By the Court. delivering the opinion.
This was an action of trover for the recovery of two promissory notes of one thousand dollars each, which had been given by the plaintiff in error to the defendant’s intestate, in his lifetime, in part payment for several negroes purchased from him. The negroes were alleged to be unsound by the purchaser, who had had a friendly correspondence with the intestate in his lifetime, and who had said that he wished the matter settled, and that he would lose something. The parties were brothers. The plaintiff in error had sold a part of the negroes for twenty-two hundred dollars, to a man named Odum, and he held his note for #1200, a part of the sum. One of the negroes had died. Shortly after the death of the intestate, the. defendant called at his house and proposed to exchange Odum’s note for #1200, for his two notes of §2000. The exchange was made without difficulty on the representation, (according to one witness) of the plaintiff* in error, that his deceased brother had agreed to allow the difference between the notes given and received. There was, at the time, no administration on the estate of the deceased. After the administration, the administrator collected the money on Odum’s note, and according to the evidence of Griffin, the difference between the exchanged notes was about six *488hundred dollars, and the jury found that sum. A motion was made for a new trial on the several grounds mentioned in the statement of the case. The Court overruled the motion and the decision of the presiding Judge is excepted to.
The first ground is abandoned by the plaintiff in error.
[1.] We think the Court erred in charging the jury, that upon the soundness or unsoundness of the negroes for which the notes sued for were given, depended entirely the liability of the defendant; that if the negroes were unsound at the time of the sale, the jury would determine how much they would deduct from the defendant’s liability; and if they were sound they would find for the plaintiff. In this action the matter in issue between the parties, was the title to the promissory notes sued for, and that depended, in no manner, upon the soundness or unsoundness of the negroes.
The trade in regard to the negroes was necessarily involved in the investigation, because the exchange of notes was made on the ground that it was claimed by the plaintiff in error, that the intestate had agreed to allow the difference between the notes exchanged as the amount proper to be allowed for the loss on the negroes. If that fact could bo established to the satisfaction of the .jury, the administrator could not make out his title, notwithstanding the exchange was made prior to an administration on the estate. If such was the agreement between the parties, and the administrator was satisfied of it, he ought to hare made the exchange, if it had not been done prior to the administration, rather than to run his intestate’s estate to the expense of litigating the matter. Upon this ground, and this alone, of all those taken in the motion, we think the Court ought to hare granted a new trial.
[2.] There was no error in the order of the Court to the jury to return to their room and calculate for themselves, the difference between the exchanged notes and return a verdict for that amount instead of a verdict generally for the difference between the notes. The data for the calculation were *489before them, in the evidence, and their subsequent finding showed pretty well that they understood it.*
[3.] The fourth ground assumes that the exchange of notes was made in accordance with the desire and intention of the intestate. There is no express evidence to that effect. It is a matter in controversy,between theparties, and must be decided by the jury upon all the evidence before them. If they find such to be the fact, the verdict, we do not hesitate to say„ ought to be for the defendant, notwithstanding the exchange was made before administration.
As the case goes back, we pass no judgment on the ground that the verdict was contrary to evidence.
[4.] The newly discovered evidence might have been obtained before the trial by the use of diligence. It was in his possession.
[5.] The notes were evidence of their own value.
[6.] This was an action of trover for the notes, and involved no issue in respect to the value of the negroes, or the-original contract between the parties. The question in regard to the recovery of the notes is one of title, and depends on the agreement between the parties in regard to the exchange of notes, and for that the parties must look to their correspondence and all the other evidence delivered.
Judgment reversed.