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Page:United States Reports, Volume 2.djvu/63

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Pbilddpbia Coorr or Comm: Pens. gy from hisconiinement ; buthe fays that fome {hart time after- tyco! ; wards, the malter brought the Negro to his oihce, to deliver him ****-4 _ up, and he refufed to talte him; and ordered him to retum to his maiter. There is fome evidenceof his being afterwards feen { at his mafter’s houfe ; but he was finally abandténedéo and has f never fince returned. In the char e to the `u , e urt told them, that though this was an irrignlar wafy hi exquting tho writ, yet if they were fatislied, from the evidence, thai-the Ne- _ gro was actually left in the hands of the malier, with lair own mfmt, and that he had either exprefsly, orimpliedly, engaged to take charge of the Negro, during the difpute, it would be un- juil to make the `defendants anfwerable for him, cogftrary to lthe mafter's own {li ulation and a ment ; and, in t ca r, t ` _ ought to give daitnges only ingiffioportion to the aéluainofs if fervice the maiier had fufiained, through the fault of the de- fendants. The evidence, in my opinion, preponderated in fa- vour of the mall:er's aequiefcence in the directions given to the ‘ ` fheritf; but the `u a ear to have thought otherwife; the i probably conlidelreldq thglf when the fherif? went to execute th; writ, he did not find the mafter himfelf at home ; but mentioned his bulineis only to his wife ; that there was confequentiy no rx- pr·¢ a;quiefcence on the part of the malter ; that, as ro the time he ke t the Negro, after the fervice of the writ, from whence anliniplirul acqniefcence might be prefumed, there was fome uncertainty in the evidence; the iheriff, who tpoke to the · time which had elapfed before he was brought to his ofliee, expreiling himfelf with great caution, and not being able to afcertain it with an de ee of reeilion, altho h he rather thought it might be :ilboufg;‘morftli) or fix weeks ;u§nd that not- withlianding what had palfed, he had a€tually returned, that he had replevied the Negro. They might liltewife have bal; aneed the teitimony of Mw! jmbr, with that of Thome: Hur-, ` 1%::; although Iown I {hould have put more reliance on the politive evidence of the latter, than the negative evidence of the former. However, as in this cafe there was no direc} proof of an acquiefcence, but the evidence of it arofe from prefumption, and inferences drawn from tlhc circumliances attending the cafe,

 .we t rink it was to crl wit the `ur to decideu n thofe cir-.

1 rcumliances, andlihzii th)eir vertlictjcarinot be faidpgo have beert_ given contrary to that plain evidence, which ought to induce us go fet it afide ; aghouglt we might not have drawn the fame in-. erences which t e did. As to the fugpoiizd miltalte in the jury, it mufl: be obferved, . that as Homin.- r».pI:gi.mda was not profecuted with eliec}, the plaintiff having difcontinued it, and the Negro never re- turned, the delendants were legall anfwerable upon their bond ;_ andas the jury were of opinion, there were no fuch equitable H circumitanccs,