THE STATE against THEODORE GAILLARD, JOHN BULL Charleston and JOHN BRYANT. District,1796. DEBT on bond for 4,441/. 7s. currency, equal to 634. Misrepresensterling. The bond, on which this suit was commenced, was given for a tract of land purchased at a public sale, made by the commissioners of forfeited estates, under the confiscation act. At this sale a very handsome plat of the land was produced, representing the quality of the land, &c. taken, as alleged, from actual observation and measurement, and containing 2,535 acres. On this plat a fine copious stream of water was laid down as running nearly through its centre, with a mill-seat represented on it, which was the principal inducement of the defendants to make the purchase; as the land was valuable only on account of the timber growing on it, and this stream of water and mill-seat, which were represented on the plat, containing notes and memorandums explanatory of these natural advantages. The defence set up against this bond was misrepresentation or deception, at the time and place of sale. That the defendants had been deceived by this plat representing a bold stream of water, sufficient to turn a mill the whole year round, with a good mill-seat upon it; whereas, in truth and tations on the plat of lands produced at the time and place of a public sale, are good grounds for a rescission of the contract. As where a fine stream of wa ter is laid down, with a good mill-seat on it, in the centre of a tract of tim ber land, fit only for lumber,and which upon exami nation turned out to be only three-fourths dry gully a of the year, without any running water in it. Such misrepresentation may be given in evidence against a bond given for the consi deration mo ney, by way of discount, terms of the in a court of common law. in fact, it was found upon examination that this supposed stream was a mere gully, which was dry three-fourths of the under the year, and contained running water only in wet seasons, or af- discount act, ter heavy falls of rain. That by this failure of water, their plan of erecting a saw-mill was entirely defeated, as the great object they had in view having been the sawing of lumber for the market. Moreover, that there was a deficiency of 555 acres in the quantity of land. This deficiency, however, was not so much relied on, for a rescission of the contract or sale in toto, as an abatement of price might have an swered the ends of justice to all parties; but what the de The State V. fendants relied on, was the fraud or imposition practised Gaillard and upon them, by this false representation on the plat produced at the sale, and which deceived them in making the purchase. others. The defendants then called two surveyors who had resurveyed this land, and several other witnesses, who all proved substantially, the facts stated in the defence, as well with regard to the total failure in the stream of water, as to the deficiency in the quantity of land sold. The cause then went to the jury, who, under the direction of the judge, and on the authority of Gray and Handkinson's case, tried in October term, 1792,(a) brought in a verdict for defendant; whereby the whole contract was rescinded. Thereupon the counsel for the state gave notice of a motion for a new trial, to be made at the next meeting of the constitutional court of appeals, on the ground of misdirection of the presiding judge; and that the finding of the jury was against law. At the meeting of the constitutional court of appeals, in January, 1796, the above motion was brought forward, and in support of it, the following grounds were submitted to the court. 1. That a common law court could not rescind a contract, and that a court of equity only was competent thereto. 2. That one Archibald bid off the land at the sale, and there was no proof that he had a mill-seat in view; and if he was not deceived, no one coming in under him had a right to complain. 3. That the commissioners of forfeited estates did not warrant the mill-seat and stream of water, as being good and proper for a saw-mill; they only sold from the plat made by the surveyor, on behalf of the public; and, Lastly, that this sale having been made by the state, it was not to be governed by the same rules as private sales. This motion was argued by Ford and Trezevant in behalf of the state, and by General Pinckney for defendants. The State others. For the state it was contended, that the court of chancery was the proper tribunal for investigating all matters of Gaillard and fraud, accident and trust, and was the only one competent to do full and complete justice in all such cases. And it was their peculiar province to determine, when, or in what cases contracts were or were not to be set aside on the ground of fraud or misrepresentation. That in our state three chancellors presided in the court of equity, who were men of great legal knowledge and integrity, and who would exercise their powers as to the dissolution of contracts, with all the requisite discretion and caution. That they would never rescind a contract until after the fullest examination, of which the nature of the thing was capable. That in such hands, contracts were safe and stable; the principles well ascertained by authorities and adjudications; and the rules of law and equity form their steady guide in determining cases of this sort. That while this was the case, men in their mutual contracts and bargains, and all their various transactions, might have a confident and safe reliance. But on the contrary, to make jurors the judges of the rescission and dissolution of solemn agreements, entered into with due solemnity and caution, would introduce all that fluctuation and uncertainty, which for ages past it had been the wisdom of the law to guard against. Jurors were often composed of unlearned men, often biased on one side or the other, and too frequently carrying their prejudices into the jury box. That in cases of this nature they had no fixed rules or principles to govern their verdict; that one jury would do on one day, what another would undo the next; nothing like certainty could be expected, and every thing might be set afloat and unhinged, by committing so great and so extensive an office to such unskilful hands. On the second ground it was contended, that one George Archibald was the purchaser at the sale. The land was knocked off to him by the cryer, and there was no evidence offered to the jury who tried the cause, to shew that he was deceived by this plat or the declarations of the commissioners, but admitting that the plat might have had that tendency, that was a matter between him and the commissioners, and not one of which the defendants could avail themselves in order to get rid of their contract, and set aside their bond. That there was no warranty on the part of the commis sioners, that the stream laid down on the plat was a neverfailing stream, or that it would turn a saw-mill all the year round. They offered the land for sale, such as it was, with all its advantages and disadvantages attached to it, and the plat produced was more for the purpose of shewing the metes and bounds of the land, and the quantity contained within the lines, than for any other purposes whatever. And finally, it was urged in support of the motion, that this sale was a public sale made by the state, a corporate body, which could not make, nor was it bound to make, the representations of the good or bad qualities of the land offered for sale, which a private individual is bound to do in his contracts with another. Caveat emptor was a good rule in such case; the defendants should have taken care to have informed themselves fully on all these points, before they made the purchase. Pinckney, for defendants, against the motion, admitted that the law had formerly been as his opponents had stated that this power of setting aside or rescinding contracts, once belonged exclusively to a court of equity; but that modern improvements had been made in almost every branch of our jurisprudence, for wise and judicious purposes; and amongst others, that of a common law court taking cognisance of such cases, as the present one, as well as an equity court. That the great point here was fraud, or no fraud? That fraud might either be the result of deliberate design, or it might arise from circumstances, resulting from the nature of the transaction itself, where none was intended. But that from whatever cause it arose, if it could be traced out and established, by common law rules of evidence, it was as much within the jurisdiction of a common law court of judicature, as within that of a court of chancery. That in a great variety of cases, it was usual and customary for the of action, so that such demands, causes, matters and "things, &c. relating to defendant in his own right, shall "only be given in evidence by defendant, in a suit brought "against him in his own right," &c. He then quoted the case of Cooke v. Rhine,(a) tried in 1783, which was the first case in this country in which a common law court, under fair construction of our discount law, permitted this kind of equitable defence to be set up, as springing out of the transaction itself. That suit was for a workman's bill in build a |