
    Ketletas against Fleet.
    ALDANY,
    Feb. 1811.
    The owiiev of eight years, on 0000itlon 01 Ills taithiUl service during that period;
    tills was held to be a cOndttional manumission, obligatory on the master, and of which the slave might avail himself, on the performance of the condition. After giving such a written covenant, which was delivered to the custody of a third person, the master sold the slave, absolutely, for his full value; and the vendee, though he was inform. ed, at the time of the sale, that the slave had been promised his freedom in eight years, y~t did not know of the writlezs covellaut until after the sale, when he returned the slave to the vendor, and rescinded the contract; in an action brought by the vendor to recover the per. chase-money, it was held that the vendee, being ignorant of the existence of the written ao~ vcnan~ at the time of the sale, the concealment was a fraud, and vacated the contract. ita man sells a dillerent intereSt from that which he
    If a man sells a different interest from that which hepretends, and especially if the e0ntra~t is founded in ignorance and fraud, the purchaser of the chattel may return it to the vendor, if he does so immediately after the discovery of the imposition, and thereby i'esvind the contrach the discovery of the imposition and thereby i'esvind the contrach
    THIS was an action on the ca~e,~to recover the. ~ric~ -of a negro boy sold by the plaintiff to: the defendant~ The cause was tried at the New-York sittings, in May, 1808, before Mr. Justice Van Ness.
    
    The plea was the general issue, with notice that the defendant would give in evidence that the plaintiff, on the 1st of March, 1804, agreed and promised to make the boy free in eight years, from the 8th of April, 1804, and that, at the time of the sale, he had no right to transfer the boy for a longer period than eight years: and that as soon as the deception, in selling the boy for life, was discovered, the boy was returned to the plaintiff, and the contract of sale rescinded.
    At the trial, the plaintiff proved the sale as stated in 1806, for the price of 250 dollars, and the delivery of the negro to the defendant; and that the negro was for some time afterwards in the employment of the defendant;
    The defendant offered in evidence a writing, under the hand and seal of the plaintiff, dated the 1st of March, 1804, stating that he did promise and agree to give his boy Tom free in eight years, from the 1st day of April, 1804, upon condition that Tom conducted himself as an industrious, honest and faithful servant, during that period. This writing was objected to, but admitted and proved. It was also proved, that the negro left it in the hands of a third person, for safe keeping. The defence was, that the defendant had no knowledge "of this contract, and that it was fraudulently concealed from him. The plaintiff objected to this defence, but it was admitted. The defendant proved, that eight or ten days after the sale, he went to the house of the plaintiff to deliver back the negro, on account of that contract, and to pay wages for the time he had the boy. The fact of this tender was admitted by the plaintiff. It was further proved on the part of the defendant, that he was informed of the existence of the writing by the person with whom it had been deposited, about eight or ten days after the sale, and that the plaintiff had. applied, for the instrument, stating that the boy was sold, and that the instrument was of no consequence.
    The plaintiff, on the other hand, proved that the defendant, before the sale, said to the boy that he must be a good boy, as the plaintiff had agreed to liberate him at the expiration of eight years. The plaintiff and defendant lived near each other. The defendant said, the day before the sale, that if he bought the boy, he wanted him for life, and he would not make any promise to liberate him, as the plaintiff had done. Thé defendant lived in the family of the plaintiff at the time the contract with the boy was executed ; and the contract was frequently talked of in the family, and well known to them all.
    The plaintiff further offered to prove that the negro had broken the condition in the contract, but this evidence was rejected.
    The defendant then proved that 250 dollars was the full value of the slave, and that he bought the boy as a slave.
    . The plaintiff proved that the defendant admitted that he knew before the sale, that the plaintiff had engaged to manumit the boy at the expiration of eight years ; but that he did not know of the writing.
    The judge charged the jury, that if the defendant knew that the plaintiff had agreed to give the boy free in eight years, yet if he did not know of the v/riting, they ought to find for the defendant; and the jury found accordingly.
    A motion was made for a new trial, on the following grounds:
    1. That the writing was not obligatory.
    2. That as the sale had been carried into execution, the defendant could not set off the. pretended fraud against the price. ■
    3. That the defendant had notice of the contract at or before the sale.'
    
