The opinion of the Court was delivered by

It is stated that the presiding judge instructed the jury, that they were at liberty to give “ smart money” in estimating the damages.1 In the action of trover, the correct measure of damages is the value of the property, and interest thereon; or if the action be for the conversion of negroes, the value of their labor, in addition to the value of the negroes. It is impossible to determine by what rule the jury have been governed; but from the amount of the verdict, it is highly probable that they were influenced by the charge of the presiding judge ; and I therefore think the defendant entitled to a new trial on this ground: It is further stated by the presiding judge, that he charged the jury that the declarations of the father, at the time he sent the negroes to the plaintiff, should have no weight in their determination, because the plaintiff was not present :2 and that they should not regard the declarations of the plaintiff, because he might have been ignorant of his right. As the case turned on the question, whether this was a gift or a loan, these circumstances were entitled to consideration,. and were strictly within the rules of law. I do not determine on their effect, but if the jury had not been directed to lay them out of view, it is probable they may have led to a different result. I am, therefore, of opinion that the defendant is entitled to a new trial on this ground also.

The motion is granted. (b)