
    Belew vs. Clark.
    1. Where there is a sale of a slave by bill of sale, with warranty of soundness of body or mind, a Court of Chancery has no jurisdiction, unless the warranty be fraudulent. In the absence of fraud, the remedy is by action at law on the warranty.
    2. Where the intellect of a slave is warranted to be sound, and the fact of soundness is doubtful, a Court of Chancery has no jurisdiction. The question of fact in such case, must be submitted to a jury.
    
      3. The complainant had purchased a slave with warranty of soundness of intellect, and had himself offered to sell such slave, representing her intellect to be sound: Held, that he was not precluded by such declaration from proving her intellect to be unsound, yet his declarations after his purchase, that she was sound of mind, were strong evidence of the soundness of her intellect.
    This bill was filed in the Chancery Court at Trenton, by Belew against Clark, for the purpose of rescinding a contract for the purchase of a slave, and to enjoin the collection of a note given therefor, on the ground of a fraudulent warranty of soundness of mind.
    On the 23d day of February, 1839, Hurt sold and delivered the negro girl, Martha, to Clark. The bill of sale represented her to be about six years of age, and warranted her to be sound. Some conversation occurred between them at the time of the sale, in reference to her mind. Hurt said that she had an obstinate, mulish, sullen temper, but that she was of sound mind so far as he knew; he had owned her about four years; that at times her actions indicated an absence of intellect, and that at others she seemed to have as much as usual with those who had no better tutoring; one of her legs had been broken, and her toes were frostbitten. The bill of sale expressed the receipt of $250 as the purchase money. On the 22d day of April, 1829, Clark sold her to Belew, the complainant. The bill of sale represented her as about six years of age, the consideration to be three hundred dollars, and warranted her “tobe sound.” The bill charges the consideration to have been three hundred and fifty dollars. The answer admits' that it was nominally that sum, but asserts, that it was paid partly in property at a high valuation, and that it was really worth not more than three hundred dollars.
    The bill charges, that she was absolutely an idiot, and of no value; that this was known to the defendant at the time of the sale, and that he fraudulently represented her to be of sound mind, &c. The answer admits, that he represented her to possess a sound mind, but that he stated that she was not sprightly — -that she was dull — that one of her legs had been broken, and that her feet had been frost bitten, and that her dullness and refusal to talk, See. Sec., resulted from her having been badly treated, and from want of tutoring, &c.
    There was much testimony taken of a conflicting character; many witnesses swearing that she was of unsound mind, and absolutely valueless, whilst the rest regarded her as dull, stupid, and of feeble intellect, but with enough to understand what she was told, and to do all ordinary duties that might be reasonably assigned to a child of her age.
    Two physicians were required by complainant to examine the girl, with a view to ascertain and report whether she was an idiot or not. They made a partial examination from two to four hours, and stated as the result of their investigation, that she was not absolutely destitute of intellect, but was dull and stupid, to an extent bordering on idiocy, and that her capacity to acquire ideas or remember, was very limited, and that she was of very little value. They stated on cross examination, that a state of idiocy might be produced by disease, or by illtreatment and injuries inflicted; but that the girl seemed to be jn good health.
    • It further appeared, that the complainant kept the slave for nearly a year; represented her to other persons as sound, and had authorized her to be sold at auction as sound in body and mind.
    It came on to be tried on bill, answer, replication and proof, at the March term, 1843. McCambell, the presiding Chancel-' lor, believing that the fraudulent warranty had not been established, dismissed the bill. ' Complainant appealed.
    
      Totten, for the complainant.
    McLancthan, for the defendant.
   Turley, J.

delivered the opinion of the' court.

This is a bill filed to rescind a contract for the sale of a negro girl, slave, sold by the defendant to the complainant, upon the alleged ground of a fraudulent warranty of soundness on the part of the vendor.

It appears that the negro sold, was a girl, about six years old;' that, the contract was made on the 22d day of April, 1839, and a bill of sale executed by the defendant, ,in which is contained a warranty of title and soundness..

The bill was filed on the 2d day of March, 1841, and charges, that the slave sold whs ofimbecile intellect, amounting to idiocy, or so nearly s'o, as to render her valueless, and a charge and burden upon the vendee, which was known to the vendor at the time of the salé, and the fact fraudulently withheld and misrepresented by him. .All this the answer expressly denies.

■ There is much proof taken, both by the complainant and defendant, upon the points in controversy between them, viz, the soundness of the intellect of the slave, and the fraudulent warranty thereof.

We do not deem it necessary to enter into a minute investí-, gation of the testimony adduced on the part of the prosecution and defence: it. is various if not contradictory, and under the circumstances of the case, leaves it, in our opinion, doubtful, whether the intellect of the slave be of such a character as is warranted by the defendant; and in such case, the party claiming to be agrieved, must be left to his remedy if he have any at law.

The different grades of intellect being so various from the highest to the lowest, the law does not, as it cannot, in controversies of this kind, weigh and pronounce how much or how little of it must exist to constitute a performance or breach of the warranty. The want of intellect must be of such a character as disqualifies from the performance of the ordinary duties of life, and renders the person afflicted therewith an irresponsible agent. -This we cannot at present say is the.condition of the slave sold to the complainant by the defendant.

The immature age, the nature of instruction received and the quantum of intellect (moderate as it is) displayed by the girl, all-prevent the court from saying, that she is devoid of intellect to such an extent as to entitle the complainant to a 'recision of his’ contract. The developement of intellect varies as to time, and is materially dependent upon the amount of instruction received, and the intelligence and habits of associates. Therefore independent of a natural difference in the strength of-mind in different individuals, a precocity of one may be forced by culture, and an advancement of another hindered and delayed by the ignorance and incapability of those to whom the care of its early years is entrusted.

In the case under consideration, the slave was sold at the very immature age of six years. She had beén brought up to that period altogether with negroes, having had little or n"o communication whatever with white persons, and of course her means of instruction must have been exceedingly limited, and a consequent shyness of manners in an intercourse with strangers was to be expected; and to this may, in all probability, be attributed all the conduct which the different witnesses have testified to as evidence of want of sufficient • natural capacity.

.. The individual who sold the girl to the defendant, séems not to have supposed her deficient in this respect; but attributed her apparent deficiency to the manner in which she had been brought up, and to obstinacy or mulishness, as he called it, and so informed the defendant, and the defendant so informed the complainant. And in addition to all this the complainant kept possession of her for nearly two years before filing this bill, and in the interim, on different occasions, proposed to sell her to others, and represented her as sound. Now, it is true that these representations do not conclude him from his remedy against the defendant, if he were imposed upon by his fraudulent warranty. Yet they are evidence against him, and entitled to weight upon the question of soundness of her intellect; and it is with rather a bad grace that he attempt, to protect himself from their influence, by stating them to-have been untrue.

But if the court felt that it was warranted by the proof, in finding that there was a deficiency in intellect in the slave, amounting to idiocy, it still would not be enabled to grant the relief sought by the complainant; for there is no satisfactory proof that this warranty of soundness, if untrue, was fraudulently made, which we have held to be necessary to give a Court of Chancery jurisdiction; the remedy, in absence of fraud, being at law upon the warranty.

We, therefore, affirm the decree of the Chancellor, but under all the circumstances of the case, dismiss the bill without prejudice to the complainant’s right to sue at law, if, upon a further developement of facts in relation to the subject, he should think proper soto do.  