laid down in the plot. That, however, admitting that tree to have been the true corner, and the course shewn, the real one; and that there might have been a mistake in the plot; yet, according to that course, it would have struck the river so soon, that it would not have left more than about 190 acres in the supposed tract, it being surrounded by elder surveys. But, in his opinion, the tree shewn, never had been marked for a corner; and that neither the corner, nor lines of the tract, could be traced.

This testimony of Youngblood's was corroborated by that of another surveyor, and of an old inhabitant in that part of the country.

On closing the evidence, Read, for the defendants, contended, that the action was not maintainable, because the plaintiff had sustained no damages, nor could damages be sustained, until there had been an eviction, by suit at law, from the premises. Vaugh. 118, 119. 1 Wood's Conv. 405.

Pinckney and Pringle, in reply, acknowledged that in cases of deeds, which contain only a covenant for peaceable enjoyment, or a general warranty of title to the bargainee, the action of covenant would not lie, until after an eviction by suit. But in a covenant, where the bargainor stipulates that he is lawfully seised in fee, of, in, and to all and singular the premises, it is otherwise; and covenant would lie, before the eviction. That this latter covenant was of a two-fold nature: it went partly to the title, and partly to the quantity. If there appeared to be a defect in the title, or a deficiency in the quantity; in either case, the action would lie, as soon as such defect or deficiency was discovered. In support of a covenant for defect of title, they quoted and relied on 9 Co. 61. Keb. 58. 1 Wood's Conv. 403, 4. where it is laid down, in covenant,

gainor was seised of a good estate in fee, &c.

that the bar-
The breach

assigned by the plaintiff was, that he was not seised of a good estate in fee, &c. This breach was held to be well assigned, and the plaintiff was not obliged to shew in whom the estate was, to which only the bargainor might be privy.

1792.

Pringle

V.

Executors of

Witten.

A covenant that the defendant is lawfully seised, &c. is intended as to title; and a covenant for quiet enjoyment, is intended as to possession. In the first case, the plaintiff may take issue on the defect of the title; but in the second, he must allege and prove a lawful eviction, (that is, by suit at law,) and not a tortious one, before he can support his action. 3 Keb. 755. 1 Wood, 404.

With regard to covenant for deficiency of quantity, this depends partly upon the principles of the civil law, which agree with the common law. For the covenant for the quantity goes to the whole extent mentioned in the deed, both by the common law and civil law. There is no drawing the line; for if there be only one acre deficient, it is a breach of covenant. There is, however, this difference in the extent of the remedy or damages, which the party injured is to be allowed. If the extent of the injury arising from the deficiency, is so great as to defeat the object of the purchase, or to lessen it so considerably, as not to answer the designs the purchaser had in view when he made the purchase; in that case, the contract ought to be rescinded. in toto, and the consideration money, if paid, returned. But if the injury is not so great as to defeat the object of the purchase, then damages ought to be allowed in proportion to the injury. 1 Dom. 80 to 82. Pow. on Con. 147

to 149.

But

In the present case, they said, it was extremely doubtful whether the land pretended to be sold, really existed or not, as the surveyors could find neither corners nor lines. admitting even that a part of it did, it was still uncertain how the lines would run, as it would be necessary to ascertain all the boundaries of the surrounding tracts, before they could be known. At all events, the tract would not be found, according to the evidence, to contain more than 190 acres. This, they said, was such a deficiency in quantity, as would entirely defeat the object the plaintiff had in view when he made the purchase; and would justify the jury in rescinding the contract. This, they urged, the jury might do, by giving damages to the full amount of

the bonds, principal and interest, which the defendants, as executors of Witten, held in their hands and refused to deliver up.

The Court (present, RUTLEDGE, Ch. J. and BAY, J.) mentioned to the jury, that the law had been very properly stated to them by the counsel for the plaintiff. That it was true that in a covenant for peaceable enjoyment, or on a general warranty, in such a case, the action would not lie at common law, without a previous eviction by suit at law. Vaugh. 118, 119. 1 Wood, 405. But, in a case like the present, where title and quantity were both warranted, that doctrine did not apply. In the latter cases, wherever there was a covenant for good title, and for the whole quantity—in each of these cases the action of covenant would lie, wherever the defect of title or deficiency in quantity was dis

covered.