      4. That the plaintiff ought to have been permitted to show the condition broken.
    
      P. W. Radcliff, for the plaintiff.
    1. The paper given by the plaintiff, and relied on by the defendant, was a mere declaration of intention, and not obligatory on the plaintiff. It does not purport to be a contract or agreement with the slave, or any other person.
    Admitting that it was an agreement in form; yet, being made with a slave, a person incapable of contracting, it was void. To make a valid agreement, there must be two parties capable of contracting, and a fit subject of contract. There must be mutuality; but what can a slave do or give, to support the mutuality of -an agreement? To render it valid, the contract should have been made with a third person, for the benefit of the slave.
    2. Suppose it to have been a valid agreement; yet it was conditional, and the plaintiff ought to have been ’ permitted to prove a breach of the condition. A slave is not more entitled to the benefit of a conditional promise, without performing the condition, than a free-r man.
    3. Allowing the agreement to be in force, the defendant had sufficient notice of it, before he made the purchase. If the contract was void, no notice was necessary, as it could not affect the defendant. The defendant had notice of an absolute promise, which was more prejudicial than a conditional agreement. And whether the notice referred to a parol or written promise, can make no difference. It is enough that the defendant had sufficient notice to put him on inquiry.*
    , , „ , 4. As the contract was executed, the defendant cannot resist the payment of the price, unless he has a right to rescind the contract. Where the contract is open, the money cannot be recovered back, but the vendee must resort to his action to enforce the performance of it. There seems to be some difference in the cases to be found in the books, as to the right of rescinding the contract. But I understand the law to be that the contract cannot be rescinded without the consent of both parties. In Towers v. Barrett, there was an agreement to ■ take back the chaise. If there is no provision in the original contract, leaving it open to the vendée- to rescind, or not, it cannot afterwards be rescinded, but the party must resort to his action on the contract.
    
      Baldwin and T. A. Emmet, contra.
    A slave -is not considered as a mere chattel. A master may.make a contract with his slave, which will be binding on the master. The case of Tom, a negro, admits the validity of such a contract. Whether it is so decided or not; yet it is the universal understanding in-the community, that such contracts are binding. Such certificates are given every day; and it is a case in which it. may be said that communis error facit jus. It is true, two parties are necessary to every contract. In England, there can be no slaves, and no rule can be found in the English books by which such contracts are to be governed. But in England, villeins might be enfranchised by an implied manumission; and if the lord, entered into any contract with his villein, it was a virtual manumission.
    
    Where the owner of a slave permitted her to go out to work, and, on her paying him a sum monthly, she was to have to her own use whatever she earned above the stipulated wages; and out of the earnings which she accumulated in the course of years, she. purchased a negro girl, and manumitted her, the supreme court of South Carolina that the negro girl which the slave had so purchased and manumitted,- was entitled to her freedom, and did not become the property of the master of her benefactress. • ■
    If a man makes a contract with his wife for her benefit, though not valid at law, it will be enforced in equity, -trustees are interposed. A fortiori, will a contract with a slave be enforced in favour of human liberty.
    
      
       1 Johns. Cas. 59.
    
    
      
      
        Dong. 23. Cowp. 818. † 1 Term Rep. 138.
    
    
      
       5 Johns. Rep 365.
    
    
      
      
         2 Bt. Comm, 94.
    
    
      
       1 Bay's Rep. 200.
      
    
    
      
       2 Esp. N. P. Cas. 639.
    
   [Thompson, J.

I do not understand the counsel for . the plaintiff as contending that this instrument is not valid as between the master and slave, and that the slave might not avail himself of it against his master.]

Then, whether the manumission was absolute or conditional, it affected the right of the purchaser. At the expiration of eight years, the slave would become free, "without any further act of the master. The plaintiff had no power or right to sell the slave for life, after he had given him the writing by which he was made free at the expiration of eight years. A consideration to render a contract valid must be such as the party has the power to perform.

