By the Court.
Starnes, J.
delivering the opinion.
[1.] Error is first assigned in this case, because the Court below admitted the testimony of Isaac E. Gordon, taken by commission.
It is contended .that this evidence should not have been submitted to the Jury, because the witness did not state facts sufficient to show the execution of the bill of sale; that according to his statements, though he was present, it does not appear that he saw the instrument executed.
[394]*394It is true, lie does not say, in explicit terms, that he saw the-parties■ affix their signatures, but he says what is tantamount thereto; He states, that he had seen the instrument presented! to-him before, and that he was present when the same was executed. This is plainly to be understood as an affirmative-statement, that the instrument to which he is testifying, .and! which he identifies, he knows, by occular evidence, to have been- executed in his presence. No other reasonable construction can be placed upon the statement, as we find it in the record ; and there can be no doubt that if this were not true, and the same could be shown by proper evidence, the witness might be convicted of perjury.
[2.] It is next alleged, that the Court committed error in admitting the depositions of John C. Simmes and Tollersom Kirby;
It is correct, as stated, that the name of the slave, concerning whom these witnesses testify, is not given by them: nor is • the time stated, of the purchase, to which reference is made, but only the time of the conversation. There are circumstances, however, in other portions of the testimony, which go to show' what slave was spoken of, and also what purchase was the subject of conversation, and it was no doubt, with reference to these other features of evidence, that the Judge permitted this evidence to be considered by the Jury.
Testimony, by itself vague, and apparently relating to matter not in issue, may be made certain in its character, and plainly relevant, by other facts in proof. And that before us, falls within this description of evidence.
The witness, Kirby, speaks of Adams as having swapped the slave to plaintiff; and it is insisted, that this could not have been the same transaction with that spoken to by the other witnesses, as that was called a purchase. Rut a “ swap” or “exchange” may, in general terms, be called a sale. And he who, by such a transaction, exchanges, barters or “swaps” one article for another, may very correctly be said to procure that article by purchase. The only technical difference, indeed, between a sale, and an exchange or barter, is, that “ im [395]*395tbe latter, the price, instead of being paid in money, is paid in goods or merchandize, susceptible of valuation”. (2 Bouv. Dic. 479.) In this sense it was, without doubt, that this transaction was called a purchase.
[3.] It is also alleged that error was committed by the admission of the bill of sale in evidence — 1. Because, as was contended, the same had not been proven to have been executed. 2. Because, as was insisted, it was not binding on the ¿plaintiff in error, being an instrument executed by Allen & Adams, as co-partners, and not as agents for plaintiff in error.
The execution of the instrument is sufficiently proven, as we fhave already shown.
The other point raises a question of more importance. It •is very plain, from the record, that one of the slaves conveyed by this bill of sale, belonged to the plaintiff in error, and was sold by Adams, who, as his agent, had full authority to sell and warrant him. The other seems to have been the property of Allen. According to the statement of the witness, Adams, he and Allen made a joint trade with the defendant in error, •“swapping him two negroes for one”; that Allen owned one ’*of the negroes sold, and plaintiff in error, for whom he was acting as agent, the other, viz: the boy Daniel, the subject of this suit; and that they “gave a joint bill of sale” for the .same.
The legality of this transaction is the matter now in question. Was this bill of sale, as thus executed, binding and valid, as against the plaintiff in error ?
We have two observations to make in reply to this question.
1. It seems to have been the intention of the agent, by this form of conveyance, to give a good title, with warranty of soundness to the purchaser. Prima facie, the transaction is a co-partnership transaction; but the evidence explains t.hip; and shows that that which appears to have been a partnership transaction, was really not so; but was probably made to take this form for the sake of convenience. .It would seem very reasonable and just, after such proof, that effect should be given •to the instrument accordingly; and that the substantial justice [396]*396of the transaction should not be defeated by the technical form •of its execution.
2. If this be not correct, we are very sure, that according to this record, Adams, as agent, had authority from the plaintiff in error, at least, to sell and warrant the slave Daniel in the usual form; and that if, in selling him as he did, he trans'cended his authority by forming a partnership pro hac with Allen, in the sale of the two slaves, the act should be void-only •so far as he thus transcended his powers, and remain valid, as a sale and warranty of Daniel by him, as agent for the plaintiff in error. (Paley on Agency, 164. Story on Agency, §§85, 126.)
