
    ADAMS vs. RYDER.
    Eastern Dis.
    
      March, 1833.
    APPEAL FROM THE COURT OR THE FIRST DISTRICT.
    A motion for a new trial was properly overruled, where the cause had been fixed on the trial docket by order of an attorney not of record, to the knowledge before the trial of the party making the motion.
    
      a motion for a periy overruled, where the cause had been fixed oa the trial docketby néynotofrócord be&ro(hetrM of the mortiói”aldnff
   The facts of the case are stated in the opinion of the court delivered by

Martin, J.

This is an action for the rescission of the sale of a slave, attacked with the scrofula; the general issue was pleaded, the facts alleged in the petition were proved, and a physician testified that the disease was, in the opinion of medical men, an incurable one.

There was judgment for the price, with interest from the date of the judgment till paid, and damages to the amount of one huudred and twenty-five dollars. The defendant appealed, after an unsuccessful attempt to obtain a new trial.

The new trial was asked on the ground of the judgment being contrary to law and evidence; the cause was fixed for trial by an attorney not of record; the case was tried ex parte. The defendant failed in getting witnesses, notwithstanding he used due diligence.

The first ground was properly overruled. It is not known that the attorney who had the cause set for trial, had not . authority from the defendant, who admitted that he had ^ ' knowledge of the case being fixed for trial, and ought to have attended and moved for a continuance,

On the merits, it has not oppeared to us that the evidence does not justify the amount of damages allowed; no specific sum was prayed for as damages, and the only evidence respecting them is, that the plaintiff paid wages for a woman whom he hired to do the work the slave purchased was to have done. The latter was sent soon after the purchase to the defendant who has kept her since. He was then in mora as to the reimbursement of the price, and damages ought not in our opinion to have exceeded the legal rate of interest.

It is, therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and that the plaintiff recover from the defendant the sum of six hundred dollars, with legal interest thereon, from December 38, 1831, until paid, with costs in the District Court, they pay costs in this court. and that

Morder, for appellant.

Rogers and L. C. Duncan, for appellee.  