
    Ann Coor and George M. Barnes, Administratrix and Administrator of John Coor, deceased, vs. Solomon Grace.
    In an action of assumpsit on the common counts for money loaned, the written acknowledgment of the defendant, that he has received a specified sum from the plaintiff, in consideration of which he sells him a slave, the sale to be void on the repayment of the money at a specified time, is competent evidence to sustain the count.
    Such writing proved the loan of the money, and an undertaking to secure its repayment, and in the absence of any proof of an actual repayment, or of the delivery of the slave by the defendant to the plaintiff, the plaintiff made out a ‘primafacie case, on which the jury did right to find for him.
    In error from the circuit court of Copiah county; Hon. Thomas A. Willis, judge.
    Solomon Grace, on the 25th of March, 1840, sued Ann Coor, administratrix, and George M. Barnes, administrator of John Coor, deceased, in the common counts in assumpsit on an open account for $554, for money loaned, due on the 25th of June, 1839. The defendants plead non assumpsit by their intestate. A trial was had at the November term, 1846, and the jury rendered a verdict for plaintiff for $925. The defendants moved for a new trial, which being refused, they took a bill of exceptions ; from which it appears that the plaintiff introduced before the jury two witnesses, who stated that they knew nothing of any loan of money from plaintiff to defendants; he then, with thp permission of the court, read this instrument of writing to the jury :
    “ The State of Mississippi, Copiah County.
    “ This indenture, made and entered into between John Coor, of the state and county abovemenlioned, of the first part, and Solomon Grace, of the second part; witnesseth, that the said John Coox, fox and in consideration of the sum of five hundred dollars, to him in hand paid by the said Grace, at and before the delivery of these presents, the receipt whereof is hereby acknowledged, hath granted and bargained, and by these presents doth grant, bargain, and sell unto the said Grace, his executors, administrators and assigns, a certain negro boy, named Allen, aged thirteen years, to have and to hold the said negro hereinbefore granted, bargained and sold, or mentioned, or intended so to be, unto the said Grace, his executors, administrators or assigns forever. Provided always, and these presents are upon these conditions, that if the said Coor, his executors or administrators, shall pay, or cause to be paid unto the said Grace, his executors, &c. the sum of five hundred dollars, with interest on the same, on or before the first day of January next; then these presents and every matter and thing herein contained shall cease, determine, and be utterly void to all intents and purposes; or otherwise to remain in force. In testimony whereof, I hereunto set my hand and affix my seal.
    “ John Cooe.”
    “ May 2lsi, 1838.”
    The defendants objected to the introduction of this writing as evidence; the objection being overruled, they excepted, _ No other testimony was offered on either side.
    The defendants below prosecute this writ- of error.
    
      D. W. Adams, for plaintiffs- in error.
    1. It does not appear whether Grace retained the slave or not; but it is plain a conditional sale was intended, which had the legal effect of a mortgage, and the party’s remedy was by enforcing his lien on the slave.
    2. A party cannot recover in assumpsit when- there is a special agreement subsisting, unless that agreement is declared on. Foioler v. Austin, 1 How. (Mi.) R. 156.
    3. A new trial should have been granted on the ground of the introduction of improper and irrelevant testimony; or on the still stronger ground, that there was no evidence whatever. See Crockett v. Young, 1 S. & M. 241; Barringer v. Nesbitt, 1 Ibid. 22 ; Tunstall v. Walker, 2 Ibid. 638 ; Foster v. Shaw, 7 Serg. & Rawle, 156.
    
      E. G. Peyton, for defendant in error.
    1. The instrument of writing not being under seal could not have the effect of a mortgage; had the seal been to it, as was intended, Grace might have maintained debt upon it for the money, and the deed would have been evidence of it; or he might have foreclosed his mortgage in equity.
    2. Not being under seal, assumpsit could be maintained, and the writing is evidence of the indebtedness intended to be secured by a specific lien on the slave.
    3. The instrument is not a conditional sale, but simply a security for the repayment of the money at a specified time.
    4. It was sufficient to p.ut the defendants upon proof of the repayment of the money, or that Grace had the slave; in the absence of any such proof, the verdict was right.
    5. The doctrine in relation to declaring on special agreements does not apply to a case like this, where the contract is executed and the compensation is to be in money; in such case, a recovery may be had in indebitatus assumpsit.
    
   Mr. Justice ThacheR

delivered the opinion of the court.

Grace sued John Coor’s administratrix and administrator in assumpsit on an account for money loaned their intestate. The proof adduced by Grace was a writing signed by the intestate, in which he acknowledges the receipt from Grace of five hundred dollars, in consideration of .which he sells him a slave, which sale was to be void on the repayment to Grace of the above-mentioned sum at a specified period. The introduction of this writing as evidence, was competent in the common count in assumpsit to show the fact of a loan of money, and made out a prima facie case for the plaintiff. It proved the loan of the money and an undertaking to secure its repayment. In that state of the evidence, it was incumbent on the defendant below to have shown an actual repayment of the money, or a delivery of the slave to Grace, in order to rebut the legal presumption made by the plaintiff. But the defendant in the circuit court made no defence whatsoever, and consequently the jury were warranted in their finding. The court did not err in refusing a new trial.

Judgment affirmed.  