It Avas urged that the testimony proved an agency in Adams, for Bacon & Mosely, and not for Mosely alone: but on this •subject; we find that the evidence is somewhat conflicting. It Avas proper for the Jury to determine this question; and ■ the remarks which Ave have made, proceed upon the supposition, that Adams was found, by the Jury, to have been the agent for the plaintiff in error; a finding that, in our opinion, the evidence would have fully authorized;
[4.] It was next objected, that the Court erred in rejecting the testimony of Robert" W. Simmes, John L. Stephens and Robert J. Morgan. By these gentlemen, it was proposed to prove “the general character and reputation of ‘Silas Gordon, for his bad treatment of his slaves;” and also, that “he had been indicted for cruel treatment of his slaves ”.
It Avill be observed, that it was not proposed to show, by these witnesses, that from their knowledge of defendant in error and his slaves, he was in the habit of treating them cruelly, and in a rvay which Aras likely to produce such- a disease as that of which the slave Daniel had died. It might be doubtful if even such evidence as this Avould be admissible; but that which was offered, Avas only evidence of general character — reputation; in other Avords, hearsay, and was plainly inadmissible. ■
[5.] The fifth and sixth assignments of error will be considerodtogether. They grow out of the charge of the Court, who, among other things, instructed the Jury, “ that on the question [397]*397•of soundness, if they should believe that the seeds
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By the Court.
Starnes, J.
delivering the opinion.
[1.] Error is first assigned in this case, because the Court below admitted the testimony of Isaac E. Gordon, taken by commission.
It is contended .that this evidence should not have been submitted to the Jury, because the witness did not state facts sufficient to show the execution of the bill of sale; that according to his statements, though he was present, it does not appear that he saw the instrument executed.
[394]*394It is true, lie does not say, in explicit terms, that he saw the-parties■ affix their signatures, but he says what is tantamount thereto; He states, that he had seen the instrument presented! to-him before, and that he was present when the same was executed. This is plainly to be understood as an affirmative-statement, that the instrument to which he is testifying, .and! which he identifies, he knows, by occular evidence, to have been- executed in his presence. No other reasonable construction can be placed upon the statement, as we find it in the record ; and there can be no doubt that if this were not true, and the same could be shown by proper evidence, the witness might be convicted of perjury.
[2.] It is next alleged, that the Court committed error in admitting the depositions of John C. Simmes and Tollersom Kirby;
It is correct, as stated, that the name of the slave, concerning whom these witnesses testify, is not given by them: nor is • the time stated, of the purchase, to which reference is made, but only the time of the conversation. There are circumstances, however, in other portions of the testimony, which go to show' what slave was spoken of, and also what purchase was the subject of conversation, and it was no doubt, with reference to these other features of evidence, that the Judge permitted this evidence to be considered by the Jury.
Testimony, by itself vague, and apparently relating to matter not in issue, may be made certain in its character, and plainly relevant, by other facts in proof. And that before us, falls within this description of evidence.
The witness, Kirby, speaks of Adams as having swapped the slave to plaintiff; and it is insisted, that this could not have been the same transaction with that spoken to by the other witnesses, as that was called a purchase. Rut a “ swap” or “exchange” may, in general terms, be called a sale. And he who, by such a transaction, exchanges, barters or “swaps” one article for another, may very correctly be said to procure that article by purchase. The only technical difference, indeed, between a sale, and an exchange or barter, is, that “ im [395]*395tbe latter, the price, instead of being paid in money, is paid in goods or merchandize, susceptible of valuation”. (2 Bouv. Dic. 479.) In this sense it was, without doubt, that this transaction was called a purchase.
[3.] It is also alleged that error was committed by the admission of the bill of sale in evidence — 1. Because, as was contended, the same had not been proven to have been executed. 2. Because, as was insisted, it was not binding on the ¿plaintiff in error, being an instrument executed by Allen & Adams, as co-partners, and not as agents for plaintiff in error.
The execution of the instrument is sufficiently proven, as we fhave already shown.
The other point raises a question of more importance. It •is very plain, from the record, that one of the slaves conveyed by this bill of sale, belonged to the plaintiff in error, and was sold by Adams, who, as his agent, had full authority to sell and warrant him. The other seems to have been the property of Allen. According to the statement of the witness, Adams, he and Allen made a joint trade with the defendant in error, •“swapping him two negroes for one”; that Allen owned one ’*of the negroes sold, and plaintiff in error, for whom he was acting as agent, the other, viz: the boy Daniel, the subject of this suit; and that they “gave a joint bill of sale” for the .same.
The legality of this transaction is the matter now in question. Was this bill of sale, as thus executed, binding and valid, as against the plaintiff in error ?
We have two observations to make in reply to this question.
1. It seems to have been the intention of the agent, by this form of conveyance, to give a good title, with warranty of soundness to the purchaser. Prima facie, the transaction is a co-partnership transaction; but the evidence explains t.hip; and shows that that which appears to have been a partnership transaction, was really not so; but was probably made to take this form for the sake of convenience. .It would seem very reasonable and just, after such proof, that effect should be given •to the instrument accordingly; and that the substantial justice [396]*396of the transaction should not be defeated by the technical form •of its execution.
