25 Mo. 411 | Mo. | 1857
delivered the opinion of the court.
There is no doubt of the principle that the property of the slave belongs to his master. Whatever a slave acquires a right to, the master may sue for and recover in his own name. If a thing belonging to a slave is stolen, it must be alleged in an indictment for the felony that it was the property of the master. But while this is certainly the law, if masters do not interfere with nor object to the disposition that their slaves may make of the property which they are willing should be owned by them, it is not for strangers to interfere and deny the validity of any transfer of his property which a slave may make. The watch being the property of the negro man, he gave it to his wife. What is more natural than that a man about to be separated from his wife, should be willing to give her a portion of the property he may have ? What possible inference can be drawn from the refusal of the man to re
This court is no place in which, for the first time, to make the objection of a want of demand. If the objection had been made in the court below, it might have been obviated. After a party has resisted a recovery against him in all the courts, from the lowest to the highest, it is with a bad grace that he appears in the court of the last resort, and for the first time makes the objection that there was no demand made of him before the institution of the suit. Such conduct looks very much like giving up the controversy.
As to the instruction refused at the close of the case, we are of opinion that it was a proper exercise of the discretion of the court to refuse it. The instruction was so general that it did not show on what point the party relied. If there was any fact not proved which was essential to a right of recovery, why was it not singled out and 'a direction prayed that the proof of such fact was necessary to entitle the plaintiff to a verdict ? With the statute before us, which enacts that no exception shall be taken on an appeal or writ of error to any proceeding in the circuit court, except such as shall have been expressly decided by such court, we will never reverse a judgment for the refusal of so general an instruction. Under such instructions the court below might have been of the opinion that one essential fact was not proved, while this court may come to the determination that the defect of proof was not in relation to that fact, but a different one ; or the court below may hold that a fact is necessary to be proved which, in the opinion of this court, is unnecessary, or that there is a variance between the proof and the petition. How, under such instructions, could this court ascertain the point
The second instruction asked by the defendant was intended, it is presumed, to raise a question of variance between the statement of the cause of action and the evidence. If the property was Folden’s, as the evidence conduced to show, it was not material from whom it was obtained. The allegation respecting Stotts’ possession must have been designed for its identification, and if it was otherwise sufficiently described, it was enough. This is is not a matter of contract. No form of pleading is required in justices’ courts. No statement of the cause of action is necessary, save that which the justice is required to enter on his docket. Statements, when filed, are often very inartificial, and should be favorably construed. There is nothing in the record showing that any question was raised as to the identity of the cause of action tried in the justice’s court with that tried in the circuit court. The cases of Link v. Vaughn, 17 Mo. 595, and Ferrara v. Beck, 19 Mo. 30, were actions in courts of record, and under the present practice act, which, by express provision, does not extend to justices’ courts except in relation to the matter of evidence.
judgment affirmed.
