
    JANUARY TERM, 1844.
    William H. Young v. James P. Thompson.
    If a hired negro should be so treated by the hirer as to cause a loss tt> the owner, the hirer would be liable ; but if he uses such caution as a prudent man would with his own slave, he is not liable.
    This was a special action on the case, brought by James P. Thompson against William H. Young, to the May term, 1838, of the Circuit Court of Hinds county. The declaration contained two counts : The first, averring that the plaintiff hired to the defendant a slave, named Marsh, for the term of one year, commencing on the first day of April, 1837 ; and that in consequence of the severe and cruel treatment of the defendant, the slave ran off, and was lost to the plaintiff, &c. And the second, the hire of the slave, and his elopement on account of mal-treatment by the defendant; and also, the conversion of the slave to the defendant’s own use, &c. The defendant pleaded, not guilty. On the trial, the plaintiff read the deposition of Benjamin Alford, which proved, that just before Christmas, in 1837, deponent heard George Trawick ask the defendant, if he had heard of the negro man, Marsh, he had hired of the plaintiff; and defendant answered, he had not, and further said, he did not care to know where the negro was ; defendant also said, that before the negro left, he had his knife into his breast a piece ; and assigned as a reason for stabbing him, that the negro tried to keep out of his way ; and when defendant wished to correct him for it, he was making off, when defendant drew a pistol, made him stop, and put his knife in his breast. This occurred on defendant’s farm. The plaintiff then introduced George Trawick, whose testimony was substantially the same as Benjamin Alford’s. He then read the deposition of Edward S. Farish ; which proved, that early in 1837, in March or April, defendant hired the negro, Marsh, of plaintiff, at thirty-two dollars per month, from that time till the first of January next ensuing. Mr. Thompson was then called by the plaintiff; who testified, that after Marsh ran away, he heard Young say a negro man, named Edmund, ran off at the same time with Marsh; that-they had taken off two guns from his, Young’s mill, one of which had since been found in Scott, county, where the negroes were sqen and shot at by some white persons ; that Marsh had not been taken, and he cared but little if he never was ; and, that the plaintiff was in the southern part of Alabama in the fall of 1837, and did not return to Mississippi until about the month of October. The plaintiff then introduced R. Hatcher, who testified that at the time the negro ran away, he would have sold for thirteen or fourteen hundred dollars, in the then currency of the country ; but he jvould not now (at the time of trial) sell for more than six or seven hundred dollars. The plaintiff then read to the jury an advertisement, made by the defendant, as executor of the estate of Jacob R. Scott, deceased, dated 4th of October, 1837, offering a reward of $50 for the apprehension and delivery of the negro man named Edmund, and here rested his case. The defendant then read to the jury the depositions of Henry Everett and Waters S. Chilson, which proved in substance, that in the summer and fall of 1837, Everett was the overseer on the farm of the defendant, and Chilson the superintendant and foreman of his mill; that about four weeks before Marsh ran away, defendant and Everett went out into the field where he ought to have been at work; shortly after they reached the field, Marsh made his appearance on the outside of the fence ; defendant called him, and he attempted to run off, when defendant drew a pistol, and told him if he did not stop he would shoot him. Marsh, however, continued to walk off'until defendant crossed the fence and overtook him, and struck him with his walking cane. He was then tied and taken to the mill, and whipped by the defendant with a cow skin, in the presence of Everett, Chilson, and others. The whipping was not severer than is usual in such cases ; no blood was drawn, nor the boy at all injured. He continued to work on the farm as usual, never complained of any injury, appeared to be in good health, was well clothed, expressed himself as satisfied with the provisions allowed him, and was treated precisely as defendant’s own servants were treated up till the time he ran away, which was about four week? after he was whipped. A negro man named Edmund, belonging, as the deponents understood, to the estate of J. R. Scott, deceased, ran off at the same time ; and they carried with them two guns. Deponents never saw Marsh after-wards. At the time he ran away, and for a week preceding, the defendant was absent at Vicksburg. Deponents considered defendant a good master ; he clothed and fed his negroes well, and never whipped them cruelly. Never heard of his whipping Marsh but the one time, and did not believe he ever stabbed or injured him ; when he was whipped, as above stated, he was naked, and no wounds were visible on his person. The defendant then introduced