2. If this be not correct, we are very sure, that according to this record, Adams, as agent, had authority from the plaintiff in error, at least, to sell and warrant the slave Daniel in the usual form; and that if, in selling him as he did, he trans'cended his authority by forming a partnership pro hac with Allen, in the sale of the two slaves, the act should be void-only •so far as he thus transcended his powers, and remain valid, as a sale and warranty of Daniel by him, as agent for the plaintiff in error. (Paley on Agency, 164. Story on Agency, §§85, 126.)
It Avas urged that the testimony proved an agency in Adams, for Bacon & Mosely, and not for Mosely alone: but on this •subject; we find that the evidence is somewhat conflicting. It Avas proper for the Jury to determine this question; and ■ the remarks which Ave have made, proceed upon the supposition, that Adams was found, by the Jury, to have been the agent for the plaintiff in error; a finding that, in our opinion, the evidence would have fully authorized;
[4.] It was next objected, that the Court erred in rejecting the testimony of Robert" W. Simmes, John L. Stephens and Robert J. Morgan. By these gentlemen, it was proposed to prove “the general character and reputation of ‘Silas Gordon, for his bad treatment of his slaves;” and also, that “he had been indicted for cruel treatment of his slaves ”.
It Avill be observed, that it was not proposed to show, by these witnesses, that from their knowledge of defendant in error and his slaves, he was in the habit of treating them cruelly, and in a rvay which Aras likely to produce such- a disease as that of which the slave Daniel had died. It might be doubtful if even such evidence as this Avould be admissible; but that which was offered, Avas only evidence of general character — reputation; in other Avords, hearsay, and was plainly inadmissible. ■
[5.] The fifth and sixth assignments of error will be considerodtogether. They grow out of the charge of the Court, who, among other things, instructed the Jury, “ that on the question [397]*397•of soundness, if they should believe that the seeds of the disease were in the negro, at the time of sale, though not developed until sometime after the sale, but afterwards died of this same disease, which was upon him at the time of the sale, this would ■constitute a breach of the warranty of soundness”.
The defendant’s Counsel insisted, in the argument before the Jui'y, “that in this case, the plaintiff was bound to prove, positively, that the negro was of no value, at the time of sale, or he could recover nothing ; and that keeping the negro and failing to return him, or offering to return, wag evidence of some value; and after the argument, the defendant’s Counsel requested the Court to charge the Jury, thatthe burthen of proof was on the plaintiff; and that unless the plaintiff had proven that the negro boy, at the time of sale, was of no value, they must find for the defendant”. And the Court charged the Jury, that “ in this case, they must be satisfied, from the evidence, that the negro was of no value, at the time of sale, or they must find for the defendant”.
To all of this the Counsel excepted.
Now the first part of this charge, by itself, would have been exceptionable. If the evidence had shown, that at the time of the purchase, although the seeds of the disease were in the slave; yet, that by proper treatment, he might have been restored to health, and was, accordingly, worth something — any thing — then the plaintiff in error was entitled to be allowed something for him in the Court below. And if the Court had added nothing to the sentence first quoted, perhaps the objection which is taken would have been fatal. It was proper for the Jury to decide, from the testimony of Dr. Ridley, or from any other evidence, whether or not the slave might not have been cured, if he had received judicious treatment from the time of the sale; and if they believed that he might have so been cured, then was he, at that time, worth something. If worth something, and there was no proof of an offer to return the slave, and no evidence of what that something was; that is to> say, no proof of amount, in such case there would have been nothing on which a verdict for the plaintiff could rest; and the [398]*398defendant would have been entitled to the verdict. In such event, if-the Judge had not added anything to the first sentence of -instruction quoted, he would have failed to place the matter in its proper light before the Jury. But, as we have seen, the Court distinctly told the Jury, that in that case, they must be satisfied, from the evidence, that the negro was of no value, at the time of the sale, or they must find for the defendant. This surely brought their attention to the fact, that if there was before them any proof that the negro was of some value, under the circumstances in evidence, they must find for the defendant; and it sufficiently qualified what he had said, •as to the seeds of the disease being in the slave at the time of the sale. This was recognizing, too, what the Counsel had insisted on in the argument, viz: that “the plaintiff was bound •to prove that the negro was of no value, at the time of sale, or he could recover nothing”.
Whether or not the keeping of the negro, and failing to tender him back, was evidence of some value, was for the Jury to decide. Certainly, under the instructions given, if they had found this to be so, they would have been compelled to find for the defendant. We cannot see, therefore, how that defendant has suffered injury from the charge; and we accordingly affirm the judgment.