Wherever there is a fraud on the part of the vendor, or a failure of warranty, the vendee may rescind the contract. It cannot be required that he should first pay the money, and then bring his action to recover it back. We consent to try our defence by the test offered by the plaintiff’s counsel; whether, if the defendant had paid the money, he could have recovered it back in an action for money had and received to his use. In Farrer v. Nightingal, Lord Kenyon said, “ he had often ruled, that where a person sells an interest, and it appears that the interest which he pretended to sell was not the true one; as, for example, if it was for a less number of years than he had contracted to sell, the buyer may consider the contract as at an end, and bring an action for money had and received, to recover back any money he had paid.” “ It is sufficient for the vendee to say, this is not the interest which I agreed to purchase.” The same doctrine was laid down by Lord Kenyon, in Chambers v. Griffiths, and by Lord Eldon, in Curtis v. Hannay. The _ , rule is most reasonable and convenient, and is clearly settled by the modern decisions.

Radcliff, in reply,

observed, that he still insisted that the contract between the plaintiff and the slave was void. He distinguished between a manumission in futuro, and a promise to manumit at a future day.

Villenage in England, is not analogous to slavery,

in this country. A villein had many civil rights. He could acquire and hold property; and copyhold tenures were derived from villenage.

In the case cited from Bay's Reports, the agreements were parol; and it shows that a parol promise to manumit a slave is as valid as if it was in writing. If so, then the notice to the defendant of a parol promise was sufficient.

It is found by the verdict of the jury, that the written contract was ■ concealed from the defendant; and such concealment was a fraud. Admitting that the verbal promise of the plaintiff to the slave, was known to the defendant; he might, nevertheless, be willing to purchase for a full price, knowing such a verbal promise was a nudum pactum, and incapable of being enforced at law.

It is said that evidence ought to have been admitted, to show that the condition had not been performed by the slave. But the judge very properly decided that the slave could not be bound by the decision of that fact in this collateral way; but it would still be a subject of litigation between him and his master. A purchaser expects to have a clear and undisputed title; not such a one as may be even questionable in a court of law. No man is bound to purchase a lawsuit.

Per Curiam.

The covenant of the plaintiff to manumit the negro in eight years, on condition of faithful service, was one that the slave could avail himself of, if the condition was fulfilled. What was said by the court, in’ the case of the negro Tom (5 Johns. Rep. 365.) is to that effect. The statute (24th sess. c. 188. s. 2.) allows the master to manumit his slave “ by any certificate or writingand this was a conditional manumission.

■The manumission does not rest upon the principles of a contract, depending on a consideration, but it is an act of benevolence, sanctioned by the statute, and made obligatory, if in writing.

The question as to the performance or breach of this condition, could not be tried in a suit between these parties; and if it had been tried, it would not have concluded the negro. The defendants would have afterwards remained liable to a new investigation of this fact, at the instance of the negro, when the term of service had expired. If, then, the covenant was unknown to the defendant at the time of the sale, and if, under an ignorance of the writing, he purchased the negro as an absolute slave for life, he had a right to return the negro as soon as the fact was discovered, and rescind the contract. The jury have found the fact of his ignorance of the writing; and the concealment of it from him, when the sale was made, was a fraud that will vacate the contract. The law seems now to be settled, that if a man sells a different interest from that which he pretends, and especially, if the contract be founded in ignorance and fraud, the purchaser of a chattel may return the chattel, if he does it immediately on discovery of the imposition, and thereby rescind the sale. (Curtis v. Hannay, 3 Esp. N. P. Cas. 82. The opinion of Bullere J. in Tower v. Barrette 1 Term Rep. 136. Farrer v. Nightingal, 2 Esp. Cas. 639. Fleming v. Simpson, 1 Campb. N. P. 40. in notes.)

Motion denied. 
      
       2 Lev. 161. 6 Term Rep. 22.
      
     
      
      
         1 Esp. N. P. Case. 160.
     
      
      
         E b. N. P. Cas. 83.
      
     
      
      
        Peake’s N. P. Cas. 131.
     