
    Lawrence vs. Vick.
    
    Vick recovered a judgment against Lawrence in covenant on a warranty of the soundness of a slave, and Lawrence filed his bill for the slave, alleging that Vick had tendered him the slave before suit; that on the trial Vick had represented the slave as worthless, and had recovered the full value of such slave. But the court say that the suit on the covenant of warranty was in affirmance of the contract, and the recovery was for a breach of the contract, and did not change the ownership of the slave.
    This bill was filed in the chancery court at Smithville, by Lawrence against Vick. At the hearing on bill, answer, replication and proof, the presiding chancellor (Ridley) dismissed the bill, and complainant appealed,
    
      J. S. and M. M. Brien, for the complainant.
    They cited 2 Hum., 68; 3 Hum,, 582.
    
      Stokes for the defendant.
    They cited 3 Hum.. 581; 1 Jh. Ch. R., 328; 3 Jh. Ch. R., 36; 4 Hayw., 17, 18; Cooke’s Rep., 36; 6 Jh. Ch. R., 87.
   Green, J.

delivered the opinion of the court.

In this case the bill alleges, that the complainant sold to the defendant a negro slave, Emily, for the price of four hundred and seventy-five dollars, and executed a bill of sale, in which he warranted the girl to be sound. The said girl, Emily, became sick, and the defendant, Vick, offered to return her to the complainant, and receive again the money he had paid for her, but the complainant refused to receive the girl, and the defendant, Vick, instituted an action of covenant, upon the warranty in the bill of sale; and on the trial, proved that said girl was afflicted with a chronic disease, that must have been of long standing, and that she was certainly diseased at the time of the sale; and that said girl was worthless. The counsel for tbe plaintiff in said action, argued the case as if said girl was worthless, and asserted that the present complainant, (who was defendant in that suit,) might come -and take her. By means of this proof, and these promises, made by Vick, through his counsel, the jury rendered a verdict for the whole value of the said girl, and the doctor’s fees, amounting to the sum of six hundred and thirty dollars; which sum, the complainant has been compelled to pay. Complainant having paid for the girl, has demanded her of Vick, who refused to deliver her to him.

The doctors were deceived, and. mistaken, in supposing said girl was afflicted with a chronic disease. She is now a valuable woman; and in consequence of this mistake, complainant has had to suffer greatly; and is advised, and believes, he is entitled to relief in equity, upon the broad principle, that a man is not entitled to take his fellow man’s property without compensation. Complainant is therefore entitled to have the girl restored to him, on the ground that the contract has been rescinded; or that the said Vick pay him back the money so wrongfully recovered.

To this bill the defendant demurred; but the demurrer was disallowed. The defendant then answered, and proof was taken, and at the hearing, the chancellor dismissed the bill; from which decree, the complainant appealed to this court.

The complainant insists now, that the contract was rescinded, by the tender of the property back by the vendee; and by the character of the proof, in the action of covenant, and the course of argument of the complainant’s counsel, and the verdict of the jury. It is therefore insisted, that the negro has thus become the property of the complainant, and that he ought to have a decree, that she be delivered up to him.

The complainant is clearly mistaken, as to the legal effect of the offer of Vick to return the negro, and his subsequent action and recovery.

If the complainant had been guilty of a fraud in the sale of the negro, Vick, at his election, might have returned her, or offered to return her, and considering the contract at an end, might have sued in assumpsit, for the recovery back of the purchase money. But- he did not resort to this remedy, if indeed he could have proved a fraud in the sale. On -the contrary, he brought an action on the contract; thereby affirming it, and only insisting upon the recovery of damages for the breach of it.

If the damages are excessive, that cannot affect the title to the negro, or change the ownership; nor can the declaration of one of Vick’s attorneys in his address to the jury.

If the damages were excessive, an application should have been made for a new trial; for a court of equity has no power to re-investigate such a case, upon such grounds.

Affirm the decree.  