
    *A. J. Dillard vs. Jeannette Wallace.
    Where an overseer has heen guilty of neglect, and some small departure from the terms of his contract, and these are known to liis employer, and he is still continued as her overseer, it will be considered as a waiver of them as grounds to rescind the contract.
    Before O’Neall, J., Union, Fall Extra Term, 1837.
    This was an action of covenant brought for the recovery of the plaintiff’s wages as the defendant’s overseer, at the place called the Meadow Woods. The defence was various, to wit., that the negroes had been worked in too cold weather, that one was whipped improperly, that an old woman and the milk woman were employed by the overseer differently from his employer’s instructions, that the plaintiff had ground and eat some of the defendant’s wheat, that he had not gathered any peas, that the fodder was so badly handled and put up that the whole was injured, and two stacks were wholly worthless; that the defendant’s cotton was either fraudently packed, or picked out and packed in such a wet state as to ruin it, and that the crop of Col. Gist, or a part of it, which the defendant was bound to pick and pack, was by the plaintiff fraudulently packed. The proof was very clear and abundant that the plaintiff made an extraordinary crop, one hundred and six bales of cotton, and four thousand five hundred bushels of corn. The defendant made no objection, at any time, to the payment of his wages ; that he had not planted as much corn and sown as much oats, as he was by his contract bound to have done. It was during the argument that this objection was raised. I thought the evidence would warrant the jury in presuming that the crop had been planted according to the contract. There was some evidence, that, during the extreme cold weather in February, 1335, the defendant’s negroes were at work, and kept from the fire by the plaintiff; it also appeared that in the course of the winter, 1834-1835, a negro man of the defendant’s, (Leckie,) was badly frost bitten; but whether this was from the act of the plaintiff, did not appear. The plaintiff whipped a negro woman for sending a child from Meadow' Woods to the defendant’s house, the defendant complained about it, and the plaintiff said if he had done wrong he was sorry for it. An old woman, whose duty it was to attend to the children, was put to milk the cows. And a woman (Minder,) who had previously milked, and who was a crop hand, was put to cook; this was after the plaintiff’s marriage, in the summer or fall of the year; the defendant knew of it, complained about it to the plaintiff, but still suffered him to go on as her overseer. The defendant had kept some wheat for seed at the Meadow Woods, she abandoned the idea of sowing it, and then the plaintiff had two or three bushels ground into flour and used it. This fact was also known to the defendant, and on her son making some objections* the plaintiff said he could not live on nothing. (If I recollect correctly, the defendant was to find the plaintiff.) Upon these several facts and the defences arising out of them, I thought that the defendant’s knowledge of them, and subsequent acceptance of the plaintiff’s services as her overseer, was a waiver of them, as grounds to rescind the contract. If she had sustained any damage thereby, she might have claimed for it by way of discount, but she had not filed any discount in the case.
    As to the crop of peas, there was some evidence, from the plaintiff’s own declarations, to show that a large quantity was made. None was gathered. But it appeared satisfactorily from the evidence of Col. Martin, that although a large crop was planted and promised finely, yet that the early frost prevented it from maturing. In the progress of the case, Mr Thomson proposed to show that the plaintiff had received the proceeds of the defendant’s negroes’ crops, (say $163,) and claimed a deduction for the same from his wages. To this it was replied by Mr. Dawkins, that the plaintiff had either paid it to or for the negroes, according to the defendant’s instructions, and that not expecting such a defence, they were not then prepared to meet it; he therefore objected to the defendant’s defence, in this behalf, on the ground that she could only claim it by way of discount, which not being filed, she could not be permitted to give any proof touching the mal ter. The objection was sustained. In the progress of the case, Mr. Thomson referred to the Act of 1741, P. L. 215, by the 3rd sec. of which it is enacted that if the overseer employ any of the negroes of his employer, upon his own account, he shall pay 10s. per day to the owner : the same Act directs that this shall only be recovered before a justice of the peace, and that the information of the negroes shall be sufficient evidence to charge the overseer, unless he will exculpate himself by his own oath. I thought, and so ruled, that the objections to any defence arising out of this Act, were fourfold : first, that there were no facts proved in the case to which it could apply : second, that the 10s. per day was a penalty, and could only be recovered, (if at all,) before a justice of the peace : third, that if recoverable here it could only avail the defendant by way of discount: and fourth, that the Act was obsolete. These observations dispose of what I regard as the mere trash of the case, and brings the court to the main and the real defences.
