* Decided at last term, but no opinion was filed in consequence of the indisposition of Judge RUFFIN, to whom it was assigned. The plaintiff declared on a special contract for the hire of two slaves to the defendant for 1857, to which were added the common counts.
The defendants lived in the county of Washington, and owned a sawmill near Plymouth. One witness testified that previously to August, 1857, he was at the defendant's sawmill for a few minutes, and saw the slaves in question at work there, and that on two other occasions, during the same year, he saw these slaves in the town of Plymouth, but not in the employment or possession of the defendant; also, they (2) were the property of the plaintiff.
The defendant proved that he hired of the plaintiff on Jan., 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. *Page 2
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 labor 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 his Honor to charge the jury that the proof would not authorize 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 inquired 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 half an hour or a day to work at a 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.
Verdict 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. Passing by the exception taken on the part of the defendant, that the interrogatory put by his Honor to the defendant's counsel in the presence of the jury, "in an angry and imperious (3) 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 sawmill 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 guess that the defendant had hired them for the year. The slaves being at work on a certain day would tend to show 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 admissable [admissible] to show that he exacted usury in another and distinct dealing. But in our case, even the conjecture of *Page 3 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. Venire de novo.
(4)