#### Jonathan Johnson *v.*Leonard Wideman.

*Deceit*committed by the vendor in the sale of property, like any other fraud, may have the effect to discharge the vendee entirely or partially, from the payment of the consideration money. — (S. P. Adams v. Wylie, 1 N. & M’Cord 78.)

But *damages*arising from a *deceit*in the sale of property (e. g, a negro.) cannot be set up by way of *discount,*in an action for the purchase money, so as to entitle the defendant to *recover damages*from the plaintiff.

It has been decided in this State, that torts and trespasses are not the subject matter of discount. Mitchell v. Gibbes, 2 Bay 120. In that case the judges said, “ the discount law never meant that torts, trespasses, or *unascertained damages*should be set off; that it contemplated debts, dues and demands of a pecuniary nature, or something springing out of a contract, where there were mutual covenants which depended one upon the other.” So in Lightner v. Martin, 2 M’Cord, 214, JudgeNott said “a set off means a *counter demand*which the defendant has against the plaintiff, and although our set off law is very comprehensive in its terms (embracing any cause, matter or thing,) yet it has always been restricted in its construction to demands arising on contract. Damages arising from slander, assault and battery, deceit, and other cases, sounding merely in *damages*have never been considered the subject of set off.” A deceit is a a tort arising, it is true, out of a contract; but the damages are unascertained, and are to be measured entirely by the discretion of a jury, and therefore can not be set up as a *discount.*

*326*Before O’NEALL, J., at Abbeville, Fall Term,*1838.

The report of this case, by his honor the presiding judge, is as follows:

“ This was an action of assumpsit on a note of hand for $100, a part of the price of a negro man named Charles, sold by the plaintiff to the defendant. The defence was, that the plaintiff in the sale, wilfully misrepresented the negro to be honest, sober, humble and not given to be a runaway. As the case is one of fact merely, and as the defendant’s counsel seem to suppose that the verdict for the plaintiff was the result of my opinion, and not the judgment of the jury, I propose, however tedious and uninteresting it may be, to give from my notes the whole testimony, so that (if the Court of Appeals should so please) the defendant’s counsel may at least have the benefit of a fair jury trial before them, who will *hardly be confounded*by the great complication of the case.

The note was admitted: so too it was admitted, that it was given as a part of the price of the negro Charles. The defendant then called his testimouy as follows: Alex. Cummins, who said that he lives now in about two miles of the’defendant; in 1835, he lived with the defendant: he ploughed hard and worked generally for him. The cross roads called *Trick 'em*is about two miles from the defendant’s. He was at the defendant’s when the plaintiff came with Charles, on Thursday, in January or February, 1835. Old Mr. Evans and Mrs. Lyon were also present. The plaintiff said to the defendant, he had come to sell him Charles; the defendant asked if he was of good character; the plaintiff said he was. The defendant said he wanted him for a blacksmith at *Trick ’em*where there were spirits. The plaintiff said he thought Charles would suit him : he would drink a dram but would not get drunk. The defendant said he had one to kill himself by drinking ; another had been offered to him for $600; but his owner told him his character was not good, and therefore he did not buy him. Two women were proposed to be given for Charles: no trade was made that night. The next day the parties went to Trick ’em: *327Charles was put to work in the blacksmith’s shop, and made a pair of horse shoes. The defendant then showed to the plaintiff one of the negro women he proposed to give for Charles: she had a sore leg, which he showed to the plaintiff. The plaintiff, on Friday night, went home with the defendant. On Saturday morning, the plaintiff, with Charles, went away.; he went by another place belonging to the defendant, to look at the other woman offered for Charles. The defendant said, if it was a trade, he would come down (meaning to the plaintiff’s) with the women. The plaintiff, in the course of the conversation about Charles said, any ten year old boy could manage him. The plaintiff said he knew the .negro while Wiley Berry owned him. The defendant asked why Berry sold him ? The plaintiff said it was on account of his wife. On Sunday the defendant left home with the women: on Monday he returned with Charles. Charles would get drunk; he would not work; he let his coal kiln burn up; was insolent; he was very often drunk ; he saw him once lying behind the shop, and at another time in the woods. He (Charles) stayed with the defendant about two months and then ran away. The next time he saw him was about the middle of the week of October court, in jail at Abbeville : he was taken out in a few days afterwards and died in about two weeks. The defendant, in the conversation about the trade, at the defendant’s house, said to the plaintiff, he knew nothing about the negro, and would rely on him, the plaintiff: he praised him for a good smith, of good character. The defendant asked if Charles would run away; the plaintiff said he never knew him to run away.

