
    Administrators of Samuel Caldwell against Robert Barkley.
    juage who tried «a?S?r'S’hí,] EivefTdifferent ■verdict, yet, there beiog evideuce on both v.’ouid notgíaTa trial.
    This was an action on a promissory note given by the defendant to Samuel Caldwell, deceased, The note was admitted. The defence was, that _ the consideration ot the note was a sum agreed O to be paid by the defendant, as the difference in value between two negroes, on an exchange between him and the deceased. It was admitted, that this was the consideration of the note; and the defendant went into proof to show, that the negro he received was warranted to be sound, and that he was, in faet, at the time of the exchange, unsound. He produced a bill of sale dated October, 1814, from Samuel Caldwell to him, in which the negro is warranted expressly to be sound; he then called James Douglass, (one of the Jurors) who proved that the defendant expressly and preremptorily declared he would not make the exchange unless the negro was warranted sound. Caldwell said, he would warrant him sound, except as to a speck in one of his eyes. But the defendant would admit of no exception, and the bill of sale was afterwards drawn in general terms. This witness stated, that he once owned the negro; that if perfectly sound, he was worth 600 dollars. When witness sold him, he thought he was a sound negro. He had sore eyes when with Caldwell, and at one time he -was very bad. The negro, defendant gave in exchange, was lame. This the defendant expressly stated. Cornelius Beard, another witness called by the defendant, proved that defendant tendered the negro to Caldwell, and desired him to take him back, which he refused. This witness had the negro in his service for some time, and thought his sight materially defective. The affidavit of Dr. James Kelly was read by consent, which stated that he, in the spring of 1815, was called upon to examine the negro in question; that he found one of his eyes weak, one worse than the other; that they were affected with a disorder, called by medical men a milky cataract; and that hard labour, and labouring in the sun, would each be injurious, and united might in time destroy his sight altogether. On the part of the plaintiff, James Martin was sworn, who said he knew the negro: that he had worked on shares with the defendant in the crop of 1815; that the negro was put in by the defendant as a good hand; that the defendant did afterwards request him not to push this negro too hard because of his eyes; that the witness never put him to close work. He was employed in chopping and ploughing. He did as well as the other negroes, and he saw no defect in his work; but he could not speak of the soundness of his eyes.. Robert Caldwell, called by the plaintiff, proved a tender of 487 dollars to the defendant, with an offer to take back the negro, which defendant refused, saying, the negro was already engaged in the crop, and he could not . - . take him out of it. The negro which defendant in exchange, sold at the sale of Caldwell's estate for 887 dollars, which, with the amount of the note in this case given as the difference of value in the exchange, made the sum tendered. John L. Young, another witness called by the plaintiff, knew the negroes, and thought the negro that defendant received was worth 150dollars more than the one he gave in exchange. There were other circumstances given in evidence on both sides; but this statement gives with sufficient accuracy the character and weight of the testimony. The Jury found a verdict fob the plaintiff for the amount of the note and interest. The defendant now moves for a new trial, because there was sufficient evidence of the unsoundness of the negro, and that the Jury ought to have found for the defendant.
    The case ivas tried at Fairfield, in the Fall Term of 1817, before Mr. Justice Cheves.
    
   The opinion of the Court was delivered by

Mr. Justice Cheves.

This case was tried before me; and if I had been of the Jury, I certainly should have given a different verdict: but I am not disposed to disturb their verdict. There was evidence on both sides; and although 1 think it preponderated in favour of the defence, yet it was not very precise or very strong. The opinion of the physician was founded on a single view of the negro; and he says no more than, that he at that time had weak eyes: though he supposes hard hour in the sun might destroy his sight. This is hypothetical, and not very clearly or strongly stated. On the whole, Í am of opinion a new trial ought not to be granted.

Grimicé, Colcock, JVott, Gantt, and Johnson, J. concurred.  