R. B. Hatcher, who testified that the day after Marsh absconded, search was made for him in the swamp near defendant’s farm ; that a month or two afterwards, it was ascertained that the negro Edmund, who absconded with Marsh, was in jail in Alabama, when defendant employed witness to go for him, and to inquire along the road for Marsh ; witness did go for Edmund, and brought him home, but could hear nothing of Marsh. James H. Boyd testified, that six or eight weeks after Marsh ran away, he was at the residence of the defendant, in Jackson, and heard much conversation between the plaintiff and defendant about thé negroes Marsh and Edmund f ‘ their being seen in Scott county, and the finding of the guns, was mentioned, and it was finally agreed that nothing further need be done until the negroes should be heard of again. The plaintiff attached no blame to the defendant, nor did he say anything about holding him liable for the value of the negro. Smith testified that some time in the summer or fall of 1837, while he was residing in Scott county, near the place where the guns, said to have been taken off by Marsh and Edmund, were retaken, he was employed by the defendant to search for, and recapture said negroes if possible ; and that he did make diligent search for them, but they were never heard of in that neighborhood afterwards. This being all the evidence offered on either side, the Court instructed the jury ; “ 1st. That .admissions made in light conversations are but presumptive evidence, and may be rebutted. 2d. If the boy Marsh ran away without cruel treatment on the part of Young, and Young made proper exertions to recapture him, without success, Young is not liable for the negro.” ,But the Court refused to instruct the jury, when asked by the defendants to do so, “that if the boy ran away without cruel treatment, and Young thereupon gave notice of his absconding to Thompson, on the first opportunity thereafter, he was, after such notice, no longer bound to use exertions for his recapture.”
    The jury found for the plaintiff; the defendant then moved for a new trial; the Court overruled his motion, and he excepted, and removed the case to this Court by writ of error.
    
      D. Shelton, for plaintiff in error.
    In this case the judgment must be reversed, for the following causes.
    1st. There were but eleven jurors.
    2d. The Court below refused to charge the jury as asked by the appellant.
    3d. The Court overruled appellant’s motion for a new trial.
    1st. There were but eleven jurors, and for that the judgment must be reversed. 4 Plow. R. 166 ; 1 How. R. 177.
    On the second arid third causes, I shall prove, 1st. That the verdict was wrong, and thereupon a new trial should have been-granted. 2d. The refusal of the Court to charge as requested, produced that error in the verdict.
    1st. The verdict was wrong, because, when the slave absconded, Young was bound to do nothing but give notice to Thompson ; for one of the obligations of the letter-to-hire, is a warranty against all faults which prevent the use of the thing hired ; this warranty extends not only to all vices which are known, but to those which are unknown to the letter-to-hire ; not only to those which exist at the time of the contract, but' to those which, without fault on the part of the hirer, supervene afterwards. Story on Bailm. 259 ; Poth. on Obi. 118, 119, 120.
    Now, a disposition to run away, is as much a vice in a slave, as the same fault would be in 'a chaise-horse, and it would more effectually prevent the use of the former than the latter-; the warranty would therefore be no less binding in this than in that instance.
    That this slave had this fault, is proven by the testimony ; for between the months of May and October, he absconded twice, without provocation. If, then, in the contract of hiring, there is an implied warranty against such a fault, it was the duty of the letter-to-hire, to replace the slave in possession of the hirer so soon as notice of his absconding was given ; otherwise the contract was at an end, because broken by Thompson, and he could not even recover the hire for the remnant of the year.
    The verdict was wrong, because Thompson showed no neglect of proper diligence on the part of Young. The diligence required is that which an ordinarily prudent man exercises in the preservation of his own slaves. Story on Bailm. 389, 390. To make Young liable, a neglect of that diligence must be shown.
    The proof of this neglect is on Thompson, and mere proof of the loss is not sufficient to put Young on his defence ; it does not raise a presumption of negligence. Story on Bailm. 270, 271.
    This rule is applicable to the loss of inanimate things ; how much more strongly will the principle apply to a human being, having the power of locomotion, volition, passions, and reason, whose actions can only be restrained by the cruelty of fetters, or by close imprisonment. In the present case, Thompson did not even pretend to show negligence ; he proved only the loss of the slave, and left Young to make out his defence.
