
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1815.
    Moses Myers, Assignee, v. John M’Farrlane, Administrator de bonis non of John M’Colough.
    Evidence of unsoundness not sufficient to entitle defendant to a verdict in an action for the price of a horse, unless the unsoundness he proved to have existed at the time of the contract.
   Colcock, J.

This was an action of debt on a bond of John M’Colough to Moses Perry, who assigned it to plaintiff. The de-fence was, that the bond was given for the price of a horse; that the. horse'was lame, and of no value, and died not long after the sale ; the jury found a verdict for the defendant. From a view of the testimony which was given in this case, 1 am clearly oí opinion, that a new trial should be granted. Several of the witnesses proved that the horse was not lame at the time of the sale, that he appeared so to them the next morning, and' that Perry offered to take him back, which M’Colough declined ; and further, it was not proved that he died of the lameness, or that it had existed at any time before the sale. If contracts were to be rescinded on such trivial grounds, the solemnity hitherto attached to them, would be altogether destroyed.

Brevard, J.

I am of opinion in this case, that from the evidence given on the trial, as reported by the judge who presided, the jury were not warranted in finding a verdict for the defendant; that the verdict is manifestly contrary to evidence, and the legal justice of the case; and that the same ought to be set aside, and a new trial awarded.

Grimke, J.

The defendant, M’Colough, had purchased a horse of Moses Perry, and given his bond for it, who assigned it to the plaintiff. The defence was, that the horse was unsound ; of which some testimony was given, which was rebutted by other evidence on the part of the plaintiff, who proved by John Coachman, that he, Coachman, was about trading for the same horse: that he saw M’Colough, after he had purchased him, ride him off, and witness thought the horse was sound: plaintiff proved that defendant brought the horse back to Perry, telling him that the horse was not sound; and that Perry offered to vacate the contract, and to deliver up the bond to defendant; but defendant did not accept the offer,, but rode off with the horse. It appeared to me, that this case turned on the weight of evidence ; and that what was offered by was much stronger, and of more legal consequence, than the defendant’s. I am, therefore, for granting a new trial.

Bat, J., concurred.  