#### THOMAS C. HUSSEY v. BAT. WEATHERSBY.

A bill of sale of a slave which contains a warranty of soundness, and which is inoperative to convey the title, for the want of a subscribing witness, may, nevertheless, be read as evidence of the warranty, provided the actual sale and delivery be proven dehors.

AotioN of Covenant tried before DioK, J., at the last Spring Term of Edgecombe Superior Court.

The plaintiff declared on the following instrument under seal:

“Tarborough, May 23,1859.

“Eeceived of Thomas C. Hussey, fourteen hundred dollars, in full of a negro man Mingo, supposed to be tweuty-five years of age, which negro I warrant to be sound in mind and body, and also warrant the right and title against any, and all persons, to the said Thomas C. Iiussey; in witness whereof, I have hereunto subscribed my name, the day and date first above written.”

The allegation of a breach was that the slave, Mingo, was unsound in body at the time of the sale, having the consump*388tion, of which he died within two years afterwards. There was evidence going to sustain the plaintiff’s allegation, which was left to the jury under proper instructions from the Court, and they responded in a verdict for the plaintiff.

The only point in the case, arose upon the admissibility of the bill of sale as evidence of the covenant. Not having a subscribing witness, and not having been registered, the defendant objected to its reception by the Court; to obviate this, the plaintiff offered evidence of an actual sale and delivery, dehors the writing, and then offered it to prove the warranty of soundness. The Court ruled in favor of the admissibility of the paper for the purpose, and the defendant excepted. Appeal by the defendant.

Moore and Gonigland, for the plaintiff.

No counsel appeared for the defendant in this Court.

Battle, J.

We are unable to distinguish this case from that of Maxwell v. Miller, 11 Ired. Rep. 272. There, the action was for the warranty of the soundness of a slave contained in a bill of sale given by the defendant, to which his wife was the only subscribing witness. It was objected that she could not be a witness, and that the bill of sale did not pass the title for the want of an attesting witness, and for that reason the warranty, which was alleged to be an incident of the sale, was of no validity. The Court held that “admitting the .position, that as between the parties, the title did not pass by the bill of sale, for the want of an attesting witness to be tenable, still the warranty is distinct from that part of the bill of sale which purports to pass the title, and that is no reason why there should be an attesting witness to a covenant or contract of warranty of the soundness of a negro, nor necessity for its registration. And if a warranty be a mere incident of a sale, the title in this case, might have passed by an actual delivery without a bill of sale, and so there was no ground for the objection.” The Court go on to say further, “ that the do.ctrine of a warranty, as applied to real estate, has no sort of application *389to tlie warranty of soundness of a chattel. Such a contract may be entirely distinct from, and unconnected with a sale, and will support an action, provided there be a sufficient consideration, although there is no sale to which it may be incident.”

This distinguishes the present from the case of Gwynn v. Setzer, 8 Jones’ Rep. 382, in which it was decided that in an action of deceit for the sale of a slave the plaintiff must prove the sale, and if the contract of sale be evidenced by an attested writing, that must be produced and proved by the subscribing witness, unless its absence be duly accounted for.

Pee CueiaM, Judgment affirmed.