
    COURT OF APPEALS, JUNE TERM, 1822,
    Fenwick vs. Forrest.
    rn an action covenant wberu warranb am! «en neb cert sl™'* «,1,1 to flutist all persons rte^iVi'TpTíyofF5 «Pin tiieVc’arli ?í“v tíñame Bc!^!p‘apropSy who^’dM.míraseá ir!? orlc"eiiicvní ÍStórníí S'i'ditiKsia'ves‘tu pAof'tufimf "if vin,:,n.Htsr.tum to1 ctuti't#. Hold «.at if was hound Jiot oi.ly tosíate specialty, tit,]»,wab'by ibwu^tu” pai'l„lh. po?f?tChy'p?m!t; «ñw^Vihomít •iher “having; boon r tluM'tin, u ¡is evidi'iiceoi* die a r tin-ton, k„s right or tine of s piCTh-a ir ¿had made Rood / bis ehiim to die slaves would fouve «'lorded the hw.buf. i„,t the nsmí, tú ot 1 tu kiU\o1 them eifih.noef“n.itttn *he01'íab,CVm?¿hf lute beca used
    Appeal from Saint-Mary’s coupty court. This was an ,. r , _r,. , ' action ox covenant. I he declaration stated, that by an , . * indenture oí writing, entered into on the 22d of July 1817. , * ~ J • 7 between the defendant, (now appellant,) and the plaintiff, (l^le aPPG^ee») the defendant did, in consideration of the 9um >3750 to him paid by the plaintiff, bargain and sell unto ^le plaintiff sundry negroes, to wit, negroes George, &racQ> Joseph and Eliza, and did thereby warrant and de*eIu^ said negroes to the plaintiff against all persons wliatSÜCVG1'; to be slaves for life, and the property of the plaintiff, his heirs, &c. and although thj plaintiff did every thing on his, part to be'done, and paid the defendant the. sum of 8750, yet protesting, that the defendant hath not done and performed all and every thing on Ins part to. . 1 «/ o i be done and performed, according to the intention and ef- , iect of the said indenture of writing,' the plaintiff in . fact, sal^b that the said negroes were not the property of the defendant at the tim'e of the sale thereof, tó Wit, at Saint-Gary’s county aforesaid, but of a certain David Sommerville; an(t further, that the defendant did not warrant and üVcn(^ sa‘d negroes to the plaintiff, as bound by the said todo; but the same hath been since replevied- and taken out of the possession of the plaintiff by virtue oí a writ of; replevin issued from Baltimore■ county court, against the defendant, by a certain David Sommerville, to ^ 7 J wit, at oaint-martfs county aiorcsaicr, and contrary to the intention, tenor and effect, of the said indenture cl writ- # 7 < 7 tog as aforesaid. "Wherefore the plaintiff saith, that the defendant,, (although often requested so to-do,) hath not kept with the plaintiff the covenant by him made as aforesaid, but to keep the same hath hitherto wholly refused; &c. The defendant pleaded that he had not broken the covenan(s jn t¡¡e declaration mentioned, or either of them, &c. Upon which plea issue was joined^
    At the trial, the plaintiff offered in evidence an indenture, admitted to have been executed by the defendant to the plaintiff on the 22d of July 1817, by which the defendant for and in consideration of the sum of S750, to him in hand paid, bargain'd and sold the following negroes, to. wit, George, &c. ‘"To have and to held to him, the said yfe)?ies Forrest, his heirs, executors and administrators, for ever; and the said Athanasius- hereby doth warrant p ^ J ■and defend the said negroes; against all persons whalsoever, to be slaves for life; and the property of the' said James Forrest, his heirs, executors and administrators.” The plaintiff also offered in evidence a record from the county court of Baltimore, county, of an action of replevin instituted on the 6th of May 1817, in that court, by David Sommerville against Athanasius Fenwiclc, to replevin negroes Sarah, George, Grace, Sarah and Joseph, and two other children of the said Sarah. The negroes were replevied and delivered to Sommerville on the 18th of August 1817, by the sheriff of Baltimore, county, and at the return day ofthe writ, counsel appeared for the defendant, but he so appeared at the instance of Forrest, and prayed a return of the negroes so replevied and delivered to Sommerville; but afterwards and before the return, the counsel moved that his appearance be stricken out, &c. which was accordingly done. The plaintiff further proved by a competent witness, that between the 1st and the 10th of May 1817, six negroes were brought on board his vessel‘lying at Baltimore, and were carried by him to the house of the defendant, and delivered to the defendant, who claimed them as his property, but afterwards said that some of those negroes were in dispute in Baltimore, and that the plaintiff was concerned. He then offered evidence, by another witness, that the defendant informed him that ho was present at a conversation between general Winder and the plaintiff, in August 1817. in which the plaintiff told general Winder, who had appeared as counsel in the aforesaid action of replevin, that he did not wish him longer to appear at his instance and request, to defend that suit. The defendant then prayed the court to instruct the jury, that from the pleadings and evidence in the cause, the plaintiff was not entitled to recover; but the court, [¿fay and Plater, A. J.] refused the prayer. The defendant excepted, and the verdict and judgment being against him, he appealed to this court-
    The cause was argued before Chase, Ch. J. Büchanan, Earle, and Stephen, J. by
    
