#### Hart v. Newland.

V From Stokes.

In case for deceit, in the sale of a runaway negro, who was alleged to be unsound, the defence was, that the Plaintiff knew it before purchasing, and evidence was offered that Plaintiff'’s wife had carried food to the negro, who was lurking about Plaintiff’s farm, before the purchase. Held, that such evidence was inadmissible.

Case. — The declaration was for a deceit, in the sale of a negro. The defence set up was, that the real situation of the negro, who was consumptive, was as well known to the Plaintiff as to the Defendant, and even better. The negro, a short time before the Plaintiff purchased him, was a runaway, and to bring home the fact of Plaintiff’s knowledge of his situation, Defendant was permitted to prove, that while the negro was a runaway, he had been seen, two or three times, lurking about the plantations in the neighbourhood of the Plaintiff, at whose house the negro’s wife was; the Plaintiff knew that he was a runaway, repeatedly expressed a wish to purchase him, and applied to an individual to go and purchase him, while he was a runaway. Another witness for the Defendant, said he had seen the negro, while he was a runaw.ay, twice at his (the witness’s) house, in the Plaintiff’s neighbourhood. Defendant’s counsel then *123asked witness, whom he had seen bringing food to the negro, and stated that he expected 1;o prove that the person was Plaintiff’s wife. The Court deemed the evidence inadmissible against the husband, unless it were sliewu first, that the husband was at home at the time, or had seen the wife going, or in some way assented .to it. There was a verdict for the Plaintiff, and the case stood before this Court on a motion for a new trial, be-cause of the improper rejection of evidence.

Henderson, Judge,

delivered the opinion of a majority of the Court.

Evidence is of two kinds; that, which if true, directly .proves the fact in issue, and that which proves another fact, from which the fact in issue may be inferred. The rules regarding competency, only apply to the first kind of competency, and relevancy to the second. The Court protects the Jury, both from incompetent and irrelevant evidence: the farther removed the fact to be inferred is, from the fact proven, the less is the probability, for, iu each inference, there may be an error; and the rules of evidence are framed more with a view to exclude falsehood, than to let in the truth. They are said in this particular, not to be unlike the rule of descent in excluding the half blood, which is subsidiary to the grand canon, that none shall succeed to the inheritance but one of the blood of the first purchaser: the subsidiary rule deprives many who are of the blood of the fir st purchaser of the inheritance ; but by a rigid adherence to it, none but one of the blood can succeed. That the fact to be inferred, often accompanies the fact proven, is not sufficient, it should. most usually accompany it; and I would say,'in the absence of all circumstances, that it should rarely otherwise happen. But the strong objection in this case is, that there must be two"infe-rences draw n, to wit; the wife saw and fed the slave, ergo, she knew he was diseased; that the wife knew it, ergo, the husband knew it, being *124informed by her: an error in either inference, which might very well happen, would introduce a falsehood; which, as I have before said, is an object of more solicitude than ^jie exclusion of the truth. The Judge, I think, was right, in refusing tiie evidence. The rule for a new trial must be discharged.

Hall, Judge,

dissentiente. — 1 am inclined to think that proof of the wife’s acts, in this respect, ought to have been received in evidence: when received, they are not at'all decisive of the question; but the Jury are at liberty to draw such inferences from them as they may think right and just. One reason given why the wife shall not be a witness for or against the husband, is, that perjury might be committed in suffering a person to give evidence who la-bours under so great a bias; that reason does not hold good in this case.

It appears to me also, to be relevant, for the defence made by the Defendant was, that the Plaintiff was as well acquainted with the slave as the Defendant was. If the Plaintiff was proved to have seen and fed the negro, when run away, and just before ho bought him, it would certainly be proper evidence to be left to the Jury. If the wife was proved to have acted in the same way, although weaker evidence, it appears to me to be evidence of the same character. It is not conclusive, but a circumstance of which the Jury ought properly to judge.

I therefore, think, the rule for a new trial, should be made absolute.