1835. May.

Brown

V.

in treaty for a compromise, no suit having been then brought, as was apparent on the face of the letters, and the letters contained propositions for a compromise which had proved ineffectual. But the court overruled Shields. the objection, and admitted the evidence; to which the defendant excepted.

II. The second bill of exceptions stated, that the plaintiff offered in evidence, the record of a suit in forma pauperis, brought by a negro boy, Edmond, against the plaintiff, to recover his freedom, in the county court of Rockingham; to which action the plaintiff appeared, and pleaded; and the result was, that Edmond was found by the jury, and adjudged by the court, to be free. This judgment was rendered in October 1824. It was admitted, that the plaintiff resided in Rockbridge, not in Rockingham where the pauper suit was brought; that the negro boy absconded from the plaintiff's service in Rockbridge, and went to Rockingham, the place of his birth, where the deed of emancipation containing the evidence of his title to freedom was recorded, and where the witnesses who could prove his identity resided; that being at large in Rockingham, he asked and obtained leave of the county court of that county, to bring suit there for his freedom; and that the plaintiff voluntarily entered his appearance as defendant in that suit, and submitted to the jurisdiction of that court. The plaintiff relied on the first of the defendant's lete ters set out in the first bill of exceptions, to prove that he had notice of the pauper suit, while it was pending, though the suit was brought after the date of the letters. The defendant objected to the admission of the record of the pauper suit as evidence in this action; but the court overruled the objection; to which the defendant excepted.

III. The third bill of exceptions stated, that it appeared, that a bill of sale of the negro boy in question to the plaintiff, was executed by the defendant, J. Brown

V.

1835. junior and J. Brown senior, and sealed by them, containMay. ing a warranty of the title of the boy as an absolute Brown slave. And there being this sealed contract of the sale Shields. of the negro boy to the plaintiff, the defendant's counsel moved the court to instruct the jury, that the plaintiff could not maintain this action; that he could not maintain it on the first count in the declaration, because the written contract varied from the contract therein set forth; that he could not maintain it on the second count, because the parol contract therein set forth, was merged in the written sealed contract of sale; and that the second count was faulty, and ought to be wholly disregarded, because the buyer of a slave, whatever may be the defects of the property or the title, could only recover from the vendor upon a warranty, or upon the ground of fraud, and the second count alleged neither. But, the bill of sale having been offered in evidence by the plaintiff, and excluded by the court at the defendant's instance, the court refused to give the instructions prayed; and the defendant excepted.

IV. The defendant's counsel moved the court to instruct the jury, that if it should find for the plaintiff, upon the second count in the declaration, the proper measure of damages would be the purchase money of the slave with interest, not the value at the time the slave recovered his freedom; which instruction the court refused to give, and the defendant excepted.

The jury found a verdict for the defendant on the first count of the declaration, and for the plaintiff' on the second count, and assessed his damages to 565 dollars; for which the court gave the plaintiff judgment. The defendant appealed to this court.

*The statute 1 Rev. Code, ch. 128. & 104. p. 512. provides, that "where there are several counts, one of which is faulty, and entire damages given, the verdict shall be good; but the defendant may apply to the court to instruct the jury to disregard the faulty count."

Leigh, for the appellant.

1835.

Johnson, for the appellee.

same.

May.

Brown

V.

BROCKENBROUGH, J. I am of opinion, that there was Shields. error in the court's refusing to instruct the jury, that the action could not be maintained, by reason of the bill of sale set forth in the third bill of exceptions. The action brought was an action in case. The first count was on the deceit in the sale; the second count was obviously intended to be on the warranty of title. The parol contract of the sale, was clearly merged in the contract under seal, if the sale charged in the second count was the same with that evidenced by the bill of sale. Although the bill of exceptions is badly drawn, yet I think it appears, clearly enough, that the subject of sale was the The plaintiff had offered the bill of sale in evidence to support his action; thereby affirming, that although the bill of sale conveying the negro boy to the plaintiff, was executed by two persons, namely J. Brown junior, and J. Brown senior, yet it evidenced the same contract set forth by him in his declaration. The defendant properly objected to its going in evidence to the jury, to support the action on the case, and the court properly rejected it; but the deed being before the court, the defendant then said to the court, that as the plaintiff held his covenant, whereby he bound himself (with another) to defend the title to the slave which he had sold him, this action on the case cannot be supported; and therefore, he moved the court so to decide. This is the substance of the bill of exceptions; and as it is clear that an action of covenant ought to have been brought, I am of opinion, that the judgment is erroneous.

