#### *Boyles’ Adm’r v. Overby.

April Term, 1854,

Richmond.

1. Fraud of Decedent—Action against Personal Representative *—An action on the case for fraud in selling to the plaintiff an unsound slave, which lie was induced to purchase by means of a false and fraudulent warranty of soundness; or by means of a fraudulent concealment of the unsoundness of the slave, cannot be maintained against the personal representative of the vendor.

2. Same-Same -Judgment for Plaintiff--Jeofails.—In such an action against the personal representative of the venaor though there is a judgment in favor of the plaintiff, the error will not be cured b.v the statute of jeofails. 1 Rev. Code of 1819, ch. 128. § 103, p. 511.

3. Same—Same -Verdict for Plaintiff—Judgment.†—In such a case, though there is a verdict for the plaintiif, judgment should be rendered for the defendant, notwithstanding the verdict.

*4.*Statute of Jeofails-When Action Misconceived in Sense of Statute.—An action is misconceived in the sense of the statute, only in a case wherein upon the trial the proofs show a cause of action fit to be asserted in a form different from that adopted. The defendant is held liable upon proof showing a liability; and if no objection is made to the form of the action until after verdict, the defect is cured thereby.

5. Same—Interpretation of.—To hold a defendant liable upon a cause of action not asserted, is going to the utmost verge of the law, even where such cause of action is proved. But to hold him liable for such cause when not proved, or proved by evidence not admissible if the suit had been brought for that cause, is going beyond the letter and spirit of the law.

6. Practice at Common Law- - No Cause ©4 Action Set Forth—Effect of Statute of Jeofails.‡ The statute, though it will aid defects whether of Conn or substance in pleading, where a portion of the matter pleaded is appropriate, does not apply to cases in which the matter pleaded is, in all its parts, merely nugatory, setting forth no cause of action or no ground of defence.

This was an action on the case in the Circuit court of Patrick county, brought by Allen S. Overby against the administrator of William Boyle deceased. The declaration contained two counts. The first set out that the plaintiff bargained with Boyles in his life time, to buy of Boyles a negro girl slave, and that Boyles, by falsely warranting and representing the said negro *to be sound, falsely and fraudulently induced the plaintiif to buy, and that he did buy of the said Boyles the said negro for, &c. ; whereas the said ne*102gro, at the time of said warranty and sale, was not sound, &c. The second count set out that the plaintiff was induced by Boyles to buy the said slave, bj' falsely, deceitfully and fraudulently suppressing and concealing from the plaintiff the fact that the slave at the time of the sale labored under an incurable disease called consumption, which said unsouudness was well known to said Boyles.

Whilst the case was pending the administrator of Boyles was removed from his office, and administration de bonis non was granted to Clark Penn; and on his motion, he was admitted a party defendant.

On the trial of the cause there was a verdict for the plaintiff for two hundred and eight3,’-six dollars and fifty cents, upon which the court rendered a personal judgment against Penn: And he thereupon applied to this court for a supersedeas, which was awarded.

Grattan, for the appellant.

There was no counsel for the appellee.

*

Torts—Survival of Action.—In Lee v. Hill, 87 Va. 501, 12 S. E. Rep. 1052, the principal case was disapproved. In that case, the true rule as to the survival of tort action was said to be as follows : Where the cause of áclion is a tort unconnected with contract. and affects the person only, and not the estate, such, for instance, as assault, libel, slander and the like, the action dies with the person; but, where the action is founded on contract, it is virtually *ex*contractu, although nominally in tort, and, in such case, the action survives.

†

Judgment Non Obstante Veredicto. —In Duval v. Malone, 14 Gratt. 27, it was said : "The court of its own motion, even after verdict, may disregard the finding of immaterial facts; and in a proper case judgment may be rendered *non obstante veredicto;*or, if the case be not in a condition to warrant a judgment, a repleader may be awarded. 1 Rob. Prac. (Old Ed.) 222; Beale's Adm’r v. Botetourt Jusitces, 10 Gratt. 278 ; *Boyles' Adm'r v.*Overby, *11 Gratt. 202,*and the cases there cited.”

See also, the principal case cited on this point in Davis v. Com., 13 Gratt. 151; Mason v. Bridge Co., 28 *W.*Va. 653, both cases also citing Ross v. Milne, 12 Leigh 204.

