JOHN A. AVERITT vs. MORRIS FOY, 2 Ired. Eq. 224

Daniel, J. The plaintiff, in his bill, states that the defendant, as administrator of one Burton, hired to him a negro man, and that he gave his note for the hire. The negro, he says, was hired as a sound and able bodied slave. The slave appeared to be healthy at the time, but in truth he was permanently diseased; which was unknown to him, the plaintiff.

He further states, that the slave, in a short time, became useless from the said disease — that he returned the slave to the defendant, who accepted him, and agreed to cancel the contract and surrender the note — that notwithstanding such agreement the defendant has brought suit on the said note, and is now endeavoring to collect the same out of the plaintiff. The defendant, in his answer, admits that he, as administrator of Burton, hired to the plaintiff the slave, in January, 1837, and took his note for the hire in February following.

He denies that he had any knowledge, at the time of hiring, that the slave was afflicted with any disease, or that he had been sick for a year or two before; he says that if he had known it he would have disclosed it. He denies that the slave was hired as a sound and able bodied negro. He admits that the slave was taken sick afterwards and was sent to him by the plaintiff — that he received him and endeavored to have him cured. But he positively denies that he made any agreement to cancel the contract and surrender the note. The plaintiff replied to the answer. And he has taken the depositions of two witnesses.

Amos Rochell deposethj that the defendant, in May, 1837, told him, that the plaintiff had brought the negro back, and that he was willing to it, and had taken him back — he said that he had not given back the note to the plaintiff, but that he had acted so gentlemanly, he intended to give him his note for the hire of the. said negro. The defendant said that he was giving medicine to the negro; that he thought he would be able to cure him, and make the slave useful as a cooper to him. Some weeks after, the defendant again said, that he intended to give up to the plaintiff the note he held for the said negro.

This witness states, that he believes that the negro was diseased when the plaintiff hired him; that he, as patroller, had several times visited the slaves ot Burton in his lifetime, and this slave was unwell and complaining. On his last visit as patroller, the legs oí the slave were swelled. Enoch Canady deposeth that he had been frequently at the house of Burton before his death, and this slave (Mack) was generally under complaint, and he has no hesitation in saying, that the slave was diseased at the time of hiring. That the slave was, at the time of hiring, permanently diseased, is very probable.

But the plaintiff has failed to prove that the defendant hired him as for a sound and able bodied negro, or that lie had any knowledge of the disease at the time; therefore the charge of fraud entirely fails. Secondly; the evidence of the witness, Rochell, does not prove an agreement by the defendant to rescind the contract and surrender the note: if it did, this court cannot decree, against the positive denial in the answer, upon the uncorroborated testimony of a single witness. The bill must be with cost,. Per Curiam, Bill dismissed with costs.