
    Wren and Glover against Wardlaw.
    DECEMBER, 1824.
    1, In assumpsit, for breach of warranty, averment of scienter not necessary.
    2, Assumpsit vs. two for breach ,of warranty of soundness^ the bill of sale, executed by one only, warrants only the title; parol, evidence to prove that both sold, or to prove fraudulent representations in the sale, is inadmissible.
    IN the Circuit Court of Dallas County, Wardlaw declared in case aginst Wren and Glover, that he purchased a negro woman of them, whom on the sale they promised to be sound. Breach, that the slave was not sound, whereby she became of no value to the plaintiff. There, were other counts, of indeb. ass. ins. comp. &c. The defendants separately plead non assumpsit; on which issues were taken. On the trial, a bill of sale for the negro woman from Glover to plaintiff, was given in evidence, in which he bound himself to make good the right and title, but in which nothing was expressed as to the soundness of the slave. The plaintiff offered parol evidence to prove that the negro was sold to him by both the defendants, to the admission of which the defendants objected; the objection was overruled and they excepted, &c. Verdict and judgment for plaintiff. They assigned here as Error,
    1 and 2, That declaration does not state that the defendants knew the slave to be unsound, or that the purchase was made in consequence of false and fraudulent representations made by them or either, of them.
    3, The Court erred as stated in the bill of Exceptions. ■
   Judge Crenshaw

delivered the opinión of the Court.

None of the counts in the declaration are in decut; they are all in assumpsit. It was therefore unnecessary to aver a scienter. As to the bill of Exceptions—The bill of sale if not proved to have been made by mistake, or to be fraudulent, is conclusive as to the right of property, and the circumstances accompanying the sale. The warranty of title expressed, is an exclusion of all other warranties not expressed, and conclusive that the defendants did not warrant the qualities or soundness of the slave. The parol evidence going to prove that Wren and Glover both sold the slave, was adapted to mislead the Jury, and inadmissible in this action. If the declaration had been in decut, it would have been proper evidence, because decut being in the nature of. a tort, Wren would have been as liable therefor as Glover, though the property of the slave was in Glover only. It is the unanimous opinion of the Court that the judgment be reversed..

Judge Sajfold not sitting.  