Sthreshly v. Broadwell ( 1829 )

Judge Underwood,

delivered the opinion of the Court.

This was an action of covenant brought in the circuit court, by Broadwell, to recover of S.threshly, upon a warranty of the soundness of a negrc¡ woman and child, sold by the latter to the former. The defendant plead an award in bar of the whole action. The plea was demurred to, and thecourtsustained the demurrer, and this constitutes one error assigned. We think the plea bad. The award reía, ted exclusively to the child, the articles-.of submission related exclusively to the woman, who was dead before the articles were entered into. The award was, therefore, altogether unauthorized and constituted no bar to the action. The plea made profert of the articles of submission, and the award, oyer of both, was craved by the demurrer, and although it does not appear that they were spread on the record, in haic verba, yet we think it is manifest they were before the court and were properly considered in deciding on the validity of the plea. The matter of the award,if good, is not sufficiently pleaded.

Crittenden and Denny, for appellahts; Haggin and Loughborough, for appellee.

The only remaining question relates to the refusal of the court to grant a new trial. The evidence is such that the court ought not to have controled the juij had they found either way. The hew trial was properly refused.

Judgment affirmed with costs and damages.