‡

No Cause of Action— Effect of Statute of JeaiaJSs. - In Robrecht v. Marling, 29 *W.*Va. 774, 2 S. E. Rep. 831, it is said : "If there had been no legal cause of action in the declaration alleged, and no demurrer to the declaration, and evidence taken to support such declaration and verdict and judgment rendered, upon writ of error to such a judgment it has often been held that, notwithstanding our strong statute of jeofails, the judgment and verdict would be set aside, and judgment entered in the appellate court for the defendant *non obstante veredicto.*Mason v. Farmers’ Bank, 12 Leigh 84; Davis v. Com., 13 Gratt. 139 ; Ross v. Milne, 12 Leigh 204 ; *Boyles v. Overby, 11 Gratt. 202;*Holliday’s Ex’rs v. Myers, 11 W. Va. 276 ”

See principal case also cited for this proposition in Roanoke, etc., Co. v. Kara, 80 Va. 595; Long v. Campbell, 37 *W.*Va. 671, 17 S. E. Rep. 198. In this last case, it was said : "Where a declaration states a case imperfectly, the statute (of jeofails), alter judgment without objection to the defect, intends to cure it; but not where the declaration states no case at all. The opinions of Judge The in Kennaird v. Jones, 9 Gratt., at page 189, and in Hitchcox v. Rawson, 14 Gratt, at page 538, and of Judge Moncure in *Boyles v. Overby, 11 Gratt. 202,*In their construction of the statute, are to same effect. See Land Co. v. Karn, 80 Va. 589, 595.” For other cases where the statute of jeofails was held inapplicable because no cause of action was stated, see Ross v. Milne, 12 Leigh, 204, 37 Am. Dec. 646 ; Mason v. Bank, 12 Leigh 84.

See the principal case distinguished in Spengler v. Davy, 15 Gratt. 397, 398 ; Holliday v. Myers. 11 W. Va. 287, 289, 290, 291.

SAMUELS, J.

The plaintiff’s cause of action is set forth in a declaration of two counts.

In the first count he alleges a deceit by Boyles the intestate, in the sale of a diseased slave; and alleges that the plaintiff was induced to purchase by means of a false and fraudulent warranty of soundness.

In the second count he alleges a deceit in the sale of an unsound slave by Boyles the intestate, by means of a fraudulent concealment of the unsoundness of the slave. There is nothing in the record to show upon what proof the verdict was rendered.

These causes of action, and each of them, died with the vendor Boyles; if suit thereon had been brought *in his life time, it must have abated by his death. The suit brought against his administrator, and. revived against the administrator de bonis non, was for causes of action no longer in existence. This appears from the plaintiff’s own showing; and judgment should have been rendered for the defendant, notwithstanding the verdict, unless the statute of jeofails, 1 Rev. Code, ch. 128, § 103, p. 511, may require a different judgment.

It is obvious to remark that notwithstanding the comprehensive terms of the statute, it was not thereby intended to cure all cases occurring before verdict: If such had been the purpose of the legislature, a simple and direct enactment to that end would have been the mode adopted. Instead of this, an enumeration is given of particular errors, which, after verdict, shall not be relied on to stay or reverse the judgment; amongst them are these: ‘ ‘Any mistake or misconception of the form of action;” or ‘‘any other defect whatsoever in the declaration or pleading, whether of form or substance, which might have been taken advantage of by demurrer, and which shall not have been so taken advantage of.”

In the enquiry whether either of these clauses of the statute includes the case before us, we may discard the second count of the declaration; that is clearly beyond the reach of help from the statute. The first count, in alleging the fraud, sets forth that it was perpetrated by means of a false warranty; and it has been suggested that this action on the case in form ex delicto, for the tort, the fraud in the deceit, was misconceived for an action on the warranty, and therefore is cured by the verdict. This I conceive cannot be so. The legislature cannot have intended to sustain a judgment because in a different form of action, and upon proof of other facts, a judgment might have been had for damages assessed by a different rule; and *thus, almost necessarily, different in amount. The verdict in this case was rendered upon proof of fraud; for without such proof it could not have been rendered at all. See Trice v. Cockran, 8 Gratt. 442. Yet in an action on the warranty, fraud cannot be proven, being wholly immaterial to the cause of action. The ex’ors of Evertson v. Miles, 6 John. R. 138. In an action on a warranty of soundness, the measure of damages is the difference between the real value and the price paid. Tuck. Com. book 2, ch. 25, p. 353 of new edition; Thornton v. Thompson, 4 Gratt. 121. In case for deceit there is, perhaps, no fixed rule for the assessment of damages; they are not limited, however, as in an action on the warranty; if so, they may go beyond those recoverable in an action on the warranty. Rice v. White, 4 Leigh 474; Brown v. Shields, 6 Leigh 440. An action is misconceived only in a case -wherein, upon trial, the proof shows a cause of action fit to be asserted in a form different from that adopted; the defendant is held liable upon proof showing a liability; if no objection be made to the form of action until after verdict, the defect is cured thereby. To hold the defendant liable upon a cause of action not asserted, is going to the utmost verge of the statute even where such cause of action is proven; but to hold him liable for such cause when not proven, or proven by evidence not admissible, if the suit had been brought for that cause, is going beyond the letter and spirit of the law.

The other clause of the statute of jeofails, above referred to, will not sustain the judgment. This clause was intended to aid defects of form or substance in pleading: If, however, a declaration sets forth no cause of action whatever, or a plea sets forth no defence whatever, the statute can give no aid. It extends to cases in which a portion of the matter pleaded is *appropriate, but not to cases in which the matter pleaded, in all its parts, is merely nugatory.

