
    William K. Collins, et al. vs. Thomas McCargo.
    The following words in a bill of sale of negroes, viz.: “ which negroes I warrant sound and healthy in body and mind, so far as I know or believe;” constitute unlimited warranty of soundness.
    No action can be sustained by the vendee against the vendor of negroes introduced into this state as merchandise since May, 1833, for a breach of the vendor’s warranty of the soundness of such negroes ; the contract of sale and the warranty of soundness being void.
    M. introduced negroes into this state as merchandise since May, 1833, and sold them to C., who gave a bill of exchange in payment, which not being paid, a compromise was made by which C. lifted the bill and gave his note instead ; afterwards another compromise was made, by which C. was to give up to M. the negroes then living, and execute a bond with surety for a fixed sum; which compromise was carried out; Held, in an action on the bond thus given by C. and his surety, that these renewals and compromises did not change the character of the contract between the parties; all the subsequent contracts and agreements depending on the original illegal consideration were void; and no recovery could be had on the bond.
    In error from the Adams circuit court; Hon. Charles C. Cage, presiding judge.
    Thomas MeCargo sued William K. Collins and Douglass H. Cooper on a writing obligatory, for $3030. The defendants pleaded two pleas. 1. That the supposed writing obligatory was given and executed by them in favor of the plaintiff, in part payment of certain negro slaves, (naming them) theretofore sold by the plaintiff to said Collins, which slaves the plaintiff warranted sound in body and mind; and they averred that two of them at the time of the making of the warranty, were not sound and healthy, but the reverse, and of no value.
    2. That the writing obligatory was given and executed by the defendants to the plaintiff, in part payment of certain slaves in December, 1836, illegally and contrary to the constitution of this state, introduced by the plaintiff as merchandise, and for sale, and sold by the plaintiff to the defendant Collins.
    The plaintiff to the first plea replied that the bond was not executed in part payment for slaves warranted sound, in manner and form as alleged; to the second, that the note was not given for negroes introduced into the state and sold as alleged. Upon each of which replications issue was taken.
    Upon the trial the jury found for the plaintiff, debt and damages. A new trial was moved for and overruled, when the defendant embodied the evidence in a bill of exceptions.
    John Branch, on the part of the defendant, testified that the plaintiff executed the following bill of sale in his presence, to the defendant, viz.:
    “ Natchez, Miss., Dec’r. 16, 1836.
    Received of Mr. William K. Collins, thirteen thousand dollars in full for the purchase of eight negroes, to wit: (naming them,) which negroes I warrant sound and healthy in body and mind, so far as I know or believe, and slaves for life; also warrant a good and lawful right and title against claims of every person whatsoever; as witness my hand and seal the date above.
    Thomas McCargo. [l. s.]
    Witness, John Branch.”
    The witness further testified that a draft was-drawn by Collins upon him for thirteen thousand dollars in payment for these negroes, which draft he accepted in favor of McCargo; it was not paid, but was settled by a compromise between McCargo and Collins, and the latter’s note given in place of the draft; and McCargo afterwards told him that this note was renewed or settled in part by another note; that McCargo also informed him that Collins was to execute to him a note for three thousand dollars, with Douglass H. Cooper as surety, and was to surrender up to him all the negroes then living, and to deliver to McCargo fifty bales of cotton in full payment of this last note. This last compromise was made in November, 1839; that after this compromise had been carried into effect, McCargo applied to the witness to induce Collins to pay him the fifty bales of cotton, which Collins declared his inability to do, but promised to pay the money in the spring; that before the execution of the last note and the compromise, Collins had given a deed of trust to McCargo, to secure one of the notes given to take up the original bill of exchange, which deed of trust on the last compromise, McCargo directed the trustee to enter satfied, which was done.
    The defendants read also the following receipt:
    “ Received of W. K. Collins four negroes, (naming them,) for which I bind myself to pay the said Collins one thousand dollars apiece; and upon selling the negroes, if they should bring more money, I will account to said Collins for it, after deducting the expense attending the sale of said negroes.
    November 30, 1839. ■ Thomas McCargo.”
    It was admitted that the bond sued on was the one given on the last compromise.
    John Holden testified that in the fall of the year 1836, he rented to McCargo a house near the race track; that McCargo informed him that he had brought on a lot of negroes from Virginia for sale, and wanted the house to accommodate them in; that the negroes had travelled from Virginia by land; upon which he rented him the house, and McCargo placed the negroes in it; that those sold to Collins were part of those which McCargo placed in his house, and stated he had brought on from Virginia with him; that he was present at the sale to Collins; that McCargo was a negro trader, and had for many years previous sold a lot of negroes in Natchez, and had returned to Virginia; that of his own knowledge he did not know that these negroes came from Virginia, his information was derived from McCargo; that McCargo had tents, wagons, and other arrangements for travelling, and informed the witness he had purchased these negroes in Virginia and had brought them to this state for sale, but did not say that he had brought them that year.
    This was all the testimony. The case was submitted to the jury without instructions, who found as stated, for the plaintiff. The defendants prosecute this writ of error.
    G. Winchester, for plaintiffs in error :
    1. As to the clause of warranty, contended that the words “ which negroes I warrant sound and healthy in body and mind, so far ás I know and believe,” were a full and unlimited warranty.
    
