Eborn v. Chote ( 1858 )

Roberts, J.

The face of the instrument upon which the suit is founded, presents an absolute, not a conditional obligation, to pay one hundred and twenty dollars for the hire of the negro. One of the ordinary legal incidents of the contract of hiring, is, that if the slave runs away during the term of the hiring, the person who has received the slave on hire, must lose the time thus lost in the labor of the slave. In this particular-case, the parties sought to change the rule, by stipulating that in the event the negro should run away during the time of hiring, the owner, Wright, and not the hirer, Eborn, should lose the time. This was the only object of adding this stipulation. Although it states that, in that event, “Wright shall lose all his time,” it cannot he reasonably understood that the parties meant, that Wright should lose the whole year, if the negro ran away one week in the time, but that he should lose all the time the negro was run away.

Under this view of the case, if the slave did run away and lose anytime, it'was matter of defence to be pleaded and proved by defendant.

The appellant complains that the charge of the court was lost, and that the court, after the trial, and upon motion, refused to make out and supply the charge. The answer given by the judge to the motion, was, that he did not recollect the charge. It is fair to presume, that if there had been any thing in the charge in violation of the rights of the party, it could have been set out by counsel in connection with the motion, in such way as to have revived the judge’s recollection. Or, if the charge was objected to, it might have been supplied by a bill of exceptions. Or, if the matters in the charge were important, and the party had no means of supplying the lost record, then it was incumbent on him to have set out fully the facts in relation to the matter, upon a motion for a new trial. As the case stands before us, there is no ground for relief presented.

Judgment affirmed.