legal obligation." And for that reason, a new trial was granted; it appearing that the rent of the land had been ascertained by the evidence. From this it would appear, that the value of the rents indicated the minimum of damages to be found by the jury, in all cases, without regard to the question whether the possession had been culpable or excusable. Taking this view of the law, a majority of the court entertain the opinion, that the evidence given by these plaintiffs on a former trial, was immaterial, and that the nonsuit was properly ordered. Motion refused.

O'NEALL and EVANS, JJ. concurred.

RICHARDSON, J. dissenting. In these cases, a majority of the court concur with the presiding Judge. But some of us think the evidence ought to have been passed upon by the jury. Because nonsuits against the will of plaintiffs, should be ordered only in such cases as are evidently unsupported by the evidence under any construction whatever, or clearly without foundation in legal principles.

In South Carolina, where, by a course of adjudication, the court are at liberty, as is the modern and approved practice in England, to give their expositions and opinions of evidence to the jury, nonsuits, in invitum, ought, emphatically, to be restricted to such cases of the total absence of law or evidence. It is a most important consideration, in all cases, to render the judge and jury homogeneous, and to give satisfaction by joint character and perfect union in their decisions. But nonsuits war against this fundamental policy. Apply this general object, and the principle of nonsuits just laid down. Is it evident, that when the defendant said that Wilson lied, in swearing that Hughes had left three bales of cotton ungathered in John B. Cloud's field-Is it evident that such evidence was immaterial and unimportant to the then issue, and, therefore, could be no slander in law? Might it not go, as evidently intended to lessen the verdict? This is now the point. When one charges upon his neighbor, at least virtually and in effect, a perjury, prima facie, the court will not search, by judicial reasoning, to show that it may, possibly, have been less than a legal slander. But such

prima facie case goes to the jury, with the opinion of the Judge, because there may be two opinions upon the evidence. In the case of Duff vs. Hutson, referred to, a most respectable court has said, that in the action of trespass to try title, the proper measure of damages is the amount of rent; and such a rule carries intrinsic authority. But it was laid down by the court arguendo, in ordering a new trial, in a case where the Judge below had advised the smallest verdict that could carry costs, without any notice of the loss of rents and profits to the plaintiff. The question turned upon the charge of the Judge. It was apparent, say the court, that the jury acted upon it as a conclusion of law; and the new trial is ordered, for error in such judicial instruction to the jury. The reasoning and the rule were incidental, not essential, to the appeal. I cannot conceive, therefore, that such a rule has been made imperative in such actions for damages, and in all cases as if they were bottomed on contract, as for rent, profits or occupation. The precise nature of the action was not considered, and trespass to try title, is still an action for damages, to be defined by the circumstances and injury done, as well as by the annual profits of the land. Take for illustration, the well known case against Madame Talvand, the rent probably $1000 per annum, for some ten years, the freehold clearly in another, but actually purchased by her own hard earnings. Can it be that the circumstances that would go to lessen the damages, (rents) against her, would be rendered immaterial, nothing, in virtue of a very just general observation, made in Duff vs. Hutson; and that her witnesses might be all charged with legal impunity with lying? To support the present nonsuit, the court must assume all this to be law.

If my exposition of the decision in Duff vs. Hutson be correct, then the evidence of the Wilsons, that three bales of cotton were left in the field, could not be immaterial to the issue in the case of J. B. Cloud vs. George Hughes, and may be the predicate of the charge of perjury.

Under no possible construction, then, of the supposed rule in Duff vs. Hutson, can the evidence of the Wilsons be wholly immaterial to the issue. It was at least calculated, and must have enured to diminish the verdict down

to the minimum rents and profits. This was part of the issue. The cotton ungathered, was as a payment or discount in kind to reduce the verdict.