      2. That the bond sued on was given for an illegal consideration, and was void. Green v. Robinson, 5 How. 80; Cowen v. Boyce, 5 How. 769.
    
      Montgomery and Boyd, on the same side.
    As to the 1st issue. The court wilL perceive the plea alleges that the bill was given for slaves which were warranted sound, and avers that two were unsound. The replication puts in issue merely the warranty, which of course admits the unsoundness, and if the warranty was proved the defendants were entitled to a verdict.
    The bill of sale, it will be seen, is not free from ambiguity, but we conceive it amounts to a warranty. The language is, “ which negroes I warrant sound and healthy in body and mind, so far as I know or believe.”
    The question arises whether the words “ so far as I know or believe,” can be received as qualifying the former branch of the sentence, so as to, in truth, destroy the whole of.its effect. For if construed in that manner, it will only amount to a declaration that hp believes the negroes sound; or negatively, that he does not know or believe they are unsound; either of which renders the whole sentence nugatory, of no effect as part of the contract; and it must be admitted it was used for some purpose, and as it was the duty of the jury to put some construction on the sentence consistent with the intention and understanding of the parties, if they clearly erred in that, it is good ground for a new trial.
    It is ridiculous to suppose the purchaser required a solemn affirmation of opinion merely. If he desired anything it must be regarded as expressed in that part of the sentence which first strikes the ear. See 4 How. R. 59.
    In cases of perjury it has been adjudged that the words “ according to the best of my knowledge or belief,” did not qualify the statement, so as to exempt the party from liability.
    But as to the second issue there can be no doubt. The proof is clear that the negroes were brought to this state for sale as merchandise from the state of Virginia. And let Holden’s evidence be twisted and distorted in every variety of shape ingenious counsel can conceive, it returns, when fairly viewed, to the same plain statement. He also identifies them as the same that were sold Collins. And Branch shows fully that the bill single sued on was but a renewal of the security originally given for the purchase-money. As to the consequence of bringing slaves into this state as merchandise, or for sale, no argument is necessary. See Green v. Robinson, 5 How. R. 80; Coioen v. Boyce, Ibid. 769 ; Brien v. Williamson, 7 Ibid. 14.
    It may be objected, however, that as the original purchase-money was secured by bill of exchange and renewed and compromised, that the note or bill sued on could not be regarded as the security for the purchase-money; but in answer to this suggestion we will only refer to the case in 4 How. R. 656, Renffrow v. S/iaw et al.
    
    
      Van Winkle and Potter, for defendants in error,
    contended,
    1. That by the.last compromise the original illegal contract was rescinded, and the bond executed by Collins must be looked upon and treated as being what Collins admitted to be just and due for his use of the property for nearly three years.
    2. That the judgment of the court in overruling the motion for a new trial, could not be assigned for error; because the case was submitted to the jury on the evidence alone, and the statute authorizes this court to review the judgment of the circuit court upon a motion for new trial, only where the party against whom the motion is determined, shall conceive such decision to be contrary to the law of the land. H. & H. 493, sec. 52. In this case, the decision was upon the mere weight of evidence.
    
