We think it probable, that the court below intended nothing more, than to convey to the jury this idea; that, in the case before them, the right of the plaintiff to recover must depend upon the warranty and its breach, and not on any deceit which may have been practiced by the defendant in the sale of the slave ; but the language of the charge will not bear this construction. The jury are told, that, although they may look to the false representations, in connection with the evidence, to ascertain the warranty, its breach and the damages, they can be used for these purposes only, and cannot be looked to “ as a ground of recovery.” The last portion of the charge contradicts the first, and asserts tho proposition, that these declarations, although they may have amounted to a warranty, would not constitute, in the present action, one of the grounds to rest a recovery upon. The authorities cited by the counsel for the appellant, clearly show that this was erroneous.
Judgment reversed, and cause remanded.