
    Elizabeth Neel ads. Jeremiah Deens and Allen Smith.
    In an action for money had and received, to recover money for a consideration •which failed, the sum paid must form the measure of damages, and the jury cannot give vindictive damages, 
    
    This was an action on the case, brought to recover the consideration money (five hundred and fifty dollars) paid by the plaintiff, an elderly widow lady, to' the defendants, dealers and traders in negroes, for a negro girl, purchased of them by her.
    The ground on which the right of plaintiff’s case rested, was that of unsoundness in the negro which she had purchased. It appeared from the testimony on the part of the plaintiff, that the day after the contract was made, she became very uneasy, from a belief that an imposition had been practised upon her. She conceived the negro girl, which had been sold to her, was diseased. This occasioned her to send for Captain Smiley, a neighbor, for the purpose of obtaining his, opinion and mediation, in the event of his thinking that her suspicions were well founded. Captain Smiley attended, and being well satisfied that the girl in question was really diseased, he was deputed to go in pursuit of Deens, and to effect a recision of the contract. lie met with Deens in the Dutch Fork, and communicated the apprehensions and wishes of the plaintiff. Deens refused any accommodation, insisting on the fulfilment of the contract pursuant to its terms, viz., the payment of the consideration money in four wee^s- Capt. Smiley, whose testimony was had *on the trial, gave strong evidence that the girl, from her appearance, as well as other circumstances detailed in his testimony, was diseased, and declared that he was so satisfied of the fact, that he would not have had her as a gift.
    Jane Boozer and Elizabeth M’Olendon testified to the same facts.
    John Neel proved that the defendants had represented the girl as sound, at the time of contract; that she appeared to him, very shortly afterwards, enfeebled by disease; she could do but little, and was of as much trouble and expense as profit to the purchaser. That the plaintiff was unwilling to comply with her contract, and Deens, to satisfy her, said that if she discovered after-wards that the negro was diseased, he would be accountable for it.
    Mr. Neel also proved the circumstance of $25 dollars being deducted from the price agreed to be paid, and which he said the defendants had agreed to take from the price, provided the plaintiff would raise for them, at that time, the sum of one hundred dollars more than what she had then paid, which was done. This witness declared that he would not have had the girl; and offered his reasons for believing her unsound. All those witnesses concurred in their testimony, in respect to the situation of the negro girl purchased by the plaintiff, and were well satisfied that she was diseased, and offered many reasons to justify the correctness of their opinion.
    For the defendants Mr. Gray was introduced, who proved that he had drawn the bill of sale by which the girl was transferred from the defendants to the plaintiff, and the payment of the consideration money, part whereof had been paid to Mm as the agents of the defendants. He stated that the negro giil had been recommended by him to the plaintiff. He described the situation of the girl a few days before'her death, as being bloated and dangerously ill. He advised the sending for a physician, and gave evidence of certain declarations of the plaintiff, among others, that a *dose of medicine had been administered to her. That Dr. Johnson thought the girl had worms, and that she (plaintiff) supposed the girl had overheated herself, in walking to the village of Newberry. This witness said that the girl had been at his house upwards of a week. He thought her sound. He stated that the plaintiff had privately examined the girl before the contract was entered into. That he should have been unwilling that any imposition should have been practised upon the plaintiff, which he seemed to think had not taken place.
    John Cherry, Cols. Sheppard and Ephraim Dawkins, all deposed that they had seen the girl before the sale, and thought her sound. The latter said she was smart and lively, and was singled out to bring water on that account.
    Mr. Gray, father of the former witness of that name, proved the dissatisfaction of the plaintiff the evening after the purchase of this negro ; but stated that afterwards, in a conversation with the plaintiff, she informed him that her misunderstanding with Deens had been settled. On asking her hpw, she replied that he had agreed to deduct $25.
    Other testimony was gone into in relation to' this contract, and the circumstances growing out of it, of no importance.
    This being a case peculiarly proper for the consideration of a jury, it was submitted to them, without any expression of the opinion of the Court as to the weight of testimony on one side or the other, and the jury found for the plaintiff the amount of the consideration money paid, with interest, and one hundred dollars damages.
    The defendants appealed for a new trial, alleging in the grounds taken,
    1. That the deduction made of $25, was the result of a compromise between the contracting parties, for the supposed unsoundness of the girl, which was fully proved, in their opinion, by the evidence.
    2. That there was no proof of unsoundness.
    3. That one hundred dollars had been allowed by the jury for “•smart-money.”
    
    
      
       According to the case of Goddard v. Bulow, ante, 45, we presume interest may also be given. R.
    
   *The opinion of the Court was delivered by

Gantt, J.

It is to be observed, that there was conflicting testimony in regard to the first ground- Mr. Neel’s testimony goes to show, that no compromise had taken place, by which the plaintiff was to be estopped from a recovery back of the consideration, if the negro should prove to be unsound. On the contrary that Deens expressly undertook, that he would be accountable in such event, and that the deduction of $25 was made on a different account. The elder Mr. Gray testifies to a declaration, made by the plaintiff, which would seem in opposition; but it was the province of the jury to weigh the evidence and reconcile the difference between those witnesses. They may have thought the reply made to the question propounded by the witness, Gray, was by no means conclusive, to show that she had taken the negro at all hazards, on account of so trifling a deduction. With respect to the fact of the negro being diseased, the testimony of the plaintiff most unquestionably preponderated. Under this view of the facts, where the parties have been fully heard, and the case decided on by the jury, in respect to its merits, the court are clearly of opinion that no new trial should' be had on the ground that the verdict was against evidence. ‘

The court are, however, of opinion, that from the nature of the present action, damages by way of “smart-money,” ought not to have been given; and as it appears satisfactorily, by the brief and the report made of the case, that one hundred dollars were specifically given, by way of “ smart-money,” a new trial is ordered, unless the plaintiff will release the same.

O'Neal, for the motion. Crenshaw, contra.

G-rimke, Oolcock, Nott, Cheyes and Johnson, JJ., concurred. 
      
       Sée 2 N. & MeC. 543.
     
      
       2 N. & McC. 543.
      See Chev. 149; 1 McM. 116.
     