*712 By the Court.
Benning, J.delivering the opinion.
The two requests seem to go upon the assumption, that' if Long used the negro as his own after his knowledge of the negro’s unsoundness; and especially, if he used the negro as his own, after such knowledge and a tender back of the negro, and a refusal by Mr. McLaren to receive the negro, such using of the .negro, amounts to an election to consider the negro as sound, and consequently, amounts to a waiver of all right of action in the case.
We do not think, that the law warrants such an assumption. No authority was referred to us in support of the assumption.
There was nothing, then, as we think, in the two grounds consisting of the refusals to charge these two requests.
The Court charged the jury, “ that the measure of the damages was the price for which the negro was purchased by the plaintiff, and the interest, provided, the slave was tendered back in a reasonable time after the discovery of the fraud, if any.”
This charge would perhaps be right, if Long had elected to rescind the contract and sue for the original purchase money and interest, as in that case, the parties would have been put in statu quo, which would give Long a right to have back his money and the interest on it, and, McLaren, (or Latham,) a right to have back his negro together with the negro’s hire. But he did not do this. He sued in deceit — which was really claiming under the contract. The action of deceit, though itself in tort, grows out of contract. It is true, that there was evidence showing that an offer was made to return the slave, but it is also true, that there was evidence showing that this offer was refused, and, that Long after such refusal, used the negro instead of abandoning him, and brought suit, in deceit, instead of, in assumpsit All of which taken together, .shows, that although he offered to return the negro, yet that, when the offer was refused, he elected, not to re*713liciiid the contract, blit to hold on to it, and rely upon the right to compensation for the deceit.
What then is it, that would have been the measure of this compensation ? The purchase money and the interest thereon? Only in .case the negro was utterly -worthless. In that case, this might, perhaps, have been the measure of the damages, though, it may admit of a question, whether interest9 eo nomine, can be given in tort, But, the negro was not utterly worthless. He was able to do “ a half hand’s work he hired for @65, in 1854; when his health was last heard from, it had improved.” “I think,however, that his'health has improved, some,” says, Dr. Walton speaking on the 11th of February, 1854.
[2.] We think, then, that the Court ought to have told the jury, that if they found against McLaren, they must allow him in the verdict, the value of the negro, and of his hire. And, therefore, we must grant a new trial.
This makes it unnecessary, to express an opinion on the ground insisting that the verdict was contrary to the evidence ; still, as the question is made; we may say that we should find some difficulty in holding that the verdict is nol against the weightof the evidence.
The only remaining ground of the motion, is, that the Court admitted to the jury, the bill of sale made by Latham, the suit being against McLaren. But the great question in the case was, whether or not, this bill of sale though signed by Latham, was not really the hill of sale of McLaren. Long insists, that Latham, in the sale of the negro, was merely acting for McLaren. Whether Long was right or not, was a question for the jury, and on that question, the bill of sale was certainly relevant — so, we see nothing wrong in its admission.
■New trial ordered on the ground of the charge.