#### Sanders vs. Hamilton.

fr-pHE declaration stated, that Hamilton's agent bad sold a Ne- -*• gro for Hamilton to Sanders, who was sued, for the increase ? in consideration whereof, and that Sanders had promised he' would defend the suit; Hamilton promised that if judgment should be obtained against Sanders, he, Hamilton, would make good the damages ; that Sanders did defend the suit, and had judgment against him. One question upon the trial was, how the damages should be assessed ; whether according to the present value of the Negroes, or of the value when recovered.

Marshall, Chief Justice.

The jury should assess damages according to the value at the time of recovery ; for supposing he is to have the present value, he should bear the loss in case of the death of the Negroes or other loss since the judgment; and besides, the plaintiff’s demand arises immediately upon the recovery, and is not to be influenced by after circumstances. '

In the progress of this cause it was moved, that the record of the recovery between Streeter and Sanders should be read.

Per curiam. It may bé read to prove that there was a recovery, and the amount of damages, but not to prove that Streeter had title, because Hamilton was not a party, or privy.

A juror was withdrawn, and the plaintiff’s counsel moved foe leave to add a count, which the court said was necessary, to arrive at the merits, but would not admit the amendment except upon the condition of paying all the costs to this time. He accepted of these terms and made the amendment.