Harris vs. Mullins.

from which a jury could infer a warranty, that what was said before the sale amounted only to a representation, and not to a warranty, and that the defendant could not be liable to a mere representation, although contrary to the fact, unless it was fraudulently made. The defendant's representation in this case was fraudulently made, and in that this case differs. from Hopkins vs. Tarqueray. It follows that the defendant, Harris, is liable to the plaintiff for all damage sustained by the plaintiff in consequence of this fraudulent representation, if the mule died of the disease that the defendant knew it had, at or previous to the sale, or of a disease that was the consequence of that.

This is the second objection urged to the charge of the Court: There was no evidence of what disease the mule died, whether of blind staggers, or what. Nor was there any evidence of the nature and character of that disease, that is, whether it is a disease which, when it once attacks an animal, it makes a permanent lodgment in its system, or is temporary in its nature, and a recovery from an attack complete, so that the mule, like this, once having the disease, is or would be no more subject to a renewal of the attack than one never afflicted with it. So far as the evidence goes, the mule at the sale may have been perfectly sound, it appeared to be so, and have died from some other disease, not at all connected with blind staggers, or resulting from it. If this were so, the defendant was not liable. The onus was on the plaintiff to make out the case affirmatively, and the defendant could not be held liable for the death of the mule, unless the mule died of the disease that the defendant said he had at or previously to the sale. It does not follow because the mule once had the blind staggers it continued to have it to its death, and that its death was the result of that disease. It may be so, and it may be that this is the nature of that disease, but this Court does not know it to be so, nor does the evidence authorize that belief. The charge excluded the defendant from the benefit of this principle, and in that

only we think it to be erroneous.

Let the judgment be reversed.

INDEX.

ACCOUNT. See Equity, 25

ACTION.

1. In an action against a railroad company for the recov-
ery of damages for the death of a negro, occasioned
by the cars of the company running over him on the
track, it must affirmatively appear from the testimony,
in order to charge the company with the loss, that the
act was the result of neglect, mismanagement, or care-
lessness of the company or its employees. And in the
absence of such proof, a non-suit is properly awarded
by the Court below. Man vs. M. & W. R. R. Co... 345
2. A petition for writ of certiorari is a suit in the sense
of the 23d section of the Statute of Limitations of 6th
March, 1856, and in case the same be dismissed, dis-
continued, or non-suited, the plaintiff may renew his
application within six months from such dismissal,
discontinuance, or non-suit. Hendrix vs. Kellogg..... 435
See Deceit.

ADMINISTRATION.

1. Letters of administration granted by the Court of
Ordinary on the estate of a person who died outside
of this State, having heirs in the State, and appa-
rently a lot of land in the county where the letters
were granted: Held to be legal and valid. Spray-
berry vs. Culberson......

2. Where the application of a widow, for administration
on the estate of her deceased husband, is caveated on
the ground that the estate is insolvent, and the insol-
vency depends upon the solvency of divers debtors of
the intestate, or upon the validity of the intestate's
title to property held by him at the time of his death,
but claimed by strangers, or upon the validity of dis-
puted claims against his estate, or upon like doubtful

299

questions, insolvency should not be recognized as a
sufficient ground of caveat against the claim of the
widow, and heir-at-law, to the administration. Lynch
vs. Lively.....

........

3. In a contest for the administration of an estate be-
tween the widow and sole heir-at-law, and a creditor
of the intestate, whose debt is disputed, or who sets
up a claim to property of which the intestate died.
seized, and a fortiorari, where he claims in both char-
acters, the widow will be preferred, notwithstanding
the alleged insolvency of the estate. Ibid.

4. If the widow of an intestate, seeking the adminis-
tration of her husband's estate, join with herself in
the application, one of acknowledged probity and
capacity, having no personal interest in the estate, but
representing a portion of the creditors, they jointly
will be preferred to a creditor having a large claim
and sustained by other creditors, whether the estate
be solvent or insolvent. Ibid.
See Advancements, 1, 2.

ADMINISTRATORS AND EXECUTORS.

1. Executorship is an office; and each executor is equally
entitled to participate in the profits thereof; and no
one has the right to seize and appropriate the whole
of the assets to the exclusion of the others. Roberts
vs. Thomas.......

575

31

2. An administrator cannot bind the estate he represent-
ed by a warranty of soundness. Ramsey vs. Blalock. 376
See Charge of the Court, 2, 3. Equity, 7. Evidence,
7, 9, 10, 20, 29.

ADULTERY. See Verdict, 4.

ADVANCEMENTS.

1. The widow of an intestate, who had intermarried
with him prior to the Act of 1854, (which entitle
widows to have advancements to children brought into
hotch-pot for their benefit, the intestate having died
after the passage of said Act,) is entitled to have ad-
vancements made to the children of a former mar-
riage brought into hotch-pot, for her benefit in the
distribution of her deceased husband's estate. Boyd
vs White et al......................

530

2. Such advancements are not chargeable with interest
until they are brought into hotch-pot and distributed,
and it is not allowable to begin computing interest on
them after the expiration of twelve months from the
grant of administration. Ibid.

ADVERSE POSSESSION.

1. The act of entering upon a tract of land, splitting a
few hundred rails, and enclosing and ploughing an
acre or two, without planting or cultivating anything
on the land, and then abandoning it entirely for three
years, is in law a simple trespass. Such act, after a
lapse of three years, can not be connected with four
years of actual, adverse possession, so as to constitute
seven years' adverse possession. Joiner et al., vs. Bor-
ders.......

2. To perfect a statutory title, under color of title, there
must be adverse and continuous possession for seven
years. Ibid.

3. Where there is a succession of crops made on land
every year, the interval which necessarily elapses,
between the time of one tenant moving off, and another
moving on, the premises, will not work a forfeiture
of the benefit of the statute of limitations, or break
the continuity of an adverse possession. Hudgins vs.
Crow et al........

4. In 1847 a claimant entered upon a lot of land, cleared
four or five acres, and planted it in peas, and built a
corn crib the next year he planted it in corn-he
neither lived on or cultivated the land until in the
fall of 1852, although he had some plows in the crib:
Held, that this was not such a continuous possession
as to constitute a statutory title. Virgin and another
vs Lard....................

5. Intention to continue possession of land can only be
demonstrated by acts which are open and notorious-
they are not proven by secret or avowed purposes of
the claimant. Ibid.

6. An open, continuous and uninterrupted possession of
a lot of land for seven years, under color of title, is
sufficient to support an action of ejectment as against
a tenant in possession, although it does not affirma-
tively appear that a grant for the lot has ever issued
from the State. Davis vs Stripling....

See Charge of the Court, 8.

239

367

572

656