    Again, the verdict was wrong, because Young did show that he used that diligence, which an ordinarily prudent man exercises in the preservation of his own slaves. The best argument that he did so, is, that he used the same diligence to recapture this slave that he did one of his own, who absconded in company with the slave in question. But the facts proven show this diligence. The slave absconded in the night, without any circumstances of provocation, during Young’s absence, and when he had been absent for about six weeks ; when Young returned, on the day next after the night on which the slave absconded, he made search in his vicinity, and diligent effort to recapture the slave (see testimony of Hatcher) ; when his search in the vicinity was without effect, and when subsequently he heard of the two absconded slaves in Scott county, near one hundred miles distant from Young’s residence, he employed a special agent to attempt to recapture them there (see testimony of Smith); when this was without effect, and when, some six or eight weeks after the slave absconded, and while his own and Thompson’s slaves were still runaways, but upon the first ' opportunity after said slave did abscond, he told the facts to Thompson, and that the last he had heard of the slave, was his presence in Scott county, the employment of a special agent to recapture the slaves there, with what Young had done Thompson expressed himself satisfied, and the parties agreed to wait until the slaves should be further heard from (see testimony of Boyd). After this agreement, nothing more is proved to have been done by Young until he ascertained that his own slave was in jail in Alabama ; he then employed a special agent to go for his slave, and requested of him to make inquiry for Thompson’s slave ; this was done, but nothing heard of Thompson’s slave (see testimony of Hatcher). What more could Young have done ? After hearing of the slave in Scott county, it would have been folly to have searched for them in the vicinity of Young’s residence. The employment of an agent resident in Scott, was the most probable means of recapturing the slaves. This agent was in the employment of Young at the time of the conversation with Thompson, and doubtless continued his efforts to recapture the slave after that conversation. Should Young have gone to Scott ? The agency of a permanent resident there, was much more likely to succeed than a temporary effort by him. His trusting the recapture of his own slave to the same agency, is evidence that the agent was employed in good faith, and relied on by Young ; thus there were the whole six or eight weeks, intervening between the slaves absconding, and notice to Thompson, filled up by efforts to capture the slave. A most prudent man could have done no more for the preservation of his own property.
    The adjudicated cases on this subject are very unsatisfactory. In some of the books, I find the principle broadly laid down, that if a slave escape, without negligence or default on the part of the hirer, he will not be responsible. In these cases, nothing is said of notice to the letter-to-hire, nothing of an effort to recapture. The casualty of loss by absconding, is treated as a peril incident to the nature of the property, and therefore, in contracts for the hire of it, that peril is never upon the hirer, unless.by his express stipulation, or produced by his negligence. 2 Wheat. Rep. 100 ; 2 Dana, 248 ; Story on Bailm. 269, 270.
    
      In other cases, it is said that the hirer is not bound to pursue the slave, having given notice of the slave’s flight to the letter-to-hire. 3 J. R. 170.
    In other cases, it has been determined that the hirer was not bound to restrain the slave from running away by fetters or imprisonment ; that where the hirer has acted with good faith, but has allowed to the slave freedom of locomotion, he (the hirer) will not be responsible for his escape, although he might have held a severer restraint upon his actions. 4 Wash. Rep. 65 ; 6 J. J. Marsh. 528 ; 4 McCord, 223. '
    Though no one of these stated -principles is decisive of the present question of diligence, yet it seems to me that all, taken together, must be. Unite the principles of the three classes of cases cited, and lay down a rulé of conduct which will certainly exonerate the hirer, and that rule would be this: — if the hirer, acting in good faith, has allowed the slave that freedom of locomotion which masters ordinarily allow their slaves, and the slave taking advantage of that freedom, has absconded, — if, after the absconding, the hirer has used ordinary efforts to recapture, without success,— if, upon the first possibility thereafter, and after the failure of his own efforts, the hirer has given, notice of the absconding to the letter-to-hire, and thereby turned over the farther effort to recapture upon the owner of the slave,— he has certainly performed his duty, and will not be responsible for the slave. It is true, that, in the present case, every one of the actions here enumerated was performed by Young, and yet the jury found a verdict against Young.
    That verdict was produced by the error of the Court in charging the jury. The charge refused was, “ That if the slave absconded without cruel treatment, and Young gave notice of the absconding to Thompson on the first opportunity thereafter, he was, after said notice, no longer bound to use exertion for his recapture.” Now, if the arguments I have used, on the propriety of the verdict, or if any one of them, be correct, this charge contained the law applicable to the facts ; for in that argument I have attempted to show that after exertion for six weeks, attended with every diligence which the law requires, but without success, Young was not, after notice given to Thompson, bound farther to prosecute his fruitless efforts; by these efforts, and the notice given, he had done his whole duty, and it was then Thompson’s duty to. prosecute the efforts to recapture the slave.