On his cross examination, this witness exhibited, with a good deal of ignorance, an unwillingness to testify to any- thing for the plaintiff *He*said he was thirty years old, he reckoned. A week before Charles ran away he saw him lying down in the woods; he ran away the last of April or the 1st of May. Some time before he ran away he lay down behind the shop. Pie heard Charles, on one occasion, curse the defendant and his overseer, Barker: for this offence, for not minding his work and for saucing other people, he was whipped. The defendant might have heard Charles *328when he cursed him. Barker was at a little distance from Charles, he might have heard it also. At the last court he said Barker was cursed to his face: the reason he then said so was, that he did not understand the question. Trick ’¿m belonged to the defendant. He said, on Thursday night, the plaintiff and defendant, when talking about Charles, sat in the *hall room,*he, the witness, came in about dark; Charles was called in, so that the defendant might look at him; he does not remember the conversation between the defendant and Charles; he, however, remembered that Charles said he had belonged to Wiley Berry: he told the defendant if he would buy his wife, he would live with him. It was on Friday, when the parties were at the shop at Trick ’em. He did not remember that the plaintiff told the defendant that he had once seen Charles drunk. In reply, he said that he heard both the defendant and Barker say that they heard Charles when he cursed them.

Wm. Evans was examined by commission, he said he was between eighty and ninety years of age. He was at the defendant’s when the plaintiff brought Charles. The plaintiff said Charles was an honest negro: he would trust him with money. The defendant said he wished to buy a negro of an honest, sober character. The plaintiff said Charles would take a dram, but would not get drunk. He said, he was a very humble negro, a boy of ten years old could control him; he had known him a long time ; he had belonged to Wiley Berry.

Mrs. Lyons said, she was the defendant’s daughter. She remembers when the plaintiff brought Charles; he came in the evening before night; Mr. Evans, she thinks, was there; Mr. Cummins came in about dark. The defendant asked the plaintiff why he did not come sooner, he had almost got out of the notion of buying a smith; the plaintiff said he or the negro had been sick. The plaintiff said Charles was a negro of good character, he had known Charles to drink a dram, but never to get drunk; he was easy governed, a ten year old boy could govern him: nothing was said about the negro being saucy. She, the witness, was in and out of the room, as the parties talked about the trade. They (the plain*329tiff and defendant) as they said, went the next day to Trick ’em. The plaintiff said he knew the negro when Berry owned him. The defendant said he would depend on the plaintiff, as he knew nothing about the negro. The defendant got Charles about the last of February or 1st of March. He ran away about the last of April. Charles was brought from jail in the fall, on Saturday; He died on the Tuesday following ; he was a very impudent negro. On her cross examination, she said her father had been at the plaintiff’s house before he came with Charles.

John Finley proved that he was at the blacksmith’s shop on the day on which Charles was tried : the plaintiff asked the defendant how he liked the work: the defendant said he liked it very well. In the trade then spoken of the two negro women were rated at $1,100, and the defendant was to give his note for $100 to boot. The plaintiff said he could recommend the negro to any body, he was honest and sober; the defendant said if the negro would drink he would not suit him. The plaintiff said he would suit him; he would bring business to the shop; his work would average $3 per day. When they started from the shop, the defendant said it would be a trade. The negro did not work much after the defendant bought him. When Russell, the keeper of the grog shop at Trick ’em, was gone to Augusta, he, the witness, saw Charles come out of it with a gallon of spirits; he said he would lend it to some one of them, though he would rather keep it. Charles was insolent and would not work only, as he pleased; he told people, when he did not do their work, they might go where they pleased. This he said to Mr. McBride and the witness. The plaintiff at this witness’ house said, if the defendant had been cheated in the purchase of Charles, he (the plaintiff) had been also. “ When he had property he traded it to the best advantage.” The defendant, the plaintiff said, was a trading man, and he could have made his own out of the negro. On his cross examination he said, that notwitstanding he had been before examined in court in this case, he did not remember that he had before stated this conversation of the plaintiff. Since last court he and his wife, talking over the matter, brought this conversation to his recol*330lection. When the plaintiff had this talk he was looking up testimony for this case. On the day when Charles was tried at the blacksmith shop, a man came in and offered liquor to the negro afterhe had shod his horse, the plaintiff objected to it, saying that Charles was as well off without it as with it. The conversation about the trade at the shop, at Trick’em, was on Friday.

Ivy Taylor said he was at the shop when Charles was at work on trial. The defendant said to him before he went into the shop, that he (Charles) was almost the finest negro he ever saw; he spoke of him in this way on account of his size. The plaintiff said he was as good as he looked. The defendant said he wanted a trusty, honest negro, one who would suit that place, (Trick’em:) one that he had, killed himself with drink, and he did not want one of that kind. The plaintiff said he would suit him, he thought.

