Tabbell, J.:
TMs suit was brought upon a note of which the following is a copy:
“$1,282 53. Canton, Miss., March 14, 1861.
One day after date we promise to pay Martin S. Hancock and W. J. Payne, twelve hundred and eighty-two dollars and fifty-three cents, for value received.
(Signed) W. E. & J. W. Dancey.”
The defendants pleaded the general issue, with notice, etc. The plaintiff, after reading the note in evidence, rested his case. The defendants then called as a witness William McBride, the attorney for plaintiff, who testified that the consideration of the note sued on was a bill of exchange drawn by defendants on Coleman, Britton & Withers, of New Orleans,, for $1,200, dated May 1,1860, payable December 5, 1860, to the order of M. S. Hancock, and W. J. Payne, and interest added.
The following is a copy of said bill of exchange:
“$1,200. Canton, May 1, 1860.
On the fifth day of December next, pay to the order of [613]*613M. S. Hancock and W. J. Payne, twelve kundred dollars, value received and charge to account of
W. E. & J. W. Dancey.”
“ To Coleman, Britton & Withers,
Hew Orleans, La.”
This witness further testified that he did not know Hancock’ s handwriting. He produced and read in evidence a written assignment of several notes from defendants to plaintiff as collateral security for the payment of this note, these notes to be collected by plaintiff’s attorney, the proceeds to be applied in payment of the demand sued on; the surplus, if any, to be paid to defendants. The assignment of these demands as collateral security contained the following guaranty: ‘ ‘ Now, we hereby guarantee in full'the solvency of said parties, and the payment of said sums of money, in case said attorney fails to realize the money by suits at law ; ” which assignment and guaranty is dated on the same day, with the note on which this suit is brought, and signed by defendants. He also proved and read in evidence a receipt for said demands given by himself, as attorney for plaintiff to defendants, in the words following : “ The net proceeds of said claims are, when collected, to be applied to the satisfaction and discharge of said note, and the overplus, if any, to be paid over to said "W. E. & J. W. Dancey, after paying attorney’s fees.” The witness also stated that, “in all his negotiations with defendants, there had been no word of complaint about failure of consideration, and that the arrangement made with defendants in taking this note and collaterals was, at the instance of defendants, to release the acceptors on the draft.”
The defendants then offered in evidence a bill of sale, of which the following is a copy:
Canton, Miss., May 1, 1860.
“We have this day sold Wm. E. Dancey, a negro woman, named Bachel, of dark complexion, aged about twenty-five years. We warrant said negro woman sound [614]*614in body and mind, and a slave for life. The above negro was sold for the sum of $1,200, in a bill on Coleman, Britton & Withers, “New Orleans.
(Signed) M. S. Hancock,
W. J. Payne.”
Thos. Shackleford, another witness for defendant, testified that he knew the handwriting of M. S. Hancock, but did not know that of W. J. Payne ; that he “ believed the signature of M. S. Hancock to the bill of sale was the signature of, and in the handwriting of M. S. Hancock; that the body of the instrument, and said signature appeared to be in the same handwriting, and seem to have been written by one and the same person ; but he could not, state that the signature, W. J. Payne, was written by the same person who wrote the signature, M. S. Hancock, or the bill of sale; that he knew nothing of the handwriting of Payne ; that he could not say that the signature of W. J. Payne, and the body of the instrument were in the same handwriting ; but that the signature, M. S. Hancock, was in the handwriting of the said Hancock.” The defendants then offered said bill of sale in evidence, which, upon objection of plaintiff, the court rejected, and the defendant’s counsel excepted, stating that they were prepared to prove that the negro therein mentioned was unsound and worthless to defendant, W. E. Dancey. “ Defendants then offered to prove by experts that the handwriting in the body of said bill of sale, including the signature thereunto affixed, were written by one and the same person, to wit, M. S. Hancock, to which plaintiff’s counsel objected, the objection sustained and the testimony excluded.
The jury, October 8, 1866, found for plaintiff the amount of the note and .interest. On the 11th of the same month, the defendants filed affidavits on a motion for a new trial in the words following : “Defendants move for a new trial in this case for reasons set forth in the affidavit filed this 11th October, 1866.” The motion was based upon surprise and [615]*615newly-discovered evidence, set forth in the affidavits. This motion was overruled.
The causes of error assigned are, 1st. In excluding from the jury the bill of sale ; 2d. In refusing the testimony of experts ; 3d. In overruling the motion for a new trial.
We have examined this case under a strong desire, if consistent, to affirm the judgment, but we find ourselves conducted clearly to a contrary conclusion. Hancock & Payne sold the negro woman, with a warranty of soundness, to the Danceys, May 1,1860. Payment was proposed by draft on Coleman, Britton & Withers, payable December 5,1860, which was accepted, but not paid. On March 4,1861, about three months after the draft fell due, an arrangement was entered into between the Danceys and Hancock, Mr. McBride acting as his agent, by which the latter consented to accept the note sued on, with collateral security, in lieu of the acceptance. The same consideration, therefore, exists as to both the draft and the note.
