
    William Duncan, et ux., v. Joshua Bell, et al.
    The doctrine of implied warranties, relates as well to sales at auction, of executors and administrators, and others, acting in a representative capacity, as at other sales by individuals. But the executor or administrator is not liable himself, unless for misrepresentations. The estate alone is liable.
    Where an action is brought on a note, and the defendant gives in evidence that the property, for which it was given, was defective, it is not necessary that he should prove that he offered to return the property, or that it was impracticar ble. That is only necessary where general indebitatus assumpsit, for money had and received, is brought for a total failure on a warranty, expressed or implied, 
    
    A sold a horse to B, and B to C. A is a competent witness in an action between B and C, as to the soundness of the horse, though the law implies a warranty of soundness on all sales, where a full price is given. 
    
    This was a summary process, on a promissory note, given to plaintiff’s wife, as administratrix of James Ooit, for a horse bought at the sale of the estate of the said James Coit, made pursuant to an order of the Court of Ordinary. The cause was tried at Lancaster, Spring Term, 1819, before Mr. Justice Gantt.
    The defence was, that the horse was unsound at the time of the sale, of which unsoundness he died shortly after.
    It is unnecessary to detail the evidence on the part of the defendant. It is sufficient to state that it went to show the unsoundness of the horse at the time of the sale. But it was not pretended that the plaintiffs had any knowledge of the fact, or that there was any misrepresentation or deceit practised by them.
    When the evidence was closed on the part of the defendant, the plaintiffs contended, that in a sale under an order of the Court of Ordinary, by an ad-ministratrix, there was no implied warranty of the article sold.
    *1541 *That on an implied warranty, there could be no recovery or defence J without an offer to return the property, or evidence to show that such return was impracticable.
    These positions being overruled by the Court, the plaintiff called Allston Coit to rebut the evidence given ón the part of the defendant, with regard to the soundness of the horse. He was sworn on his voire dire, and said he had sold the horse to the plaintiffs’ intestate, in May preceding the January when he was sold by the plaintiffs to defendant. He was asked, whether he would not be liable if the horse was unsound when he sold him ? He said he supposed he might be. He was then objected to as incompetent; and the objection was sustained by the Court, and a decree given for the defendant.
    This was a motion to set aside that decree, and to grant a new trial, on the two grounds above mentioned, and also on the ground, that the testimony of Allston Ooit ought to have been admitted.
    
      
       In tlie ease of the Commissioners of Roads v. Macon and Foot, Judge Bre-vard’s Reports, Columbia, November, 1806, it was decided, “that a public agent wlio sells an estray, according to law, is not liable for any defect of the estray, on an implied warranty. It was also held that the defendant, when sued on his note, given for such property, might make the failure of consideration a matter of defence.” — R. 1 N. & McC. 194; Com’rs v. Smith, 10 Rich. 521, 529 ; 1 McC. 128, note b.
    
    
      
       See ante, 65, Whorton v. O’Hara. — R. Gas Co. v. City Council, 9 Rich. 347, 351; 2 McC. 214; 8 Rich. 472, 428.
    
   The opinion of the Court was delivered by

ITott, J.

The doctrine of implied warranties has so long prevailed in this State, and has been so well illustrated by a series of uniform decisions, ever since the revolution, that no one thinks it now a subject of litigation. And it is not a question now submitted to us, whether a warranty of soundness of property may be inferred from soundness of price, but whether that rule of law is applicable to executors and administrators, and others acting in a representative capacity.

I formerly entertained an opinion that it did not apply to cases of that description. It still doubt whether, on any ground of public policy, or the principles of the common law, it can now be maintained. But there have been so many decisions in which it has been held to apply as well to persons acting in a representative character, as to those acting in their own right, that I feel bound to yield to their authority. *1 „ take it, however, that this distinction is still to be observed ; that L 0 executors or administrators are not to be considered as personally responsible, except in eases of misrepresentation or deceit; and therefore would not be liable where the money had been paid over, or the estate fully administered. The foundation of the action does not appear to me in such case to depend so much on any supposed undertaking on the part of the seller, that the property is sound, as on the moral obligation which every person is under to give an equivalent for what he receives. If, therefore, a seller receive the full price of an article, apparently valuable, which is intrinsically defective and worthless, the law imposes a duty, and thereby implies a promise, that he will refund the money ; because he has received that which equo et bono he ought not to íetain. So where the money has not been paid, the defendant is absolved from his contract on the ground that the consideration has failed. It is in the latter case, in particular, that this remedy is allowed against executors and administrators, while the money is, as it were, in transitu, and before it has been paid away in the course of administration.

Blanding, for the motion. Williams, contra.

The second ground appears to be bottomed on a misapprehension of the decisions of this Court. The mistake has arisen from confounding the action of assumpsit on a special promise or undertaking, with a general indebitatus assumpsit, for money had and received. It was held in the case of Weston v. Downs, Douglass, 23, and in Fowler and Williams, and Byers and Bostwyck, in this Court, 2 M. Const. Rep. 15, that as long as the contract remained open or not rescinded by the return of the property or otherwise, an action for money had and received, would not lie. But it never has been held in this Court that a special assumpsit on the implied warranty might not be maintained, even though the contract had not been rescinded. The objection in all the cases has gone to the form of the declaration, and not to the action. The distinction, therefore, cannot exist, where the *unsoundness or want of p*.. consideration is set up by way of defence. *-

But on the last ground, I think a new trial ought to be granted. The witness does not appear to have had any immediate interest in the event of the suit; neither could the judgment in this case be given in evidence for or against him, in any future action. If the title of the horse had been in question, his interest would have been manifest, because the defendants might have had recourse to him in case a decree had been against them. But it did not follow, that because the horse was sick in January, he must have been so the spring preceding. The objection might perhaps have gone to his credibility ; but that was a question for the jury, and not for the Court.

The motion must, therefore, be granted.

Colcock, Johnson, and RtcháRDSOn, JJ., concurred. 
      
       1 N. & McC. 194.
     
      
       2 Brev. 304; Ante, 67.
     
      
       2 Brev. 105.
     