John Barker, who was examined by commission, said he lived, in 1835, as an overseer for the defendant, at Pressly’s place, one and a half miles from Trick ’em. The plaintiff and defendant came to see one negro under him, last of January or 1st of February, 1835; they were speaking of an exchange of negroes: two women, Nelly and Amy, rated at f 1,100 were spoken of, to be given for Charles. The defendant said he wanted a smith at the cross roads (Trick ’em) who could be depended on, as he would have no white man with him. The plaintiff said he would suit him. At one time Charles was drunk behind the shop: he once cursed him. His (Charles’) character was not good.

John Russell said he kept the grog shop at Trick’em. The plaintiff, on the day on which Charles was tried at the shop, said he had better not let spirits go into it. While defendant owned Charles he gave notice that he should have no spirits: he (the witness) let him have none: but he was often drunk, tie had no means of getting into his grog shop, with his knowledge or consent. He was saucy: he once saw him shove a white man, named Cramer, down. He did not bring much custom to the shop: he threatened to beat another white man named Wells. That occurred in this way : Charles went some distance from the shop, to shoo a wagoner’s horse; Wells, who was a striker in the shop, *331went after Charles, to do some work in the shop, which had come in; he said to Wells “ no one man ever had or ever should master him.”

Elias Walker said he lived with the defendant at Trick’em. Charles’ conduct was very bad, idle, impudent, and drunken. He once saw him behind the shop asleep: he let a coal kiln burn up. He did not do a good day’s work while he belonged to the defendant. Charles was whipped for impudence and laziness: but not severely. Charles once threatened Wells. Cramer was drunk, he went for fire, under a shelter where Charles was eating his breakfast, he pushed him and he fell down. He heard Charles say if ever the defendant struck him, it would be the last person he ever would strike.

Ed. Reagan said, he lived within two miles of Trick ’em ; he is a wagon maker by trade. Charles’ conduct was not good: he worked for people as he pleased; he sometimes was away when people called to have work done. He was “ tolerably saucy.” He (Charles) said that “ neither white nor black had whipped him by force.” He saw him once drunk behind the shop. On the day of Charles’ trial as a smith, at Trick’em, he was present in the shop, the plaintiff said the negro man was a good character and good smith. He (the witness) told the defendant that he thought the plaintiff was telling him a pack of lies: he (defendant) said “ no the plaintiff was a preacher.”

Jonathan Lasseter was examined by commission; and said, that the plaintiff in February or March, 1836, said the note now in suit was in payment for Charles; that the two negroes he got sold for #1,100. He, the plaintiff, said the defendant wished a rue, he told him to sell Charles and make his own. Charles’ character was that of a- rogue, a liar, and a runaway.

John Lewis said he went with the defendant to catch Charles. He caught him at Berry’s, in the gin house, in the night; he was crouched in a corner with a knife in one hand and a club in the other: when he found he was discovered he made a rush to escape, he was shot at, the witness seized him, he carried him out of the house, broke loose and ran off, was pursued and taken. The de*332fendant applied to Dr. Gray to look at his wounds, which was done — they were dressed: he was brought to Abbeville and put in jail. He was wounded with squirrel shot above the collar bone. When he seized the negro, he cut his coat with his knife. When he was brought to jail, Posey was the jailor: The defendant employed Dr. Taggart to attend the negro, and told Posey he would pay him something extra to attend to the negro. He had, when taken out of jail, the typhus fever: Dr. Hibler attended to him after he was taken home.

Thos. McBride said he had work done at the defendant’s shop. On one'occasion he went to get his horse shod: Charles was drunk: he would not shoe the horse, and swore that he - would not work for him or any other man that day. His conduct was such as to drive away customers.

L. Drake was examined by commission: he said that he over-seed for the plaintiff in 1834, when the plaintiff owned Charles: his character was bad: he was a drunkard, not steady at his work, and not easy to be controlled. The plaintiff knew Charles’ bad conduct. Charles was at one time complaining of being sick: he was about giving him medicine: he (Charles) went off into the woods. The plaintiff said, while Charles belonged *to*Berry, he jerked him down and hurt him badly. He (the witness) heard Charles tell the plaintiff he would not do a piece of work until it came to his turn. He was the worst disposed negro he ever knew.

Ed. C. Beasely proved that he knew Charles in the plaintiff’s possession: he was a runaway: drunken and disobedient. This was the plaintiff’s own account of him in the fall of 1835, when he said he would get rid of him.

Mr. Patterson was asked as to the character of Ed. C. Beasely: he said it was good.

John Wideman said his father lives near the plaintiff. His brother (who as well as he, was a boy) was once about whipping Charles’ wife: she broke and run, crying and calling for her husband. Charles came to her and asked what was the matter: she said William, the witness’ brother, was whipping her: he swore he would mash him to the earth. At another time he and his bro*333ther chased Charles from the kitchen; he turned and offered to fight them. The plaintiff said he wanted to sell Charles, for he could not attend to him, as he was often from home. He saw Charles drunk on Sunday, when Henry Johnson owned him.

