Chouteau and Keizer v. Hope, 7 Mo. 428

Opinion of the Court, delivered by Napton, Judge. This was an action of trover, brought by Hope, to recover the value of a slave, alleged to have been converted by the defendants to their use.

On the trial, evidence was given to show that the boy named in the declaration was free: whereupon, the defendants below asked the court to instruct the jury, that if they believed from the evidence, that the boy in the declaration mentioned was born in the state of Illinois, and raised there, and is now of the age of eighteen or nineteen years, said boy is free, and the plaintiff is not entitled to recover for him as property.

In trover, the sj^w some1^ in general or spe-th^’evidenee6 establishes matteTof not property, either of the any^ else, itis a com-tothe action^ This instruction the court refused; but told the jury, that if they should find ihe boy in question had always been held as a slave, and used as such, it is sufficient evidence of his being a slave, for the purposes of this suit, and his right to freedom does not come in question in this action. It was proved that plaintiffs in error had employed the boy on their boat, as a free boy, and had discharged him as such.

It is admitted by the counsel on both sides, that the boy sued for, was, by the constitution of Illinois, as interpreted by this court in former decisions, entitled to his freedom. These admissions renders unnecessary any examination of the sufficiency of the proof; and the only question is, whether such proof established a good defence to the action. The principle is well settled that the plaintiff in trover must show some property, in himself, either general or special. The defence offered, establishes that the subject ter of the suit was not property, either of the plaintiff or any one else.

Such defence is a complete answer to the action. Nor is there any thing contrary to the spirit and policy our laws in allowing this defence; for the record of . , , . , . , , . . judgment in this suit would not be available in an action brought by the negro for his freedom.

If Reiser and Chouteau had hired this negro of the plaintiffs, the question would come up in a very different shape, in an action founded on the bailment; but in this case, there appears to belittle room for doubt, that the freedom of the negro could be proved, like any other fact, which would show property out of the plaintiff, or no property at all. Judgment reversed, and cause remanded to the circuit court.