      Winder, for the appellant, and by
    
      Magruder, for the appellee.
   Earle, j.

delivered the opinion of the court. In the covenant, which is the ground-work of this case, Fenwick warrants and defends the negroes sold against all persons whatsoever, to be the property of Forrest,, his heirs, executors and administrators. The breach of this covenant; as assigned', is that the negroes, at the time of the salo, were not the property óf. Fenwick; but were the property of one David SommerviUc, who dispossessed Forrest of them by a writ of replevin issued against Fenwick, and that Fenwick did not warrant aiid defend the negroes to Forrest, as bound by his covenant to do. Fenwick to this charge pleads non infregit bonventio'nem; aiid on the trial of the issue, no proof is offered by Forrest in support of Ms case; except the services of Sommierville’s replevin, and the return of it to Baltimore county court, and the neglect of Fenwick to kppear to the action at the return court, although he was apprised of the resolution of Forrest not to defend the replevin; Is this proof sufficient to sustain the action of covenant, is the question, and did the court below err in refusing to instruct the jury, on the prkyer óf Fenwick, thát the plaintiff, Forrest, was not entitled to recover? .

Whether the covenant be considered a covcnaiitfor quid enjoyment of the negroes, or simply an undertaking to warrant and defend the title to them to the vendee, against the acts of all persons whatever, to maintain ati action for a breach of it, the plaintiff is bound not only to state specially, dispossession of the negroes, but if it be- by a stranger, he must also state á better or paramount legal title to them In such Stranger. Dispossession liy lawful process need not, however, be set forth; for it is enough to state deprivation of possession by a person having lawful title. Foster vs. Pierson, 4 T. R. 617. These statements' are material in the plaintiff’s declaratidn, and without them it would be bad on demurrer. If material to state eviction and lawful title by a stranger, it is equally indispensable to support them by proof; and the inquiry is, whether the title of Sommervilie to the negroes in controversy, whose property they are alleged in the declaration to have been at the time of the sale to the plaintiff,- is established by the evidence laid before the jury on the trial of the case? The disturbance of possession proved, is an eviction by process against Fenwick, but the mere service of the replevin is no evidence of the right or title of Sommervilie id'the negroes replevied. How this replevin was disposed of after the return court, does not appear; at that court, the testimony is, that Forrest undertook the defence of it, made a motion for á return of property; and then abandoned the case, and that Fenwick did not at that term appear to the action. Whether at any future time he became a party to it is no where stated; neither does ii appear that the title to the negroes was ever tried on this replevin-. If Sommerville had made good Isis claim to the negroes thus replevied, the judgment would have afforded the best evidence, to which the plaintiff in this suit could resort, to prove'that he (Sommerville,) had a better title to them than Fenwick; it would have been the establishment-of his right by process of law: Blit this is not the only testimony the plaintiff in this action might have used to sustain his allegation, that at the time of the sale of the negroes in dispute to him by Fcnwidc, they were the property of 'Sommerville. This material proposition he might have substantiated by any other evidence, written or oral, evincing the fact, and thus have maintained his action of covenant against the defendant. Evidence of either kind, to prove Sommerville's right to the disputed negroes, he failed, however, to produce on the trial, and therefore we think the court below ought to have given the directions to the jury prayed for by the defendant.

We reverse the judgment, and order a procedendo to issue,

judgment reversed, &c.  