Charles Fooshe said that he lives in three miles of the plaintiff’s: two and a half miles of Henry Johnson. Charles would drink and swear: he was insolent: he was a very bad character: he thought him very lazy, &c. When he belonged to the plaintiff, he went to have some work done; Charles had to be called, and at last came out of a willow thicket in the field. Charles once swore he would not live with the plaintiff. Drake’s character, he said, was good. The bad character of Charles was that of drinking and being insolent.

John Fooshe said he lives near the plaintiff. Charles was a drunkard. When drinking, he was insolent: he had the character of being lazy. On his cross examination, he said he saw Charles drunk on Sunday, at Lodi.

Gen. J ames Gillam said he lives near the plaintiff: he has seen Charles : his character was not good: he was, by reputation, indolent, insolent, a runaway and a drunkard. He came once to his store: he asked him for a ticket: he said he had never been asked for such á thing before. Witness ordered him off

Major Wm. Eddings said he knew Charles : he once belonged to his father : he bought him from Berry, kept him four or five years and sold him back. When he belonged to the plaintiff, it was said he drank too much, and that he was impudent. He was a pretty good blacksmith. When the plaintiff bought, taking him *as he was,*he was worth over $ 1,000. In the fall of 1835, he was worth $1,200.

Ransom Holloway said that he lives in four miles of Berry — he knew Charles: his character was not good — he was saucy — he would drink: he was not inclined to work. He does not know any negro who was as bad. Charles and Norris (a white man) were gambling — he struck Norris. At a race, Berry and another white man were quarrelling. Charles came up behind his master, shut up his fist and swore that he wished he was a white man. *334In the winter of 1835, the plaintiff came to his house seeking Charles, who was run away: he said, “ he was about taking him to Newberry, and selling him: he did not suit him: he would drink: and as he was often from home, and found little done on his return, if he had not better management, he must shut up shop.” While Charles belonged to the plaintiff, in going down to Berry’s he often stopped at his house, with a jug slung around his neck and nearly drunk: on Monday morning he returned at a late hour. He was calculated to do injury to other negroes : he would not have bought him to keep. He offered to trade for Charles when he was run away, at the time of which he has spoken.

James Spikes said that *he lives*in five *miles of witness,*Berry: he knew Charle? — his character was bad; he was drunken and insolent: he did not work well, and was not easily governed. The day Henry Johnson bought him, Charles quarrelled with Berry: charged him with keeping his wife, shut up his fist and was walking towards Berry, when Johnson prevented him. Charles had the character of being a rogue: he was worth nothing to keep. On his cross examination, he was asked if he knew or had heard of any instances of stealing by Charles ? He said not, with the exception that Berry’s store had once been broken open, and he intimated to the witness that he believed his own negroes, with Charles at their head, had done it. AtBerry’sthere was a great deal of drinking, gaming, &c. Berry was himself a drinking, horse-racing man.

Mark Nobles said that he lived in about one and a half miles of Berry; he caught Charles when runaway, while the plaintiff owned him, in the latter part of January, 1835: and put him in Edgefield jail. He was a saucy, drinking, unmanageable negro. He once saw him catch hold of a white man, named Grice, (who he, witness, thought had been gaining with Charles) and jerk him down and kick him. On another occasion, he took up a block, and told a white man of the name of Taft, if he would come out of the house he would knock him down. He would swear to this witness he would not do his work until he thought proper.

Wm. Adams said he lived near Wiley Berry’s, Charles was a *335drinking, saucy negro, not easily controlled. He and his brother once overtook Charles below Berry’s, they had a little dog following : he had two big ones, they jumped on their little dog. He, the witness, told Charles to part them: he swore he would not: he and his brother got down to part them; Charles got a stick to prevent them from doing it; he swore they should not be parted: he resisted them, and at last drew his knife.

James Sheppard said he lives near to, (in one and three quarter miles of) Berry’s. Charles was a drinking, insolent, ungovernable negro. He insulted him at his own house: he came there at the time of a race, against his orders : he saw him at night amongst the crowd in his store, and ordered him off: he went into the piazza, and was there cursing him: he, witness, went out, Charles got into the road, and swore he would stay as long as he pleased : he (the witness) beat him with a stick, and drove him off. He would not have liked to own him. On his cross examination he said at the camp muster at his house in August, 1835, the defendant offered to sell Charles to him.

John Anderson said he knew Charles’ character: it was bad, uncommonly so: he was charged with committing a rape: he was tried and acquitted, though he was in fact guilty: he was subsequently tried for the assault, convicted and whipped. On his cross examination, he said the rape and assault of which he had spoken, was on the body of a negro girl, a slave.

