#### *Fleming v. Toler.

April Term, 1851,

Biclimona.

(Absent Cabell, P.)

1. Pleading and Practice—Bonds—Special Plea in Nature of Plea of Set-Off*—Case at Bar.—In an action on a bond given for the price of a slave, a special plea under the act of 1831 is good, which avers in general terms, that the slave was unsound at the time of the sale, and that the plaintiff knew the fact and fraudulently concealed it from the defendant; and that upon discovering the fact the defendant offered to return the slave and demanded a rescission of the contract, which plaintiff refused; laying the damages to the whole amount of the price, or not laying any damages, and praying for judgment in bar of the action.

2. Same—Same—Same—What May Be Proved under. —If such a special plea avers in general terms the unsoundness of the slave, and then adds a specific unsoundness, the defendant may under this plea, prove any unsoundness; and is not confined to the specific unsoundness mentioned in the plea.

3. Same—Same—Same—Case at Bar.—where a plea under the statute is filed, and another is tendered, which only varies from the first in the amount of damages laid, or in asking to rescind the contract entirely, the rej ection of this last by the Court is not ground for reversing the judgment upon appeal, where the verdict negatives the facts stated in both pleas.

4. Same—Same—Penalty and Condition of Same-How Treated.—The penalty and condition of a bond for the payment of money, is in the same sum. It is proper to treat it as a single bill, and to give judgment for the amount of the bond with interest from the time of payment.

This was an action of debt in the Circuit court of Goochland county, brought by WiHiam T. Toler, administrator of William Toler deceased, against Tarlton Fleming and John B. Pemberton. The action was founded on the following bond:

“Know all men by these presents, that we, Tarlton Fleming and John B. Pemberton are held and firmly bound unto William T. Toler, administrator of William *Toler deceased, in the just and full sum of eleven hundred dollars, to be paid unto the said William T. Toler, administrator of the said William Toler deceased, his certain attorney, his executors, administrators and assigns; to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this 23d day of October one thousand eight hundred and thirty-eight. The condition of the above obligation is such, that if the above bound Tarlton Fleming and John B. Pemberton, their heirs, executors or administrators, do and shall well and truly pay, or cause to be paid, unto the said William T. Toler, administrator of said William Toler deceased, his certain attorney, his executors, administrators or assigns, the just sum of eleven hundred dollars, twelve months after the date hereof, then the above obligation to be void, or else to remain in full force and virtue.

Tarlton Fleming, [Seal.]

John B. Pemberton, [Seal.]’’

Fleming appeared and filed a plea of payment ; and at a subsequent term he filed a special plea under the statute. In this plea he alleged that the bond sued on was executed by the defendants to the plaintiff for the price of a negro man slave, sold by the plaintiff to Fleming, for the sum of 1100 dollars; Fleming then believing that the slave was sound and healthy and free from blemish. That at the time of said sale, the slave was defective in this: that he was diseased ; and was constitutionally liable to periodical returns of bilious colick once every week, and so continued to be; of which defect plaintiff was informed at the time of the sale, and fraudulently concealed his' knowledge of said defect, and the fact of said defect from the defendant Fleming, whereby Fleming was induced to purchase «said slave of the .plaintiff as a sound slave, without any defect; and the defendant averred that- the defect lessened the value of the slave 900 dollars, which the defendant proposed to set off against the debt declared upon. Upon this plea, and that of payment, the plaintiff took issue.

At another term of the Court the defendant tendered two other special pleas under the statute. The first after stating as in the special plea filed, the execution of the bond for the price of a negro man slave, sold by the plaintiff to the defendant Fleming, averred that on the day of sale the slave was unsound, defective and constitutionally diseased, and still continued to beso. That at the time of said sale the plaintiff well knowing that the slave was so unsound, defective and diseased as aforesaid, did not disclose the same to the defendant, but fraudulently concealed the same and all knowledge on the part of him, the plaintiff, in relation thereto from the defendant; by means whereof the defendant believing that the said slave was sound, healthy and free from blemish, was induced to purchase and did purchase the slave as a healthy slave at the price of 1100 dollars. That after the sale and purchase, and as soon as defendant discovered that the slave was so unsound, defective and diseased as aforesaid, viz.: on &c., he apprised the plaintiff thereof, and notified him that he should resist the payment of the bond executed by him to the plaintiff as aforesaid. And that after he had so discovered that the slave was unsound, and within a reasonable time *135thereafter, viz.: on the 24th of October 1839, he offered to return the said slave to the plaintiff, and demanded a rescission of the said contract of sale, and the surrender to him by the plaintiff of said bond; but the plaintiff then and there refused to comply with such demand, or to surrender the said bond. That defendant had always been ready and willing to return the said slave and receive back x"his bond, and was willing still so to do. Whereby defendant had sustained damage to the whole amount mentioned in the bond, viz.: 1100 dollars, with interest thereon from the 23d of October 1839 till paid. Wherefore he prayed judgment, and that the plaintiff be barred to have or maintain his aforesaid action thereof against him.

The second plea tendered only varied from the first by the omission of the averment of damages. The Court rejected both the pleas, and the defendant excepted.

When the cause came on for trial the jury found a verdict as follows: uWe, the jury, find for the plaintiff the debt in the declaration mentioned, with interest thereon, from the 23d of October 1839 till paid.” And on this verdict the Court rendered a judgment, that the plaintiff recover against the defendants eleven hundred dollars, the debt in the declaration mentioned, with six per cent, per annum interest thereon from the 23d day of October 1839 till paid, and his costs by him about his suit in this behalf expended. From this judgment Fleming applied to this Court for a supersedeas, which was awarded.