    1st. As to the fodder : Wm. It. Wilburn, Dr. Peak, Warren Taylor and Col. Gist, thought the whole fodder, (20 stacks,) was put up wet and was rotten and worthless. Mr. J. W. Williams, a very experienced planter and overseer, said that two of the stacks were bad. Mr. Daniel Wallace said several were bad : the plaintiff, on the day of the first examination of the fodder, brought some bundles from the gin house which were good, and said that that in the stacks when put up was equally as good, and he could not account for it becoming injured. Messrs. Wilburn and Taylor sa’c^ ^le had been put up too green. Col. Martin and Mr. Browning said the season for taking fodder was a broken one, the early part good — the middle bad, and the last good : they both spoke of a field of 40 acres being pulled by the plaintiff on a day which promised to be fair, but before it could be taken up it rained upon it. Mr. Ambrose Ray, a very intelligent and respectable farmer of the neighborhood, said that 18 of the stacks of fodder were good, two were bad : that their condition resulted from the blades being wet by rain after they were pulled. This part of the case seemed to me to present a naked question of fact; if the jury concurred with Wilburn, Taylor, Peak and Gist, they might find for the defendant; but if on the other hand they concurred with Mr. Ray, they might find for the plaintiff.
    2nd. As to the defendant’s own cotton crop, the proof was somewhat various : it was not nicely handled in picking it out: it was somewhat trashy, and some of it was wet. This might have been the fault of the owner ; for the proof was, that to enable Mr. Rice, who had married one of the defendant’s daughters, and who was about removing' to Mississippi, to get some of the negroes, the crop was gathered very rapidly. The proof was clear, that at least one bale of the defendant’s cotton had been packed too wet and was spoiled ; some of the witnesses thought that two bales were in that condition. Thirteen bales were opened, and Col. Gist thought they were all unfit for market. According to the plaintiff’s and defendant’s contract, he was to have $3 for every bale weighing 310 lbs. In this parcel of 55 bales which were alleged to be fraudulently packed, many of them weighed less than 310 lbs. and I am not certain that any exceeded it. The whole crop of 106 bales, was sold at a general average of $15 20 per cwt. This was as much as was generally realized for the crop of 1835, by the neighbors Upon this part of the case I instructed the jury, first, that if the plaintiff fraudulently packed a single bag of the defendant’s crop ; or second, that if the cotton was, by his direction, or by his neglect, picked and packed when too wet, that then in either of these cases, they might find for the defendant.
    3rd. As to Col. Gist’s cotton. He proved (and about the facts stated from his testimony there can be no doubt,) that part of his Tyger River crop, 48 bales, were ginned at the defendant’s gin at Meadow Woods under a contract with her ; 18 bales brought a fair price, four of the remaining 30 were plated, and tire other 26 were wet. The overseer of Col. Gist went with the cotton to the gin, and was present at the packing of the 30 bales, either in part or in the whole. Upon this part of the case, I instructed the jury that if the plaintiff fraudulently packed Col. Gist’s crop, then on this ground they ought to find for the defendant.
    The jury found for the plaintiff his entire wages ; and as the questions were naked questions of fact, I should not be disposed to disturb the verdict.
    ^GROUNDS OF APPEAL.
    1. Because the contract was not proved as laid ; the plaintiff was bound by his contract to plant as much as two hundred acres in corn, and as much as eighty or ninety acres in oats, and there was no proof as to the quantity of either.
    2. Because the defendant should have been allowed some deductions from plaintiff’s wages as her overseer, as it was clearly proven that the cotton and fodder were greatly damaged, and still he was allowed by the jury his full wages.
    3. Because the Court erred in charging or instructing the jury, that the defendant could not overlook any fault or offence of the plaintiff, without forever barring herself from recurring to the same again, as a ground of complaint, even in conjunction with subsequent violations of the duties of his station, but that she must complain at the time of the act done, or she could not be heard in Court.
    4. Because the Court rejected evidence as to §163 in the hands of plaintiff, belonging to defendant, which he had received as her agent while acting as her overseer, the proceeds of cotton sold for her negroes, on the ground there was no discount filed, when in fact that was a part of his duty as her overseer.
    5. Because the Court ruled that the Act of 1747, under the head of “ overseers of plantations,” was obsolete.
    6. Because the cotton was certainly fraudulently packed, and the fodder put up in a rotten condition, or soon became so ; and whether these things occurred in consequence of fraud or negligence on his part, the legal consequences were the same.
    
