#### HENRY COBB vs. HENRY FOGALMAN.

Although it is not easy in practice to draw the boundary between a defect of evidence and evidence confessedly slight, yet, where no part of the testimony offered can fairly warrant the inference of the fact in issue, or furnish more than materials for a mere guess or conjecture thereon, it is error in the Court to leave it to the jury to infer the fact from . such testimony.

' This was an action of deceit, tried before his Honor Judge Pearson, at the Spring Term, 1841, of Guilford Superior *441Court. Plea, The general issue.” The fraud complained of, was alleged to have been committed in the sale of a female slave, named Sally, who, at the time of the sale, labored under cancer or other disease of the womb, which was cealed by defendant. The plaintiff produced a bill oí sale in the hand-writing of the defendant, executed by the defendant to him, for the saidslave, and her daughter Hannah, about four years old, dated June 11th, 1838, containing a warranty of title, but not of soundness, and proved that the price given was a fair one. He also offered evidence, to shew that said slave Sally, while in possession of the defendant* had borne, after the aforesaid child Hannah, two children, at different times, which were either born dead, or survived but a short time; that at the time of sale, she was advanced in pregnancy about six months ; that on several occasions3 soon after the purchase by plaintiff, she was attacked with faintness when working in the harvest field of the plaintiff, and in August thereafter, was taken in labor, when, after an interval of about thirty-six hours, a physician was called in, who performed the Cmsarean operation, delivered her of a child, which he testified was then recently dead, and that the mother died about five or six days thereafter. He also testified, that from examination, he found the neck of the womb diseased with cancer or sarcomatous tumor, which rendered a natural delivery impossible, and that, in his opinion, the disease had existed for several years ; but that its symptoms were not distinguishable from those of pregnancy. The plaintiff also produced evidence, to shew that the slave had attacks of faintness, while in the defendant’s possession ; that defendant admitted this to the plaintiff, after the death of the slave, and said they occurred while she was pregnant; and when asked, why he did not tell the plaintiff of the dead children, as if he had known it he would not have bought her, he said he had forgotten it. It was also in evidence, that at the time of sale, defendant had no other female slave, except a girl about 14 years old. The defendant offered evidence, to shew that he had owned the slave Hannah about lour years ; that she was a stout, vigorous looking woman, *442and, during all the time he owned her, performed service as a c0°k an<^ washerwoman for his family, or as a field hand ; and was on no occasion prevented from service by sickness, ^ an a(j;ac]c of measles, and during her confinement with the three children spoken of by the plaintiff’s witnesses; that in the opinion of other physicians, a womb, diseased as that of this woman was described to be, was incapable of impregnation ; and that no physician could tell from, examination of the womb, how long it had been diseased. He also produced evidence, to shew that the plaintiff, about a month before the sale aforesaid, bought a negro man, the husband of Sally, and who had been her husband all the time that the defendant owned her; that the plaintiff owned no other slave, except a small boy; that the plaintiff came twice to the house pf the defendant, to chaffer about the purchase of the woman, before she was taken away; that messages were carried between'him and the defendant, by the negro man aforesaid, on the subject of the trade, but their import was not shewn ; that the plaintiff said, the reason why he wished to purchase her was, that he owned the husband, and that his daughters did not like to wash for the negro man; that, on one of his visits to the house of the defendant as aforesaid, the plaintiff asked permission to have a conversation with Sally, and had a short interview accordingly, the defendant not being present. The defendant lived in Orange, and the plaintiff in Guilford County, about 15 miles apait.

It was admitted in argument, and so laid down by his Honor, that the plaintiff, in order to recover, must satisfy the jury, 1st. That the unsoundness of the negro existed at the time of sale. 2dly. That the defendant knew or had reason to believe its existence at the sale. 3dly. But if these facts were proved, if the plaintiff also knew of the unsoundness at the time of the sale, or had reason to believe its existence, or there was sufficient ground to put an ordinary man upon enquiry, either by disclosures made by the defendant or in any other way, the plaintiff would not be entitled to recover. But in this case, there was no evidence that the defendant had made any disclosure, there was no evidence that the plaintiff could by ordinary inspection ('such as a practi*443tioner in medicine was presumed or required to have), have detected the unsoundness, and the jury were not at liberty to infer, either that' the negro woman or her husfcánd, plaintiff’s slave, had informed the plaintiff of its existence, as the tiff’s counsel had contended, the slave being treated by his master with great kindness and familiarity, or to infer that the negro woman and the negro man had concealed the fact from the plaintiff, as he was desirous for his master to purchase his wife. Whether the disclosure was made by them or not, was a mere matter for guessing, and the Court thought proper to charge the jury, that if the negro was unsound and the defendant knew it, the plaintiff was entitled to a verdict, as there was no evidence that the plaintiff knew of the unsoundness, or was put on his guard.

