¶1delivered the opinion of the court.
¶2This was an action of assumpsit in the circuit court of Ita-wamba county, founded upon the promissory note of the plaintiffs in error to the defendants in error, for part of the purchase-money, agreed to be paid for a certain slave.
¶3The bill of sale executed by the plaintiffs below warrants the slave to be sound in body and mind. The evidence on the part of the defendants below shows him to be unsound in body, and to possess a weak mind. The slave is represented in the bill of sale to be 27 years old. The proof shows him to be 38 or 40 years old. There is some conflict in the testimony as to the soundness of the slave, and it was, therefore, the province of the jury to decide on this question.
¶4The court gave three instructions to the jury. The thud is as follows : “ The purchaser of an unsound slave may elect to return the property, and consider the contract wholly void, or may retain the property and recover the difference between the actual value of slave if sound, and the value if unsound.” This instruction is strictly in accordance with the settled decisions of this court, and if the other charges did not clearly conflict with it, we should not feel at liberty to disturb the verdict.
¶5The first charge is directly opposed to the evidence in the cause. It takes for granted, that there was no offer to return the slave. The proof is, that the defendants offered to return the slave and to pay $100, to be discharged from the contract. There was no question as to rescinding the contract raised on the trial, because $400 of the purchase-money had been paid, and it was not pretended that this amount could be recovered back in this action. The slave was, by some of the witnesses, proved to be valueless, by another to be worth $400. By the *78defence set up, the only question to be decided was the one presented by the third instruction, whether the plaintiff below was entitled to recover on the note, which being for only part of the purchase-money, could only present the question of partial failure of consideration.
¶6The first and second charges were calculated to mislead the jury as to the question presented by the third charge.
¶7Judgment reversed, new trial granted, and cause remanded.