1852. January Term. persons residing or found within its jurisdiction, where the subject sought to be affected is situated in another Dickinson State, yet, in this case, it would be an exercise of V. adm'r & als. Hoomes's sound judicial discretion on the part of the Circuit court of Caroline to compel the said heirs, as a condition of the relief they are seeking as aforesaid against the appellant, to account to him, so far as may be necessary for his indemnity against the breach of said covenant, for any benefit they may have received from any land in Kentucky descended to them from the said Richard. Fourthly. That it appearing to the court that John Hoomes the elder was entitled at his death to eighteen. or twenty thousand acres of land in Kentucky, to one fifth of which the said Richard became entitled as devisee of the said John, and remained so entitled at the death of him, the said Richard, in 1823, the said one fifth descended from the said Richard to his said children. And although it further appears to the court that the greater part of these lands were forfeited to the State of Kentucky for non-payment of taxes accruing thereon after the death of said Richard, and so may be forever lost to the said heirs; and although it would be too strict, under the circumstances of this case, to hold the said heirs accountable, as for assets by descent, for the value of any lands so lost; yet, as it appears that a portion of said lands has actually come to the hands of the said heirs, and been by them converted into money, and that they may yet be entitled to other portions of them, the said Circuit court, instead of dismissing the bills of the appellant, should have directed one of its commissioners to enquire, ascertain and report what lands in Kentucky descended from the said Richard to his heirs, and have come to their hands or been sold by them, and the value or amount of sales thereof; what rents and profits, if any, have been received by them on account of any of the said lands; when any such amount of sales, or rents and profits, were so received; what expenses have been incurred by them, or any of them, in redeeming, obtaining possession of, surveying, dividing, or selling any of the said lands, or collecting the rents and profits or proceeds of sale of any of them; and any other facts which may, in the opinion of the said Circuit court, be necessary to ascertain the extent of any benefit received by the said heirs from the said lands. And if it should appear that the amount of said benefit is equal to, or greater than, the value of the land which the said heirs are entitled to recover of the appellant, and the rents and profits thereof, they should be altogether barred and enjoined from such recovery. But if the said amount should be less than the said value, rents and profits, then the payment of the same by them to him should be made a condition of their said recovery; and unless such payment be made in a reasonable time, the said land, or so much thereof as may be necessary, should be sold therefor. Therefore it is considered that the said decree is erroneous; that it be reversed and annulled, with costs; and that the cause be remanded to be further proceeded in on the principles above indicated. 1852. January Term. Richmond. TRICE V. COCKRAN. (Absent Cabell, P.) February 10th. 1. Case is a proper remedy for the breach of an express warranty B. F. Cockran instituted an action upon the case against George W. Trice in the Hustings court of the city of Richmond, and filed a declaration containing two counts. The first count charged that the defendant falsely and fraudulently induced the plaintiff to purchase of him a slave, "by then and there falsely and fraudulently warranting the said slave to be sound," when in fact the said slave was unsound, and died of the disease then upon him, and that the plaintiff had sustained damage to the amount of 500 dollars, for medical attendance, &c.; and concludes with an averment in the following words: "And so the plaintiff saith that the said defendant falsely and fraudulently deceived him, the said plaintiff, in the sale of the said slave as aforesaid." The second count charges that the defendant being possessed of the slave, and well knowing that he was unsound, "did nevertheless falsely, fraudulently and deceitfully, then and there, represent the said last mentioned slave to be sound, and did, then and there, by means of the said false, fraudulent and deceitful representations, induce the said plaintiff to buy the said slave of the said defendant." It then charges the un soundness of the slave, and his consequent death and damage to the plaintiff. i852. January Term. Trice To this declaration the defendant demurred generally, Cockran. and pleaded "not guilty," and there was joinder in the demurrer and issue on the plea. The court overruled the demurrer, and the case was tried upon the plea. Upon the trial the plaintiff offered evidence of the unsoundness of the slave and his death, and exhibited and proved a bill of sale for him under seal, by the defendant, containing a warranty of the soundness. The defendant offered evidence to prove that the slave was placed by the defendant in the hands of an auctioneer in Richmond to be sold, and that at the timehe so placed him with the auctioneer, the defendant told him that he had been sold before he became the property of the defendant, and was returned by the purchaser because he was believed to be unsound, and that he (the auctioneer) must not sell him to any one without making that fact known to him; that the slave remained for some time at the auction house in Richmond, where he was seen by all the dealers, and among them the plaintiff, and finally he was exposed to public sale, proclamation being made by the auctioneer that a doubt was entertained of his soundness, but he would warrant him sound, and if the purchaser did not like him he might return him; that at this sale (made in the absence of the defendant, who was in the country, the sale being made in Richmond) the plaintiff became the purchaser of him at 470 dollars. This was in July. The plaintiff, after the purchase and a full statement by the auctioneer of all that the defendant had told him as to the former sale of the slave and the return of him, declined to keep him, and returned him; and the slave remained at the auction house, where the plaintiff frequently saw him, until the 12th of September, when 1852. January Term. Trice V Cockran. the plaintiff proposed to the auctioneer to sell him again, saying that if he would do so, and warrant him sound, he (the plaintiff) would bid 400 dollars for him; that accordingly the auctioneer did put him up to sale again, and, in the absence of the defendant, warranted him sound, and the plaintiff purchased him at a single bid of 400 dollars, took possession of him, gave a note at ninety days for the purchase money, which he paid at maturity, and shipped the slave to the south. The bill of sale was partly printed and partly written. The warranty was printed. It was in blank as to the price and name of the purchaser when left with the auctioneer, and he filled up the blanks. It was also proved by the auctioneer that the slave was sold for less than the price of a sound slave; that if sound he would have commanded at least 550 dollars, which price was offered for him by another purchaser, but was withdrawn when the auctioneer communicated to him what the defendant had directed him to communicate to all purchasers before he sold him. Upon this proof the defendant by his counsel asked the court to instruct the jury, "that to entitle the plaintiff to recover, they must be satisfied from the evidence that the slave was unsound at the time of the sale to the plaintiff, and the defendant knew of the unsoundness, and fraudulently concealed it, or falsely and fraudulently represented him to be sound; and the plaintiff is not entitled to recover by the force of the warranty merely, if one was made": which instruction the court gave. The plaintiff then asked the court to instruct the jury that he was entitled to recover upon the first count, if he proved to their satisfaction the unsoundness at the time of the sale, and an express warranty: which instruction the court refused to give. The plaintiff excepted and spread the whole testimony upon the record. |