*The opinion of the Court was delivered by

It is to be observed, that there was conflicting testimony in regard to the first ground- Mr. Neel’s testimony goes to show, that no compromise had taken place, by which the plaintiff was to be estopped from a recovery back of the consideration, if the negro should prove to be unsound. On the contrary that Deens expressly undertook, that he would be accountable in such event, and that the deduction of $25 was made on a different account. The elder Mr. Gray testifies to a declaration, made by the plaintiff, which would seem in opposition; but it was the province of the jury to weigh the evidence and reconcile the difference between those witnesses. They may have thought the reply made to the question propounded by the witness, Gray, was by no means conclusive, to show that she had taken the negro at all hazards, on account of so trifling a deduction. With respect to the fact of the negro being diseased, the testimony of the plaintiff most unquestionably preponderated. Under this view of the facts, where the parties have been fully heard, and the case decided on by the jury, in respect to its merits, the court are clearly of opinion that no new trial should' be had on the ground that the verdict was against evidence. ‘

The court are, however, of opinion,1 that from the nature of the present *128action, damages by way of “smart-money,” ought not to have been given;1 and as it appears satisfactorily, by the brief and the report made of the case, that one hundred dollars were specifically given, by way of “ smart-money,” a new trial is ordered, unless the plaintiff will release the same.