      3. That the proof showed the consideration of the bond to be on a compromise and a rescission of the contract of sale, and the giving up of another note and the discharge of a deed of trust, the other note being given in lieu of a bill of exchange; that this proof did not support the issue, and the variance was fatal. Chit. PI. 285, 377; et seq. 337; et seq. 348; 2 Phil. Ev. (Cow. & Hill,) 312, et seq.; Archb. Civ. PI. 225.
    4. The proof shows that the note given in lieu of the bill of exchange was secured by property conveyed by deed of trust; that this note was given up, and the deed of trust released by direction of McCargo. Now although the transaction might have been illegal, the property conveyed by that deed of trust was beyond the reach of Collins ; he could not avoid the deed for that illegality. See numerous cases cited. 3 Phil. Ev. (Cow. & Hill,) 1446-1448. Under the facts of the case it may fairly be inferred, that the bond sued on was given in consideration that McCargo would cause the deed of trust to be released, and the property restored to Collins.-
    5. It was not proved that the slaves were brought to this state after May, 1833.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was debt on a writing obligatory for the sum of $3030, dated the 30th of November, 1839, and payable on the 1st of January, 1841. The defendant filed two pleas. 1st, that the writing obligatory was given for certain negroes which the plaintiff below warranted sound, but that part of them were unsound. To this the plaintiff repliedj that he did not warrant the negroes sound. 2d, that the writing obligatory was given for negroes introduced into this state as merchandise, and for sale since the 1st day of May, 1833, to wit, in 1836. The case was submitted to the jury without any charge, who returned a verdict for the plaintiff, whereupon the defendant moved for a new trial, because the verdict was contrary to law and evidence which the court overruled. The question is, did the court err in overruling the motion %

A question is raised on the replication to the first plea, and the proof under that issue, which, it is insisted, is sufficient, without regard to the proof under the second plea, to entitle the defendant to a new trial. The issue seems to have been narrowed down to this; did the plaintiff make a warranty of soundness 1 The defendant introduced the bill of sale, which contains this language: “which negroes I warrant sound and healthy in body and mind, so far as I know or believe.” That this was a warranty of soundness, we think cannot admit of a doubt. The instrument is to be construed in favor of the vendee, and against the vendor. If this language did not constitute a warranty, if was entirely useless. It left the purchaser just where he would have been without any declaration, written or verbal, from the vendor. If he had sold without saying anything, knowing of unsoundness, the purchaser could have maintained his action for deceit, without any such warranty. The insertion of language which defeats the whole force of the contract, does not change its legal effect; it is to be disregarded.

It is unnecessary to sum upor recapitulate the proof under the second issue. It shows beyond all doubt that the negroes sold to the plaintiffs in error, by the defendant in error, were introduced into this state as- merchandise, in the fall of 1836, by McCargo. It seems that the original price was $13,000, for which a bill of exchange was given, but which was not paid. A compromise afterwards took place, and the plaintiff Collins gave a note and lifted the bill. On the 30th of November, 1839, another compromise was made, by which Collins was to give up all of the negroes that were living, and to execute a note with Cooper as surety for $3000, which was to be paid by the delivery of fifty bales of cotton. Collins did deliver four negroes to McCargo, and took his receipt, bearing date the 30th of November, 1839, for which McCargo agreed to allow him one thousand dollars for each negro; but whether these were the only negroes of the lot sold, then living, or not, does not appear. The original contract was beyond all question void. Did these renewals and compromises change its character 1 The original contract being void, no valid agreement could be made to rest upon the same consideration. They are all void so long as they can be traced back, and made to depend upon the original illegal consideration. Suppose we should consider the bill of exchange as the consideration of the note, that would not mend the matter. It . was a mere nullity, and could not be made to •support a valid contract between the same parties.

But it is insisted by counsel, that although the original contract was void, yet it was competent for the plaintiffs in error to make a valid contract for the use or hire of the negroes while they were in their possession. It is a sufficient answer to this, to say that there is no proof whatever that this writing obligatory was executed for that purpose. If such was the consideration, it was incumbent on the plaintiff to show it by rebutting proof.

We think the verdict was not sustained by the evidence, and that the court should have granted the new trial.  