Hill vs. Mitchell

declared to be such matter. Any packet or packets, of whatever size or weight, being made up of any such inailable matter, shall subject all persons concerned in transporting them to all the penalties of the Act, equally as if it or they were pot so made up into a packet or packages. Ib. 768 and 769. By the same Act, books, magazines or pamphlets, or newspapers, not marked, directed, or intended for immediate distribution to subscribers, or others, but intended for sale as merchandize, and transported in the usual mode of transporting merchandize over the particular route used, and sent or consigned to some bona fide dealer or agent for the sale thereof are not within the prohibition. Books bound or unbound not weighing over four pounds are to be deemed mailable Ib. 786. Were these bonds and deeds mailable matter? They were either written or printed matter, and each one does not exceed eight ounces in weight. It follows that they are mailable matter. If each bond or deed is under eight ounces in weight, the transportation of a packet of whatever size or weight, is prohibited under a penalty, and is unlawful.

matter.

The Act of Congress prohibits the establishment of a private Express for any such purpose and prohibits its under a penalty.

The business is unlawful, and contracts made with the persons who, in defiance of the law, carry it on, and in furtherance of that business, are unlawful and void. The object of the Government was to prevent effectually, all arrangements and practices by which the revenue of the Post Office Department might be cut off or impaired. The Acts of Congress are plain and intelligible and it would be well for those who incautiously violate them to look to it.

It is argued, that if the contract falls within the prohibition and is therefore void, that still the defendant is a common carrier and of course, has a lien in that character until charges are paid, and that his possession was legally acquir ed. If it be true that the possession was legally acquired, it

McLaren vs. Long, adm'rx, &c.

is a possession for the true owner, and if he hold against the owner after a demand, it is a denial of the owner's right and a conversion. What right has he against the rightful owner, if he acquired that possession from a person who had neither power nor authority to deliver the possession? None at all The rightful owner has a right to claim her property whenever she finds it, and because the person who has it is a common carrier, he cannot demand of her the discharge of a lien, which did not originate in any contract with her express or implied for the transportation. Suppose she did not desire the property sent?

But the contract for the transportation was illegal and void whether express or implied and in whatever form presented. It is equally a fraud on the postal laws, whether the packet was transported for one dollar or for five hundred, or if it was wholly gatuitous. No lien can attach in such case.

Judgment affirmed.

PETER MCLAREN, plaintiff in error, v3. ELIZABETH LONG adm'rx, &c., defendant in error..

[1] In a caso of deceit, the purchaser does not lose all right of action, by using the thing purchased, after he discovers the dossit, or even, after a tender back of the thing and a refusal to receive it.

[2.]. In an action of deceit, if the property is of any value, that value must be allow.ed to the Cefendant, in the assessment of the damages.

Action on the case for deceit, in Muscogee county. Tried before Judge WORRILL, May Term, 1858.

McLaren vs. Long, adm'rx, &c.

Davis Long brought an action of deceit, against Peter McLaren, in which he alleged that McLaren had sold him an unsound negro as a sound negro, knowing the negro to be unsound; in another count he alleged that the said defendant and Milton S. Latham as defendant's agent, fraudulently colluded and sold said negro to plaintiff, as a sound negro, when he was unsound, and so known to be by McLaren. Afterwards, Long died, and his widow, Elizabeth, was made a party in his place. On the trial of the case the jury found for the plaintiff, and defendant by his counsel moved for a new trial on the following grounds:

Because the verdict was contrary to the evidence.

Because the verdict is manifestly against the weight of evidence.

Because the Court erred in refusing to charge the jury when requested to do so in writing, that if the proof showed that plaintiff after knowledge of the unsoundness of the slave, and after he tendered him back, and the defendant refused to accept him, used him as her own property, and still continues. to do so, that the plaintiff cannot recover in this action.

Because the Court refused to charge as requested in writing, if the jury believe that plaintiff, after he knew of the unsoundness of the negro, retained him and hired him out twe or three years, and still retains him in possession, that he cannot recover, although it appears that he first tendered him back to defendant, and defendant refused to receive him.

Because the Court charged the jury, that the measure of damages was the price for which the negro was purchased by the plaintiff, and the interest thereon; provided, the slave was tendered back in a reasonable time, after the discovery of the fraud, if any.

Because the Court allowed the bill of sale of Latham to be introduced in evidence in this suit, the said Latham not being a party thereto.

McLaren vs. Long, adm'rx, &c.

Brief of Evilence.

Nathaniel Nuckolls testified, he knew the negro; saw him a short time after his son-in-law, Long, bought him; looked dropsical; Long applied to Latham to take him back, and Lạtham refused, saying that McLaren would make the warranty good; McLaren himself acknowledged to agreeing to make the warranty good, but refused to take the negro back, when tendered to him by Long; Latham soon after left for California; was a young man and had no property. The negro is now in possession of the administratrix of Davis Long.

Dis. Billing and Bozeman, in connection with Ioxey and Wildman, on examination of said negro, testified, they believed him dropsical at the time of the purchase by plaintiff.

John R. Hull testified, the negro was a confirmed drunkard; McLaren sold the negro to Latham for $600, and he was to stay in the store a few days until Latham could see if he could sell him. In a few days Long called to enquire of McLaren about the negro, defendant said he was a good for nothing drunken dog, and Long said if that was all the trouble he could manage him. Defendant gave the negro a very bad character for a drunkard, and more than Hull thought he deserved.

Nimrod Long and Dr. Oliver Walton testified by interrogatories. Long says, day after the purchase, Hull called on him to endorse a note made by Davis Long, his son. for the purchase of a negro belonging to defendant, as Huli said. Hull was a clerk in defendant's store; witness saw the negro a few days after, and thought he was unsound from his inabilty to do labor. Walton saw and examined the boy; thinks he had hydrothorax at the time of the purchase.

Millon S. Latham testified, by interrogatories; he purchased the negro of defendant and sold him to Long; made arrangement at the time that the negro should remain with defendant, and defendant to wait on him for the money until he could sell him; met Long a few days after, and they went

McLaren vs. Long, adın'rx, &c.

together to defendant's store, to see the negro; Long asked Latham, in the presence of defendant, if the negro was sound, and Latham replied, I don't know, but referred him to McLaren, who said yes, so far as he knew, except that he would get drunk when he got about liquor; and Long replied that if that was all he could manage that, when he got him to his plantation away from liquor; and Lorg agreed to give Latham his note for $700, McLaren agreed to discount the note for his debt on Latham, which was done; there were no private interviews or collusions between Latham and defendant except as above stated. Defendant gave Latham a warranty bill of sale, and Latham released defendant without consideration, or without money being paid, on the first February, 1850. McLaren, the defendant, did not procure Latham to sell the negro for him; was not to give him anything to sell him at a given price. The bill of sale to Latham from defendant, dated 10 January, 1850, and release on the back to McLaren from Latham, dated the first February, 1851, was read in evidence.

Philo Wildman, examined the boy three times, at request of defendant. First time two or three months before the sale; second, a month after; and the third time, about six weeks. after the sale. Two first times he thought him healthy, and the last he thought he had incipient dropsy. At the second examination, defendant told Wildman, Long had bought the negro from him; Wildman was a physician.

Latham testified, that so far as he knew, the whole transaction was fair on the part of all the parties.

The Court refused the motion for a new trial, whereupon defendant excepted and assigns error.

R. J. MOSES by JOHN A. JONES, for plaintiff in error.

JOHNSON & SLOAN; and DENTON, represented by SLOAN, for defendant in error.