It is true, that in a suit by Hancock & Payne against the acceptors, the. defense now proposed could not have been inquired into, but the original relations of these parties have been voluntarily restored by their own free acts. By mutual agreement, the note of the vendees of the slave is received by the vendors.
With every disposition, to affirm the judgment, we have considered this case in every point of view, and are of the opinion that the proposed defense is admissible. Such is the inevitable legal conclusion, the strict justice of which result will doubtless be determined by the developments of another trial. The note is payable to Hancock and Payne, at common law not negotiable, and signed by “ W. E. & J. W. Dancey.” Suit is brought by the administrator of Hancock as survivor, without objection, and his signature established. The signature of Hancock to the bill of sale having been proved, we are of the opinion it ought to have been received in evidence. Rev. Code, p. 355, arts. 1 and 2; ib. p. 357, art. 10. The question of waiver being presented [616]*616here for the first time, we defer an opinion thereon until after discussion and action .in the court below. It will be unnecessary to discuss the other questions presented to us.
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Tabbell, J.:
TMs suit was brought upon a note of which the following is a copy:
“$1,282 53. Canton, Miss., March 14, 1861.
One day after date we promise to pay Martin S. Hancock and W. J. Payne, twelve hundred and eighty-two dollars and fifty-three cents, for value received.
(Signed) W. E. & J. W. Dancey.”
The defendants pleaded the general issue, with notice, etc. The plaintiff, after reading the note in evidence, rested his case. The defendants then called as a witness William McBride, the attorney for plaintiff, who testified that the consideration of the note sued on was a bill of exchange drawn by defendants on Coleman, Britton & Withers, of New Orleans,, for $1,200, dated May 1,1860, payable December 5, 1860, to the order of M. S. Hancock, and W. J. Payne, and interest added.
The following is a copy of said bill of exchange:
“$1,200. Canton, May 1, 1860.
On the fifth day of December next, pay to the order of [613]*613M. S. Hancock and W. J. Payne, twelve kundred dollars, value received and charge to account of
W. E. & J. W. Dancey.”
“ To Coleman, Britton & Withers,
Hew Orleans, La.”
This witness further testified that he did not know Hancock’ s handwriting. He produced and read in evidence a written assignment of several notes from defendants to plaintiff as collateral security for the payment of this note, these notes to be collected by plaintiff’s attorney, the proceeds to be applied in payment of the demand sued on; the surplus, if any, to be paid to defendants. The assignment of these demands as collateral security contained the following guaranty: ‘ ‘ Now, we hereby guarantee in full'the solvency of said parties, and the payment of said sums of money, in case said attorney fails to realize the money by suits at law ; ” which assignment and guaranty is dated on the same day, with the note on which this suit is brought, and signed by defendants. He also proved and read in evidence a receipt for said demands given by himself, as attorney for plaintiff to defendants, in the words following : “ The net proceeds of said claims are, when collected, to be applied to the satisfaction and discharge of said note, and the overplus, if any, to be paid over to said "W. E. & J. W. Dancey, after paying attorney’s fees.” The witness also stated that, “in all his negotiations with defendants, there had been no word of complaint about failure of consideration, and that the arrangement made with defendants in taking this note and collaterals was, at the instance of defendants, to release the acceptors on the draft.”
The defendants then offered in evidence a bill of sale, of which the following is a copy:
Canton, Miss., May 1, 1860.
“We have this day sold Wm. E. Dancey, a negro woman, named Bachel, of dark complexion, aged about twenty-five years. We warrant said negro woman sound [614]*614in body and mind, and a slave for life. The above negro was sold for the sum of $1,200, in a bill on Coleman, Britton & Withers, “New Orleans.
(Signed) M. S. Hancock,
W. J. Payne.”
Thos. Shackleford, another witness for defendant, testified that he knew the handwriting of M. S. Hancock, but did not know that of W. J. Payne ; that he “ believed the signature of M. S. Hancock to the bill of sale was the signature of, and in the handwriting of M. S. Hancock; that the body of the instrument, and said signature appeared to be in the same handwriting, and seem to have been written by one and the same person ; but he could not, state that the signature, W. J. Payne, was written by the same person who wrote the signature, M. S. Hancock, or the bill of sale; that he knew nothing of the handwriting of Payne ; that he could not say that the signature of W. J. Payne, and the body of the instrument were in the same handwriting ; but that the signature, M. S. Hancock, was in the handwriting of the said Hancock.” The defendants then offered said bill of sale in evidence, which, upon objection of plaintiff, the court rejected, and the defendant’s counsel excepted, stating that they were prepared to prove that the negro therein mentioned was unsound and worthless to defendant, W. E. Dancey. “ Defendants then offered to prove by experts that the handwriting in the body of said bill of sale, including the signature thereunto affixed, were written by one and the same person, to wit, M. S. Hancock, to which plaintiff’s counsel objected, the objection sustained and the testimony excluded.
The jury, October 8, 1866, found for plaintiff the amount of the note and .interest. On the 11th of the same month, the defendants filed affidavits on a motion for a new trial in the words following : “Defendants move for a new trial in this case for reasons set forth in the affidavit filed this 11th October, 1866.” The motion was based upon surprise and [615]*615newly-discovered evidence, set forth in the affidavits. This motion was overruled.
