1852. January Term. Trice V. Cockran. recover upon the parol warranty made by the agent. But the broad instruction given to the jury was in effect that, whether the warranty was by deed or by parol, the plaintiff could not recover upon either count of his declaration, without proving moreover, not only that the slave was unsound at the time of the sale, but that the defendant knew of the unsoundness, and fraudulently concealed it,or falsely and fraudulently represented the slave to be sound. This instruction was clearly wrong, in regard to the first count of the declaration, which was not founded upon actual fraud, but upon a mere warranty only. The action of trespass on the case is a proper remedy for the breach of an express warranty of soundness of a slave or other personal chattel sold, as much so as the action of assumpsit, with which it is a concurrent remedy, and the party aggrieved may elect between them. In both forms of action the gravamen is the breach of the warranty, which in the former is treated as a tort, with the appropriate language in declaring for a tort; but a scienter or knowledge of the defendant of unsoundness is immaterial, and need not be alleged in the declaration, nor if alleged need it be proved. This is the firmly established doctrine of the courts, both in England and in this country, ever since its adjudication in Williamson v. Allison, 2 East's R. 446. It seems, however, that the directly opposite proposition was asserted by the defendant, and that it was contended on his part at the trial that in case upon an express warranty actual fraud is the gist of the action, and must be established, though a breach of the warranty be proved. It is true that upon the second count of the declaration actual fraud, which involved the scienter of the defendant, was essential to the plaintiff's recovery; that count not being founded upon the warranty, but upon a fraudulent concealment or misrepresentation of unsound January Trice V. Cockran. ness but in the first count a scienter of the unsound- 1852. ness is not even alleged, and the substantial grievance complained of is, that the plaintiff was deceived and injured by the falseness or wrongfulness of the warranty itself. Upon the second count the plaintiff was entitled to recover on proof of actual fraud, whether the warranty was by deed or by parol: And upon the first count the defendant seems to have silently waived the question whether the warranty was by deed or by parol. This it was competent for him to do, and if a verdict had been rendered for the plaintiff on that count and a new trial asked for, it could not have been properly granted on the ground that the warranty was by deed. This court cannot undertake to say that the instruction given for the defendant was correct, because the warranty was not by parol but by deed. The bill of exceptions cannot be treated as a demurrer to evidence, asserted in the mo There was evidence and a point raised which was not 1852. January Term. It seems therefore to the court, that the instruction given to the jury by the Hustings court was erroneous, and that its judgment was therefore correctly reversed Cockran. by the Circuit court. Trice V But it further seems to the court that the Circuit court erred in its direction that upon the new trial to be had the instruction moved by the plaintiff and rejected by the Hustings court should be given to the jury, which direction must be treated as part of the judgment of the Circuit court. The instruction so directed, in effect, assumes that whether the warranty was by deed or by parol, the plaintiff is entitled to recover without proof of actual fraud on the part of the defendant. Both judgments reversed with costs, and case remanded for a new trial upon the evidence which may be adduced by the parties, and such proper instructions as the court may thereupon give to the jury. JUDGMENT REVERSED. Richmond. MONTAGUE'S ex'x v. TURPIN's adm'x & als. (Absent Cabell, P.) February 16th. 1. A judgment rendered against an administratrix upon the bond of her intestate is conclusive evidence of the validity of the debt as against the administratrix. 2. Where two of three obligors in a bond are dead insolvent, and there is no personal representative of either of them, the obligee, coming into equity to enforce the payment of the debt against the personal representative of the other obligor, is not bound to have personal representatives of the deceased insolvent obligors appointed, and make them parties. And this especially where the defendant has not, by his answer or in any other mode of pleading, objected to the failure to make them parties. In December 1841 the executrix of William Montague recovered a judgment against the administratrix of Miles Turpin deceased, in the Circuit court of Henrico county, for 920 dollars debt and 280 dollars damages. This judgment was rendered upon a bond executed on the 19th of May 1814 by Benjamin Haley, George Williamson and Miles Turpin to William Montague for the sum of 460 dollars, for the hire of several slaves for the year 1815, and was in the penalty of 920 dollars. An execution was issued upon the judgment and was returned "no effects." The executrix thereupon, in 1842, filed her bill in the Circuit court of chancery for the Richmond circuit, against Miles Turpin's administra trix and heirs, and the sureties of the administratrix, in which she charged that the adimnistratrix had wasted the assets of her intestate's estate; and she asked for a settlement of the administration account and satisfaction of her judgment. 1852. January Term. 1852. January Term. Montague's ex'x V. Turpin's Turpin's administratrix, in her answer, stated that the bond on which the plaintiff's judgment was founded had been paid as early as 1825 by Benjamin Haley, who she insisted was the principal in the bond, by letting William Montague have a wagon and team of mules; and that she was ignorant of this fact until after the judgment was recovered. The court directed an account of the administration on Turpin's estate, and it appeared by the report of the commissioner that the personal assets in the hands of the administratrix were more than sufficient to satisfy the judgment. The defendants took the evidence of a witness to prove that Benjamin Haley had let Montague have a wagon and mules in payment of the debt, and the witness swore to the fact. It appeared, however, that this witness had been examined on the first trial of the action on the bond, when a verdict was rendered for Turpin's administratrix, which was set aside by the court. On the second trial the witness was not examined, for what reason does not appear, and there was a verdict and judgment for the plaintiff. In the progress of the cause it was suggested by the counsel of Turpin's administratrix that the representa; tives of Benjamin Haley and George Williamson should be made parties. It appeared, however, from the record of a cause between Turpin's adm'x v. Sheppard & als., the same reported 3 Gratt, 373, filed by the administratrix, that she had alleged in her bill in that case, and the allegation was sustained by the proofs, that Benjamin Haley and George Williamson were both dead insolvent, and that there was no representative of either of them. The cause came on to be heard in March 1846, whereupon the court being of opinion that whatever relief, if any, the plaintiff was entitled to, it was proper, in order to obtain the same, that she should amend |