
    Theophilus Pearce, plaintiff in error, vs. Lucinda Vaughn, defendant in error.
    Where the evidence is balanced, a judgment refusinganew trial,Tnllnotbo disturbed.
    Covenant, from Spalding county. Tried before Judge Cabiness, at November Term, 1857.
    This was an action of covenant, by Theophilus Pearce against Lucinda Vaughn, for the recovery of damages for the breach of the warranty of soundness of a negro woman slave named Lucy, sold by defendant to plaintiff.
    The jury found for the defendant, and counsel for plaintiff moved for a new trial, upon the ground that the verdict was contrary to the evidence, and decidedly and strongly against the weight of evidence.
    In the argument before the jury, plaintiff’s counsel contended, that inasmuch as the negro had been tendered back, it amounted to a rescission of the contract, and defendant was liable for the maintenance and support of the slave, she being worthless.
    
      His Honor failed to charge upon this point, not being requested to do so, and for this omission plaintiff excepted.
    The presiding Judge overruled the motion for a new trial, and plaintiff excepted.
    Norton, for plaintiff in error.
    Oglesby, contra.
    
   By the Court.

Benning, J.

delivering the opinion.

There was evidence on both sides; and that on the one side, about balanced that on the other. When this is so, there can be no reason for disturbing a judgment refusing a new trial. This Court, then, ought not to disturb the judgment of the Court below.

The verdict having been for the defendant generally, the point as to whether the plaintiff, if entitled to recover at all, was entitled to recover for the maintenance of the negro, became of no practical importance.

Judgment affirmed.  