
    Charles Matlock, Assignee of Executor of Lynn, vs. Henry Gibson.
    A defence of unsoundness, to a note given for the purchase-money of negroes, proceeds on the ground, not of discount, but of failure of consideration.
    In an action on a sealed instrument defendant may show that it was without consideration, or that the consideration had failed.
    BEFORE EARLE, J., AT EAIRFIELD, SPRING TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt on a sealed note given by the defendant payable to Jackson Lynn, deceased, dated 29th November, 1828, due the 1st November, 1829, for one hundred .dollars. The defendant had purchased some negroes of Lynn, a fellow, a woman and three children. The price was one thousand one hundred and twenty-five dollars, which was all paid except one hundred dollars, for which the note wa's given. The defence, by way of discount, was that the woman was diseased and worthless, and the fact was established by abundant proof. The discount was objected to by plaintiff’s counsel, on a legal ground arising out of the following state of facts. A man of the name of William Stubblefield had been the agent of Lynn in buying the negroes, and his assistant in selling them. They were both present, and a bill of sale was executed to the defendant warranting the title and the soundness of the negroes, which both of them had signed. The negroes were Lynn’s alone, and not the joint property of both, and the note was given to Lynn alone for the balance of the price. Stubblefield was examined as a witness on the part of the plaintiff, and swore that he had no interest in the negroes, or in the recovery of the note; but stated his agency in the sale, as well as in the purchase of -the negroes, and that being in company (indeed he seemed to think he had made the sale himself for Lynn) he had put his name also to the bill of sale. I overruled the objection to the discount, and the jury on the evidence found for the defendant.”
    The plaintiff appealed, and now moved for a new trial on the ground:
    Because the defendant having taken the joint warranty of Jackson Lynn and William Stubblefield under seal, damages accruing from a breach of that warranty could not legally be set off, or pleaded as a discount, in an action brought by the plaintiff on a sealed note made’ by said defendant, and payable, not to Jackson Lynn and William Stubblefield, but to Jackson Lynn alone.
    
      Clarice, for appellant.
    
      Pearson, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The ground of appeal supposes that the defendant was allowed, to discount the damages which he had sustained, by reason of the breach of the covenant of warranty of him and Stubblefield. This, however, is a mistake. The defence of the defendant is predicated upon a failure of consideration, and the discount is only notice to tbe party, of the defence relied on. If the single bill could legally be regarded as given in consideration of the warranty of title and soundness, then it would be true, that there could be no failure of consideration, and the party’s only remedy must be on the covenant of warranty. But the slaves sold are the consideration, and the unsoundness of them, or of some of them, makes either an entire or partial failure of consideration of the bill executed for their price. It was said in the argument, that the want of consideration could not be set up, against an instrument under seal. But this is not the rule. The sealing of an instrument is a legal implication of consideration; it dispenses with the proof on the part of the plaintiff. The onus of showing that it was without consideration is cast on the defendant. If he is able to make it appear, the defence is just as available to him against a single bill or bond, as it is against a note of hand or other parol contract.

The motion is dismissed.

JOHNSON, J., concurred.

Motion dismissed.  