Hiram J. Thomas v. Nimrod R. Selser, 1 Rob. 425

Morphy, J. This suit is brought by the assignee of a note, not negotiable, against the maker. The defence is that the note sued on was given for the balance due on a purchase of five slaves, bought by the defendant of Archibald Clark, plaintiff’s assignor, one of whom, named Caleb, is alleged to have been in the habit of running away previous to the sale, to have run away since, and. to be still out of the possession of the defendant. There was a judgment for the plaintiff, from which this appeal has been taken.

The only evidence adduced bythe defendant in support of his defence, is the testimony of his son-in-law. This witness has never seen the negro, nor has he any personal knowledge of his running away either before or after the sale. He testifies, that in a conversation, which took place in his presence, between the defendant, with whom he lives, and Archibald Clark, the latter said that he did not consider the negro a runaway; that, to be sure, he had run away four or five times, but that it was generally from the fear of being whipped, and that he did not stay away over five or six days at a time.

If this testimony stood alone and uncontradicted, it might perhaps be considered as making out the plaintiff’s case, notwithstanding the caution with which extra-judicial confessions should be generally received, and the relation in which the witness stands to the defendant. But. another witness, Dr. Atchinson, informs us, that the slave Caleb belonged to one Dr. Lewis Campbell, of Mississippi, who becoming embarrassed in his affairs, but a very short time before the sale to the defendant, had placed this boy, together with other slaves of his, in the hands of Clark, to be brought to Louisiana for sale.

That he, the witness, was intimately acquainted with the family of Dr. Campbell, for four or five years previous to the time when he sent away his slaves to be sold ; that the negro Caleb was his wagoner; that he was entrusted with the transportation of his produce to market, and of his family stores home; that he was always held in high estimation by his master, and considered very honest and trustworthy ; that he never heard of Caleb’s absenting himself from the plantation but once, when, in consequence of a quarrel with his wife, he stayed out one night but returned the next morning.

This witness adds, that from his frequent and intimate intercourse with Dr. Campbell and his family, it is next to impossible that Caleb, or any of the negroes, should have run away without his having heard of it. The defendant had it in his power to corroborate the testimony of his son-in-law, in relation to the running away after the sale, a fact of which his testimony itself shows that he had no knowledge except from hearsay. He says that the boy Caleb was hired bjr defendant, soon after the purchase, to one Clopton, living in the adjoining parish, and that he Tan away from him.

We find in the record, interrogatories propounded to this Clopton, who could have testified directly to the fact, hut they were never answered. It does not appear that any time was asked by the defendant to obtain the return of the commission, if it ever issued; and after the judgment no motion for a new trial was made. The defendant was pleased to rest his case wholly on the admissions of Clark, as testified to by his son-in-law, in relation to facts of which Clark could know but little, and which are positively contradicted by another disinterested witness.

The judge a quo either disbelieved the evidence of the defendant, or found it insuf- . ficient. We see nothing in the record which makes it our duty to reverse the judgment complained of. Judgment affirmed.