications of this kind. 5 Am. Dig. 394; New Trial, Ibid. 3.
    In the present case, the omission of proof, if any, was but partial. The jury on the testimony before them could not wholly disregard the offset. The sale was proved by an uncontradicted witness, and if, in that situation the defendant had been suing as plaintiff for the value of the slave, the jury would have been compelled to allow him some value. Had they failed to do so, the court could not have denied a motion for a new trial. The principle is the same, and it seems clear that the motion, for the reasons set forth, should have been sustained. The danger of perjury, which is generally given in the books as a reason for denying motions for new trials in cases somewhat analogous to the present, does not exist in the record before the court. When a party is evidently experimenting upon the court, and suffers his case to go to the jury, either ignorantly or wilfully, in a defective shape, and then on being defeated, applies for the benefit of a new trial to correct his omissions or blunders, his application is properly denied. Not so, however, where the matter to be corrected is. clearly the result of accident, hurry, or inadvertence. For example, if counsel having a great number of actions on promissory notes, should inadvertently hand to the jury in a particular case the wrong note, and this fact should not be discovered till the jury returned a verdict generally for the defendant, no doubt in such a ease a new trial would be granted and there could be no danger of perjury, for the inadvertence would be clear. It is very evident, from the record before the court, that the witness who proved the delivery of the slave in question, by defendant’s testator to defendant’s intestate, could have given some testimony as to her value. This should be now permitted by a new trial, not to add cumulative testimony nor to experiment on the court, but to correct a matter of mere inadvertence and casual omission.
   Mr. Chief Justice Shaeket

delivered the opinion of the court.

After a verdict in the circuit court, .the appellant moved for a new trial, which was refused, and he excepted to the opinion of the court. By the bill of exceptions, it appears that the defendant, who is the appellant here, pleaded payment and filed; as an offset with his plea, an account of 500 dollars for a negro woman purchased by the intestate of the appellees in his lifetime; and by ■a witness he proved the purchase. The precise time of the purchase was not proved, but the witness believed it to have been in 1831 or 1832; nor was the price proved, and nothing was said as to the value of the negro.

In fact the sale was certainly sufficiently established to justify the jurors in so finding, and as the charge of the court is not in the record it cannot be known why they did not allow the offset. It was most probably because there was no proof as to the price agreed upon, nor of the value of the negro. The terms used of themselves imply some value. A sale is an agreement for a consideration, and the negro woman being a species of property common in this country, the law would presume that she was at least worth something. It was certainly an omission in the defendant not to prove the value, but from the facts proved the jury should have settled on an average value at the time of sale, because value is a matter of opinion; an inference from description :and quality. I think, therefore, that as this is the only obstacle which can be gathered from the record, that a new trial should be granted.

Judgment reversed, and venire de novo awarded.  