The State

V.

others.

ing a house the discount was the loss of rent occasioned Gaillard and by unreasonable delay, and for sundry deficiencies in the building and unfaithful workmanship, in which the jury, under the direction of the court, allowed a discount to the amount of 2201. sterling. The next case was that of Mills v. Dewees, which was a suit for the price of a negro sold with a good character, who was proved to have been a drunkard, a thief, and runaway: the discount was to the amount of the full value of the negro; and the jury found for defendant. The case of Gray v. Handkinson, the next in order of time, was very similar to the present one; where a mill-seat on a good stream of water, was the object of the purchase, but as it was taken away by an older grant, in an action on the bond for the consideration money, a verdict was given for defendant; by which means the contract in that case was rescinded in toto. All these cases, and a great many determined since, upon the same principles, vindicated and justified the courts of common law in this state, in opening the door for the admission of these kind of equitable defences; which prevented a multiplicity of actions, and went at once to the real merits of the case. That in answering to the second ground taken in support of the motion, he said, Archibald, by whom the land was bid off, was only the mere agent of the defendants on the occasion that the entry in the commissioners' books of sales was to them, and not to Archibald; the deeds of conveyance were to them; and they gave the bond to the commissioners, on which the present suit was brought. All this proved him to have been a mere agent. But supposing he had not been their agent, and they were to be considered as his assignees, they would then stand exactly in his shoes, and had a right to avail themselves of any ground of fraud of which he himself could have taken the advantage.

That although the commissioners did not in express words declare that this was a constant and never-failing stream of water, which ran through this tract, yet such a representation on the plat by the surveyor-general, an officer

The State

others.

of high trust, or his deputies employed on the part of the state, was as much calculated to impose upon an unwary Gaillard and and unsuspecting purchaser, as any parol declarations of the commissioners; nay, more so, as it held out the idea of actual observation and examination of the premises, by such officer, which by most men, would be much more regarded than the loose, random declarations of the commissioners themselves at the sale.

As to the last ground urged in support of the motion, he observed, that although the sale was made under a public law of the state, and by public authority, no good reason could be assigned, why the state as a public body, should be protected in a fraud committed (though unintentionally) by any person acting under its authority, any more than an individual citizen under similar circumstances. Good faith ought to be observed by public bodies, as well as by private citizens; and if any one is injured by such corporate body, or its agents, the party injured is entitled to redress, as well as from a man in his private capacity.

Mr. Justice BURKE delivered the opinion of the judges, who were unanimously with the defendant on every ground. He observed, that the governing principles by which this case, and all others of the like kind had been, and were to be decided, were borrowed from the civil law, and incorporated into, and now made a part of the common law of this country, viz. "that a sound price deserves a sound commodity," and that wherever there is " a failure of "consideration, a misrepresentation, or concealment of mate"rial circumstances," it vitiates the contract in toto; or en- 1 Domat. 80, titles the party injured to such a reasonable abatement in the price of the thing sold or demanded, as would make him full reparation for any injury sustained by reason of such unsoundness, failure, misrepresentation or concealment, according to the nature and circumstances of every

81.

The State

others.

common law

competent

with a court

of equity, to rescind and

tracts on the

grounds of

such case. Of all such circumstances and injuries, whatGaillard and ever their extent might be, the juries of this country, under the direction of the common law courts, were as competent A court of to determine, wherever they could be traced out and estais equally blished by legal testimony, as a court of equity. That in the exercise of this power, the courts of common law, always had been and ever would be extremely cautious in set aside con- charging juries, so as to guard against the too easy and frequent admission of testimony, which might go to render fraud, where such grounds contracts insecure. That good faith and confidence ought to be maintained by men in their mutual dealings and transactions with each other. That men were free to contract and make bargains, or to let them alone, as they thought proper; but when once made, they were binding, and the contractors ought to be held to them, in all cases, unless they came fairly within the above exceptions; and then it was proper and just, for juries to interfere and do substantial justice between the parties, by giving such verdicts as would place both of them in their original situation, or give partial satisfaction for partial injuries.

can be traced

out by com

mon law rules of evidence.

Domat. 81.

Public Laws, 246.