That the jury, if they were satisfied of the fact of so great a deficiency as one-third of the land being wanting, or of the uncertainty of the locations of the land, they might rescind the contract entirely, by giving damages in the manner recommended by the plaintiff's counsel; or, if they thought a reasonable abatement would do justice to the parties, they might make a deduction from the bonds, according to the injury sustained. That a jury, however, ought not to lend too easy an ear to suits of this kind, which tended to the dissolution of contracts, unless the strong and obvious features of the case would justify it. That the present, however, appeared to be one of that nature; as it would be extremely unjust, and unreasonable, that the plaintiff should pay so large a sum, unless he had at least so much of the tract remaining, and that with sufficient certainty, as to answer the main object of the purchase.

The jury found for the plaintiff, damages to the whole amount of the bonds and interest, with costs, so as to dissolve the contract in toto, and to oblige the defendants to deliver up the bonds.

1792.

Pringle

Executors of
Witten.

May Term.

If the master

of a negro

The Guardian of SALLY, a Negro, against BEATY.

THIS was a special action, in nature of ravishment of

wench per- ward, to establish the freedom of a negro girl, according to

mits her to

work, or hire the form prescribed by the act of the legislature for that herself out,

upon condi- purpose.

tion of paying

him

certain

The case was this: a negro wench slave, the property of stipulated wa- the defendant, by working out in town, with permission of

ges, all she

saves or makes her master, had, by her industry, acquired a considerable beyond such wages shall be sum of money, over and above what she had stipulated to

at her Own

if she thinks

chase the free

vourite negro

disposal. And pay for her monthly wages, to her master; and having an proper to pur- affection for a negro girl, Sally, she purchased her with this dom of a fa- money, which she had been for years accumulating, and girl, with the gave her her freedom. For a considerable time after the surplus, such purchase was made the defendant never claimed any pronegro girl shall be enti- perty in the negro girl-never paid taxes for her; but, on freedom, and the contrary, acknowledged he had no property in her. deemed Some short time, however, before the commencement of property of the present action, when called upon to deliver up the girl as free, he refused; in consequence of which this action was brought.

tied to her

shall not be

the master.

the

For the defendant it was argued, that goods acquired by a slave enured to the, use of the master. It was acknowledged that the common law did not contemplate a system of slavery; consequently, none of its rules could reach this case fully-but the civil law did. Our maxims in matters respecting slaves, were borrowed from the civil law. By the civil law, then, it was a rule that property acquired by a slave, went to the master; nay, so strict was the law of the ancient Romans, that in cases of voluntary slavery, which was permitted by them, as well as in some of the eastern countries at the present day, the very price he seemed to receive, devolves, ipso facto, to the master, the instant he becomes his slave. 1 Black. Com. 424. In the present case, therefore, not only the money which the defendant's wench

acquired belonged to the master, but, also, every purchase
made by her with it, became, ipso facto, his, the instant the
purchase was made. That as to the defendant's saying he
had no property in the girl, such a declaration might have
been made under an ignorance of his right; and it was an
established rule of law, that ignorance of a right shall not
devest a man of his right. That, at all events, the defend-
ant's wench could not be considered in law, in any other
light than as a trustee for her master. He permitted her,
in some degree, to be at her own disposal, and work or hire
herself out as she pleased; consequently, all she gained was
for his use.
It became a vested right in him as soon as she
acquired it, and, of course, she had no right to manumit the
girl, or do any other act to the prejudice of his interest,
without his liberty and consent.

For the plaintiff, in reply, it was confessed that the common law would not apply to this case, but the rules of equity and justice, which were a part of the civil as well as of the common law, would. That the laws of South-Carolina, and the nature of its climate, justified slavery. Its truest interests made it indispensably necessary to make use of them for agricultural and other laborious purposes. But notwithstanding the law gave the master a claim on the labour and services of his slave, it disclaimed, at the same time, that tremendous power of life and death which the Romans, as well as some of the modern nations on the coast of Barbary, exercised on their slaves: so far christianity had ameliorated the condition of slaves in this country. Here, the counsel said, was one exception to the general rules of the civil law, in favour of the condition of slavery, and others might be found equally necessary and proper. That the present was a case of a new impression: it was as it were, sui generis. There is no case similar to it in the history of our judicial proceedings. It was necessary, therefore, to resort to principles, and square this decision by such rules as would not injure the rights of the master, nor offer violence to the most benevolent affections of the slave. The