    As to any pretence of cruel treatment by Young, before the slave absconded, it is very feebly supported by the evidence for Thompson, that evidence consisting only of a light and casual remark by Young himself, to the effect, that “ before the slave absconded, he, Young, had his knife a piece in his bosom.” That Young ever did the slave any injury (other than a whipping for absconding on a former occasion, and about two or three months before the slave' finally absconded), is positively disproved by the testimony of Chilson and Everett. It was scarcely urged in the Court below, and will here I suppose be wholly abandoned.
    Hutchinson, for defendant in error.
    This was an action on the special case, Thompson against Young, for the breach of the bailment on hire of the slave Marsh, and for not restoring him at the end of the term of hire. The first count is on the contract of hire, of April, 1837 ; the wanton beating and stabbing the slave in the August following, causing his elopement and loss ; and the second count is on the contract of bailment and converting the slave to Young’s use. Not guilty.
    The suit was brought March 22d, 1838,, and after several continuances by Young, a rule for security for costs, and a mistrial, it was finally tried on July 2d, 1841, and a verdict for $ 1000. In the transcript there are only eleven names as jurors, but in the bill of exceptions it is stated that the jury was polled, and adhered to their verdict. On the 23d of July, the motion for a new trial was overruled, and a bill of exceptions sealed, which states the oral evidence, and gives the depositions.
    The evidence is voluminous, but its substance'is ; Farish proved the contract of bailment, and Hatcher the value of the slave. Alford and Trawick, in a conversation with Young about the elopement of the negro, heard him state, that because the boy evinced unwillingness to come to him as called, drew a pistol on him, crossed a fence, seized the negro by the throat, &c. He had first said, on being asked if he had heard of the negro, that he had not, and did not care if he ever did ; that he had his knife a piece in him before he left. Everett, Young’s overseer at the time, deposed, he saw the pistol drawn, fence crossed, and Young strike Marsh on the side of his head with a cane; assisted in taking him to the mill, where he was stripped and whipped ; that Marsh continued at work three or four weeks afterwards without complaint, and eloped with Edmund, a negro belonging to Young, as administrator of J. K. Scott, on the evening before Young came to the mill, after his return from Vicksburg. Chilson proved the whipping at the mill, the negro’s continuance at work afterward, and his elopement, as stated by Elliott. They both state the elopement as occurring about August 1st, 1837.
    Young advertised Edmund alone, as eloping August 1st, 1837 ; Hatcher stated he saw Young and Thompson in conversation in Jackson shortly after ; Boyd, that six or eight weeks afterwards he heard them conversing on the subject, and it was agreed that nothing farther should be done until they should hear more from Scott county, where they had heard the negro was. About two months after the elopement, Hatcher was sent by Young to Alabama after Edmund, and directed to inquire for Marsh. Smith, of Scott county, was requested by Young to search for both negroes in Scott county. It was proved by the witness Thompson, that the plaintiff did not return from Alabama until in October, 1837.
    The Judge charged the jury, that admissions, made in light conversations, were only presumptive evidence, that was rebutable ; and that if Marsh eloped, without cruel treatment, and Young made proper exertions to recapture him, without success, he was not liable; but refused to instruct, that, if he ran without cruel treatment, and Young gave Thompson notice of it at the first opportunity, he was not bound to make farther exertion to recapture after such notice.
    The motion for a new trial was because the verdict was contrary to law and evidence.
    Error 1. Refusing the instruction asked. Error 2. Refusing the new trial. Error 3. Only eleven jurors.
    1, Refusal of the instructions asked. They were inapplicable, and therefore abstract. The proof on both sides was, that the negro eloped on the 1st of August, 1837. Thompson, the bailor, did ,not return to Mississippi until October afterwards. If there had been no intervening negligence, gross neglect, in the mean time, on the part of the bailee, then there might have been some color of ground to say that the bailee, who had been blameless, might give notice, and acquit himself of farther responsibility for the recapture of the negro. Presently after the elopement, he advertised Edmund, but not Marsh ; and the mind that induced the omission seemed to remain, at least until his conversation with Alford and Trawick. There was evidence of gross negligence having occurred prior to the bailor’s return. If the instruction refused had been given, it would have been a direct decision by the Court that no negligence or neglect had occurred. The Court properly regarded that as a matter to be left to the jury, and of course refused to give the instruction. The jury, weighing the evidence, determined that Young, according to his own mouth, had stabbed the negro ; who, according to the volition and locomotion allowed him, eloped ; that he neglected even to advertise him, when advertising another runaway.
