
    Gabriel Benson against William Littlefield.
    }?r ami’ occaslona/iy afflicted with choknew th"rn'ef™ llwLghadhiSi'ii! groSi fois re™ «ra"t,offíom “tie price, and tire cir-
    was an action on a note of hand given Pari; *or price of a negro fellow; a portion of consideration money having been paid down # J ° A Before suit; price, 200 dollars. Defence, unsoundness of the property sold. To support this defence, the defendant proved that the negro had the cholic two or three times before the and that he had it several times afterwards, but upon drinking, a little spirits and black pepper, he got better. It was also prov_ ed, that the fellow was old; and that the price paid was only 200 dollars.
    For the plaintiff, in reply, it was proved, that the defendant knew the negro well before he purchased him, that he had lived with him, and had known him for several years; that he worked for defendant at the time he purchased him, and that he had. been in his employ for seven weeks before — that defendant had hired him to grub; that defendant, a year after the sale, applied to one Rochel to borrow money to pay for the balance of his price, having paid part of the money after the sale; that during all this time, he never complained of the negro, or offered to return him, although the sale was made for a year before the suit Avas commenced. It was further proved, that the fellow Avas a competent hand, though slow, being old, except when he had the cholic.
    From this testimony the Jury found for defendant.
   The opinion of the Court was delivered by

Mr. Justice Bay.

It is extremely difficult to find out upon what principle the Jury found their verdict for defendant in this case. The negro, it is true, was old; but the price paid corresponded with his years, 200 dollars only. The defendant knew him well, he had lived with him a considerable time before he purchased him, and the complaint he was subject to must have been known to the defendant, and it was easily cured or removed; that he wanted to borrow money to pay for him; and what is most extraordinary, he never offered to return this negro till the suit was brought, which the law requires in order to justify a recision of a contract. Upon the whole, the conduct of the defendant has much the appearance of one of those pretexts which are too often made use of to get rid of bargains fairly entered into.

I am, therefore, clearly of opinion, there should be a new trial in this case; in which opinion all the other Judges concur.

Colcock and Gantt J. concurred.

Nott, J.

I concur in the opinion, that a new trial should be granted ; but whether it was necessary that the negro should have been returned before the defendant could set up this defence, Í give no opinion.

Cheves, J. 1 concur in the opinion, that a new trial be granted.

Johnson, J. having been concerned in this cause, gave no opinion.  