
    J. Mitchell against Joseph and William Dubose.
    Charleston,
    May, 1817.
    Though it is a SiSnttucourt property yIt tie Kercd back to the seller as soon toOTvered ?h.ch donehaS"E' more than a year had an^cttoí^voíid
    perty sold is seizfMder an exccu'-’ no? leg'uiy1 bfnd that property, t?e%asserf “and tale Remedy against him, or c^seáaMsexecu°•0°“levied, and not against the ground* of* titled vendee by such levy and sale.
    This was an action of assumpsit, to recover A 1 the sum of two hundred and thirty dollars, the Pnce °* a negro wench purchased by the plaintin from the defendants, and interest thereon; which _______ negrowench was afterwards seized and sold by the Sheriff of Charleston District, by virtue of an ex- . , ' ecuüon against Joseph Dubose, one of the defend-in this action — tried before Mr. Justice Grimlcé, at Charleston, January Term, 1814.
    It appeared on the trial, that the defendants A L _ . # had sold and delivered the wench m question to the plaintiff on the 6th February, 1810, at and. * * for the price of two hundred and thirty dollars; that she had formerly belonged to Joseph Dubose, " ° x the deceased father of defendants, but how ghe came into the possession ot the defend-A ants did not appear; that the father had left other negroes besides the wench in question, and had died two or three years before the sale to the plaintiff; that plaintiff kept this negro woman upwards of a year in his possession, and then sent her down to a Mr. Croft, in Charleston, for sale, some time in the beginning of the year 1811; that the Sheriff of Charleston, while, she was thus in the hands of Mr. Croft for sale, seized her by virtue of an execution, at the suit of Sylvanus Keith against Joseph Dubose, as the property of Joseph, or as having been bound by the execution in his hands, and «old her for the price or sum of five dollars.
    It further appeared, and indeed it was admitted. that the judgment and execution was against Joseph the father, but against Joseph the son, one of the defendants; and that the execution under which she had been sold,"had not been lodged in the Sheriff’s office until the 1st of March, 1810.
    The plaintiff then called Mr*. Croft as a witness, who, being questioned as to her price or value, said she was upwards of fifty years of age, and that she was “ a crazy sort of a thing,” who had kept him in apprehensions of having his house burnt while with him, but that she appeared to be a healthy woman.
    Upon this testimony, it was contended by the plaintiff’s counsel, that the plaintiff had been divested of his property to pay the debt of one of the defendants, and that it appeared from the testimony of Mr. Croft, and the sum she sold for at the Sheriff’s sale, that she was worth little or nothing; consequently, that the plaintiff was well entitled to the sum he originally paid for her, with interest from the tim,e of the purchase.
    On the other hand, it was urged by the defendants’ counsel, in reply, that the Sheriff’s sale was no just or certain criterion for fixing the price or value of negroes; and that inadequacy of price was not a good ground in law to rescind a contract; and further, that it had been proved that the plaintiff had kept this negro wench in his possession, upwards of twelve months, without offering to return her, and that she was a healthy wench: and as to the sale by the Sheriff of Charleston district, it was null and void, as the wench was not bound by the execution, and he had no authority to sellher. The Jury, after hearing the casé, thought' proper to find a verdict for the plaintiff, 230 dollars damages. The present is therefore a motion for a new trial.
   Bay, J.

delivered the opinion of the Court.

The case, as stated, appears to me to present two points for the consideration of the Court. 1st., whether there were legal grounds for the recision of the contract or not? And 2dly. whether upon a supposition there were not legal grounds for setting aside the contract, the plaintiff has been legally divested of the property by title paramount?

1st. With respect to the first ground, I take it for granted that there is no better established principle in our whole legal system of jurisprudence, at this day, than the one borrowed from the civil law, “ that a sound price, merits a sound commodityBut this, like every other wise principle of our law, has its concomitants and attendants, and if these are wanting, the principle itself will not apply. One of the fii-st and leading circumstances, necessarily attendant on this prineiple of law, is, that as soon as the defect of the thing purchased, is discovered, it should be tendered'back to the seller, and a restitution of the price demanded. When these requisites wanting, or are totally disregarded; there surely can be no ground for a party to come into a Court of Justice, and demand a recision of the sale. Now let us apply these principles to the case before us.

. The contract of sale, was made on the 6th Feb. 1810, and the wench in question remained in the plaintiff’s possession, upwards of a year, without any complaint ever being made to the defendants, (who were the plaintiff’s neighbours on Santee,) of any defect of mind of body, during all this time: and this was certainly a reasonable time for the discovery of any defects, if she had had any: and finally, after this lapse of time, she was sent off by the plaintiff, for sale, to Charleston, to the plaintiff’s agent, at the plaintiff’s risk, where she was illegally seized, and sold by the Sheriff of Charleston District.. I call it illegally sold, because the property Had never been bound by the execution against Joseph, the son; it had been transferred to Mitchell, the plaintiff, more than twelve months before the execution was lodged against him. I do not know that I am warranted in saying, this was the reason why the wench sold so low as five dollars, but this Í am warranted in saying, that if it had been known, that she was sold as the property oi Joseph, when, in fact, she really and in truth belonged to Mitch« ell, the plaintiff no man, in his senses, would have bid one dollar for her. For these reasons, I am of opinion, that the first ground gives way under the plaintiff, and that it does not appear to me, there are any legal grounds for the recision of this contract.

K. L. Simons, for the motion,

Richardson, contra.

2dly. The second ground is So nearly allied to the first, and is so much involved in it, that it is difficult to separate it from the foregoing. I have already considered the Sheriff as a trespasser, in seizing and selling the goods of one man, which belonged to another ; and this is the only reason assigned by the plaintiff, for the divestment of the property out of him: it was an unauthorized act; and he, or the plaintiff, who pointed out the property, as belonging to Joseph, one of the defendants, must be liable for the consequences to the plaintiff, Mitchell. From the best view, therefore, I can take of the subject, Í am decidedly of opinion, there should be a new trial.

The other Judges concurred.  