    2. Refusal of the new trial. It was properly refused. 1. The verdict was not the result of any misdirection. On the contrary, the instruction first given was in every sense as favorable to the bailee as could have been decently imagined. 2. It was the exclusive and constitutional province of the jury, to weigh and reconcile the evidence. 3. The evidence sent up is sufficient to sustain the verdict, although this Court cannot weigh it for its inherent or extrinsic credibility. 4. The Judge, presiding below, heard the evidence. He was satisfied with the verdict; and though, under the statute, the refusal to grant a new trial may be revised, yet it is never done, except where it is entirely manifest that injustice was done. 5. There can be no object for awarding a new trial, but to make a third experiment before a jury on the same evidence.
    3. The transcript presents only eleven jurors ; but though in the postea there are only eleven names, it is absolutely certain there were in fact twelve jurors ; for the record shows that a jury was empanelled, &c., and on coming into Court were polled, showing that it was contested as a case of life and death, showing that twelve good men answered to the verdict unanimously. The fact is manifest, that there were twelve jurors who tried the case and gave their voice in Court, but that, accidentally, the clerk, in entering the panel, omitted one name. The names of the jurors is not material; but the important matter is, that the record should show a regular jury trial; that is shown.
    
    The appellee respectfully but confidently expects affirmance of the judgment.
    
      George Adams, in reply.
    The contract set forth in the declaration of the defendant in error, was a bailment of a slave on a contract for hire ; see Story on Bailments, 247, 428 ; and the gravamen of the action, and the breach alleged, is the non-delivery of the slave at the expiration of the time for which he was hired. The plaintiff in error resisted the action, upon the ground, that within the time for which the slave was hired, and was not recovered, he ran away, without any mistreatment or culpable negligence on the part of plaintiff in error.
    The duties which devolved on Young, the plaintiff in error, as the bailee or hirer of the slave, were to put the slave to no other use than that for which he was hired, to use the slave well, to take reasonable care of him, to restore him at the time appointed, to pay the hire, and in general to observe whatever was prescribed by the contract, or by law, or by the custom of the country relative to that species of property; and Young, the hirer, was bound only for ordinary diligence, and liable only for ordinary negligence. Story on Bailments, 262 to 265, &c. And if the slave was injured, or ran away, or was entirely lost, or destroyed, without any fault of Young, the hirer, he was exonerated from all risk and liability, provided he acted in good faith' and with reasonable care, although he might have exercised a greater restraint or confinement over the slave. And the law and reason make a wide difference in the mode of keeping brute creatures and inanimate property, and human beings. Story on Bailments, 269, 270.
    A slave has volition and feeling, which cannot be overlooked or disregarded, and they'must be allowed to a certain degree the liberty of locomotion. The health of the slave, humanity, and the very purposes for which the slave is hired, make it necessary that the hirer should allow the slave, to a certain extent, the liberty of volition and locomotion, which puts it in his power to escape ; and if he should escape, or be lost, or destroyed, by the exeroise of that volition and power of locomotion, without the permission, misconduct, or negligence of the hirer, he is not liable to the owner for any injury that may happen to, or the entire loss of the slave. Story on Bailments, 368. And the burthen of proof of the permission, misconduct, or negligence of the hirer, lies on the bailor, or owner of the slave. Story on Bailments, 270, 272. The nature of the property, the character of the contract, the principles and policy of the law, and the relative duties, rights, and liabilities of the parties in this case, were involved in the case of Boyce v. Anderson, 2 Peters, 150, and the reasoning and decision of the Court in that case, if applied to the testimony in this case, shows most clearly and conclusively, that the verdict of the jury, and the judgment of the Court, against the plaintiff in error, are contrary to law, justice, and reason, and against the true policy of a slave-holding country, as regards the owners, hirers, and slaves.
