Davis & Mizzell vs. Stanford.

upon this principle, our judgment is, that the nunc pro tunc order should have been allowed, accompanied, however, with the proviso, that the same should not prejudice third persons who had acquired rights intermediate the first and second verdicts.

No. 32.-DAVIS & MIZZELL, plaintiffs in error, vs. JAMES M. STANFORD, defendant in error.

[1.] S brought suit against D & M, upon a promissory note, purporting to be signed by them as partners. D filed a plea of non est factum. There was a verdict for the plaintiff, from which D alone appealed. Upon the trial of that appeal: Held, that S could not use M'as a witness, to prove the liability of D, as M was interested in casting on D a portion of the liability which was then sustained alone by himself.

Complaint, in Marion Superior Court. Decision by Judge WORRELL, at February Term, 1855.

James M. Stanford brought suit against Davis & Mizzell, on a note purporting to be signed by them as partners. Davis filed a plea of non est factum. . 'On the trial of that issueon the appeal, the first verdict having been against the defendants, and Davis only having appealed, plaintiff offered Mizzell as a witness, to prove the partnership, and his authority to sign the name of Davis to the note. The Court admitted him as a witness, and this decision is assigned as error.

PRYOR & DAVIS, for plaintiffs in error.

OLIVER & CLEMENTS, for defendant in error.

VOL. XVIII-37

Davis & Mizzell vs. Stanford.

By the Court.-STARNES, J. delivering the opinion.

[1.] It is very plain that Mizzell is an interested witness in this issue-interested to throw a portion of that liability upon Leonidas O. Davis, which would otherwise have to be responded to, solely by himself. He cannot, therefore, be a witness in the case, without violating a primary rule of evidence.

It is true, that our Act of 1854 allows any party to the record to be subpenaed and sworn by his adversary; and thus, removes all objections growing out of the relation of the witness to the case, as a party, and as between him and the party swearing him-the latter waiving all such objections, by thus summoning his adversary. But the Statute was not intended, otherwise or further to dispense with the rules of evidence. It was not intended, for example, to admit hear- · say testimony from the party sworn, nor to allow him to give parol evidence of a written contract or secondary evidence, when better evidence was in the power of the party. In short, it was designed, only that the testimony of such party, thus inyoked, should be received, subject to the rules of evidence applicable to all other testimony.

One of these rules is, that a witness shall not be allowed to testify when he is interested in the result; and therefore, the plaintiff cannot be permitted to use Mizzell as a witness, though he be a party to the record, for the purpose of proving a fact which casts on Davis a liability now alone sustained by the witness.

Judgment reversed.

Manes vs. Kenyon.

No. 33.-BENJAMIN MANES, plaintiff in, error, vs. SOLOMON H. KENYON, defendant in error.

[1] A charge to the Jury was to this effect: that if the defendant made any representations which were untrue, and the plaintiff was induced to purchase by reason of such representations, it was not necessary to be proven that the defendant knew them to be untrue, but that he was responsible for the representations if untrue; whether he knew them to be untrue or not: Held, that the charge was erroneous.

Motion, in Talbot Superior Court. Decision by Judge PERKINS, March Term, 1855.

Benjamin Manes sold a negro woman, Mary, to Solomon H. Kenyon, and by his written bill of sale, warranted the negro to be "sound in body and mind, except some deficiency about her feet or ankles." Kenyon brought an action for deceit against Manes, for false representations as to the soundness of the negro, alleging, that from some disease of the feet and ankles, she was utterly worthless, which was well known to Manes. On the trial, it appeared that the negro was not present when the sale was made, and that Manes represented the deficiency to be trifling, when it was proven that it rendered the negro almost valueless.

The Court charged the Jury-1st. That the plaintiff had a right to bring this action, notwithstanding the written warranty; and 2d. That if the defendant below made any representations which were untrue, and the plaintiff was induced to purchase by reason of these representations, it was not necessary to be proven that the defendant knew them to be untrue, but that he was responsible for such representations, whether he knew them to be false or not.

A motion was made for a new trial, on the ground of error in these charges.

The motion was refused and error is assigned thereon.

Manes vs. Kenyon.

By the Court.-BENNING, J. delivering the opinion.

[1.] In the case of Chandelor vs. Lapus, error was "brought in the Exchequer Chamber, because the declaration" contained "not matter sufficient to charge the defendant, viz: that he warranted it to be a bezoar-stone, or that he knew that it was not a bezoar-stone."

"And all the Justices and Barons, (besides Anderson) held, that for this cause it was error." (1. Smith's Lead. Cases, 77.)

This decision has been repeatedly affirmed; as far as I know, it has never, in England, been departed from.

See Smith's note to Chandelor vs. Lapus. Of the cases affirming this decision, the last which I have noticed, is the case of Ormrod vs. Heeth and others, in the Exchequer Chamber. (14 M. & W. 651.) The head-note of that case is as follows: "where cotton was sold by sample, upon a representation that the bulk corresponded with the sample, but no warranty was taken by the purchaser; and the bulk of the cotton turned out to be of inferior quality, and to have been falsely packed, though not by the seller: Held, that an ac tion on the case for a false and fraudulent representation was not maintainable, without showing that such representation was false, to the knowledge of the seller, or that he acted fraudulently, or against good faith, in making it." And the opinion delivered by Tindal, C. J. contains this passage: "The rule which is to be derived from all the cases, appears to us to be, that where, upon the sale of goods, the purchaser is satisfied without requiring a warranty, (which is a matter for his own consideration,) he cannot recover upon a mere representation of the quality by the seller, unless he can show that the representation was bottomed on fraud. If, indeed, the representation was false, to the knowledge of the party making it, this would, in general, be conclusive. evidence of fraud; but if the representation was honestly made, and believed at the time to be true by the party making it, though

Manes vs. Kenyon.

not true in point of fact, we think this does not amount to fraud in law, but that the rule of caveat emptor applies, and the representation, itself, does not furnish a ground of action. And although the cases may, in appearance, raise some difference as to the effect of a false assertion or representation of title in the seller, it will be found, on examination, that in each of those cases, there was either an assertion of title embodied in the contract or a representation of title, which was false to the knowledge of the seller."

[1.] If these decisions are evidence of what the law is, and we think they are, one of the charges of the Court below was wrong, viz: this, that if the defendant (below) made any representations which were untrue, and the plaintiff (below) was induced to purchase by reason of these representations, it was not necessary to be proven that the defendant knew them to be untrue, but that he was responsible for such representations, whether he knew them to be false or not.

We understand the other charge of the Court to mean no more than this: that because there is a written. warranty, it does not necessarily follow that there may not be an action of deceit. The charge is, doubtless, so general that it might mislead; if the Court meant, by it, no more than what would be authorized by Baglehole vs. Watters, (3 Campbell,) and Pickering vs. Dawson, (4 Taunt. 785-'6) then we think it was all well enough. And see Dickson vs. Zizinia (2 Eng. Law and Eq. 314.) A written warranty, is not a protéction to the seller against à fraud on his part.