
    Duvall vs. Medtart.
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    Appeal from Frederick County Court. This was an ^ J - acrion on the case, to recover damages for a fraud in the » . 7 o sale of an unsound slave. The declaration contained two counts — 1. For the sale of an unsound slave; and 2. On a warranty, &c. The defendant, (now appellee,) pleaded not guilty, and issue was joined.
    L At the trial the plaintiff offered in evidence, that the negro man, mentioned in the declaration, was sold to him by the defendant for g4U0, hi (]le manner mentioned in the declaration. That lie was ruptured and diseased be-lore and ai the time of the sale, and that the defendant knew him to be so, and concealed it from the plaintiff. Tha defendant then offered evidence, that the negro was sound at the time of the sale; arid that about four months after the negro was so sold, the plaintiff wrote to a certain Christian Kemp, by the negro, offering him the said negro for the sum of §400 cash, or §450 credit. The plaintiff then offered evidence, that the negro had a wife at Kemp’s, and wished to go to him. And also offered to prove by a competent witness, who was present at the time the said letter was written, that he, the plaintiff, said at that time that he would fix a price, which he knew would prevent a purchase by Kemp, and that ha only wrote the letter ins order to deceive the negro, and to prevent him from absconding, through fear oí being returned to the defendant. Neither Kemp nor the defendant were present at the time. The defendant objected to this evidence, and prayed that the same might not be permitted to be given to the jury. And the Court, [Buehanan, Ch. J. and Shiver, A. <3.~] were of opinion, that the same was not legal and competent testimony, and refused to permit it to go the jury. The plaintiff excepted.
    2. The plaintiff having offered in evidence that the defendant sold him the negro in question for §400, upon the terms mentioned in the first count in the declaration, then offered to read in evidence a bill of sale, executed on the 24th of July 1810, by jvhich the said negro was transferred to the plaintiff by tbe defendant, for the consideration of §400, and whereby the defendant warranted and defended the said negro to the plaintiff, against him the defendant, Ms executors, &c. and against every other person or persons whomsoever; and that the said negro was then and there delivered to the plaintiff. The plaintiff further offered in evidence, that at the time of the said sale and conveyance the «aid negro was unsound, diseased, ruptured, and aSlictetl with the consumption, and ivas unable to do ordinary and usual labour from the time of said sale, in consequence of said diseases; and that the said negro was known by the defendant to be so diseased at the time of the sale; and that he concealed the same from' the plaintiff. The defendant then offered in evidence, that the negro was sound at the time of the sale; and also offered in evidence, that about three weeks after the sala and conveyance, ir» a conversa* tion between the plaintiff and defendant, the plaintiff complained that the negro could not work, and that the defendant told him he ought to make him* Plaintiff then said I will examine him whetn I go home, and if I find he is not sound, I will return him. Defendant said do so. The negro was not returned, but died in possession of the plaintiff in December 1810. The defendant then prayed the opinion of the court to the jury, that if the jury should find from the evidence, that after the sale of the negro mentioned in the declaration, it was agreed between the-defendant and plaintiff, that the plaintiff should examine the negro, and if any defect was found, that then the plaintiff might return the negro to the defendant, and that the contract should in such case be vacated; that if the negro never was returned, that then the plaintiff is not entitled to recover on the first count in the declaration. Of this opinion the court was, and so directed the jury, with the qualification that the plaintiff was not induced to continue the negro in his possession by misrepresentations of the. defendant, (as to his health and soundness,) at the time of the conversation above stated, or subsequent thereto. The plaintiff excepted,
    S. The defendant then prayed the court to direct the jury, that if they do not find from the evidence, that at the time of the sale of the negro the defendant affirmed that he was sound, that then the plaintiffis not entitled to recover on the first count in the declaration. This direction the court refused to give. The defendant excepted. The verdict and judgment being against the plaintiff', he appealed, to this court.
    The cause was argued before Chase, Ch. J. and Niciiol-.sox, Earle, and Johxsox, J.
    
      Taney, for the Appellant.
    1. To show that the de„ qlarations of the plaintiff below offered to be given in evidence, as stated in the first bill of exceptions, ought to have been permitted by the court below, he referred to Holstenvs. Jumpson, 4 Esp, Rep. 189; and Phillips Vs* Hamer, 1 Esp, Rep. S57.
    
    2. That the plaintiff, at the time the defendant offered to take back the negro, had then a full cause of action, and therefore the defendant’s consenting to permit the negro to fee returned did not take away that cause of action. If the negft» was nnsoilnd, the right of action related in {lie-time of tile sale, and was not done away by the after agree* aicnt or permission assented to by the defendant. Those eases whore the thing sold must be returned, are where the agreement for the return is a part of the original contract} and is not applicable to subsequent agreements. He re* ferred to 2 Coni, on Cord. 281.
    
      Shan//', fm- the Appellee.
    L The declarations made bjr the plaintiff, which he wished to give in evidence, went to contradict the letter, and to show an imposition was then contemplated, and therefore were properly rejected. 2. There was a new contract which vacated the first, and the new contract not. having been complied with, the original contract was terminated. The plaintiff under the second contract, being a physician, was bound to examine the negro, to see whether or not he was sound, and if he did not, or if he did and found him unsound, and did return him, he was bound by that contract, and can have no claim under the first agreement.
   The Court dissented from the opinions given by the court below in the first and second bills of exceptions.The third bill of exceptions, having been taken by the defendant below, was not before the court.

JBDSMEST REVERSED, AHI) PRO GEO EK'D© AWAitDEJ».  