John Kirksey said, he lives within six or seven miles of Berry. Charles’ character was bad: he was a drunkard: probably he had heard that he was a rogue: he was an ungovernable, insolent negro. He forbade him his place; told his master if he did not keep away he would shoot him.

William Walker said, he knew Charles well: he was not easily managed: he would drink, and was insolent, and not easily controlled. He was the overseer for Berry at one place: the negro woman there had got breakfast for him, (witness,) he went to eat it: Charles turned into cursing: he ordered him out: he would not go': he struck him: Charles took his stick out off his hand: jerked him up close to him: set his nose to bleeding: he went to get a *336gun to shoot him; Charles went off very leisurely: he neglected his work and did pretty much as he pleased.

Robert Walker said, he lives near Wiley Berry. Charles was a turbulent, unruly negro, given to drinking. He saw him strike Kemp, who was the overseer and son-in-law of Berry. Kemp told him to cut some wood and lightwood: he said he would not. Kemp said he would be damned'if he should not: Charles said he would be damned if he would. Kemp followed him with a board:— Charles took it from him and struck him, and went on his way, whooping and hallooing. Charles’ character was, that he was not honest. The instance within his knowledge and from which he formed his opinion of his character was, that his master whipped him for stealing Hez. Burnet’s mare: that is, Charles took the mare without leave, and rode her some little distance, (an hour or two,) and was returning with her when he was met, and the mare took from him. Charles would not work well.

The defendant here closed, and the plaintiff replied in proof as follows: The defendant, on notice produced, and the plaintiff gave in evidence, his bill of sale for Charles; the consideration was $1150: he was described in it as a good blacksmith. The title merely was warranted.

Nathan Calhoun said, he lives near the plaintiff. Charles had a wife at his house, (Polly,) — he bought her from Berry: he was present when the plaintiff, at his house, delivered Charles to the defendant. The plaintiff and defendant came together. Charles was delivered in his presence. The plaintiff told the defendant, that Charles was fond of spirits and would drink too much. The defendant did not seem to regard that, as he would have a white man at the shop. He (the witness) never saw Charles drunk: he never gave him any insolence. The plaintiff was often from home while he owned Charles. There was no drinking or disorderly company about the plaintiff’s.

On his cross examination he said, that he sold Polly to the defendant, and he sued him for her price ; on account of her unsoundness, the defendant cast him. He once suspected Chazdes of breaking open his corn crib, but he afterwards became satisfied *337that there was no grounds for the suspicion. There were no bill of sale executed at his house ; he supposes that the trade was made before they came. The character-which followed Charles from Berry’s was, that he was drunken and insolent. There was, within his knowledge, no instance of his insolence after he came to the possession of the plaintiff or his brother. Mr. Wideman when told of Charles’ drinking did not seem surprised. '

Alexander Presley said, he lives in Edgefield: he knows the defendant : he lived in 1835 within one and a quarter miles of the defendant: he worked that year at Perrin’s, between Trick’em and the defendant’s house. Before the defendant bought Charles, he heard him say, that he “could get a blacksmith: he was under a bad character; he had belonged to Wiley Berry: and as he could out-general old Wiley Berry, he must be bad: the defendant said he understood he could make a key which would unlock any door.” This was about the first of January, 1835, or a little after. Since he came to court, the defendant asked him what he would prove: he told him: he (the defendant) said it would destroy his suit, (defence). The defendant said he thought he must have misunderstood him, as he alluded to another negro. He saw Charles passing from Trick’em to his master’s: he never saw him drunk. He, the witness, sometimes drinks too much: but he was sober when the conversation took place between him and the defendant.

Henry Johnson said, he is the plaintiff’s brother. He bought Charles in August, 1833, for $1200, from Wiley Berry ;■ he sold him to his brother, the plaintiff for the same sum, on 31st December, 1833. He lived near the plaintiff until November, when he moved to Laurens. The way he came to buy Charles was as follows: He was going by Berry’s: he stopped to get water: Charles was shoeing a horse : Berry boasted of his qualifications as a smith, and proposed to sell him: the witness offered him $1200, payable in January, which Berry took. He (witness) had no knowledge of Charles before. On the day he bought Charles, and after he had bought him, a fuss arose. Berry had a stick and was about striking the negro: he told him not to do it. After he owned Charles, he behaved himself well: he worked well, he was obedient: he would *338sometimes take a dram, and he once was drunk. He had heard rumors against Charles from below,,but he knew nothing certain and said nothing to the plaintiff about them when he sold to him. On his cross examination he was asked if he did not sell Charles out of jail to his brother, the plaintiff? He said that he was about removing to Mississippi, and understood that Charles said if he did not get his wife he would not go with him: he went to the shop and tied him, and put him in jail for safe keeping. He agreed to live with his brother, and he bought him. This witness said that sometimes he himself drank too much. On the day he bought Charles, he (the witness) did not go in between Charles and Berry to keep Charles from striking Berry.

