
    
      The adm’r. of M. Antonio vs. Peter Clissey.
    
    Action on a promissory note. For defendant, L. testified “that he, L. bought a gig from defendant for $140, and the understanding was that defendant was to be paid by plaintiff Plaintiff agreed to it. Plaintiff was in debt to him. He could not have bought the gig but by paying for it in this way. Plaintiff said he would credit the amount, on a note given by defendant to him.” Held that the agreement proved by L. was not within the statute of frauds, and that the defendant should be allowed, by way of payment on the note, for the price of the gig.
    
      The hirer of a negro is not entitled to an abatement from the price on account of the sickness of the negro, unless the sickness originated in causes existing at the time of the hiring.
    
      Before Gantt, J. at Richland, ¡Spring Term, 1832.
    The report of his Honor, the presiding judge, is as follows :
    (i This case has already been before the Court of Appeals, and a new trial granted. In the former case, Clis-sey, the defendant, was allowed to give evidence j in the trial before me he was not made a witness. The Court of Appeals, from the evidence as reported to them, were of opinion that the statute of frauds did not apply to the .case — that it was substantially a transaction between Antonio and Clissey, and that it resolved itself into an authority or direction from Antonio to Clissey, to deliver the chair and harness to Little, on Antonio’s responsibility to pay for it. On the present trial, I did not in any manner or way contravene the opinion as expressed by the Court of Appeals on the law applicable to the case then made. On the contrary, I said to the jury that if, from the negotiation between the parties, Antonio had assumed the responsibility of payment, and, as a consequence of that undertaking, Clissey had discharged Little from his liability, then the statute of frauds did not apply; and that, pro tanto, there should be a deduction from the demand made by the administrators on Clissey in this suit. I am free, however, to declare that I could see nothing in the testimony given on the trial before me, to take the case out of the statute. The fact of Antonio’s having agreed to credit Clissey with the amount, was exceedingly questionable from the testimony of Little himself, whose evidence, in all its bearings, it was certainly the province of the jury to expound and decide on. Had I been one of the jury, I should have found as they did, from the evidence, with the exception, perhaps, of an allowance which they made for two weeks loss of service of the blacksmith, to wit: from the death of Antonio to the expiration of the term for which he was hired, as was signified by the jury when the verdict was returned.”
    The defendant appealed, and now moved this court for a new trial, on the following grounds.
    1. Because the defendant having clearly proved that he paid Antonio, through Little, the $140, specified in the discount, and that Antonio agreed to give the defendant credit for that amount; and that, thereupon, the defendant discharged Little from all liability for the gig, and never held him liable for the same; and there having been no evidence whatever to the contrary, the verdict of the jury, disallowing the said payment, credit and discharge, and finding the said agreement to be within the statute of frauds, is wholly unwarranted by, and contrary to, said evidence, and to the law applicable thereto.
    2. Because the defendant, having clearly proved that the negro was a blacksmith, and that, on this account, he had agreed to give Antonio a very high price, and that the negro was sick and unable to work more than a month, and as much as two weeks at one time, the verdict of the jury, disallowing any deduction on account of said sickness, is contrary to said evidence, and the law applicable thereto.
    3. Because his Honor erred in charging the jury, that if at any time Little was liable to defendant for the gig,, the agreement of Antonio came within the statute of frauds.
    Gregg, for the motion.
    -, contra.
   Curia, per

Johnson, J.

The law of the case is fully considered in the former opinion of this court, and I can perceive no marked difference in the evidence. The witness, Little, says expressly, and I quote his words from the notes taken by the presiding judge at the trial: “That he bought a gig from defendant for $140, and the understanding was that the defendant was to be paid by Antonio. Antonio agreed to it. Antonio was in debt to him. He could not have bought the gig, but by paying for it in this way. Antonio said he would credit the amount on a note given by defendant to him in 1829 and if the case had been put to the jury upon the credit of this witness, I should have been satisfied with any verdict they might have found. But that does not appear to have been the case, and their verdict must have been predicated upon some mistaken notion of the law, and on that ground the case must go back for a new trial.

I am not disposed to think that the defendant is entitled to a discount for the loss of the service of the negro hired, on account of sickness, unless it originated in causes existing at the time of hiring. It is quasi a sale pro tem-pore, and all that the owner undertakes is that he is then sound. He who hires must take the chance of his remaining so ; an abatement has been allowed in the case of the death of a negro hired, but that was pushing the matter far enough for the sake of equity, and I am not disposed to extend it to every temporary indisposition that may, and commonly does, occur.

Motion granted.

O’Neall and Harper, J J. concurred.  