This motion, in my opinion, ought to be refused. It was expressly stipulated in the contract, that the defendant was to take the tobacco at his own risk.

There was no undoubted evidence that he was induced to consent to the stipulation by any fraudulent concealment, or misrepresentation on the part of the plaintiff. The judge who decreed for the plaintiff, it being a case within the summary jurisdiction of the court, no doubt, took proper notice of the evidence to this point, and gave it due consideration, although he wasjDf opinion that fraud was not a proper subject of discount.

The plaintiff requested the defendant to examine the tobacco, and judge for himself. It was his own folly to take it at his own risk, upon the mere opinion of the plaintiff, that it was all as good as that which was seen at the end of the hogshead, without further inspection and examination.

The defendant ought not to be permitted to take advantage of his own laches.

It is a well established rule of law, that a sound price requires a sound commodity. But if a man with his eyes open, and well aware of this rule of law, will go and make a bargain, and buy an article at all risks, he has himself to blame, and must take the consequences, I am against opening the decree.