
    
      MORGAN'S SYNDICS vs. FIVEASH.
    
    Appeal from the court of the third district
    The supreme court will not increase the sesserfby
    «dent, an T-near Sim sent.
    vitto hold to bail the agent need not state he swears from his personal knowledge.
   Martin, J,

delivered the opinion of the court. The defendant is sued for the value of ( slave, drowned incordelling a vessel of which former was master, without the consent of the plaintiffs, owners of said slave, or any person having care of him. The general issue was pleaded: there was a verdict and judgment against the defendant, who appealed af- ® , 1 \ ¡ ter an unsuccessful attempt to obtain a new 1 ⅛⅛]

The plaintiffs and appellees here, prayed to be relieved from an error in the verdict, by which $600 are allowed as the value of the slave, while the petition states the value to be $1000, and the testimony $1500.. We think that a party who has prayed for judgment on a verdict and refuten his adversary’s claim to a new trial, demands with ill grace from us that we should send the case back for the decision of another jury. For it does not belong to us to increase the damages assessed by a jury.

Thedefendant has complained that the cour erred in overruling his motion to have the bail bond cancelled. He complained of the insul- ‘ ffciency of the affidavit, because it was made by an agent, while the petition shews that the plaintiffs reside in the city, and the agent ^wears, without stating he does so on his per-gonal and direct knowledge.

We think there is not any strength in either objection. The justice ought not to receive ¡the agent’s affidavit, unless in the absence of the principal: we must presume he did his duty, unless the contrary appear. Now the circumstance of the plaintiffs’ residence in the city, does not preclude the possibility or probability of an occasional absence. Nobody can or ought to swear exceptas to his personal direct knowledge.

There is a bill of exceptions to the admis-' sion of the record of the insolvents’ concurso in evidence. We think the court did not err. The general issue was pleaded—the cession was therefore to be proved, and of this the record was the best evidence.

On the merits, the defendant and appellee’s counsel shew, that from the testimony of the plaintiff’s own witness, it appears the slaves,of the plantation to which the deceased belonged tvere permitted to earn money, by cordel* ' J J ling vessels; that the plaintiffs expressly state as a ground of their claim that the deceased was so employed without the knowledge or consent of the plaintiffs, or any person having care of him. The general issue-has put this allegation of the petition at issue, and the jury should have found it for the defendants.

Fisher swears that sometimes the slaves were permitted to cordel vessels through the turn; witness has seen them do it and not forbidden. The negroes have been forbidden at all times during high water, and been punished for so doing at that time. On Sunday afternoon particularly, when the weather was fair, and during low water.

Kinsey, a witness of the defendant, swears that a white person (who is supposed to be the preceding witness) came on board, on the day after the accident, to enquire about the negro, who being asked why he permitted his people to track vessels at night, answered, it was the only time they had to make any thing for themselves, as they worked all day, and it was hard to be too strict with them.

Fisher being recalled, declared foat he did Hot make the declarations attributed to him by Kensey. He admitted he was sent on board by the overseer, and repeated that sometimes the slaves were permitted to cordell.

We have a strong doubt, whether a planter who occasionally permits his slaves to earn money by cordelling vessels may complain of their being hired for that purpose. If I at times send my servant to market without money and on being called on pay for what he purchased, I am bound if he purchases on another day on credit, even if I gave him money so to do. So, if thp insolvent slaves were during part of the year permitted to cordell vessels for money, the person who hired them during a season may well say, that permission being frequently allowed he might conclude it was always so, and the restriction ought not to 'affect him.

As the jury have found a verdict against the defendant, we cannot in opposition to their finding discharge him; the case must therefore be remanded.

It is therefore ordered, adjudged and decreed, that the judgment of the district court bfe annulled, avoided and reversed', the verdict set aside, and the case remanded for a new trial; the plaintiff appellee paying costs of , tllG COU1*t.

Hennen Sf Eustis for plaintiff—Maybin for defendant.  