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By the Court

Jenkins, J.,

delivering the opinion.

1. The first exception in this record goes to error in the charge of the Court below, to the effect that the plaintiff was bound by any false representatioüs as to the soundness of the slave sold, made by her agent and uncontradicted by .her.

The evidence shows that the negro, which was the consideration of the notes sued on, was sold at public outcry by an auctioneer, in the presence and under the direction of the plaintiff as administratrix, etc.

It does not appear that the plaintiff had any agent in this ' ■sale, other than the auctioneer; nor does it appear that he made any representations whatever relative to the soundness of the negro. It is proven, that one Noah Smith (the plaintiff’s brother, being present, and having been questioned to the point by a bystander,) stated that the negro was sound. There is no evidence that he was authorized by plaintiff to make this or any other statement, nor that she heard the statement made by him. Looking to the state of the proofs and to the pleadings, we think that this charge was unguarded and calculated to mislead the jury.

2. The verdict of the jury is contrary to law and to the evidence. Defendant’s plea is, that the consideration of the . notes sued on has failed, in this, that they were given in part *380payment for a certain negro.,- which was, by. the terms óf the sale, warranted to be sound,' and which was in fact unsound, having a disease of which she afterward died. There is no allegation of deceit in the sale.

This defense must fail in law, for the reason that- an administrator can not bind the éstate of his- intestate ■ by a warranty of the soundness of an article sold by him. The case of Williamson vs. Walker, 24 Ga. R., 257, does not go to this length; but only to the extent that an estate- can not be profited by a willfully false representation of the representative.

Nor, in our opinion, was the defense at all more successful upon the facts. There is no proof of a warranty of soundness. The proof of unsoundness at the time of the sale-is by no means satisfactory. There is abundant' evidence that the slave died of an acute disease which she could not have had at the time of the sale. There was error in overruling the motion for a new trial. -.

Let the judgment be reversed.

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