We cannot but think theWudge fairly presented the issue to the jury, and it was for them to find, as best they could, what was the understanding of the parties. I apprehend, that neither Nelson nor Middlebrook could be said to have any control of the negro. He was in the custody and control of the officers of the law. >
It is a hard case on Mr. Middlebrook; and we feel it the *509more, as, had the Code been in force at the time the negro was put to death, Middlebrook would have been relieved. Under all the circumstances, if it be true, as represented by counsel, that the plaintiff in error is a poor man with a large family, who would be greatly straitened to pay the full hire, while the defendant is a man without family and possessed of considerable means, while the law can not interpose, I submit, will not Mr. Nelson, of his own accord, interpose for his relief?
Judgment affirmed.