#### Shobe*r v*. Robinson, Bevill and wife.

Appeal from Stokes.

A covenant *a to warrant and defend the negro Peter to he a slave,”*is a covenant only against a superior title. It does not bind the war-rantor, on receiving' notice front the warrantee that a suit is brought to ascertain whether Peter be free, to come forward and make de-fence and put a stop to the eviction. He is bound to make defence only when he is sued upon his covenant j and then if he can shew that Peter was a slave at the time of the sale, he shall be discharged. ’ And

The record of the proceedings in a suit brought by Peter against the purchaser, in which the Jury found that Peter was a freeman, and not a slave, is not conclusive against the covenantor, although he had notice of the said suit.

This was an action of covenant, founded upon a bill of sale for a negro fellow named Peter, sold to the Plaintiff by Andrew Robinson and Mary Hamilton, since intermarried with Thomas Bevill, at the price of £240. The bill of sale contained the following covenant, to wit: *“*And we do hereby covenant for ourselves, our heirs, executors and administrators, to and with the said Got-leib Shober, his executors, administrators or assigns, to warrant and defend the said *negro to be a slave,”*And a breach of this covenant was assigned in the declaration. The Defendants pleaded, “ that they had not broken their co'.ena* c,” *Vc. and the Plaintiff having replied, and issue b-ing joiued, fl,,.- following facts appeared in evidei; -e. The Plaintiff took Peter into Iris possession, immediately after the. execution of the aforesaid bill of sale, and in April 1809, Peter, claiming to be a free man, instituted an action of assault and battery and false imprisonment, against the Plaintiff, in the Superior Court of Law for Stokes county ; who thereupon appeared by counsel, and pleaded to the said suit a plea in abatement thereof, to wit, “ that the negro fellow Peter, suing by the name of Peter Archer, was a slave, and not a free*34man,” to which plea there was a replication, and issue being joined between the parties, it was tried at October Term, 1809, when the Jury found that the negro fellow Peter was a freeman, and not a slave. Shober gave notice to Hamilton and Robinson, of the claim which Peter set up to freedom, and of the suit which he had brought to enforce his right. They appeared and employed counsel to defend the suit, and Shober assisted their counsel in making defence; one of them, to wit, Robinson, was present at the trial, and challenged Jurors.

After the verdict and judgment in this case, Shober brought the present suit against his vendors, Robinson and Hamilton, and set forth in his declaration, a breach of the covenant before mentioned. The cause came on to be tried, when Shober gave in evidence to the Jury, the verdict, judgment and proceedings in the suit of Peter against him, as before set forth, and relied upon them as *conclusive*against the Defendants. The Defendants, in support of their plea, “ that they had not broken their covenant,” *See,*offered fividence to prove that notwithstanding the finding of the Jury in the other case, Peter was a slave, and not a freeman. The Plaintiff objected to the admission of this evidence, upon the ground that the Defendants were concluded by the former verdict. The Court overruled the objection, and the evidence was received j upon which the Jury found that the negro fellow Peter, on the day on which Defendants sold him to the Plaintiff, was a slave, and not a -freeman *;*but whether, notwithstanding this fact, the Plaintiff was entitled to recoVer, they prayed the advice of the Court. It appeared in evidence, that it was known to Shober, as well as to Robinson and Hamilton, before the trial of the suit of Peter *v.*Shober, that John Hamilton, then living within the jurisdiction of the Court, could depose to facts, which would shew, that Peter was a slave, and not a freeman, and that neither of them had the said John subposnaed as a witness, nor recpiested his attendance as *35such. Hamilton was the only witness examined by Defendants to prove that Petei* was a slave.

Upon this case, the Court gave judgment for the JDe-fendants ; from which judgment the Plaintiff appealed to this Court: and at this term the case was argued by *Williams*and *Browne*for the Plaintiff, and by *Norwood*for the Defendants. *

Locke, Judge,

delivered the opinion of the Court:

This case presents two questions for the consideration of the Court; 1st. What is the true construction or ope^ration of the warranty contained in the covenant set forth in the Plaintiff’s declaration ? Does it bind the Defendants, on receiving notice from the Plaintiff, of a suit being brought to ascertain the freedom of the negro Peter, to come forward and make defence in the place and stead of the present Plaintiff, and put a stop to the eviction ; or are they bound to make defence only when suit is brought against them on this covenant? And if the latter, then 2dly. Whether the verdict rendered between the negro Peter and the present Plaintiff is, or is not, conclusive against these Defendants ?

To shew that the' warranty binds the warrantor to make defence and put a stop to the eviction, Coke• *Lite*S65, *sec.*1, *a.*has been cited; and it is true, it is there said, “ That in the Civil Law, warranty is defined to be the obligation of the seller, to put a stop to the eviction or other troubles, which the buyer suffers in the property purchased.” It is«not necessary to enquire what were the nature and extent of the obligation) which by the Civil Law, a warranty imposed upon the seller of personal property, nor what were the forms of proceeding where the buyer was sued and gave notice to the seller to stop the eviction *;*for 1¡he definition of *warranty*here copied by the author from the Civil Law, corresponds with that kind of warranty of which the author was treating, to wit, warranty of freeholds and inheritances, and with the form of proceedings against tlie warrantor *36upon the writ of wan-anti a charts, in which the wa;--rantor is vouched and compelled to come forward and majte },}msc]f a party and defend his title. The action 0f warrantia chart» has become obsolete in England, and was ne\ er in use in this State. The action of covenant has been substituted in its *place;*in which it is impossible for any other parties to be made, than those against whom the Plaintiff may think proper to bring his action. To give, then, to warranties respecting chattels, the construction and operation contended for by the Plaintiff, would be to compel a vendor to make defence to an action in which he is no party, and in which, by the rules of Law, he could not use nor sue out any process whatever. It appears, therefore, to the Court, that the fair and just construction of the warranty in question is this, that <e the Defendants covenanted, that when legally called upon by an action grounded on the warranty, at the instance of the Plaintiff, they would shew that the negro Peter was a slave, or if they could not, that they would repair the Plaintiff’s loss by an equivalent in damages , in short, that they only meant to warrant against a superior title, and not against every suit or molestation to which the purchaser might be exposed, and to which they were no parties. Perhaps, if it could be shewn that a purchaser was really ignorant of the witnesses necessary to support his title, and they were within the knowledge of the seller, who, upon a proper application, refused to discover them until after an eviction, a Court of .Law might view/such conduct as a deceit and fraud, for which the purchaser would be entitled to recover. But this case furnishes no ground for such an action, because the evidence to prove that Peter was a slave was known to the Plaintiff: however, the Court do not mean to give any opinion upon the right to recover in such a case as has been stated, because that point does not arise in the case submitted.

If, then, such is the true construction to be given to the warranty contained in the covenant declared upon, what *37is the died of the verdict and judgment recovered by Peter again,st the present Plaintiff, as against the De-fondants ? On this point, the Court is cleai *ly*of opinion, 'that the verdict being between different p; ■■ties, ought to have no other effect than merely to shew that the Plaintiff was evicted, and put the Defendants to the necessity of shewing that the negro Peter was a slave *;*but that it is by no means *conclusive*— (Pear v. *Templeton, 2 Hayw. Rep. 380—Peake’s*Evidence, 2*6.*) Judgment for the Defendants.