
    Lee Executor of Daniel v. Cooke.
    
    October Term, 1794.
    Slaves — Warranty Binding Vendor and Heirs--Effect as to Executorst — Notice of Suit. — An action of covenant by the vendee of a slave, upon a covenant of warranty binding- the vendor and his heirs, (not naming the executors) will be against the executors; — and the declaration need not state, nor is It incumbent on the plaintiff to prove, notice to the vendor, of the pendency of the suit, to recover the negro, if the recovery was obtained by fraud, the defendant may, by plea, put that matter in issue.
    Same -When Considered Chattels.:] — Except in questions of descent, slaves are considered as chattels.
    This was an action of covenant, brought by Cooke in the District Court of King and Queen, upon a warranty contained *in a deed poll, dated in 1779, by which, the testator, for a valuable consideration, conveyed to Cooke, a negro, and covenanted for himself and his heirs to warrant the title against all persons whatsoever. The declaration charges; that the negro had been recovered by Wm. Morgan by the judgment of the County Court of King and Queen, in an action of det-inue, and so neither the testator nor the executor had kept the testator’s covenant, but had broken the same &c. Upon the plea of covenants performed, the jury found a conditional verdict, subject to the opinion of the court. If upon the bill of sale, an action of covenant can be supported against the defendant as executor, and if evidence can be admitted, or is necessary, to prove, that notice was given to the defendant of the action of detinue having been -brought, (the notice not having been stated in the declaration, and the defendant having pleaded conditions performed,) then they find for the plaintiff ^94: 10: 5, damages, but if the court be of a different opinion, on both, or either of those points, then they find for the defendant.
    The District Court determined in favor of the plaintiff, from which the defendant appealed.
    Warden for the appellant.
    The plaintiff most certainly ought to have charged in his declaration and established by testimony, that he had given notice to the warrantor, or to those liable under the covenant, of the pendency of the suit brought to recover the negro conyeyed by that deed, in order that proper attention and assistance might have been afforded by those, so deeply interested in the defence of that suit. Otherwise, the judgment might have been recovered by covin, or negligence in the party; in which case the warrantor surely ought not to be bound. But it is not clear that this action could be maintained against executors. Negroes, at the time when that deed was made, were by the law of this state real property, and this being a covenant real, it descended upon the heir, who alone could be liable to this action. The heirs are specially named, and if this had been a deed for land, there could be no question, but that the executor in such a case could not have been sued upon the covenant.
    Marshall for the appellee.
    The doctrine of warranty, has nothing to do with this case. This is a covenant to warrant the title of a slave, and in all conveyances of such property, whether by deed, or by will, they are considered as personal, and not real estate. The executor tho’ not named, is bound to compensate in damages for a breach of covenant by his testator, and as no particular form of words is necessary to make a covenant, *the agreement to warrant in this case must be considered as a covenant, which certainly binds the executor.
    The notice which, it is supposed, ought to have been given to the warrantor, is not required by the deed; and it is only necessary for the plaintiff to laj' the breach in the words of the deed, which he has done. If the judgment had been obtained by fraud, the defendant might, and ought to have pleaded it, that it might have been put in issue; and then the parties might have gone into the title.
    
      
      For monographic note on Covenant, The Action of, see end of case.
    
    
      
      Personalty — Warranty Binding Vendor and Heirs— Effect as to Executor Though Not Named. -The principal caséis cited in Stout v. Jackson, 2 Rand. 138, to the point that in personal contracts, if the testator is bound, the executor is also bound, though not named.
      Judgments- Presumption as to Fairness. — The principal case is cited in Hooe v. Tebbs. 1 Muni. 507. to the. point that, every judgment of a court of justice is presumed to be fair till the contrary appear; and if there was any collusion between the parties in that action, it shonld haye been pleaded and proved on the part of the defendant. See also, Bower v. Giendening, 4 Munf. 219; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Slaves -Nature of Property. — For the proposition that, slaves are considered as chattels In all cases except in matters of descent, the principal case is cited in Poindexter v. Davis, 6 Gratt. 500: foot-note to walden v. Payne, 2 Wash. 1.
    
   The PRESIDENT.

The objection, that a suit will not lie against the executor upon this warranty, because the testator bound only himself and his heirs, is novel and unfounded. Without inquiring, whether the executor is bound by such a covenant in a conveyance of real estate, wherein he is not named, (which the court forbear, it being hinted at the bar, that there is another case in court where that is to be a question) it is admitted and clear, that in personal contracts, if the testator be bound, the executor is also bound, tho’ not named. This is such a personal contract; for in the sale of slaves, and in. all transfers of them by deed, or will, they have ever passed as chattels, and were only considered as real estate in the case of descents:

The objection, as to the want of notice of the pendency of the action of detinue, stands curiously upon the statement in the verdict. It would seem, that the plaintiff was ready to prove such notice to the executor, if it were necessary. The objection comes from the defendant, that such was improper, because the notice was not charged in the declaration.

The court however are of opinion, that it was not necessary to charge such notice in the declaration, nor to prove it. Every judgment of a court is presumed to be fair, ’till the contrary appears, and if there were any collusion between Morgan and Cooke in that action, it should have been pleaded, and proven on the part of the defendant.

Judgment affirmed.  