
    W. B. MARCH and E. D. HAMPTON v. URIAH H. PHELPS.
    A bill of sale in the following words: Received of M. & H. $3000 for a negro boy named Allen, 26 years old, said negro is warranted sound in mind and in body and the title good, held to contain no warranty as to age.
    Case, tried at Spring Term 1867 of the Superior Court of Davidson, before Warren, J.
    
    The plaintiffs declared for deceit, and false warranty in the sale of a slave.
    “ The evidence was that in February 1860 the plaintiffs bought a slave from the defendant, and took a bill of sale as follows: Received of March & Hampton two thousand dollars for a negro boy named Allen, twenty-six'years old, said negro is warranted sound in mind and in body and the title good: given under my hand and seal (signed) U. H. Phelps. There was also at the time of the sale a verbal affirmation that the slave was 26 years of age. He was in fact 34 or 35 years old at the date of the sale. The plaintiffs were negro-traders and lived near the defendant, and the former owner of the slave for many years, and had as good an opportunity to know the age of the slave as the defendant had. The plaintiff Hampton, who made the purchase and who wrote the bill of sale, had for five or six years prior to the sale been sheriff of the county, and lived in Lexington, some distance from the residence of the slave. The defendant’s father had owned the slave for about' a year before the sale. The defendant himself had owned him but a short time.
    There was also evidence upon the question of damages but there was no exception to the instructions of the court upon that part of the case. Nor was there any exception to that part of the charge which related to the first count in the declaration. Upon the count for false warranty plaintiffs’ counsel contended that the affirmation being shown to be false, the plaintiffs were entitled to a. verdict., and that it was not necessary to show that it Avas false within the defendant’s knowledge; and asked the court so to instruct the jury. The court, refused to give the instruction in this form, but said that it Avas not necessary to show that the affirmation ivas false within the defendant’s knowledge, but that a simple false affirmation was not actionable, that it must appear that it AA'as intended and accepted as a Avarranty, and that upon this part of the case the jury might consider the evidence in relation to the plaintiffs’ knowledge or means of knoAvledge of the age of the slave.”
    Verdict for defendant; Rule fora NeAV Trial discharged; Judgment, and Appeal.
    
      Phillips & Battle, for tie appellant.
    
      The contract being in writing, it was error for the judge to leave its construction to the jury. Brown v. Hatton, 9 Ire., 319; Banner v. Stevens, 2 Ire., 411; Young v. Jeffreys, 4 D. & R, 216; Sizemore v. Morrow, 6 Ire., 54; Ayers v. Paries, 3 Hawks, 59. The last case shows besides that the decision to which the jury came was erroneous.
    
      McLean, contra,
    
    cited Brittain v. Israel, 3 Hawks, 222; Fields v. Rouse, 3 Jon., 72.
   Pearson, C. J.

The case is stated so vaguely that-we are unable to see whether his Honor intended to take a distinction between a warranty and an affirmation, or, if so, what that distiction is.

If the instrument declared on contained a warranty as to the age of the slave, the plaintiffs were entitled to the instruction asked for, and it was error to leave the question of construction to the jury.

We are entirely satisfied that that instrument does not contain a warranty as to the age of the slave. So far from it the warranty is confined expressly to the slave’s soundness, and to the title. It is perfectly clear that the age is set out as a mere matter of description, like the name “Allen” with which it is put in connexion. There is therefore no warranty, and this description, if known by the defendant to be false, was ground to support the count for deceit. That count was disposed of satisfactorily, and his Honor ought to have instructed the jury that the second count could not be supported because there was no warranty.

This miscarriage of the judge however is cured by the finding of the jury which puts the matter right.

There is no error.

Per Curiam. Judgment affirmed.  