The plaintiff having shown no cause of action whatever, I am of opinion to reverse the judgment; and on the authority of Brown v. Shields, 6 Leigh 440; Mason v. Farmers Bank at Petersburg, 12 Leigh 84; Ross v. Milne & wife, 12 Leigh 204; Tomkins v. The Branch Bank, 11 Leigh 372, to *103enter judgment for the defendant, notwithstanding the verdict.

MONCURE, J. Case and assumpsit are concurrent remedies for a breach of a warranty contained in a simple contract of sale. Formerly case was the remedy, generally, if not always pursued. Recently, it has been found more convenient to declare in assumpsit, for the sake of adding the money counts. In Williamson v. Allison, 2 East’s R. 450, Ford Ellenborough, C. J., said: “The more modern practice had not prevathed generally above forty years. .No other proof was required to sustain the former mode of declaring than the warranty itself and the breach of it.” The scienter was not necessary to be averred; nor, if averred, to be proved. The action, though in form ex delicto, was in substance ex contractu. It could probably have been maintained at common law against an executor on the warranty of his testator, although the general issue is “not guilty,” and the general rule, as laid down by Ford Mansfield in Hambly v. Trott, Cowp. 371, was, that an action in which “not guilty” was the general issue was a personal action which died with the person. Being formerly the general, if not the only, form of action in such cases, it was probably used as well against executors as others. In Powel v. Layton, 5 Bos. & Pul. 370, Mansfield, C. J., seemed to be of opinion that case would lie against the executor of a carrier, the foundation of the action being essentially contract. The same prin ciple would apply, *at least as strongly, to an action on the case for a breach of warranty.

But however this may be, I think the action mighihave been maintained under the equity of the statute, 1 Rev. Code of 1819, p. 390, § 64, which declared that “actions of trespassmay be maintained by or against executors or administrators for any goods taken or carried away in the life time of the testator or intestate.” This section is an extension of the statute, 4 Edw. 3, ch. 7, de bonis asportatis, so as to embrace actions brought against, as well as by executors aid administrators. Vaughan’s adm’r v. Winckler’s ex’or, 4 Munf. 136; Fee v. Cooke’s ex’or, Gilm. 331. The statute of Edv. 3 altered the rule, actio personalis moritur cum persona, only in its relation to personal property, and in favor of the personal representative of the party injured. But to that extent it has always received a very liberal construction. “It has been observed that the taking of goods and chattels was put in the statute merely as an instance, and not as a restriction to such injuries only; and that the term trespass must, with reference to the language of the tines when the statute was passed, signify any wrong; and accordinglj' the statute has been construed to extend to every description of injury to personal property by which it has been rendered less bereficial to the executor; whatever the form of action may be; so that an executor may support trespass or trover, case for a false return to final £)rocess, and case or debt for *an*escape, &c. on final process;”— ‘ ‘or debt against an executor suggesting a devastavit in the life time of the plaintiff’s testator; or case against the sheriff for removing goods taken in execution, without paying the testator a year’s rent.” 1 Chit. Pl. 69. Our statute being, as before stated, but an extension of the stat. of Edw. 3, should be construed in the same manner; extending to defendants the same rule of construction which, under *the limited terms of that statute, had been applied only to plaintiffs. That such has been the case, is shown by the decisions already cited and others to be found in our reports.

But even if I be wrong in all this; and if, instead of an action on the case, the plaintiff should have brought an action of assumpsit against the administrator of Boyles in this case; yet, the defendant not having demurred to the declaration, but having pleaded the general issue, and verdict and judgment having been rendered thereon; I think the defect was cured by the statute of jeofails, 1 Rev. Code, p. 512, *§*103; being, at most, but a mistake or misconception of the form of action, which is expressly embraced in that statute. The only difficulty I have had on the subject has arisen from the fact that the declaration contained two counts, one for a false warranty and the other for a deceit. The latter of course cannot be supported against an administrator; and if it had been the only count in the declaration, the defect would not have been cured by the verdict. But as the plaintiff, by proving the breach of a warranty by simple contract of the defendant’s intestate, would have shown a good cause of action under the first count, though not in that form; and as the defendant could by motion have had the plaintiff’s evidence confined to that count, or an instruction to the jury to disregard the other count; and as every reasonable presumption should be made in favor of the verdict, I think the verdict must be regarded as having been rendered on the first count, and the defect is therefore cured.

If the form of the action were the only objection to the judgment, I would therefore be for affirming it. But it was erroneously rendered against the appellant de bonis propriis ; and it would be necessary on that ground to reverse it, and render a judgment of the goods of the intestate.

*I have not considered the objection taken to the judgment on account of the exclusion of portions of the depositions, deeming it unnecessary to do so, as the case is decided by a majority of this court on other grounds.

LEE, J., also dissented from the opinion of Samuels, J., though he was of opinion that the personal judgment against the administrator was erroneous; and on that ground it should be reversed.

*104DANIEL, J., concurred in the opinion of Samuels, J., except as to the measure of damages on a warranty of soundness.

ALLEN, J., concurred with Samuels, J.

Judgment reversed, and entered for the appellant.