A verdict being rendered for the plaintiff, a new trial was moved for, on the ground of the verdict being against evidence and for misdirection,which was refused. Judgmentbeing thereupon rendered for the plaintiff, the defendant appealed to the Supreme Court.

James T. Mor ahead W. H. Haywood, jr. for plaintiff,

Waddell Iredell for defendant.

Gaston, J.

The case made for the consideration of this Court, sets forth the evidence given on the trial, and the Judge’s instructions to the jury, with respect-to the application of that evidence to the decision of the issue, which they were impanjielled to try. It doesnot state any specific instructions prayed, or exceptions to those instructions taken, by either party, and we have therefore no other means of ascertaining whether the law was correctly administered, than by a comparison of the evidence with the instructions.

With the positions of law laid down by his Honor, as abstract positions, no fault can be found. To enable the plaintiff to recover, because of a deceit, it was necessary to establish the existence of the alleged defect at the time of the sale, and a knowledge or belief of its existence on the part of the vendor, and even if these facts were established, the plaintiff could not recover, if he, at the time of his purchase, knew or *444had reason to believe that the defect existed. If he knew of the defect, or was cautioned against it, he was not deceived And if the vendor knew it not, or suspected it not, he was not gU-jjfy 0f imposition.

We hold too, that the judge was warranted in instructing the jury, that, if the defect in question existed at the time of the. purchase, there was no evidence that the purchaser then, knew or had been informed of this defect. It was indeed possible, that he might have acquired such information in his •private conference with the negro woman, or from communications from her husband. Bnt where the law does not presume the existence of a fact, there must be proof, direct or indirect, before the jury can rightfully find it; and although the boundary, between a defect of evidence and evidence confessedly slight, be not easily drawn in practice, yet it cannot be doubted that what raises but a possibility or conjecture of a fact, never can amount to legal evidence of it. Our difficully, however, lies in this, that while the jury were explicitly instructed, that upon the testimony given in, there was no evidence, upon which they could infer that the plaintiff was apprized of the defect at the time of his purchase, it was left to them, as a question depending upon the weight of evidence, whether the defendant had or had not knowledge thereof before he sold. We have carefully examined all the testimony stated, and we are unable to lay our hands upon any part of it, which can fairly warrant the inference of such knowledge, or furnishes more than the materials for a mere guess or conjecture thereon. It was indeed for the jury to determine, whether to rely on the judgment of the medical gentleman, who was of opinion that the disease had been of many years duration, or on that of the other learned gentlemen, who pronounced that it could not have pre-existed the woman’s pregnancy.' — ■ On this point, there was evidence on both sides, and it was for the triers of the fact to compare and weigh this evidence. But admitting the existence of the disease previously to the sale, what proof was there, direct or inferential, that the defendant knew of it or suspected it ? Not one sympton of the disease is shewn to have occurred, while the woman *445was in his possession, which could have indicated its existence, even to the members of the medical profession. “The symptons were not distinguishable,” (such are the words of the doctor who attended the poor woman in her last delivery) “ from the symptons of ordinary pregnancy.” How, then, from any of these symptons could it be inferred, that any person, either the sufferer herself or her master, had discovered the latent disease? Even the materials for a guess or conjecture were not furnished by the occasional attacks of faintness, which she had while in a state of pregnancy, and no other indications of a want of health at any other time than during pregnancy, are alleged to have existed. But she had borne two children since the one, then four years old, which was sold with her, and these had either been born dead or had died a short time after their birth, and the seller made no communication to the purchaser in relation to these occurrences. Now, in the first place, it was left wholly uncertain by the testimony, how the fact was, whether these children were born dead, or had died soon after their birth. In the next place, there was no testimony, that however the fact might be, quacicmqtie via data, it furnished a rational ground to suspect that the mother labored under this disease. And, lastly, the purchaser, when he bought the mother and her youngest child, then four years old, was necessarily apprized that either she had ceased to breed, or had been unfortunate with her subsequent children. What might be the cause of this interruption in the increase of issue, according to the ordinary course of nature, was a fair subject of conjecture with both, and not more a matter of knowledge with one than the other. The remaining circumstance is, that the defendant sold the woman, though the only other female slave he owned was but 14 years of age. Before any inference of an unfair motive for making the sale could thence be deduced, there ought at least to have been some evidence of the situation of the defendant or his family, or of the peculiar qualities of this negro woman, repelling or tending to repel the ordinary presumption of fairness, which is always drawn by the law, until there be proof to the contrary.

*446We feel ourselves constrained to hold, that there was error in leaving it to the jury to infer from the testimony a fraudulent intent in the defendant, when no evidence had been given from which such an intent could be inferred.

Per Curiam, Judgment reversed, and new trial awarded.