
    David Adams ads. Wylie, et ux.
    
    On the plea of non est factum, no evidence will be admitted, but. such as goes to the destruction of the bond, 
    
    Wherever the vendee is deceived in the purchase of land, by misrepresentation, he Ta&jpleadit or give it in evidence in discount, against a bond given for the purchase money. 
    
    This was an action on two bonds, tried before Mr. Justice Gantt, at Charleston, May Term, 1816.
    The handwriting of defendant was admitted. The defence was, that they were given for a tract of land, which was admitted.
    Mr. Payne, the vendue master who made the sale, was called, and proved that the tract was represented, at the sale, to contain two hundred and ninety-four acres of high land, besides a body of marsh. The defendant also offered the advertisement, and the bill of the vendue master, to prove that it was advertised as two hundred and ninety-four acres of high land.
    The plaintiff admitted that the land actually contained but two hundred and two acres of high land; but that the marsh, made up the quantity. They objected, however, to the admissibility of defendant’s evidence, on the Aground, that the deed was the only admissible evidence to show what the contract was. This objection was sustained, and the evidence rejected.
    The deed was then introduced, which stated that the tract contained two hundred and ninety-four acres of land, besides marsh.
    The defendant then again offered the same testimony on two grounds.
    1. That there was such an ambiguity in the words “ two hundred and ninety-four acres of land,” as could not be explained by themselves, that high land was meant; and,
    ■ 2. That all the circumstances of the transaction were admissible to show fraud on the part of the seller, which was here expressly charged.
    The testimony was again overruled, and also further testimony, which was intended to show that the defendant bought this land for the purpose of putting on it his negroes, consisting of such a number as could be advantageously employed.on two hundred and ninety-four acres of high land, but not on two hundred and two acres.
    . The defendant then contended, that there was a defect in the title, because the land was sold as the property of the estate of William M’Cloud, and the title deeds were signed by John Moncriffe, who had no right whatever; and the bonds were given, as it was admitted, for this land, to Wylie, who was a stranger to the transaction. This evidence being overruled, the case went to the jury without testimony on the part of the defendant.
    The jury found a verdict for the plaintiff, for the full amount claimed.
    A new trial was now moved for on the following grounds :
    1. Because his Honor the presiding Judge refused to admit in evidence the representations made at the sale, the advertisement, or the bill of the auctioneer, all of which went to prove that a fraud was practiced on the purchaser by the seller.
    2. Because his Honor refused to admit evidence to show that the purchase was made with a view to the employment of a number of hands, that could have*been advantageously employed on a plantation of two hundred and ninety-four acres, but not on one of two hundred and two acres ; and that in consequence of the deficiency, the land was wholly useless to the purchaser.
    3. Because his Honor refused to admit evidence to show a defect in the title.
    
      
      
        Farrow vs. Mags, post, 315.
    
    
      
       See Evans vs. Yongue, 8 Rich. 114; Haynes vs. Prothro, 10 Rich. 320; Rice, 345.
    
   The opinion of the Court was delivered by

OoiiCOCK, J.

Upon looking into the record in this case, it appears to be an action of debt on two bonds, and that the plea was non est factum, or non sunt facta. The defendant, therefore, could not give evidence of any matter which did not go to the destruction of the bond. In a case lately determined at Columbia, Joseph Bollinger v. John Thurston, (2 Mill’s Const. Rep. 447,) it was determined that in all such cases the defendant must plead specially, or in some other way give notice to the plaintiff of his intended defence, that he may not be surprised. Upon the issue of non est factum, the plaintiff comes prepared only to show that the bond was made by defendant. But in that case a new trial was granted, on the ground, that a practice had crept into our Courts of going into such defence without any further notice ; and the same indulgence will be granted in this case, because it is presumed that the decision has not been made known. The law is clear that where the deed is voidable only, as by reason of infancy, the obligee cannot plead non est factum, for it is his deed at the time of the action brought, and must be avoided by special pleading. (5 Rep. 119; Selwyn’s N. P. 562, 563; Vrooman v. Phelps, 2 John’s Rep. 178.) Here it cannot be contended that the deed was void. It is true the defendants speak of fraud, but it is apparent that there can be no fraud in the case. There may have been a misrepresentation, which, though not intentional, may entitle the defendant to a discount.

On the second and third grounds, it is only necessary to observe, that where the pleadings are correct, such defences are daily admitted by our Courts. It *may have been originally a departure from the strict rules of a Court of law; but from the time of the case of Gray v. Exors. of Handkinson, (1 Bay, 276,) it has never been disputed. A deficiency in quantity, or defect in quality, where there has been a representation, are legitimate grounds for a deduction of price, or recision of the contract, as the case maybe. In all such cases it is obvious that the matter alluded to must contradict the deed; but the case, on the part of the defendant, is to be considered as an action of a breach of covenant. Without intending to say anything as to the effect which may be produced by the testimony which the defendant wished to introduce, I observe, that it was not in contradiction to the deed; for the deed states, that the tract conveyed contains two hundred and ninety-four acres of land, besides a body of marsh, which must evidently mean high land.

Mo Gall and Hayne, for the motion. Parker, contra.

The motion for a new trial is granted.

Nott and Cheves, JJ., concurred.

Johnson, J., dissented. 
      
      
        Ante, 34.
     
      
       2 Hill, 657.
     