But returning to my former argument, suppose the slander had been against a woman for sexual incontinence? Would the court be authorized to nonsuit the case upon a balanced critique, that the slanderous words did not amount, beyond dispute, to a charge of lewd cohabitation? Surely not. In like manner in the case before us, the charge was, of telling a lie on oath; and shall the case go unconsidered by the jury, by reason of a judicial difference and divided opinion upon the materiality of the supposed evidence? Should not the converse be the conclusion, and the case left to the jury, with just expositions? Considering, as I do, nonsuits, when not unavoidable, as the true antagonists of trial by jury-viewing, as I do, the decision about to be made, as touching upon the judicial department of the court, by extending nonsuits, and, therefore, important as a precedent--I would order a new trial, which might appear very different under a full exposition, and, possibly, justify a finding for the defendant, or small damages for the plaintiff; and would not have the case taken from the final adjudication of the jury, but would send it back, as we have the case of Weed & Fanning vs. Evans, upon the ground, not of dissatisfaction on the merits of the decision, but because the Judge mistook the proper province of the jury, even in one particular.

WARDLAW, J. Concurred in the dissenting opinion.

Garner Evans vs. James H. Dendy, Ordinary.

1. A purchaser of land sold under an order of the Ordinary for partition, paid the money, and received a deed containing no warranty. The land was recovered from the purchaser by title paramount, the money still remaining in the hands of the Ordinary undistributed. In assumpsit brought by the purchaser, to recover it back from the Ordinary, it was held that the action could not be maintained against the distributees, founded on an implied warranty in the sale by the Ordinary, nor against him as their agent.

2. There is no implied warranty in a sale of land made by the Ordinary for partition.

3. Query-Had the purchaser been sued for the purchase money, could

he have set up the want of title by way of defence? St Surg.42,438.

Before O'NEALL, J. Pickens, Spring Term, 1843.

This was an action of assumpsit against the Ordinary of Pickens district, brought under the following circum

stances:

A tract of land was sold for partition, under the order of the Ordinary; the proceeds were paid to the Ordinary; before he paid them over to the heirs at law, the land was recovered, by title paramount, from the plaintiff, the purchaser.

His Honor ruled that there was no implied warranty, in a sale by the Ordinary, on which an action could be sustained, and therefore nonsuited the plaintiff.

The plaintiff appealed, and moved to set aside the nonsuit, upon the following ground:

Because the money sued for having been paid by plaintiff to defendant, for the purchase of a tract of land bought at a sale made by defendant, as Ordinary for Pickens district, for partition, and the land purchased having been recovered from plaintiff by paramount title, before the purchase money was paid over by defendant, and the title remaining in his hands, the action of assumpsit properly lies to recover it back, and his Honor erred in ordering the nonsuit.

Young, for the motion.

Whitner and Harrison, contra.

Curia, per EVANS, J. Where the purchaser of land has been deceived by misrepresentation, whether intentional or not, that fact may be set up by way of defence to an action for the purchase money. If the object of his purchase has been defeated by reason of the misrepresentation, he may, according to the decided cases, be wholly discharged from the debt. If only partially defeated, he may be allowed an abatement in the price. The case of the State vs. Gaillard, 2d Bay, 11, is an instance of the former, and Tunno vs. Flud, of the latter, 1st McC. 121. In these, and the kindred cases of Gray vs. Hankinson, 1 Bay, 278; Barklay vs. Barkley, Harp. 441, and Means vs. Brickell, 2d Hill, 657, there was either no warranty in the deed, or, if there was, it did not embrace the matter set up as defence. In all the early cases, it is admitted the defence could not be made consistent with the principles of the common law, but was allowed on equitable principles borrowed from the civil law.

By the common law, except in an action of deceit, you cannot look beyond the written contract to know what the parties intended, and if there be no warranty in the deed, extrinsic evidence is not allowed to establish it. If I understand the principle upon which the cases to which I have referred have been decided, it is that an action for the price is, in some sort, a proceeding to enforce the execution of a contract, and in such action a court of law adopts the equitable principle of refusing its aid to enforce a contract obtained by fraud or misrepresentation, except in such way as to do justice between the parties. All the cases from Gray vs. Hawkins down to Means vs. Brickell, were cases of misrepresentation; whether intentional or not, seems to have been regarded as wholly immaterial. I do not remember a single case where a failure of title, without warranty or misrepresentation, has been allowed even by way of defence. In the case of the State vs. Gaillard, Burke, J. put the defence on the civil law principle, that a sound price requires a sound commodity; and said when there was a failure of consideration, or misrepresentation, or concealment, the contract was vitiated.

This broad proposition has never been carried out in practice, and was unnecessary to be affirmed in that case,