The causes of error assigned are, 1st. In excluding from the jury the bill of sale ; 2d. In refusing the testimony of experts ; 3d. In overruling the motion for a new trial.
We have examined this case under a strong desire, if consistent, to affirm the judgment, but we find ourselves conducted clearly to a contrary conclusion. Hancock & Payne sold the negro woman, with a warranty of soundness, to the Danceys, May 1,1860. Payment was proposed by draft on Coleman, Britton & Withers, payable December 5,1860, which was accepted, but not paid. On March 4,1861, about three months after the draft fell due, an arrangement was entered into between the Danceys and Hancock, Mr. McBride acting as his agent, by which the latter consented to accept the note sued on, with collateral security, in lieu of the acceptance. The same consideration, therefore, exists as to both the draft and the note.
It is true, that in a suit by Hancock & Payne against the acceptors, the. defense now proposed could not have been inquired into, but the original relations of these parties have been voluntarily restored by their own free acts. By mutual agreement, the note of the vendees of the slave is received by the vendors.
With every disposition, to affirm the judgment, we have considered this case in every point of view, and are of the opinion that the proposed defense is admissible. Such is the inevitable legal conclusion, the strict justice of which result will doubtless be determined by the developments of another trial. The note is payable to Hancock and Payne, at common law not negotiable, and signed by “ W. E. & J. W. Dancey.” Suit is brought by the administrator of Hancock as survivor, without objection, and his signature established. The signature of Hancock to the bill of sale having been proved, we are of the opinion it ought to have been received in evidence. Rev. Code, p. 355, arts. 1 and 2; ib. p. 357, art. 10. The question of waiver being presented [616]*616here for the first time, we defer an opinion thereon until after discussion and action .in the court below. It will be unnecessary to discuss the other questions presented to us.
The judgment is reversed and the eause remanded.
On application a re-argument of this case was granted and had, and the following opinion delivered after the re-argument, to wit:
A petition for re-argument having been filed in this ease, counsel for defendant in error therewith strenuously urges an affirmance of the judgment of the court below. Ho new points or authorities are presented, but the views of counsel are pressed with such urgency that we may refer briefly to points we thought unnecessary to discuss in the decisions of the case. We reversed the judgment upon a single point, to wit, error in excluding the bill of sale offered in evidence. Hancock & Payne sold Dancey & Dancey a negro slave woman, giving a bill of sale, with warranty of soundness. To secure the purchase-money a draft was given on a firm in Hew Orleans. Subsequently this draft was exchanged, by arrangement between vendors and vendees, for the bill single of the vendees payable to the vendors secured by col-laterals. This suit is upon the note of the vendees by the administrator of one of the vendors. Upon the trial, proof could be made only of one of the signatures to the bill of sale, to wit, of the plaintiff’s intestate. For the want of proof of the other signature, for this cause alone, the bill of sale was not allowed to be read in evidence. This we hold to be error, and upon this ground we reversed the judgment and remanded the cause.
1. The first point made by counsel in support of the petition for re-argument is, that the notice of defense accompanying the plea is not full enough to admit the bill of sale in evidence. The notice avers the consideration of the note to be the negro ; the bill of sale and warranty being referred [617]*617to in. the notice; the draft was produced npon the trial; its Consideration was undisputed ; that the draft was taken up by the note sued on was established and not denied; but it is insisted that the facts with reference to the draft and its exchange for the note are not set forth, and, therefore, it is sufficient. This is too technical. It is impossible that the plaintiff did not perfectly understand the nature of the defense from this notice. That he did not, or that he was not fully prepared for trial, is not pretended; but the bill of sale was not objected to in evidence on the trial on this ground; and, besides, the right to amend was ample.
2. It is urged, that “whenthere is a warranty of soundness the vendee cannot defend in an action on a note given for the purchase-money, by merely proving a breach of the warranty, but he is put to his action on the warranty, unless it can be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it within a reasonable time;” as to which we observe that, except at a sale made by a judicial officer, executor, administrator or trustee, this doctrine has been settled otherwise in this state by a series of decisions, the soundness and justice of their conclusions never having been questioned or doubted.
3. Counsel reiterates, that, having given the note and col-laterals to take up the draft and release the acceptors, the makers of the note thereby -waived the defense set up by them. This point was not presented to nor passed upon by the court below. The cause was not tried nor disposed of with reference to it. The-introduction of the bill of sale in evidence was objected to and rejected on the sole ground that one of the signatures was not proved. Whether the parties in substituting the note for the draft intended the former as payment of the latter, was not considered on the trial ; nor was the substituted arrangement propounded as a waiver of defense to the warranty. Upon another trial, however, these questions will be kept in view, and the facts developed accordingly. If not then satisfactorily decided [618]*618by the court and jury, the case can be reviewed by this court.
We send this case back upon the sole point theretofore stated, expressing no opinion upon the questions of novation and waiver, because not adjudicated on the trial.
The previous result is adhered to.