16 Mo. 114 | Mo. | 1852
delivered the opinion of the court.
The only ground upon which we reverse the judgment in this .case, is, the giving, by the Circuit Court, of the fourth instruction asked by the defendants. That instruction is in these words,:
4. -If the jury find that the plaintiff, by himself or his authorized agent, delivered the slave in the declaration mentioned, to Hugh Rogers, one of the firm of John C. Rogers & Co., and suffered or permitted him to retain the possession of, .and use and control the said slave as his own property; that, while said Rogers was so in possession of said slave, using and controlling him as his own, he was regularly levied on and sold, to satisfy one or more executions against said Hugh .Rogers, that the defendants became the purchasers of said slave at such sale, without any notice of the claim of the plaintiff, the verdict ought to be in favor of the defendants ; but if the delivery was not the act of the plaintiff, nor authorized by him, he is unaffected by it or .the subsequent possession of .Hugh Rogers, unless it .appears to the jury from the circumstances, that he had knowledge .of the acts of his agent, . and acquiesced in them.
In every aspect in which this instruction is viewed, it is erroneous, and it is not aided, as the defendants contend, by the reference to it in the second instruction given for the plaintiff. It appears that the instructions for the defendants were first given, and then the plaintiff could do nothing better than endeavor to qualify the error of the court, by ashing instructions which would take the law as already declared by the court, and modify it so as to suit his case. By doing this, he did not waive his right to object to the error in the instruction already given for the defendants, and to which he had excepted.