By the Court.

delivering the opinion.

We agree with the Circuit Judge, that the verdict in this case was strongly and decidedly against the weight of the testimony, coming in the condition that Johnson did, who condemns Gorman for refusing to allow him to enter upon his duties?

The proof is, that Johnson is a good overseer, and that he is not a common drunkard. And it may be that there are men who get drunk occasionally, and yet, in the main, discharge their duties well. Still, I insist that any planter is justifiable in refusing to turn over his plantation and property into the hands of an overseer drunk at the time. It was a very bad beginning, to say the least of it.

*615After taking professional advice, Johnson returned, but refused then to perform his contract, unless, Gorman would agree to divest himself of all authority and control over his estate, and commit it to his sole dominion and mastery. This Gorman properly refused to do. His negroes were a trust committed to his hands, and he could no more divest himself of his superintendence over them than he could over his children.

It is suggested in argument that when Gorman offered to permit Johnson to enter upon the fulfilment of his contract, that he might have made other engagements. If so, it was an affirmative fact, which Johnson could have proven in justification of himself, for declining to do so, but one which Gorman could not disprove negatively.