Mr. Brown said', he lives near Trick’em; he was present when Charles was working on trial in the blacksmith’s shop. Young offered him a dram; the plaintiff said he might give him a dram, but not to give him too much, it might prevent him from doing his work well. The plaintiff and defendant were standing together when this conversation took place. ,

Oswald Neely was examined by commission, and stated that the defendant came to the plaintiff’s to buy Charles. The plaintiff told the defendant that Charles was then from home, that he had been about taking him to Newberry for sale, and he had gone off to get his clothes, or somebody, to buy him : the latter was the most probable, on account of his wife. He told the defendant then that he would drink: he was rather fond of a dram. The defendant said that he would not suit him, as spirits were sold where he wanted him to work. On his cross examination, he said Charles was hard to manage: he was a drunkard. The plaintiffhe said did not state to the defendant fully Charles’ character.

Lewis Busby said, he lives within three miles of the plaintiff: in 1834 he lived within three or four hundred yards. He saw nothing amiss in Charles’ conduct. His work was done well in the beginning of the year: not so well in the latter part of it. He saw nothing of drunkenness, insolence or turbulence. He heard of his drinking. He had borne the character of an insolent negro: but not in the time he belonged to the Johnsons.

*339Aaron Pinson said, that in 1834, he lived within one and a half miles of the plaintiff: he saw Charles while he owned him: his (witness’) work was done there. He was not insolent, so far as he knew: he was as humble as is usual: he worked very well. He once thought Charles had been drinking: he accused him of it: he said, oh, massa Aaron, one must have a dram. While the plaintiff owned him, he heard nothing against the negro, except the affair with Wiseman’s sons.

Downs Calhoun said, that in 1834 he lived within one and a half or two miles of the plaintiff: he knew Charles; he saw him frequently ; he saw nothing amiss; he heard of nothing against him: he saw him when Henry Johnson owned him; no improper conduct came within his observation. He has heard it said he was fond of spirits; though he cannot say during the time the plaintiff owned him he heard any thing good or bad about him.

John N. Sample said, that he lives within a mile of the plaintiff: in 1834 his work was done at the shop: he saw Charles frequently. He was drunk once when Henry Johnson owned him, (the time of which he spoke on his examination); he heard or saw nothing of drinking or of insolence (except the affair with Wiseman’s sons) while Charles belonged to the plaintiff. The work Charles did for him was pretty well; he saw a screw plate which Charles said he made: it was difficult to make.

Henry Johnson recalled, said Charles made the plate spoken of by Mr. Sample.

Willison B. Beasley said he lives in about two miles and a half of the plaintiff: he saw Charles frequently: he worked for him: did his work well: he never misbehaved in his presence, nor was drunk.

The Rev. Mr. Trapp said he lives in Edgefield, and lived near Mr. Berry when he owned Charles. For the first five or six years after he came into the neighborhood, Berry and his place were notorious for drinking and gaming. Charles was a drunkard. His master kept spirits: people would treat Charles when doing their work: his master would let' him have spirits. When drunk he was very impudent: more so to some than to others. When drunk he *340was very ungovernable. He was a pretty good smith, but would slight his work. He knew Charles when both the plaintiff and his brother owned him: during the time they owned him, he saw nothing amiss. He saw him every month (nearly) as he rode right by his shop — he talked to him humbly and respectfully. He was not so indolent as when he belonged to Berry.

Maj. Eddins said that in 1835, Charles, as he was, would have sold readily for $1200. He gave it as his opinion that he could easily have managed Charles and made him very valuable: he narrated a conversation between him and Charles on the subject of his buying him, in which Charles exhibited a great deal of humbleness.

Benj. L. Posey, Esq. said that he was the jailor in 1835: the defendant brought Charles to, jail 2d Sept. 1835; he was taken out in a dying condition, 10th Oct. following. When committed to jail he had a gun shot wound, of which he got well. He was taken sick and was thought to be dangerous: he first wrote to the defendant informing him of the negro’s condition: he afterwards went to his house, and he then sent for the negro. When the defendant put him in jail, he put him in for safe keeping, and said his price for him was $1200.

By Temple Hargrove, the plaintiff made'an unsuccessful attempt to assail the character of L. Drake.. ' •

The plaintiff here closed his proof and the defendant rejoined.

Gen. James Gillam was recalled, and said that Drake’s early life was a wild and dissolute one; he afterwards reformed, and he would be bound to believe him. He was not an industrious man; he went off and left his debts unpaid.

