Halliburton, as the administrator of the estate of Joseph Hough, deceased, brought his action of debt upon a writing obligatory executed by Willis to Hough for $6,000.
The defendant filed three pleas:
First. That the consideration for which the writing obligatory was‘given, has wholly failed in this, that it was given for negro slaves, which were, by bill of sale, warranted to he slaves for life ; that the warranty was false and fraudulent in this, that Hough, at the time of the sale, had no title whatever to the slaves; that suit was commenced against defendant for the recovery of the slaves, but before it was consummated the slaves were emancipated by the laws and Constitution of Arkansas, so that the suit could not be determined; the negroes are beyond the defendant’s control, and the consideration has failed, and this he offers to verify.
The second plea sets up that Hough falsely and fraudulently represented to defendant, that he, the said Hough, was the owner of the slaves, and that relying upon such representation, in consideration of the title and ownership of the slaves which Hough falsely and fraudulently pretended to give, and for no other consideration, and relying upon which the defend-' ant executed and delivered the writing in suit, which representations of title and ownership were false and fraudulent, and that after such fraud was discovered, defendant was not able to return said slaves, because they were emancipated by force of the Constitution, whereby defendant has been damaged to an amount exceeding the amount of the writing sued on, and the interest thereon, to wit: twenty thousand dollars, out of which defendant offers to set off the debt of plaintiff, and verifies.
The third plea sets up that the writing declared on was given in consideration of slaves which were warranted to be such for life, but that the negroes were not slaves for life, and were thereafter freed and emancipated by force of the Constitution of the State of Arkansas, Avhereby the Avarranty has become and is falsified and broken, and the defendant damaged in a sum equal to that sued for, out of which he offers to recoup the debt and damages of the plaintiff.
To these pleas the plaintiff demurred; the demurrer Avas sustained, and the defendant having declined to plead further, final judgment was rendered against him, from which judgment he has appealed.
The questions of law presented for. our consideration arise upon the sufficiency of these pleas. The first plea is defective in this: that.it contains no averment of the recovery of the slaves by one holding a superior title. Villard v. Abbott & Johnson, 19 John. Rep., 77; Hinson v. Dunn, 5 Ark., 395; Sumner v. Gray, 4 Ark., 471. The excuse set up in the plea that the adverse claimant to the property had been prevented by the emancipation of the slaves from prosecuting his suit to judgment is not sufficient.
The second plea is based upon an alleged fraud on the part of the vendor, and the excuse set up in the . plea for not having returned the slaves, or offered to return them, is insufficient. Slaves were the defendant’s property at the time they were emancipated, and he must bear the loss occasioned by their emancipation.
The third plea presents substantially the -same question as that decided in Dorris v. Grace, 24 Ark., 326, and upon the authority of that ease, must be held insufficient.
The demurrer to the pleas was, therefore, properly sustained.
Judgment affirmed.