¶1By the Court,
¶2This is an action of debt, brought by the
¶3defendant in error against the plaintiffs on two writings obligatory. The defence set up is a general and special plea of fraud in the sale and delivery of a slave, and want of title in the vendor. The general plea of fraud, is unquestionably bad. Our statute is express on the subject, for it declares that “the defendant, by special plea, may impeach or go into the consideration of a writing under seal in the same manner as if such writing had not been sealed.” Rev. St. ch., 116, sec. 74; and upon principle, a general plea of fraud is not good. The party, whose conduct is sought to be impeached, has an unquestionable right to be apprised of the facts which constitute the fraud; otherwise, he might be taken by surprise on the trial.
¶4The other pleas are equally defective, as the case of Sumner vs. Gray, 4 Ark. Rep. 471, unquestionably proves. If a purchasor wishes to rescind a contract of sale, he must put the vendor or offer to put him in the same situation he was in before the delivery of the property. He will not be allowed to retain the property and protect himself against the payment of the purchase money. If he retain the property, he cannot treat the contract as void for want of consideration upon the ground of fraud. The defence set up by the plea of fraud, fails to allege that the plaintiffs in error, returned the property, or offered to return it. For this defect it was rightly adjudged insufficient. Again, it wholly fails to aver that the servant is of no value whatever. Where a vendee relies on the warranty of title,^ whether express or implied, there must be a recovery by the real owner, before an action can be maintained for a breach of contract. This is in the nature of an eviction, and it is necessary in such á case, for the pleading to show that the vendee had been evicted, or lawfully deprived of the use and possession of the property; and in omitting to do this, it discloses no breach of the warrantyIt would be unjust to permit the vendee to retain possession and enjoy the benefit of the property, and put his vendor at defiance. The plea of want of title in the vendor is therefore no bar to the action, and the demurrer to it, as well as to the other pleas of fraud, was properly sustained. Judgment affirmed.