
    J. N. Houston vs. William S. Burney.
    It is competent to prove a parol warranty of title and soundness of a negro, sold without a bill of sale. -' *
    Where a vendor of a slave sssigns to his vendee the bill of sale, of his own vendor, containing a clause of warranty : Held, that the mere assignment, was not, of itself, evidence of warranty.
    In error from the Lafayette circuit court.
    The plaintiff in error, sued the defendant in err'd^lffire Lafayette circuit court, at the November term, 1840,*on ,hi’s warranty of the soundness of a negro slave, before that time sold by him. The plea of not guilty was filed. A verdict and judgment thereon, were given for the defendant at the May term, 1843.
    By a bill of exceptions filed in the record, it appeared that the plaintiff offered in evidence before the jury, a bill of sale, for the slave mentioned in the declaration, made to the defendant by one McKeon, on the 12th of June, 1839, warranting the soundness of the negro, &c., also an assignment of the bill of sale by defendant to plaintiff, on the 7th of* January, 1840. The plaintiff then called a witness to prove, that when the defendant assigned the above-mentioned bill of sale, he made a parol warranty of the soundness of the slave, and was willing to give new bill of sale, with warranty of soundness and of title, but that he adopted the mode of indorsing the bill of sale from McKeon to himself, as equivalent to the other. This tes-tiixiony, the court refused to allow to go to the jury, to which opinion of the court, the plaintiff excepted, before the jury left the box, and tendered his bill of exceptions, and now assigns this refusal for error.
    
      W. G. Thompson, for plaintiff in error.
    The plaintiff had a right to prove that the defendant warranted the soundness of the negro slave. A parol warranty was sufficient. The court refused to allow proof to be made of this. It was then wholly unnecessary and useless for the plaintiff to introduce any farther proof; if he could not establish a warranty by the defendant, he had nothing to go upon in his suit — no other testimony could be available.
   Peij CuRiam.

The'plaintiff brought this action to recover damages for a false .warranty in the sale of a slave, and at v the trial jJiytrodm?M the bill of sale of the same slave, which ha&bfeViiven by McKeon, Burney’s vendor, and which had to the plaintiff by Burney. A witness was intro-ducec*|^Hp§ff)ved that Burney was willing to malee a new bill of safijfm adopted the one which he had received, as expressing the tferms of his warranty; and the plaintiff also offered to prove, that the defendant made a parol warranty of the soundness of the negro, and that the design of Burney was to bind himself according to the covenants in the bill of sale, which contained a warranty of soundness. But the court refused to allow the plaintiff to make any such proof. This, we consider, was an error. The declaration is not founded on a warranty in writing. Burney’s warranty was by parol. In assigning the bill of sale, he did not thereby necessarily adopt and take upon himself, the' legal obligation arising on the instrument. He referred to the bill of sale to explain his parol contract, and it was surely competent to prove a-parol warranty. He had .not declared on a written warranty, and was of course, at liberty to prove such warranty as he had declared on. The assignment of the bill of sale,/unaided by a parol undertaking, would not have bound him to a warranty, without some circumstance showing the intention of the parties. The court then erred in ruling out this testimony, for which reason, the judgment must be reversed and a new trial awarded.  