Sherwood Corley said that Charles was flogged at Berry’s; he • had often helped to tie and whip him; it had no effect on him; he would curse his master as soon as taken down. Henry Johnson told this witness *that on the*day he Bought Charles he abused Berry ; told him he kept his wife, and that they had a fuss: Berry, this witness said, wanted Johnson to take back his note and he would kill Charles. Henry Johnson, he said, also told him, 'that he and Charles after he brought him home, went to Cambridge to buy *341blacksmith tools: they were drinking and Charles knocked him down. On one occasion, he and another man bought a bottle of whiskey at Berry’s, sat it on a board or bench outside of the store; Charles was starting to see his wife and took the bottle; they followed him, took it from him and whipped him: he said he also had a bottle and took this to be his by mistake. On his cross examination, he said Wiley Berry, Johnson, and himself were all drinking. He said that he could not say certainly that Henry Johnson told him about the fight between him and Charles at Cambridge, Simpson Matthews said he lives in four or five miles of Wiley Berry: he saw Charles and Henry Johnson on their way to Augusta, (after Johnson had bought Charles,)' both had been drinking. Charles was cursing old Berry. On his cross examination, he said that Garland Goode wished to buy Chárles, while the defendant owned him and when he was runaway, and told him he would give $1200 for him. He told defendant that a man would buy him. The defendant then said he would not take less than $1200 for him. He said he would return him to the plaintiff.,

Maj. Adams said he saw the defendant in search of a blacksmith. Holt’s smith was offered at $600, as he understood from the defendant. He told him his character was not good, dishonest and impudent, he was a good plantation smith, *35*or 40 years old.

John Lewis said that the defendant put Charles in jail for safe keeping, until he got well, and then he intended to restore him to the plaintiff.

The defendant here closed his testimony — and the plaintiff replied generally, by calling Gen. James Gillam, who said that Henry Johnson’s character was a good one and that he was entitled to credit. Maj. William Eddins said the same.

Here the proof of the case closed. It was fully argued by Messrs. Perrin and Wardlaw for the defendant, and by Mr. Burt for the plaintiff. I summed up and submitted the case to the jury, as fairly as I am able to do. I said to them in the commencement of my charge, that if they should in its progress, discover my opinion of the facts, that they would bear in mind, that it was not to govern them; their judgment, not mine, I told them, was to deter*342mine in whose' favor the. case should be decided on the facts. I said to the jury in substance, that the defendant’s contract, on which this action was brought, was to be enforced, unless the defendant’s defence had been made out. If that had been done, I said to them, he could not recover damages on his discount from the plaintiff — ■ For this discount was for the deceit, which was a tort, and could not therefore be so set up. So that in this case their inquiry would be whether the defendant, in law, ought to pay the $100 note sued on? 'To decide this, it would be necessary to inquire, first, what moral qualities would be so material, as that a misrepresentation of them would have the effect to rescind the contract ? I said to them, that any quality represented to exist, which, if it did not, would have the effect of diminishing in a considerable degree, the usefulness and value of the slave, would have that effect.

Habitual drunkenness was I told them, such a vicious habit as would justify them in rescinding the contract, if they should believe that it existed, that the plaintiff knew it, and so knowing, deceived the defendant by informing him that the negro was sober. I told them that occasional intoxication, not amounting to a habit, would not jpstify them in rescinding a contract.

An habitual runaway was, I thought, a material defect, which might justify them in finding, for the defendant, if there was on the part of the plaintiff a wilful misrepresentation. Occasional flights of a slave from his master’s service for special causes would not constitute any material moral defect.

Honesty, I said to them, was a material moral quality in a *slave:*but nothing short of general dishonesty would show a defect in this behalf. For occasional thefts among the tolerably good slaves may be expected: and I illustrated this notion by reference to John Randolph’s opinion of the honesty of slaves in a letter written by him to a lady, published a *few years*since.

I said that it was possible that such disobedient, impudent, unsteady habits might exist in a slave, as would seriously affect his value and usefulness, and when that was the case it might be a good defence. But, generally, I said, the policy of allowing .such a defence might be very well questioned. For, *most commonly,*such *343habits were easy of correction by prudent masters, and it was only with the imprudent that they were allowed to injure the slave; Like master like man was, I told them, too often the case, in drunkenness, impudence, and idleness.

