Kent v. Edmondston.

without disclosing the name of his principal." The plaintiff having done the work, why should not this contract be binding?

It was said in the argument, that there was no consideration. in respect to the defendant. The proposition is not true. The contract was supported by the consideration of mutual promises between the contracting parties.

The fact that the plaintiff "found out," before he commenced work, that the work was to be done for Wm. Shipp, and not for the defendant, (his father), was immaterial; and his Honor properly declined to give the instruction asked for. Suppose William Shipp to have been an infant, or a bankrupt, that did not discharge the plaintiff from his promise to do the work; therefore, it could not discharge the defendant from his promise to pay for it.

The ruling, in regard to the defendant's availing himself of a set-off, by reason of a supposed balance due William Shipp, growing out of the sale of castings, was in strict accordance with the legal rights of the parties. If William Shipp had made payments to the plaintiff, (as distinguished from a set-off), for, and on account of, his work, that would have presented a different question. But the fact that, the plaintiff (as was alleged), had sold castings for William Shipp, and had failed to account therefor, so as to give him a right to sue for an account, was properly excluded from the enquiry involved in the issues joined between the plaintiff and defendant.

PER CURIAM,

Judgment affirmed.

A. S. KENT v. W. H. EDMONDSTON.

A covenantee is essential to be named in a covenant, except in dedications of land to public uses.

Where a writing under seal, intended to evidence the sale of an article of personal property, was inoperative for the want of form, it was Held, that an action of assumpsit would lie on the parol contract, made at the time of

Kent v. Edmondston.

its execution, and that parol evidence of such contract was admissible, independently of the terms contained in such ineffectual writing.

ACTION of ASSUMPSIT, tried before ELLIS, J., at the Fall Term, 1856, of Caldwell Superior Court.

The plaintiff declared for the breach of a parol warranty of a jackass. He proved the sale, and the warranty declared on by parol, but upon cross-examination of the witness it appeared that, at the time of the sale, the following instrument of writing was executed, and delivered to the plaintiff, viz:

"STATE OF NORTH CAROLINA,

Caldwell County. S

This jack, known by the name of John Bell, which jack is sound as far as I know, and never has been sick since I have owned him; which jack I enwarrant covers well, and a good foal getter; this the 2nd of October, 1852.

W. II. EDMONDSTON. (Seal.")

Whereupon, the defendant objected to the parol evidence to prove the warranty, insisting that the whole contract between the parties, being in writing under seal, it could not be proved in any other way than by the writing. He also contended for the same reason, that the plaintiff's action should have been brought on the sealed instrument, and should have been "covenant," instead of "assumpsit."

The court permitted the plaintiff to give the parol evidence, and the trial proceeded, the above question being, with the consent of the parties, reserved by his Honor, with leave to enter the judgment which his opinion of the law might require. The plaintiff obtained a verdict, and afterwards the court, being of opinion against the defendant upon the question of law reserved, gave judgment in favor of the plaintiff; from which the defendant appealed.

Avery, and T. R. Caldwell, for the plaintiff.
Gaither, for the defendant.

BATTLE, J. A covenant is defined to be "the agreement

Kent v. Edmondston.

or consent of two, or more, by deed in writing, sealed and delivered; whereby, either, or one of the parties, doth promise to the other, that something is done already, or shall be done afterwards. And he that makes the covenant is called the covenantor, and he to whom it is made, the covenantee.") Shep. Touch. 160. (20 Law. Lib. 293.)

It seems to be clearly implied by this definition, that the two or more persons, whose agreement or consent is thus manifested by a deed, must be named in it, and we are not aware of any respectable authority to the contrary. A covenantee is as necessary to be named in a deed of covenant, as a grantee is in a deed of grant; and in the latter, it is well known that the grant will not operate where there is no named grantee, except in the case of a dedication of land to the use of the public, where the instrument, or act of the owner, takes effect ex necessitate rei; otherwise, the public could not have the use of the land, for the want of a grantee to take it. See Reeves v. Dudley, 3 Jones' Eq. Rep. at p. 136, and the cases there cited.

