#### JOHN BOND v. JOHN McBOYLE.*

That a slave, belonging' to the plaintiff, was seen working once at the defend" ant's saw-mill, and' two other times within half a mile of the mill, but not working, and not in the defendant’s possession, was Held not to be any evidence to establish a contract of a hiring- for a year.

Action of assumpsit, tried before Saunders, J., at the Spring-Term, 1859, of Washington Superior Court.

The plaintiff declared on a special contract for the hire of two slaves, to-the defendant, for the-year 1857, to which were added the common counts.

The defendant lived in the county of Washington, and owned a saw-mill near the town of Plymouth. One witness testified, that previously to the month of August, 1857, he was at the defendant’s saw-mill, for a few minutes, and saw the slaves-in question at work there, and that on two other occasions,. *2during the same year, he saw these slaves in the town of Plymouth, but not in the employment or possession of the defendant ; also, that they were the property of the plaintiff.

The defendant proved that he hired of the plaintiff on the 1st of January, 1855, two negroes, for which he executed bond and took the same into possession ; that the plaintiff represented the negroes as sound and fit for labor at a steam-mill; that about March, he returned one of them as being unfit for the business; that although the plaintiff received the slave returned, and worked him upon his plantation for the remainder of the year, yet, he made the defendant pay the whole amount of the bond.

The defendant’s counsel asked the Court to charge the jury, that they might, if they were satisfied it was so intended by the parties, allow the defendant for the value of the lab.or of the negro returned to the plaintiff, as a set-off. His Honor refused to give such instruction, and defendant excepted.

The counsel for the defendant then asked jais Honor to charge the j ury, that the proof would not authorise them to infer a hiring for the year, and they could only give a verdict for the value of the labor proved to have been rendered by the plaintiff’s slaves.

To this, his Honor enquired of the defendant’s counsel, in an angry and imperious tone of voice, if it was common sense' for a man to hire a slave for a half an hour or a day to work ata steam-mill? He then charged the jury, that from the testimony before them, they might infer a hiring of the slaves for the year. The defendant’s counsel again excepted.

Yerdict for the plaintiff. Judgment. Appeal.

It was argued, here, that the hiring for the preceding year, was some evidence, that the hiring in this instance, was for a year.

Hines, for the plaintiff.

Winston, Jr., and H. A. Gilliam, for the defendant.

*

Decided at last term, but no opinion was filed in consequence of the india>position. of Judge Ruffin, to whom it was assigned.

Peajrson, O. J.

Passing by the exception taken on the part of the defendant, that the interrogatory put by his Honor to the *3defendant’sconnselin tliepresewceof the jury, “in an angry and imperious tone of voice,” was an expression of opinion on the question of fact, there is error in this: the allegation of hiring for the year was submitted to the jury without evidence. The fact that the plaintiff’s two slaves were, on one occasion during the year, seen at work in the plaintiff’s saw-mill for a few moments, and the additional fact, that during the same year, the slaves were seen on two occasions in the town of Plymouth, which is about half a mile from the mill, the ■slaves not being in the employment or possession of the defendant, do not, in the opinion of this Court, furnish ground even for a gtiess, that the defendant had hired them for the year. The slaves’ being at work on a certain day, would tend to slrow a hiring, but whether the contract of hiring was by the day, or the week, or the month, or the year, would be purely a matter of conjecture.

The other fact, that for the preceding year the defendant had hired negroes of the plaintiff by the year, is irrelevant,— on the principle illustrated by the instance, that the fact of a party’s having exacted usury in one transaction is not admissible to show that he exacted usury in another and distinct dealing. But in our case, even the conjecture of a like dealing is weakened by two circumstances : in the two former contracts the price of the negroes was secured by notes, in this, a note was not given. "Why? Again, in the preceding year, ■one of the negroes was returned as unfit for service, and the -defendant lost his labor, although he had to pay for it. This ■may have induced a different mode of dealing, and suggested to the defendant that it was safest to hire by the day, week or month.

It was the plaintiff’s misfortune or folly to go to trial without being prepared with proof to support his allegation of a hiring by the year, and his Honor ought to have instructed •the jury to find in favor of the defendant for want of evidence, unless the plaintiff chose to submit to a nonsuit.

Per Curiam,

Judgment reversed and venire de novo«.