In the second place, their next inquiry, I said to the jury, would be, was the defendant deceived in the purchase of Charles ? This depended upon two other subsidiary inquiries. 1st. Did the defendant, before he bought, know the slave-by character, or otherwise, independent of the information he got from the plaintiff? Upon this point of the case, I arranged and contrasted the testimony on both sides. If, after going over this part of the case, the jury should not be satisfied that the defendant knew the negro, then, I said to them, they must inquire what was the plaintiff’s representations, and were they true or false ? Here again I presented to the jury a summary of the evidence on both sides. If the jury should be satisfied that'the plaintiff falsely represented the negro in any material moral quality, then they must make the third and last inquiry, did the plaintiff know such representations to be false ? If he did, the defendant must have a verdict; otherwise the plaintiff would be entitled to recover. On this last point of the case, I presented most anxiously every part of ■ the testimony, which operated for, or against the plaintiff.

The jury found for the plaintiff, and I think their verdict is right, and ought to end the litigation between these parties.”

The defendant appealed, and now moved for a new trial, on the following grounds:

1. Because the jury were instructed that they could not find damages for the defendant on his discount.

2. Because the verdict is contrary to law and evidence: — the defendant’s testimony by commission having been disparaged and disregarded: his witnesses, who proved the plaintiff’s misrepresentations, having been discredited without cause : his plain proof of plaintiff’s *scienter*having been overthrown by negative testimony, or the testimony of plaintiff’s brother, who, in two particulars, was contradicted :■ the effect produced upon defendant, by the misrepresentations, established by his whole conduct and con*344versations, having been controlled by very looáe proof of some intimations given to him of one of the faults of the negro: and the evident unfitness of the negro for the service for which he was bought, and which he was represented to suit, and his utter worthlessness to any one who would keep him, having been met by evidence of opinion, that his value for sale was such as to make plaintiff’s deceit no injury.

3. Because in such a tedious and complicated case, the decided and forcible expression of the presiding judge’s opinion in favor of the plaintiff upon every point of law and fact must have confounded the jury, who could not distinguish between questions of law and questions of fact; and the verdict is thus, in effect, the opinion of the judge, and not the finding of the jury.

Curia, per O’Neall, J.

The first ground makes the question, whether the damages arising from a deceit can be set off? This question it is not necessary to decide in this case : for the jury, in finding for the plaintiff, decided that the defendant’s predicate of his discount, the deceit of the plaintiff was not established. But, I may be permitted, in vindication of my circuit decision, to say a few words which will, I think, establish its correctness. The words of our discount law are very broad, embracing any cause, matter or thing, and if this matter was now, for the first time, to be decided, might make a very plausible case for the defendant. But in Mitchell v. Gibbes, 2 Bay, 120, it was decided that torts and trespasses were not the subject matter of discount. In that case, the judges said — “The discount law never meant that torts, trespasses, or unascertained damages, should be set off. That it contemplated debts, dues and demands of a pecuniary nature, or something springing out of a contract, where there were mutual covenants, which depended one upon the other.” So in Lightner v. Martin, 2 M'C., 214. Judge Nott said, “ a set off means, a counter demand which the defendant has against the plaintiff; and although our set off law is very comprehensive in its terms, (embracing any cause, matter or thing,) yet it has always been restricted in its construction to demands arising on contract. Damages *345arising from slander, assault and battery, *deceit*and othér cases, sounding merely in damages, have never been considered the subjects of set off.” After these authorities, it would seem to be in vain to talk about the right of a defendant to recover damages against a plaintiff on account of a deceit in the sale of a negro. The case of Adams v. Wylie, 1 N. & M'C. 78, cited by the defendant’s counsel, was not the case of a discount, properly so called. In it, it was held that a vendee, deceived in the purchase of land, may plead, or give it in discount againt a bond for the purchase money. The meaning of the court, collected from the case, is, that a misrepresentation in the sale of land may either entitle the purchaser to be entirely relieved from the purchase money, or to have an abatement, according to the *extent*and effect of the misrepresentation. It never has been doubted — and the case before us is an illustration of the application of the principle — that deceit committed in the sale of property, would, like anyother fraud, have the effect to discharge the vendee entirely, or partially, from the payment of the consideration money; but the case remains yet to be decided, that it should, by way of discount, entitle the defendant to recover damages against the plaintiff. What is a deceit? It is a tort, arising, it is true, out of a contract; but the damages are unascertained, and are entirely to be measured by the discretion of a jury. These reasons, with the authorities to which I have referred, are sufficient, it seems to me, to show that in ruling this point of law against the defendant, the circuit judge was neither hasty, nor in error. As to the objections to the verdict, for supposed errors in fact, they require no other explanation or answer than those given in the report.

Note. — The reader is referred to a *former trial and appeal*in this case, *346to he found in Dudley’s Reports, p. 325. On the subject of *discount, see the*cases *of*Madison & Latimer ads. M'Cullough, ante. p. 38, and Ewarts v. Kerr, ante. p. 203, in this volume. R.

*345*Wardlaw*& *Perrin,*for the motion.

*Burt,*contra.

The motion is dismissed.

Evans, Earle, and Butler, Justices, concurred.