That the principles of our discount act of the legislature, passed in 1759, and made perpetual by the act of 1783, coincided with the rules of the civil law, by permitting a defendant to set off by way of discount against the plaintiff's demand, any cause, matter, or thing in his own right, and springing out of the same transaction, which went either to defeat the plaintiff's right, or to require an abatement in his demand; which renders it highly presumable, that the legislators of that day, had the principles of the civil law in view, when they passed that act.

In comparing this case with the foregoing rules, he said, there could be little doubt, but that this contract ought to be set aside on the ground of fraud or misrepresentation. The object the defendants had in view, was the sawing of lumber for the Charleston market. The land, it was admitted, was of little or no value, but for the timber growing on it. A good stream of water, and a mill-seat, therefore, were essentially necessary for carrying into effect, the ob

The State Gaillard and

V.

others.

ject the purchasers had in contemplation, and without these, their ends never could have been answered. The plat produced at the sale, represented upon the face of it, these essential requisites. It carried, therefore, fa Ishood and misrepresentation in its front; well calculated to take in, and deceive unwary men, who were likely to trust to such representations made by public men in the execution of a public trust. There was nothing better calculated to impose upon a purchaser, than a plat which had the appearance of an actual survey and observation, with explanatory notes made upon it. Many an unfortunate European had been deceived by the American land speculators, in the same manner; and unfortunately, too many of the purchasers had been ruined by fit. It was said the commissioners were ignorant of it; they did not know that there was no such stream. But that made no sort of difference, as to the real existent facts; for it was the same thing to the purchaser, whether they knew, or did not know, there was this stream; for it is a well known rule of the civil law, that where the defects of a thing sold were unknown to the seller, he shall be bound not only to take it back, but to indemnify the purchaser or buyer, as to all the charges 1 Domat. 81. the sale has put him to. The receipt of a full or valuable A sound price consideration in law, raises an implied warranty, against all faults, known and unknown to the seller; with this difference, that in cases of wilful concealment, the party guilty of the fraud, is liable for damages, in addition to all legal and just charges.

As to the other grounds taken in support of the motion for a new trial, they all follow the main or principal one, already discussed. A fraud practised upon the agent, was a fraud through him on the principals, and went radically to the dissolution of the sale. Any misrepresentation calculated to deceive, went to impair a contract, as much as parol declarations by the sellers, to that effect. And as to the effect of sales in general, there was no difference between public and private ones, as to defects in the thing itself sold, except as to incumbrances, which might be well

deserves a sound com

modity, wheunknown to

ther known or

the seller.

The State

others.

ascertained by due diligence. Holding out false represent

Gaillard and ations therefore by any of the public agents, went as effectually to render a sale invalid with the state, as if it had been practised by an individual citizen.

Rule for new trial discharged.

Present, BURKE, GRIMKE, WATIES and BAY.

Charleston, MARY WELLS, widow and relict of ROBERT WELLS, deceased, against THOMAS MARTIN.

Feb. 1796.

The widow of

a man who

UPON application to the court for a writ, for the ad

was banished measurement of dower, pursuant to the directions of the from the act of the legislature.

state, and

whose estate

was confisca- The present was an application on the part of Mrs. Wells, ted by the act the widow of Robert Welis, formerly a bookseller and staof 1782, for

adhering to tioner in the city of Charleston, for her dower in sundry

the British in

the revolu

the course of houses in town, and tracts of land in the county, of which her husband was seised and possessed in his life-time, and during her coverture.

tionary war,

is notwith

standing en

titled to her It was admitted, that Mr. Wells in his life-time had his lands, &c. joined the British standard, during the revolutionary war,

dower in all

and had adhered to the enemies of America; in consequence of which his person was banished from the state, and his estate confiscated by an act of the legislature; and that Mr. Martin, the defendant, had purchased one of the lots of land, which formerly belonged to him in Charleston. He, therefore, disputed her claim of dower in the house and lot he purchased, which brought the question fully before the court, whether, under these circumstances, she was entitled to her dower or not?

The case was very fully argued by Mr. Edward Rutledge, on behalf of the demandant, and by Desaussure, Ford