
    William Simmons vs. Isaac W. Cutreer.
    The case of Oils v. Alderson, 10 S. & M. 476, on the subject of implied warranty of soundness, cited and confirmed.
    Fraud in the sale of a slave, by which the purchaser is deceived into taking an unsound for a sound slave, may be proved in an action on the note given for the purchase money, under the plea of non-assumpsit.
    Where the defendant sued upon his note, intends to set up fraud in the purchase of the article for which it was given, it is more regular to plead it specially, or to give notice of the intended defence ; but if this be not done under the plea of non-assumpsit, and no objection be taken to it on that ground, the testimony will be admissible.
    
      In action on a note given for a slave sold to the defendant by the plaintiff, for which the latter had given the former á bill of sale, warranting title only, the defendant proved that the negro was an idiot, and of no value ; the court below excluded the proof; held, although there was no warranty, yet the proof ought not to have been excluded, as it tended to establish a fraud in the seller; knowledge of the defect on his part, and concealment of it, would constitute the fraud ; the proof should have been admitted under proper charges from the court.
    In error from the circuit court of Pike county; Hon. Thomas A. Willis, judge.
    Isaac W. Cutreer sued William Simmons on his note for $300, payable to Willis Dillon, and by him indorsed. The defendant plead non-assumpsit, and on the trial proved the note was given for a negro woman, named Aby, purchased by defendant of Dillon. Yarious witnesses were examined, whose evidence tended to establish the idiocy and worthlessness of the slave; the defendant then introduced his bill of sale from Dillon which contained a warranty of title only. The court below, on motion, excluded the "proof of unsoundness. The jury found for plaintiff; and a new trial being refused,, defendant sued out this writ of error.
    
      C. P. Smith and Lamkin, for plaintiff in error,
    Cited Hardin, 531; 4 Bibb, 304; 2 Pick. 71; 3’ Cow. 272 ■ 2 Kent, Com. 474; Harman v. Sanderson, 6 S. & M. 42; Johnson v. Titus, 2 Hill, Rep. 606 ; 2 McLean, C. C. R. 464; Hill v. Buckminster, 5 Pick. 391; 13 John. 302; 15 lb. 230.
    
      S. Tift, for defendant in error,
    Cited Otts v. Alderson, 10 S. & M. 476; Co. Litt. 102 a; 2 Kent, Com. 478; 3 Black. Com. 451; Story on Sales, 293 ; Seixas v. Woods, 2 Caines, Rep. 48; Swett v. Colgate, 20 John. 196; Wright v. Hart, 18 Wend. 449; 1 John. 96, 274; 5 Ibid. 354; 15 Petersdorf, 372 ; 1 S. & M. 381; 1 Wend. 185 ; 4 Cow. 440; 2 Caines, Rep. 48; 10 S. &’M. 476; Fleming v. Slocum, 18 John. 403; 18 Wend. 447; 17 lb. 267; 4 John. 421; 1 Caines, Rep. 358.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit upon a promissory note for three hundred dollars, to which the general issue was pleaded.

The evidence was, that the note was given for the purchase of a negro; that the negro was an idiot and of no value. There was a bill of sale containing a warranty of title, but none of soundness. The proof, after it had been introduced, was, upon motion of the plaintiff, excluded from the jury by the court. Judgment was thereupon rendered in favor of the plaintiff, and the case thence comes to this court.

The doctrine in regard to implied warranty was very fully stated, in the case of Otis v. Alderson, 10 S. & M. 476, and from the principles there laid down, it is manifest there was no warranty in this case.

But fraud may constitute a valid defence to an action of this nature, and fraud may be given in evidence under the plea of non-assumpsit. 2 Saund. Pl. & Ev. 527. It is more regular to plead the fraud specially, or to give notice of the intended de-fence, but no objection appears to have been made to the introduction of the testimony upon that ground.

The testimony which the court ruled out was pertinent to establish the fact of fraud. Whether it amounted to sufficient proof of the fact, was entirely a question for the jury, and the court ought not to have excluded it-from their consideration.

Knowledge of the defect or infirmity in the slave, and concealment of it, were necessary to constitute fraud. The point whether the defect were open to the observation of the purchaser, might also be important. 2 Kent, 481. The testimony may not be sufficient to make out the facts, from which the fraud would be inferred, but that was a matter exclusively for the determination of the jury, under a proper charge from the court.

For this cause the judgment will be reversed, and a new trial granted.  