*Union, Pinckney District.*

Heard by Chancellor Thompson.

#### William Littlefield and Abraham Littlefield *vs. John*Clarke.

case xxxnc

The positivo testimony of several witnesses of unimpeached character, will outweigh very strong and concatenated circumstances in opposition to them. And the court will upon their evidence, though contradicted by the answer in part, rescind a contract for tbe-sale of land, and order the notes for the purchase money to be given up. The bond to make titles had been given up by tlie complainant.

The complainants state in their bill, that in the month of December 1806, they entered into contract with the defendant, for the purchase of a tract of land, containing-450 acres, lying on Pacolot river, for which they gave their notes aggregating twelve hundred dollars, and received from John Clarke, the defendant, a bond hearing coeval date with the said notes, with con-ditiors to make titles for the land when the money should be paid. That some considerable time afterwards, the complainants discovered that the said John Clarke was only a co-devisee of the said land, and could not make such title thereto as was contemplated by the aforesaid contract: and in consequence thereof, and at the Express solicitation of the defendant, the bargain was re,-¿sciwded.

FEB'Y. 1811

*166The defendant contends, that part of the land waft purchased by William Littlefield, and part by Abraham Littlefield 5 and that the rescisión of the contract was partial and not total: — upon which pivot the whole of . , this case rests.

The court lias no hesitation in pronouncing, that in no case that it has presided over or heard, there has been exhibited as strong and concatenated circumstances, amounting almost to positive proof,-in contradiction to direct testimony of six witnesses, who testify positively, that the contract was rescinded entirely. The court, therefore, consoles itself, that where the credibility of witnesses has not been attacked, it is not bound to impugn them, but is under the necessity of abiding by the' legal rules, of giying a preference of positive to negative or circumstantial testimony. It is considered as unnecessary to go into the detail of this case, as the weight of testimony so strongly preponderates in favor of the ■complainant; and although there are very strong reasons to suppose there was nothing more than a partial recision of the contract, the court is imperiously bound, (on account of the positive witnesses on behalf of the complainants) to say that the contract' was rescinded in toto.

1 It .is, therefore, ordered and decreed, that the defendant do deliver up to the complainants their note, which he has for *$*500, and that the contract entered into between them be entirely rescinded : — that the injunction obtained on the 27th January 1810, be perpetuated That the average difference between the interest of the money advanced by complainants, and the rents of the lands, be ascertained by the commissioner,, and the balance of such principal be paid by the defen-, dant to the complainants, or that they have the benefit •of the process of this court to recover the same. — fcifeh. party to pay his own cost.