Stanard and Bouldin, for the appellant,

insisted that the pleas tendered and rejected stated a valid defence to the action on the bond; and if sustained entitled the defendant below to a total rescission of the contract. And for this they referred to Bewis v. Cosgrave, 2 Taunt. R. 2; Thornton v. Wynn, 12 Wheat. R. 183 ; Burton v. Stuart, 3 Wend. R. 236; Street v. Blay, 22 Frig. C. BR. 122; 1 Smith’s Beading Cases, p. 155, 157, note to Chandellor v. Bopus; Story on Sales, | 405, 408, 411, 420, 426. That in this respect they differed from the special plea filed; and they also differed from that plea, in the fact that under that plea the defence was confined to the proof of the specific ^disease mentioned therein ; whereas under the special pleas tendered, any legal unsoundness might have been proved.

As to the second of the pleas, they insisted the omission of the averment of damage was not a defect in the plea. That going for a rescission, the averment of damage was out of place; and that the statute authorized the defendant to insist upon the entire rescission of the contract. And they insisted further, that the plea set out a valid defence at common law. This they argued upon principle; and also referred to Hayne v. Maltby, 3 T. R. 438.

2d. They insisted further that it was error to enter the judgment for the amount due with continuing interest, the action being- on a bond with a penalty. Tennants v. Gray, 5 Munf. 494.

Byons and Grattan, for the appellee,

insisted that the pleas tendered and rejected were defective, and therefore properly rejected. That the statute authorizes a plea of set off, and not a plea in bar, and these pleas are pleas in bar. That it is true that fraud and injury may be proved to the extent of the whole price, but to do this the thing must be worthless or he must return it within reasonable time. Story on Sales, | 427; Perley v. Balch, 23 Pick. R. 283; Holbrook v. Burt, 22 Id. 546; Kingsley v. Wallis, 2 Shepl. R. 57. And they insisted Fleming did not offer to return the slave within reasonable time.

They insisted further, that if the rejected pleas were good, the same defence could have been made under the special plea filed. That there was in this plea a general charge of disease as well as the specific disease named, and that the proof was not necessarily confined to the specific disease mentioned. And under this plea defendant might have proved that the slave was of no value and thus have defeated the action. Beecker v. *Vrooman, 13 John. R. 302; Bewis v. Cosgrave, 2 Taunt. R. 4. That the second plea was defective under the statute for want of an averment of damages; and it was not good as a plea at common law. Taylor v. King, 6 Munf. 358.

2d. They insisted further, that the judgment was correct. That the act 1 Rev. Code, ch. 128, *1*80, p. 508, authorized the jury to fix the period when interest should commence to run: and they referred to Davies v. Miller, 1 Call 127; Francis v. Wilson, 1 Ryan & Moody 105.

*

Pleading and Practice—Bonds—Special Plea in the Nature of Plea of Set-Off.—On this question, see principal case cited *infoot-note*to Watkins v. Hopkins, 13 Gratt. 743, where there is a collection of the cases and a discussion of the authorities; *foot-note*to Huff v. Broyles, 26 Gratt. 283; Binns v. Waddill, 32 Gratt. 593; Grayson v. Buchanan, 88 Va. 257, 13 S. E. Bep. 457; Fishery. Burdett, 21 W. Va. 630. The principal case is cited in Newberry v. Williams, 89 Va. 302, 15 5. E. Bep. 865:

ABBBN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the pleas tendered by the plaintiff in error, and set out in his first and second bills of exceptions, were good in form and substance, and presented a proper defence to the action ; and as the same were not objected to on account of the time at which they were offered^ they should have been received. But the gravamen of each of said pleas was the unsounduess of the slave, a fact also put in issue by the special plea on which issue was joined; it being competent for the plaintiff in error on the issue joined on that plea, to have given any evidence of general unsoundness, notwithstanding the plea, in addition to the averment that the slave was defective and diseased, also specified a particular disease. As all the pleas concurred in resting on the proof of the existence of a disease or defect amounting to unsoundness, and that such defect, though known to the defendant in error, was fraudulently concealed by him; and differed merely as to the measure of relief resulting from the establishment of the facts aforesaid; and the existence of such facts being negatived by the finding of the jury on the plea putting the existence of such facts in issue, it is manifest the plaintiff in error was not prejudiced by the re*136jection of said pleas. There is no exception *to the rejection of any testimony offered by him at the trial. If he failed to offer proof which would have been proper under the issue, it was his own fault; he could have offered, and from the whole record it is most probable he did offer, all the proof in his power to sustain his defence, and the verdict of the jury is not objected to: It therefore must be taken as concluding the facts alleged in the pleas which were rejected, and the judgment thereupon was plainly right.

The Court is further of opinion, that although the obligation sued on purports to be a penal bill, yet as the sums named in the penalty and condition correspond, there was no error in treating it as a simple obligation and rendering a verdict and judgment for the amount, with continuing interest from the time the same fell due.

BALDWIN, J.,

dissented. He thought the Circuit court erred in rejecting the plea in the first bill of exceptions mentioned; that there is nothing in the record to shew that the error was not prejudicial to the plaintiff in error; and that the judgment ought to be reversed.

Judgment affirmed.