#### Daniel S. Mann *v.*Solomon S. Parker.

From Nash.

■New trial. — In an action on the case for selling an unsound neg-ro, the Jury found for the Defendant. There was no direct and posh tive evidence of the Defendant’s knowledge of the unsoundness j' yet there was no clear proof of facts, from which such knowledge must be inferred. The verdict set aside and new trial granted.

This was an action on the case for a fraud in the sale of a negro child. It appeared in evidence, that the Plaintiff, who was a speculator in negroes, applied to the Defendant for the purpose of purchasing a negro wo» man and child *;*the Defendant said lie wished to sell them, stated his price, and told the Plaintiff to *“go*into *263the kitchen, look at the negroes and judge for himself.” The Plaintiff continued in the kitchen, while the Defendant and his family breakfasted, and upon his coining Out, the Defendant asked him, how he liked them,- and he answered “ very well.” The bargain was concluded, and a day agreed on when the negroes were to be delivered and a bond for the purchase money executed. On that day,- the Plaintiff was asked by one Tindale, who was a partner with bin* in the purchase, whaf sort of bargain he had made, to which Plaintiff answered, “I havegot a likely wench, anil the child is middling.” After a bill of sale for the negroes, and a bond for the purchase money were executed, the Defendant said to the Plaintiff, “if you wish to be off the bargain, you may, I can get the same price from another man, and you are at liberty either to take the bond or the bill of sale,” the Plaintiff replied, “ lie had bought the negroes and would hold him to his bargain.” It further appeared in evidence, that the Defendant had bought the negroes in, question at a public sale, about nine months before the sale to the Plaintiff, and at the time of the latter sale, the child was between fifteen and nineteen months old, and. at that age could not walk, talk or move itself, except upon its back, *backwards.*That the Plaintiff shortly after his purchase, took the negroes to South Carolina with others; that a snow fell whilst they were on thc road, that the child was neglected by its mother, and. attacked with a disentery, in common with other ne-groes in company, and when they reached South-Carolina, the Plaintiff could not sell the child, and he gave it away. One witness, who lived in the family of the Defendant at the time the Plaintiff went to examine the mother and child, said, the child appeared to be well and ate heartily, but he thought it might appear to the most common observer, lb at the child was not altogether right. The witness further swore, that the Defendant observed on a certain occasion, when he was looking at *264the child,- *“*I wish you were on the sand-hills and I had my money for you.’* «„ '

„ , , There was no evidence that the Defendant knew of any defect unless such knowledge could be inferred from the preceding facts, and from the circumstance that the child was kept in the house where the Defendant and his -family ate. The person who sold the negroes to the Defendant, was an executor, and lie swore that he did not know of any defect in the child.

Upon this evidence, the Court instructed the Jury, that if they believed the child was unsound and that uiisoundness known to the Defendant, and he failed to disclose it, or was guilty of any fraud or misrepresentation, they ought to find a verdict for the Plaintiff. But if they be-5 Jievcd the imsotindness, if any existed, was unknown to the Defendant, and lie had been guilty of no fraud *i*or if the defect complained of, was such as to be discovered by a common observer, and no artifice was used to conceal it, they ought to find a verdict for the Defendant.

The Jury found for the Defendant, and a rule for a new trial being obtained, on the ground that the verdict was v contrary to the evidence, and the sairie being-discharged, the Plaintiff appealed, and,

Locke, Judge,

delivered the opinion of the Court;

In this case, the Plaintiff was entitled to a verdict, if the evidence was sufficient to satisfy the Jury that the Defendant knew of the defect or imsotindness of the negro child and failed to disclose *it;*or the defect was apparent to a common observer and no artifice used to conceal it. The Jury have found for tiie Defendant, and the Plaintiff asks that a new trial may be granted, because fhe verdict is either contrary to the evidence or to the weight of evidence, and if this he the case, a new trial should be granted.

. It appears that the Defendant purchased the negro child nine months before the sale to the Plaintiff, and *265during that time the child remained iuthcsamchoiise where the Defendant breakfasted and dined. The child was between fifteen and nineteen months old, incapable of talking, walking or moving, except on its back *backwards.*Is it likely that a defect so apparent would,, during all this time, and with so many opportunities for observation, escape the notice of the Defendant or some «f his family who would communicate it to the Defendant? If we judge of this Defendant, as from our knowledge of the world, we judge of others, the inference is irresistible that he knew oí the defect. But this is not all, — a day is fixed for the delivery of the negro, and when the Plaintiff arrives there,, the Defendant, without the least intimation of dissatisfaction on the part of the Plaintiff, proposes to him to recant. What could induce him to do this ? the reason given by Defendant was certainly á very weak one, to-wit: that he could get the same price from another person. He is not to gain any thing by the recantation, except the trouble of making a new bargain, which few men would covet. It is fair to presume, that the triie motive which influenced him in. making this proposition, was an expectation that it might, in the event of a suit against him, be given in evidence as a proof of fairness in his dealing. Such artifice cannot impose upon men accustomed to investigate fraud; to them it is proof direct of a fraudulent intention.

But if the foregoing circumstances be insufficient, or leave the case doubtful, (in which case the rule for a new trial should be discharged) the declaration of Defendant when coupled with them, places the case beyond any doubt. What did the Defendant mean, when he said (looking at the child) I wish you were on the Sand-* Hills, and I had my money for you ?’* It must mean that he had discovered some defect, which impaired the value of the child, and made him willing to have his mo» «ey again.

*266To this .evidence on behalf of the Plaintiff, there is vc« ry little opposed on behalf of the Defendant, and although there be no direct and positive evidence oí a knowledge of the defect, there is clear proof of facts, from which such knowledge must be inferred. Tho verdict is contrary to the weight of evidence, and the rule for a new trial must be made absolute.