
    Richmond.
    Isbell’s adm’r v. Norvell’s ex'or.
    
    1847. October Term.
    
    j. Upon an action on a bond given for the hire of two slaves, one of whom was never delivered to the hirer, the obligor is entitled, under a special plea filed under the act of April 16th, 1831, Sup. Rev. Code, p. 157, to a credit to the amount of the hire of the slave not delivered.
    2. Hirer of a slave pays physician for attending on the slave whilst he is hired. He is entitled to have the amount repaid him by the owner of the slave.
    
      Norvell’s ex’or brought an action of debt in the Circuit Court of Lynchburg against the administrator of Christopher Isbell, upon a bond executed by the said Christopher and William J. Isbell. The defendant filed a special plea, under the act of April 16th, 1831, Sup. Rev. Code, p. 157, in which he alleged that the bond was given for the hire of two negro men Edwin and Henry, for the year 1833. That the slaves were hired at a public hiring, and were not present at the time : that the plaintiff represented that the slave Henry was slightly indisposed, but that he did not labour under any disease that would disable him, or render him unable to perform the usual and customary work and labour for a young negro man slave. That the plaintiff had failed to deliver possession of the slave Edwin to either of the obligors, but had retained him in the plaintiff’s own possession and employment for the whole period for which he had been hired by the obligors in the bond. That the slave Henry, at the time of the hiring and of his delivery, and during the whole time for which he was hired, was labouring under a disease which disabled him from work : and that he was an expense to the hirers; and that they had incurred considerable expense on his account for medical services, and for dieting and clothing him. That the damages they had sustained amounted to a sum more than the amount of the bond, which damages they offered to set off against it.
    On the trial of the cause, the jury found a verdict for the amount of the bond, 165 dollars 12J cents, with interest from the 1st of January 1834; and the Court gave a judgment thereon accordingly, subject to a credit of 44 dollars 25 cents, as of the 1st January 1834. The defendant then moved the Court to set aside the verdict and grant him a new trial, on the ground that the verdict was contrary to the evidence ; but the Court overruled the motion, and at the request of the defendant certified on the record the facts proved on the trial of the cause.
    From the facts certified, it appeared, that the bond sued on was given for the hire of the two negroes; that they were hired as sick negroes; that they were not present, but were in the plaintiff’s kitchen near his dwelling house, where the hiring took place, and where they might have been seen: that the plaintiff and William J. Isbell were the only Mdders; and that the negroes hired for the full price of bi&thy and sound negroes. That 
      ‘Henry was attended by a physician from the 15th of June until October, whose bill amounting to 44 dollars 25 cents, was paid by the defendant. That the disease which was in his arm rendered the boy unfit for service • and from the character of the disease, it must have been of longer standing than January 1833; and that subsequent to the year 1833, the arm was amputated. It further appeared that in the year 1833, Edwin was attending the plaintiff’s stud horse, as a groom, and went with the horse to Rockbridge; and after the season was over, he worked on the plaintiff’s farm for the balance of the year, and was never in IsbelPs possession. The slaves had been hired out previous to the year 1833, and were then believed to be healthy.
    The defendant applied to this Court for a supersedeas to the judgment, which was granted.
    
      J. Garland, for the appellant, and the Attorney General, for the appellee, submitted the case.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as it does not appear from the facts proved at the trial, that the slave Edwin had ever been delivered to or come to the possession of the intestate of the plaintiff in error or William J. Is-bell, after their contract of hiring, and as it furthermore distinctly appears, the said slave was in the possession of and employed about the business of the defendant in error, the other party to the contract of hiring, for the greater part of the year for which the slave was hired, the possession and enjoyment of the services of the slave by the defendant in error, so proved, and entirely unexplained, warrants the inference that the slave was never delivered to the hirers or either of them; and such failure to deliver the slave, and the use and enjoyment of his services by the defendant in error entitled the plaintiff in error to a credit by way of offset under the special plea filed and issue joined thereon, for the sum agreed to be paid for the hire of said slave Edwin; it appearing that the bond sued upon was given in part for the hire of said Edwin: the Court being of opinion, that to the extent of the hire of said slave Edwin, the facts certified shew an entire failure of the consideration of the bond.

The Court is further of opinion, that upon the facts certified alone, the plaintiff in error would have been entitled to a credit by way of offset for the amount paid for medical services rendered to the slave Henry, but as it appears by the judgment that credit was given for the precise sum proved to have been paid by the plaintiff in error for such medical services, although it is not stated on what account such credit was entered on the judgment, the Court in support of the judgment would presume, in the absence of proof, that any other credit for money actually paid was claimed, that the credit so given by the judgment was for the bill for medical services, and would not reverse the judgment for that cause ; but as the cause must go back for a new trial, the whole case will be open, and it will be competent for the plaintiff in error to shew, if he can, that the credit entered upon the judgment was not for the bill paid for medical services rendered to said slave Henry.

But the Court being of opinion, for the reasons before assigned, that the facts as certified shew a failure of consideration as to a portion of the bond sued on, to the extent of which, the plaintiff in error under the issue joined, was entitled to a credit by way of offset, is of opinion that the Circuit Court erred in overruling the motion of the plaintiff in error to set aside the verdict and grant him a new trial. Therefore it is considered that the judgment be reversed with costs, the verdict set aside and new trial granted on the usual terms, and cause remanded.

Brooke, J. concurred in the results.  