An instrument, sealed by one party and not the other, may be a covenant as to the first, and only a written promise by the second. 1 Ch. Pl. 119. "But, (says Mr. Chitty), it appears to be essential that the party claiming the benefit of the covenant, shall be named therein as the covenantee."

If this be law, as we think it is, it sustains the form of the plaintiff's action, and is a complete answer to to the defendant's first objection.

An

The second ground of defense is equally untenable. agreement in writing, though not under seal, requires two or more parties to it, and it seerns to us, that they must be named in it to make it a complete written contract. If only one of the parties be named, then, as to the other, the contract is by parol, and as one of the essential parts of it, as a contract, must be proved by parol, we see no reason why all the terms should not be proved in the same manner. This is not a case within the statute of frauds, which makes a contract sufficient to bind the party who has signed a written note, or memor

Blanton v. Wall.

andum of it. But if it were, we have never understood that the other party need not be named in it. In the case of Miller v. Irvine, 1 Dev. and Bat. Rep. 103, this Court decided against the opinion of one of the Judges, that the statute of frauds, in the cases coming within its provisions, did not require the consideration of the contract to be set forth in the note or memorandum; but the whole argument in the opinion delivered, goes to show that nothing else essential to the contract could be safely omitted.

PER CURIAM,

There is no error.

Judgment affirmed.

A. J. BLANTON v. HARTWELL WALL.

Where counts for a deceit and a false warranty are joined in the same declaration, Held that the plaintiff might recover on the second count without alleging or proving a scienter.

THIS was an action on the CASE, tried before CALDWELL, J., at the Spring Term, 1857, of Rutherford Superior Court.

The declaration in this case contained two counts, one for a false warranty, and one for a deceit. On the trial of the case, the plaintiff offered evidence tending to show that, in the exchange of horses, the defendant warranted the horse, traded to the plaintiff, to be sound, and a first-rate work nag.

The Court, among other things, charged the jury, that, if they believed there was a warranty, the plaintiff' was entitled to recover, if the horse was unsound at the time of the trade; that upon this count the plaintiff was not bound to prove a scienter on the part of the defendant. To which charge the defendant excepted, insisting that it was necessary to prove a scienter on both counts.

Verdict for plaintiff. Judgment and appeal by defendant.

Morris v. Rippy.

Cabaniss and Logan, for the plaintiff.

Baxter for the defendant.

PEARSON, J. The count for a deceit alleges a scienter, and it is necessary to prove the allegation in order to support the count. But the count for a false warranty does not allege a scienter. The allegation is, that there was a warranty of soundness, and that the warranty was false, in this, that the property was unsound. So, the gist of this count is a breach of the warranty, and there is no ground upon which it is necessary either to allege, or affirm, a scienter. Lassiter v. Ward, 11 Ire. Rep. 443. There is no error.

PER CURIAM.

Judgment affirmed.

RICHARD F. MORRIS v. EDWARD RIPPY.

Where the real purchaser of property has the title made fraudulently to another, in secret trust for himself, it cannot, at law, be subjected to the purchaser's debts, but must be pursued in a court of Equity.

Witnesses summoned by one suing in forma pauperis, are entitled to their costs for attendance. Officers of the court only, are included in the order authorised by the act of Assembly.

ACTION of TROVER, tried before ELLIS, Judge, at the Fall Term, 1856, of Rutherford Superior Court.

The plaintiff, to prove title in himself, offered a duly certified copy, from the register's book, of a bill of sale from one Norton to the plaintiff. He filed an affidavit of the loss of the original; that due search had been made, and that it could not be found. He proved the contents of the bill of sale by the subscribing witness, and that the paper produced was a true copy. The defendant objected to the reception of this evidence, but the court admitted it, and the defendant excepted.