
    No. 125.
    Leander W. Crook, guardian for John Thompson, plaintiff in error, vs. Edward H. Garrett, defendant in error.
    £1.] If a hired slave become sick during the year, and the owner consent to take him home, that he may be better attended to, or to relieve the hirer from the trouble and expense of keeping the negro, this does not amount to a rescission of the contract, so as to relieve the hirer from the year’s hire: Aliter, if the understanding and intention was, that the contract should be annulled.
    In Equity, in Walker Superior Court. Demurrer. Decided by Judge Trippe, May Term, 1856.
    On the 1st day of January, 1850, Edward II. Garrett hired from Leander W. Crook, guardian for John Thompson, a ■minor, a negro man Lewis, for the ensuing year, and gave Ms note to Crook for $120 50. At the time of the contract,, it was supposed by the parties that the negro was sound and in good health. In a short time, he began to show signs of’ ill health and general debility. Crook, or his ward under Ms direction, removed him home and kept him until the latter part of the year, when he died of consumption. Crook, in a settlement with his ward, transferred the note of Garrett to him as a part of his estate. John Thompson after-wards, and long after the maturity of the note, transferred it to Theron B. Thompson, who had full notice of the failure of" consideration. Thompson afterwards commenced suit on the note against Garrett, who pleaded failure of consideration, confessed judgment and appealed.
    The bill alleges the foregoing facts, and goes on to state, that relying upon the statements of Leander W. Crook, complainant fully expected to prove by him, that at the time the negro was taken from his possession, John Thompson was of' age, and that it was done under the direction of Crook ; and hence, made no effort to prove these facts by other witnesses, and went to trial at the May Term, 1854, of said Court, when Crook, instead of testifying as complainant had been informed, swore that John Thompson was a minor at the time of the removal of the negro ; that complainant had no ground on which to move for a continuance; that the Jury found a verdict for the plaintiff, Theron B. Thompson, against complainant.
    The prayer of the bill was for an injunction against the judgment of Theron B. Thompson.
    To this bill a general demurrer was filed, which, after argument, the Court sustained, and Counsel for complainant excepted.
    Wright; Culberson, for plaintiff.
    Alexander, for defendant.
   By the Court.

Lumpkin, J.

delivering the opinion.

The judgment in this case must be affirmed, as the* bill now stands; because, it is no where alleged that the-contract of hire was rescinded by the consent of John B. Thompson, the owner of the negro. On the contrary, the-inference is, that-the slave-was taken from the possession of" Garrett to relieve him from the trouble and expense of nursing him.

Under this state of the pleadings, neither the testimony of-Crook nor any other witness could have availed anything: If the complainant can amend his bill so as to state distinctly that the contract of hire ivas rescinded, and that such was the understanding and intention of the parties, the bill should.,bo sustained, for there would be equity in it.  