By the Court. —
Lumpkin, J.delivering the opinion.
This was an action on the case, in nature of deceit, by James Stroud, against Henry S. Mays andBeersheba Stroud, in the sale of a negro named Simon. On the trial, there was much testimony adduced on both sides. The Jury returned a verdict for the plaintiff, for $675; and the Court granted a new trial on the sole ground that the verdict was contrary to evidence. And this writ of error is brought to reverse that decision.
By the Civil Law, where there is no fraud and no agreement to the contrary, in case the article proves to be unsound, or different from what both parties supposed it to be, the loss falls on the seller; by the Common Law, it is thrown on the purchaser. The rule in the one code is, a sound price implies sound property. In the other, caveat emptor; the vendor, without express warranty, merely undertaking to make a good title to the vendee, *273who, if ho doubts the goodness or quality of the article, or does not choose to incur the risk of a latent defect, may refuse to purchase without a warranty.
In the bill of sale to Simon, there is no warranty, and the present action is brought for the breach of an implied warranty, or as it is sometimes denominated, a warranty in law; that is, it charges the unsoundness of the slave, at the time of the contract, the knowledge of that fact by the owners, and its fraudulent concealment, with reason to believe, on the part of the sellers, at the time, that the purchaser trusted them in regard to the matter.
Had the Court the right, in the proper exercise of its discretion, to set aside the verdict of the Jury 1
[1.] In Peck vs. Land, (2 Kelly, 16,) this Court held the following language : “ If it were true, as assumed in the rule, that the verdict was without evidence, there could be no doubt in the case. But, by looking into the testimony, we are satisfied that such is not the fact. The rule for our guidance, is clearly defined in the books, and is this: ‘ That the verdict will not be set aside, as contrary to evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict.’ We add: ‘If it be true, that in all cases facts are the peculiar province of the Jury, and that it is for them to say, in any given ca'so, whether the proof produced be sufficient or not, much more will the Courts refrain from disturbing the verdict, when a question of fraud is submitted to the Jury.” And this conclusion, we are fully persuaded, is in accordance with all the authorities, English and American, upon this subject.
“ The question,” said Lord Ellenborough, in Carstairs vs. Stein, (4 M. & Selw. R. 192, 199,) “ before us, is not, whether the verdict given in this case, is such as we should, ourselves, have given ; but whether, having been given by a Jury, to whom the whole case was fully left in point of fact, and to whom the law upon the case was distinctly stated, it ought to be set aside, upon the grounds of the argument now suggested to us, viz : that they have drawn an erroneous conclusion ?” lie thought not.
And, said Tilghman, C. J. in delivering the opinion of the Court, in Lessee of Fetch vs. Good, (2 Binn. 495,): “The cause turned upon matters of fact, and it was submitted to the Jury, resting very much upon the credibility of one of the plaintiff’s *274witnesses. The character of the witnesses, and the credit which is due to them, are subjects peculiarly within the province of the Jury; and where the verdict has depended on these points, the Court has always refused to interfere, except in extraordinary cases.”
[2.] Judge Story, in Alsop vs. The Commercial Insurance Company, (1 Sumner’s R. 451,) (and it is always refreshing, in questions of law, to find shelter under his name; it is as the shadow of a great rock in a weary land!) thus expresses himself, on a question precisely similar to the one under consideration : “ In considering questions of this nature, I confess myself among those Judges, who are very reluctant to intermeddle with the verdicts of Juries, in mere matters of fact. There was atime whenCourts were disposed to go an extravagant length on this subject, and to set aside the verdict of the Jury, merely because, in the opinion of the Court, the weight of evidence was on the other side. This was, indeed, substituting the Court for the Jury, in trying the credibility of testimony, and the weight of evidence. For one, I am not disposed to proceed far upon this dangerous ground; and in matters of fact, I hold it to be my duty to abstain from interfering with the verdict of a Jury, unless the verdict is clearly against the undoubted general current of the evidence ; bo that the Court can clearly see that they have acted under some mistake, or from some improper motive, or bias, or feeling. And upon a question of fraud in fact, which is made up of so many ingredients, and is so peculiarly within the province of the Jury, I do not hesitate to say 1 should he more reluctant to interfere, than in any other case.”
I am not insensible to the force of the very able and ingenious argument, which has been submitted by the counsel of the defendants in error. But after all, the question recurs, will this Court undertake to say, that there was no fraud in the sale of this negro, when the Jury, upon sufficient evidence, have found that there was ? And,to justify the Court in setting aside the verdict, it is not sufficient that it should doubt or entertain scruples about the result of the finding. It must clearly see, and be satisfied that it was wrong. Were I in the Jury-box, I am not prepared to say that I should have found differently upon the evidence, in this bill of exceptions.
Keeping in view, then, the proper preservation and protection *275of the rights and privileges of the Jury, we are constrained to reverse this judgment, and to hold that their opinion, in a casefairly before them, upon a matter of fact, purely and fitly within their province, about which there was a great variety of testimony on both sides, ought not to be disregarded.
In our judgment, therefore, the motion for a new trial ought not to have been granted.