thority. This admits of the same remarks that were made as to the first; but it also admits of this further answer. The order of sale preceded the giving of the bond, and the failure of the administrator to give bond could not vitiate a valid order, even if it would vitiate his sale. And, moreover, the statute makes no provision for recording the bond; how then should it appear of record? And why not as well presume that he had given bond, as to presume that he had taken an oath, which we have seen may be done?

The third charge refused is, that the reservation of the widow's dower in the order of sale, and in the deed from the administrator to the purchaser, is evidence that Stevenson left a widow, and estops the defendant from denying the same. If the widow were a party to this controversy, the force of this position might be more apparent. If it were intended to justify the presumption of the legitimacy of the children, its pertinency is not perceived, as it would not prove their legitimacy. It may have been that Stevenson left a widow, and still a part of the plaintiffs may be illegitimate. It would not follow necessarily that any of them were legitimate. We have found no law which, at that day, made the children legitimate by the subsequent marriage of the mother and reputed father. The charge then seems to have propounded but an abstract proposition, as it is wholly immaterial to the merits of this controversy whether Stevenson left a widow or not.

The last charge refused is, that cohabitation and acknowledgment are legal evidences of marriage, and if the jury believe, from the evidence, that Stephen and Mary Stevenson cohabited and held themselves out as man and wife, and raised and provided for a large family of children, which they acknowledged and held out to the world as their children, they must find for the plaintiffs. This was asking the court to weigh the evidence. The court might have charged the jury, as it afterwards did, that such circumstances would justify them in presuming a marriage, but such proof could not, under all circumstances, justify a verdict for the plaintiff. It must be recollected that there was rebutting testimony on this subject; and although cohabitation, etc., may have been proved, yet the rebutting proof may have been sufficient to show that it was an illegal cohabitation. Cohabitation, and holding themselves out to the public as man and wife, furnished but presumptive evidence of marriage. The charge was too strong; it left no room for the jury to determine on the weight of evidence. The weight of

AM. DEO. VOL. LI-8

evidence may have been against the actual marriage, but by giving the charge the court would have cut out all rebutting proof, by directing the jury that under proof of cohabitation, etc., they must find for the plaintiffs, notwithstanding the proof that no marriage was solemnized.

Several of the charges given at the instance of the defendant were objected to. The most of them may be resolved into this proposition: that, in connection with his long possession, the defendant had proven enough to justify the jury in presuming that all necessary steps had been taken to enable the administrator to make a valid sale. The truth of the proposition, we trust, has been sufficiently shown, and we shall therefore omit to notice each charge particularly.

Certain other charges given will receive a passing notice; to wit, that by the warranty in the deed the defendant was not estopped from controverting the fact of the marriage of Stephen and Mary Stevenson, nor from questioning the legitimacy of the plaintiffs. The warranty is general, "excepting only the widow's right of dower." In this controversy we do not see how this exception in the deed is to estop the defendant from disproving the marriage, and certainly it does not estop him from disproving the legitimacy of the plaintiffs. The exception has no connection with their legitimacy. If it was now a question as to the widow's right of dower, the exception might be entitled to great force. We need not now say what weight it might be entitled to. This is not a recital in the deed, but an exception. Recitals in deeds sometimes operate as estoppels, but none but privies and parties shall have advantage of them. They depend upon the same principles that the admissions of a party do. Recitals only estop the party making them, and those claiming under him, but estoppels must be mutual. The plaintiffs deny that they are bound by anything in this deed. Their legitimacy is not recited, and the defendant can not be precluded from disproving it.

Most of the plaintiffs are obviously barred by the statute of limitations, and certain charges given on that subject were excepted to, which were, in substance, that if the defendant had held twenty years' adverse possession, the plaintiffs were barred, unless they were saved by infancy or coverture; that when the statute begins to run, it continues to do so, and if the plaintiffs rely on the exceptions in favor of infants or femes covert, they must show that they are entitled to the benefits of the exceptions. To these charges we see no objection.

On the motion for a new trial, we need only remark that we do not think the verdict was contrary to law or the evidence, but in strict accordance with both.

The laborious investigation which this case received from counsel has induced us to give our views on the prominent points more at length than we should have otherwise deemed it necessary to do. We have bestowed upon it due deliberation, and the result is that we think that the court, from the facts proven, was correct in its charges, and that enough was before the jury to authorize them to indulge every presumption in favor of the defendant's title.

Judgment affirmed.

STATUTE AUTHORIZING TRANSFER BY ADMINISTRATOR MUST BE STRICTLY PURSUED: Atkins v. Kinnan, 32 Am. Dec. 534, and note; Worten v. Howard, 41 Id. 607, and note; Williamson v. Williamson, Id. 636; Doe v. Henderson, 48 Id. 216.

PURCHASER AT ADMINISTRATOR'S SALE, AFTER GREAT LAPSE OF TIME, is not held to proof of proper posting of notices of the sale: Jackson ex dem. Grignon v. Astor, 39 Am. Dec. 281.

PROOF OF MARRIAGE BY COHABITATION AND REPUTATION: See note to Taylor v. Sweet, 22 Am. Dec. 159, discussing this subject at length.

RECITALS IN DEEDS AS ESTOPPELS: See Talbott's Ex'rs v. Bell's Heirs, 43 Am. Dec. 126; Hall v. Benner, 21 Id. 39; Stow v. Wyse, 18 Id. 99; Den v. Chaffin, 22 Id. 711; Graff v. Castleman, 16 Id. 754, and note.