I am also of opinion, that the second count is a faulty one, and that the court erred in not instructing the jury to disregard it. Although in an action on a warranty of title to a chattel, it is sufficient proof of the warranty, that the vendor affirmed it to be his, and the action lies

V.

1835. on such affirmation, 3 Stark. Law Ev. part 4. p. 1661. Medina v. Stoughton, 1 Salk. 210. yet if the plaintiff does Brown not choose to resort to the appropriate remedy for breach Shields. of contract, but sues as for a tort, his count must conform to the nature of the action. Here, the first count is in case for a deceit: the second is certainly not in assumpsit, but in case on the warranty, and in that view is defective. It should have charged, that the defendant, by falsely and fraudulently warranting the slave to be his absolute property, sold him to the plaintiff. The wrong consists in the false warranty; which, therefore, is of the very essence of the charge. 1 Chitt. Plead. 139. 2 Id. 276. Stuart v. Wilkins, 1 Doug. 18. 21. Williamson v. Allison, 2 East 446.

On the question, whether the letters set forth in the first bill of exception were admissible, though I have some doubt, the strong inclination of my mind is, that they are legal evidence.

But I am for reversing the judgment, for the errors I have mentioned. And as the verdict is for the defendant on the good count, and as the second count ought to have been disregarded as defective, a judgment should now be entered for the defendant.

CARR, J. The appellee sued the appellant in case, for selling him a negro boy as a slave for life, who was only bound to servitude for a limited term. The first count in the declaration, is for fraud and deceit in the representation and sale, averring the scienter; the second, for selling the negro boy as an absolute slave, and so representing him, when in truth he had only a limited time to serve, without a further charge of deceit. The points for our consideration, arose from motions to the court, at the trial, for instructions to the jury, and for excluding evidence.

The plaintiff offered to the jury two letters, written by the defendant, who objected to their going to the

1835.

May.

Brown

V.

jury, because they were written with a view to a compromise, and that failing, they could not be used to the prejudice of the party; but the court admitted the letters. As this is a point of some interest in the doctrine Shields. of evidence, I have looked a little into the books with respect to it. In Buller's Ni. Pri. 236. it is said-An admission of a debt, if satisfactorily proved, is the strongest evidence. But an offer to pay money by way of compromise, is not evidence of a debt. The reasons often assigned for it by lord Mansfield were, that it must be permitted to men "to buy their peace," without prejudice to them if the offer did not succeed; and such offers are made to stop litigation, without regard to the question whether any thing, or what is due. If the terms buy their peace are attended to, they will resolve all doubts on this head of evidence: But for an example, I will add one case. If A. sue B. for £100. and B. offer to pay him £20. it will not be received in evidence; for this neither admits nor ascertains any debt, and is no more than saying he would give £20. to get rid of the action. But if an account consists of ten articles, and B. admits that a particular one is due, it is good evidence for so much. This is a clear and concise view of the point, separating an offer to make a sacrifice or concession for the sake of peace, from the admission of a fact, though made under the same circumstances. Several cases establish the same distinction. Thus, in Waldridge v. Kennison, 1 Esp. Ca. 143. the only evidence to prove the handwriting of a defendant to a bill of exchange, was his admission made, in the course of a treaty for a compromise; and Garrow objected to it as evidence on that ground, but lord Kenyon, while he fully admitted the rule, said, that it did not extend to a distinct fact like this. So, in Gregory v. Howard, 3 Esp. Ca. 113. lord Kenyon, on the same point, said, "I have often given my opinion on this subject. Evidence of concessions made for the purpose of set