
    
      William Minter vs. J. Dent.
    
    Where a defendant in execution, whose negro is about to be sold at sheriff’s sale, falsely and fraudulently represents the capacity of the negro, he will be liable to an action of deceit at the suit of a purchaser who has been deceived and injured by such representations ; or if the purchase has not been complied with, to an action against the purchaser, by the defendant in execution, for the difference between his bid and the bid at a second sale, such deceit will be a good defence.
    
      Before Martin, J. at Edgefield, Fall Term, 1831.
    The report of his Honor, the presiding Judge, is as follows :
    :i This was an action to recover from the defendant, one hundred and twenty-seven dollars, as the difference between a first sale by the sheriff of a negro woman, at which the defendant was purchaser, and a second sale made the next day, in consequence of his refusing to complete his purchase. ■ It appeared that most, if not all, the plaintiff’s negroes had been levied'on, and were about to be sold under various executions. That plaintiff on the day of sale represented them as a prime gang of negroes, the pick, as he said, of about two hundred. When this particular negro was about to be sold, or when the sheriff was crying her, Dent asked Minter as to her capacity, <fec. &c. and Minter said he had lately bought her in Alabama, and could not say any thing of her of a definite character. The witness, Mr. Brooks, thought Minter disposed to evade Dent’s enquiry; he further said it was possible that this conversation may have taken place after the sale, but he thought it was before she was knocked off to defendant, if not before she was put up. The witness himself had promised Minter she should not go for less than $300, and he would have given that sum for her. She was stout, fat, and looked hearty. A slight examination of her countenance would convince any one that she was not a “ bright negro, but no one would suppose her to be an idiot or a fool, nor did he believe her to be either.” Ne-groes sold rapidly and high, and the women generally sold for about $350. No proclamation was made that the property would be re-sold if the terms of sale were not complied with. The sheriff’s original sales book, with the account of sales proved to have been made at the time, was produced, and this negro was set down to the defendant at $300. She was sold the next day for $173, in presence of defendant, who refused to comply with his purchase of the previous day At the close of the evidence on the part of the plaintiff, the defendant moved for a non-suit, which I overruled. See this case, 2 Bail. 291. A witness was sworn by defendant, who stated that plaintiff recommended these negroes very highly, by saying they were good negroes — that no better gang could be selected, as he had picked them out of two hundred. No exception was made as to this woman. As a gang they were likely, as good as usual. See Colcock vs. Goode, 3 McC. 513. The defendant then proposed to go into evidence to shew that this negro, by the weakness of her intellect, was valueless. I ruled that this testimony could not be received unless it was preceded by evidence of fraud, of misrepresentation, or express warranty on the part of Minter as to this particular negro. It was admitted that no other testimony could be adduced on these points, and the plaintiff had a Verdict, under the instructions of the court, for $127. See 2 Bay, 169 ; Davis vs. Murray, 2 Mill, 143. In this latter case, the defendant in execution substituted a sick negro for his land which was under levy, and used various artifices on the day of sale to conceal the negro’s situation. ' Yet on the statement of the case, the plaintiff (who had brought an action to recover back the money from the defendant in execution) was non-suited, and the opinion of the circuit court was sustained in the Court of Appeals. In delivering the opinion of the court, Mr. Justice Cheves says : “ If the plaintiff has any remedy, it must be tried in an action of deceit.” Dent in this suit was tendered the privilege of going into evidence of fraud, deceit, or even an express warranty, but it was admitted none other could be afforded ; and no one will pretend that the evidence in this case proves fraud or deceit on the part of Minter.”
    The defendant appealed, and now moved this court for a new trial, on the following grounds.
    1. That the judge erred in sustaining an objection to the competency of evidence to prove that the negro was valueless for the want of common sense, and particularly after proving Minter’s representations.
    2. Because the judge erred in charging the jury, that the defendant was liable in this action for the difference between the first and second sale.
    
      Bauskett and Wallace, for the motion.
    
      Butler and Griffin, contra.
   Curia, per

Johnson, J.

The moral principle, that men in their intercourse with each other should act with perfect fairness, is as broad as the foundation on which society is erected, and, in some form or other, we find it incorporated into the laws of every well regulated society. “ Do unto others as you would have them do unto you,” is the substratum of every civilized code; and the well known rule that no one shall profit by his own wrong, or profit by his own fraud, is built upon it — and wherever it is apparent that one man has profited by fraud and circumvention, to the loss or injury of another, he must respond. It is conceded that the principle does not ordinarily apply as between a purchaser at sheriff’s sale, and the party whose property is sold ; for there the party is merely passive, and the sheriff is not responsible, because he derives no profit from it, and no injury is done to the purchaser when he knows that he purchases upon his own responsibility — he will take care to be well informed of the value of the article sold, or make such an allowance in the price as will cover probable defects. But the rule no longer holds when the party becomes active in the sale, for he is profited by it in the payment of his debt. If a defendant against whom an execution has issued, should so disguise goods incapable of inspection, as cotton in bags, as to make them appear of a quality infinitely more valuable, and place them in the hands of a sheriff to'be levied on and sold under execution, and with the intent that the purchaser should be induced to give more than they were worth — and, deceived by these appearances, he did so, will it be contended that he is not answerable ? Certainly not — and why ? Because it is a fraud, and he who suggests a falsehood by which another is deceived, or suppresses ,the truth when he ought to speak it, is guilty of a fraud. What are the facts here ? The defendant’s negroes (forty in number) had been taken in execution by the sheriff, and were to be sold. He himself attended the sale, and represented that these were a selection from a gang of two hundred negroes, on account of their superior value — and for what ? Can it be doubted that if he was worthy of confidence, which I presume he will not call in question, this declaration was calculated to give purchasers more confidence in the value of the negroes, or that it was intended to operate as an inducement to the purchasers to give more for them? If not, why was it made? Is it not more reasonable.to conclude that he acted under the influence of his interest, than from mere wantonness ? It is said, however, that this declaration referred to the whole gang offered for sale, and that taking them in the aggregate they answered that discretion, and the case of Colcock vs. Goode, 3 McC. 513, is referred to as authority. There the contract of hiring was concerning the whole gang. Here the selling was several, the defendant purchased no other negro. But when the plaintiff was interrogated as to the capacity of this negro, to which his previous declaration had led the way, why did he evade the question by pretending that he had owned her but a short time ? Can it be true that she was so much of an idiot as to be of no value, and he not know it? The case of Davis vs. Murray turned on the form of action, and does not decide this question — on the contrary, it is expressly reserved. Mr. Justice Cheves, who delivered the opinion of the court, says: “I do not mean to say that a sheriff’s sale may not be made the instrument of fraud which will entitle the person deceived to a remedy against the author of it; nor do I mean to say whether the case stated would, or would not, constitute such a case.” That was assumpsit, and the court held that if plaintiff was entitled to any remedy, it was by the action of deceit, and the cause went off on that ground. The case of Thayer and Sturges vs. The sheriff of Charleston district, 2 Bay, 169, only recognizes the well known rule of caveat emptor as applied to sheriff’s sales. The court, of course, do not intend to express any opinion as to the truth of the facts, for they have not been tried. But I think very clearly, that the evidence of fraud was such as ought to have been submitted to the jury,' and that defendant ought to have been let into proof of the unsoundness of the negro. The remaining question has been considered during the present term in the case of Villines vs. King & Park. If the plaintiff has satisfied the execution under which the negro was sold, there is no doubt that he may, in this action, recover the difference between the two sales.

Motion granted.

O’Neall and Harpeh, JJ. concurred.  