TITLE ACQUIRED BY ADVERSE POSSESSION, WHEN: See Moody v. Flemming, 49 Am. Dec. 211; Patterson v. Reigle, 45 Id. 684; Hoey v. Furman, 44 Id. 129; Berthelemy v. Johnson, 38 Id. 179.

DISABILITIES OF INFANCY AND COVERTURE, Effect of, on StaTUTE OF LIMITATIONS: See note to Moore's Lessee v. Armstrong, 36 Am. Dec. 63.

SUCCESSIVE AND SUBSEQUENT DISABILITIES, EFFECT OF, ON RUNNING O STATUTE OF LIMITATIONS: See note to Moore's Lessee v. Armstrong, 36 Am. Dec. 78.

LILE v. HOPKINS.

[12 SMEDES AND MARSHALL, 299.]

IN EVERY SALE OF CHATTEL THERE IS AN IMPLIED WARRANTY OF ITS EXIST ENCE, and that the vendor has title to it.

PARTY ASSIGNING JUDGMENT MUST BE HELD TO IMPLIED WARRANTY that there is such a judgment, and that the defendant is liable to pay it; and if the judgment has in fact been paid, the assignee can recover from the assignor the amount paid him.

ERROR from the Claiborne county circuit court. The opinion states the case.

James H. Maury, for the plaintiff in error.

H. T. Ellett, contra.

By Court, CLAYTON, J. In March, 1841, the defendant, Hopkins, assigned to the plaintiff all his right and title to a judgment, in the Claiborne circuit court, of McLean v. McGilvary," to be collected by said Lile for his own use, and in any manner he might think proper." In point of fact, the judgment had been previously paid off, and afterwards there was a perpetual supersedeas granted to its enforcement. This action for money had and received was brought to recover back the amount paid for the judgment.

Upon the trial the plaintiff asked the court to charge the jury, "that the sale of a chattel carried with it an implied warranty that there was such a chattel." This charge the court refused to give, but instructed the jury," that no action will lie by the assignee of a judgment against the assignor, to recover the consideration paid, unless there is an express agreement to refund."

In both the court erred. In every sale of a chattel there is an implied warranty of its existence, and that the vendor has title to it: Story on Sales, 184, 367. So in every assignment of an instrument, even not negotiable, the assignor impliedly warrants that the instrument is valid, and the obligor liable to pay it: Howell v. Wilson, 2 Blackf. 418. In Caton v. Lenox, 5 Rand. 47, the court says, "the law does not tolerate that any person should transfer to another a right which he has not himself." In Indiana and in Virginia, the statute law in regard to assignments is similar to our own, and the assignment is not governed by the law merchant: Bullitt v. Scribner, 1 Blackf. 14; Mackiev. Davis, 2 Wash. (Va.) 219; Norton v. Rose, Id. 233.

From this principle it follows, that a party who transfers a judgment must be held to an implied warranty, that there is such judgment, and that the defendant is liable to pay it. A satisfied judgment is, in fact, no judgment, as regards those to whom it may be transferred after its payment. If it were the intention of the parties that the assignor should not be held to such an implied warranty, that fact must be established by him. Prima facie the implication arises from the transaction, and the payment of the consideration by the assignee, and it must stand unless rebutted by proof.

The judgment must be reversed, and a new trial granted.

LAND V. WILLIAMS.

[12 SMEDES AND MARSHALL, 362.]

WRIT OF ERROR CORAM NOBIS, or quæ coram nobis resident, to correct errors in matter of fact only, is addressed to the same court where the judgment was rendered, and the jurisdiction is in that court; consequently, the circuit court can not issue the writ to correct an erroneous entry of judgment in this court in a certain cause affirming a judgment of the circuit court.

ERROR from the Yalabusha county circuit court. The opinion states the case.

Acee, for the plaintiff in error.

A. H. Davidson and Sheppard, contra.

By Court, THACHER, J. A petition for a writ of error coram nobis, and for the supersedeas of an execution, was addressed to the judge of the circuit court in and for the county of Yalabusha. By the fiat of the judge, the writ of error and supersedeas were directed to be issued. Upon the hearing of the writ, it was directed by the circuit court to be dismissed.

Upon an inspection of the petition, upon which the writs were directed to be issued, it appears that the error complained of consisted in an erroneous entry of judgment, in a certain cause in the high court of errors and appeals of this state, affirming a judgment rendered by the circuit court of Yalabusha county. The alleged error is as to the character of the parties against whom the judgment was affirmed in this court. But this is of immaterial consideration.

The circuit court had not jurisdiction of the subject-matter of this petition. The writ of error coram nobis, or quæ coram nobis resident, to correct error in matter of fact only, is addressed to the same court where the judgment was rendered, and consequently the jurisdiction was in this court. It is so called from its being founded on the record and process which are remaining in such court: 2 Tidd's Pr. 1137. And so the circuit court decided correctly in dismissing it. Judgment affirmed.

WRITS OF ERROR CORAM NOBIS, WHEN LIE: See Dows v. Harper, 27 Am. Dec. 270. In Adler v. State, 35 Ark. 517, it was held that a circuit court judge had power, after the expiration of a term, to issue a writ of error coram nobis to reverse a judgment of conviction in a criminal case, where it appeared that the defendant was insane at the time of the trial, and the fact was not known at the trial, citing the principal case; see also Holford v. Alexander, 46 Am. Dec. 253.