    7, Because the verdict was against law, and the. evidence, and the charge of the judge.
   Curia, per

Evans, J.

I have looked into the agreement and the declaration in this case. The declaration is in the common form, setting out the agreement, and averring a general performance on the plaintiff’s part. The plea alleges three breaches; first, that the plaintiff did not plant the quantity of corn and oats stipulated in the agreement; second, that he did not take proper care of the negroes, and horses, mules, &c. : third, that he did not take proper care of the crop made on the plantation. These were the breaches alleged, and upon which the issues were founded, as I suppose, for no part of the pleadings, subsequent to these, have been furnished the Court. Upon this state of the pleadings, and the report of the presiding Judge, this case is to be decided.

On the first ground, I would remark that, if there had been no proof of performance, or the plaintiff had proved a different contract from the one set forth in the declaration, or if the consideration consisted of various parts, as in Brooks vs. Lowry, (1 N. & McC. 342,) and they were not set out *in the declaration, and substantially proved on the trial, the plaintiff must have failed ; but in this case, every part of the contract is set out, and performance of the whole averred. Now, if the plaintiff had offered no proof of performance, he should have been non-suited. But as some evidence was offered on -this point, and as this evience was satisfactory both to the jury and the presiding Judge, this Court is not disposed to disturb the verdict on that ground.

The second and the sixth ground are substantially the same, and involve the question made in the third assigned breach, to wit, that the plaintiff did not perform his duty in gathering the fodder and in packing the cotton. The evidence of default in these particulars is very strong, and I certainly should not have been disposed to disturb the verdict if the jury had found for the defendant. But my experience has taught me that a jury who know the parties and the witnesses is much more competent to decide pure questions of fact, than a Judge who is an entire stranger. And if to this be added, that the Judge who heard the evidence and understood the case much better than 1 can from a written report, has certified that he is satisfied with the verdict, I think it would be unwise to interfere. I would not have it understood, that by the sanction of this Court, juries are to be allowed without control to sport with the rights of litigants in court. If they undertake to decide without evidence, or capriciously to disregard the facts of the case, a new trial ought to, and so far as depends on me, will, be granted. But I cannot say it has been done in this case ; and the defendant’s motion on these grounds must fail.

As to the third ground, which alleges error in the charge of the presiding Judge, in relation to some small departures of the plaintiff from his duty, I agree with him. The facts were known to the defendant when they occurred. It might have justified her in putting an end to the contract, or entitled her to an abatement in the price by way of discount; but surely it cannot be allowed, after an overseer has served faithfully to the end of the year in all other particulars, that his employer shall avoid the payment of the whole wages for some fault committed in the beginning of the year. I concur with the presiding Judge “that the defendant’s knowledge and subsequent acceptance of the plaintiff’s services as her overseer, was a waiver of them as grounds to rescind the contract.” I think the Judge decided correctly in rejecting the evidence in relation to the negroes’ crops. If it were a part of his duty as overseer under the contract, it should have been assigned as a breach, or some notice as a discount should have been given to enable him to meet the charge.

A. W Thompson, for the motion. Dawkins, contra.

In relation to the fifth ground, I would remark that this Court does not agree with the presiding Judge, that the overseer’s Act of 1747, is obsolete. I am not aware of any attempt to enforce it, but I do not think the non user has been long enough or sufficiently established to declare the Act *obsolete. In all other respects, the opinion of the Judge is correct, and needs no further illustration.

Upon the whole, I am unable to discover any error in the charge of the judge or the verdict of the jury which would authorize the interference of this Court; and the motion is refused.

Gantt, Richardson, Earle, and Butler, concurred. 
      
      
        а) McCracken vs. Hair, 2 Sp. 258. An.
      
     
      
       3 Stat. 697; see 10 Rich. 131; 11 Rich. 172. An.
      
     