
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1806.
    Commissioners of Roads v. Macon and Foot.
    Commissioners of the Roads selling an estray as public agents, are not liable for any implied warranty for a defect in the animal sold. But if the money be not paid over, the defendant, the purchaser, may claim a discount for the unsoundness of the thing sold.
    • Summary process on a note of hand, given by the defendants for the purchase of a mare, sold by the plaintiffs under the estray act. At the trial before Bay, J., in Fairfield District Court, the defendants were allowed to prove that the mare for which the note was given, was diseased at the time of the sale, and that she died not long after; and that the defendants were deceived by the sale, having purchased in the expectation that the mare was sound and well» Bay, J., being of opinion that the defence was sufficiently established by evidence, decreed for defendants.
    ■ The motion in this court was for a new trial, on the ground that the plaintiffs took the note in the quality of public agents, and ought not to be answerable for the latent defects of the thing sold. That as public agents they cannot bo held to warrant the title or quality of the thing sold in the regular discharge of their trust, and, therefore, the purchaser must be supposed to buy without having any such reliance in view.
    Egan, for the plaintiffs ; Evans, for the defendants.
   Wilds, J.,

delivered the opinion of all the judges: That although it might be held, that the plaintiffs acting in the capacity of public officers, are not hound to warrant property sold by them, or be answerable for any defects or deficiency in the subject of sale; and although the defendants might be without relief in case the note had passed into the hands of an innocent indorsee for valuable consideration, yet, circumstanced as .this case is,, the defendants are intitled on principles of law and equity, to claim relief from the payment (.[jg K10ney (0 the persons who sold the unsound property, and w^° °Nim the money as trustees for the public. There can be no good reason why he should be compelled to pay it, if the consider ratjon for wjjjch he promised to pay it has failed. The plaintiffs will suffer no loss or prejudice by a decision in favor of the defend, ants, and it would be evidently unjust that they should receive the money for the public against conscience. The court is of opinion the defence was allowable; and that it was- fully established according to the opinion of the judge who presided at the trial; and9 therefore, the motion must be dismissed.  