#### JOHN H. DRAKE v. ABSOLOM B. BAINS.

Upon a question of warranty or no warranty, it was Held to be error in aJmlge to charge, that the fact that the alleged warrantor was acting- in the-capacity of an executor, was not a matter for the consideration of the jnry.

This was an action on the case, tried at Johnston S'n-perior Court, Fall Term, 1860, Heath, J., presiding, and in-, which* plaintiff' declared in deceit and false warranty, on the sale* of a slave by defendant to plaintiff.

One Drake testified, that prior to- the institution of this suit, he was at a public place, at which plaintiff, and' defendant were both present; that speaking of the alleged sale,, plaintiff said to defendant, “Bains,.you know you warranted that slave to me”; to which defendant replied, “what if I did,’’' or, “if I did, it makes no difference, as my lawyer tells me an executor cannot warrant a slave.”

Another witness swore, that on, another occasion, he heard; plaintiff say to defendant, “ you have acknowledged to me that you warranted Jack to be sound,” or, “that yon told me lie was sound,” and. defendant replied, “yes, I have- always admitted that.”

The slave, Jack, was proved to have been in- the possession of defendant for some time prior to September, 1856, at which time he passed into-plaintiff’s possession.

One Thorn swore,.he heard Drake tell the defendant, on the day of the sale, that he would take Jack at $900, and his wife and children at $1,900; to which proposition, defendant assented. Drake sai'd, “Jam in,a hurry, I cannot settle now, we can do that at any time.” Drake then turned to the slave,, in defendant’s presence, and'said, “get your things, your wife,. &c., and go to my house;” he heard nothing said of any warranty.

One Harrison swore, that he was called upon on the day of' the sale, to value the slave, and that he valued him at $900.

One Strickland swore, that he was present on the- day of the sale and heard plaintiff tell defendant he would take-*123Jack at the valuation, $900. lie heard nothing said about warranting his soundness.

Defendant further proved, that at the time of the alleged sale, he acted as the exec.utor of one Sherrod 5 that it was his duty, and that of a co-executor, who qualified to Sherrod’s will, to sell the slave after the expiration of a life-estate? which had just expired, after an existence of seven or more years, and that this co-executor was present at the time of the alleged sale; there, was no evidence that it was made known to the plaintiff that defendant was acting as executor.

There was much testimony tending to prove the slave unsound at the time of th.e sale.

The Judge charged the jury, among other tilings, that “if there was no-sale, or if there was a sale and no warranty of soundness, then their verdict must be for defendant, and in this connection, and under the circumstances, they need pay no attention to the fact that the defendant was acting as executor.” Defendant accepted.

There was a verdict for plaintiff. Judgment. Appeal by defendant.

Miller, Moore, A. M. Lewis and Rogers, for plaintiff.

Rorteh and Strong, for defendant.

Pearson, C. J.

The evidence in support of the allegation, that the defendant, at tl\& time of the sale,, and as aj>art of itY warranted the slave to be sound, (for, if made afterwards, it was nudum gpaetum) was very slight. Two witnesses, who were present at the time of the sale, say “they heard nothing said about a warranty,” and one of the two witnesses, who depose to the conversations which are relied on as furnishing an inference that there was a warranty, recites the words in the alternative, and in one aspect, they do not furnish any evidence of a warranty, i. e., “ you have always acknowledged to me, that you warranted Jack to be sound,” or, “¡that you told me he was sound.”

This evidence is referred to, for the purpose of showing, *124that in respect to the question, did the defendant, at the rime of the-sale, warrant the .slave to be .-sound, it was of the highest importance that no room should be given for misapprehension on the .part of the jury.

This Court is of opinion that the defendant has good ground, of complaint against that part of his Hdnor’s charge, in which he says, “and in this connection, and wider the circumstances, they need pay no attention to the fact that the defendant was acting as executor.” We -confess we are unable to apprehend the idea his Honor meant to convey -by these words. An executor 'may bind himself individually, by a warranty of soundness in selling a slave of the estate;; there is no doubt of that; and it only required direct words to express it. “In this connection,” that is, in .reference to the allegation of a warranty, “and-under the oircnmstances”- — -What circumstances? All the.circumstances.atteuding the dealing 3 if so, in the opinion ■of this-Court, -it was very needful that the jury, in passing on. the question of warranty or no warranty, should take into consideration the fact that the defendant was acting as exeeutor, for it was' a circumstance having an important bearing on the «question. One circumstance was that the warranty was not proved .by direct testimony, .and was left as .a mere matter of inference, to be drawn from .a recital of conversations, in respect to which (however truthful the witnesses might be) there t<*as danger of misapprehension. Another was, that the price of the slave.had been fixed by-a previous valuation, and there was no ¡enhancement of the price, by reason of the supposed warranty. Another was, that the co-executor of the defendant, was not.required to join in the warranty. “Under the circumstances,” therefore, it was a matter for the most serious consideration of the jury, why should the defendant have volunteered to make himself personally liable by adding a warranty ¡as a part of the-trade. There is error.

Per Curiam,

Judgment reversed.