
    Dickinson, Guardian, &c. v. Cruise.
    
      1.] Slates. At the risk of the hirer. Fraud and warranty. The-health and life of a hired slave, in the absence of fraud or a warranty on the part of the owner or his agent, are at the risk of the hirer. And this is so whether the slave, at the time of the hiring, was sound or unsound. The hirer is hound for the hire, although the slave die immediately after he gets him into possession.
    2. ÍTew Trial. If the verdict is wholly unsupported by the evidence, a new trial will be granted.
    FROM LINCOLN.
    This cause resulted in a verdict for the defendant., Makohbanks, J., presiding.- The plaintiff appealed.
    Bright, for the- plaintiff-
    Kercheval, for the defendant,
   Wright, J.,

delivered the' opinion of the Court,

In this cause there must be- a new trial, because the verdict of the jury is wholly unsupported by the evidence.

On the first day of January, 1856, John M. Smith, as agent of E. A. Dickinson, guardian of John A. Gracy, hired a negro man, John, to the defendant, for that year, for $132. The negro was delivered to the defendant the next day, and soon thereafter,- and during the same month, died of typhoid fever, and rendered no service to the defendant.

He resisted the payment of the hire, and the jury rendered a verdict for him.

That the health and life of the negro after the hiring, in the absence of fraud or a warranty on the part of the plaintiff, were at the risk of the defendant,, is not controverted. And this is so, whether he, at the time of the hiring, was sound or unsound. Wharton v. Thompson, 9 Yer., 45.

There is no evidence in this record of any warranty,, or that the plaintiff, or his agent, had any knowledge of the unsoundness of the slave at the time of the-hiring, or in any way deceived or imposed upon the defendant. So far from this, the contrary is clearly-shown.

There are but two witnesses who speak upon the-subject, namely: Smith, the plaintiff’s agent, who hired; the negro, and Dr. McElroy, the attending physician.. The latter only establishes the illness and death of the-slave, and makes it probable that the disease of which, he died was upon him when he was hired. The former-proves, positively, that if he was sick at the time-he hired and delivered him, he did not know it.. That he looked as well as he ever did, and did not complain; and that he had seen him chopping wood at Thomson’s during the Christmas holidays. He further-proved that the slave- was not present when he was hired, but that defendant had seen him a day or two before; and was to loose all time, and furnish the usual clothing — the plaintiff paying the doctor’s bills, if' the- slave become sick.

This is the amount of the proof. And we think there is no reasonable ground upon which to presume the. verdict correct.

The jury must have acted upon the hardship of the case, disregarding the rules of law applicable to it. 9 Yer., 270.

Reverse the judgment, and remand the cause for another trial.  