    The whole of the testimony, on the part of the defendant in error, proves nothing agains't the plaintiff in error, but an expression of unconcern about recovering the slave sued for, and the improbable and incredible remark, “ that he put his knife a piece into the slave before he ran away the truth of which is disproved, as fully and clearly as a negative can be disproved, by the testimony of Mr. Everett and Mr. Chilson, who lived at the mill of the plaintiff in error, who saw the slave every day until he ran away, and who state that the slave up to that time had no wound on his breast or any other part of his body or limbs. The testimony on the part of the plaintiff in error, proves most conclusively, that he did not commit any act of cruelty, or excessive severity on the slave ; but on the contrary, that Young, the plaintiff in error, fed the slave well, worked him moderately, never whipped him but once, and that for running away, and then not unusually severe; that the slave was in good health, expressed entire satisfaction with his treatment up to the very evening before he ran away, and that Young had not seen the slave for some time previous to his running away ; and that Young made all reasonable inquiries and searches for the purpose of recovering the slave. Mr. Boyd’s testimony proves that Thompson, the defendant in error, in a conversation with Young, the plaintiff in error, expressed his satisfaction with Young’s conduct relative to the slave ; made no complaint or claim against Young, on account of his treatment to, or the loss of the slave, and agreed that nothing further should be done by Young, for the purpose of recovering the slave, until something farther should be heard of the slave. But if all this should not be considered by the Court sufficient to relieve the plaintiff in error from the judgment against him, the fact that the case was tried, and a verdict rendered by a jury consisting of eleven jurors only, is an insurmountable objection to the verdict and judgment, and an error for which this Court will surely reverse the judgment of the Court below.
    
      
       The cases referred to by the adverse counsel, in regard to the jury, are those of Byrd v. State, 1 How. 177, in which it is held, that the trial by jury was secured by the constitution, and must be held inviolate; and Carpenter v. State, 4 How. 166, in which it was decided, that the constitution, in speaking of a jury, had for its context the common law, requiring that it should consist of twelve. Nothing can be more certain than that a jury of twelve is required in all cases, civil and criminal. Nay, I should be willing to have it ruled that the parties should not be allowed by consent to dispense with that number; not that there is anything peculiarly fit or sacred in that number, but because, to allow eleven, ten, or any less number, would be a dangerous innovation on an institution more than any other identified with the progress and security of civil liberty. But the question is not, whether there should be twelve jurors, but whether the record does not certainly show in this case that there were twelve. It is indeed true, that in the posfea of the transcript there are only eleven names; but it is stated by the Judge, in the bill of exceptions, that the jury was polled, and that each and all persisted in adhering to the verdict; and the record does not show any consent to try the case with eleven jurors. It is therefore evident, that the clerk, by mere misprision, omitted in the postea one of the names composing the panel.
    
   Per Curiam.

This action was brought by Thompson, to recover the value of a negro man hired by him to Young. It appears that the negro absconded from the possession of Young, and has not since been heard of. The jury returned a verdict for the value of the negro.

We do not feel authorized to adopt a rule which would make the hirei of a slave liable for his return at all events. A proper degree of care is no doubt necessary ; but if the loss is not occasioned by the act or culpable omission of the hirer, he is excused from responsibility. If a hired negro should be so treated by the hirer as to cause a loss to the owner, in consequence of an injury to the slave, then the hirer would be liable ; but if he has used such caution as a prudent man would with his own slave, then he is not liable.

The testimony shows no improper conduct on the part of Young. He seems to have treated the slave with humanity; or at least, he was guilty of no cruelty which could have caused the slave to abscond. He was never chastised except on one occasion, and then but moderately, and even this was not without cause. This chastisement was not the immediate cause of his departure. He remained some time afterwards in possession of Young ; so that if it had been even immoderate and unlawful, the jury could not justly have drawn the inference that it caused the loss. Another negro left the possession of Young at the same time ; and he was apprehended and committed in Alabama : and the agent who went after him, was required to make due inquiry for the negro of Thompson, which he did, but heard nothing of him. A witness proves that search was made directly after the negroes absconded, without effect. Thompson was shortly afterwards informed of the departure of his boy ; it was understood that the two had been heard of in Scott county, and after some conversation between the plaintiff and defendant, it was agreed by them that nothing more need be done until further information should be received. Another witness states that he was residing in Scott county, near where the negroes had been seen, and was employed by Dr. Young to recapture them if possible. This he endeavored to do, but without success. Altogether, we think the verdict is not sustained by the evidence, and a new trial will therefore be granted.  