Belmore v. Caldwell

5 Ky. 76

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1810
• Status: Published

Opinion

OPINION of the Court, by

Judge Clark.

Bel* more declared against Caldwell in trespass for beating his slave. Upon the trial of the cause, the court instructed the jury, that to support the action, the plaintiff must prove an actual possession of the slave, or an injury of constitution, or a reduction of the value of said slave ; and that, in their opinion, the plaintiff had failed to make out his case, but told the jury thev had the right and power of finding contrary to the opinion of the court. After this opinion was given, the plaintiff’s counsel moved for leave to argue the evidence before the jury, which was refused.

The assignment of errors questions the correctness of the instruction given the jury, and the right to restrain the counsel from arguing the matter of fact

Tiie instruction of the court upon the main question was correct. Slaves, by an act of our legislature, are declared to be real estate — Litt. E. L. K. vol. 2, p. 120. General property in real estate, is not,’ as in personal, sufficient to support an action of trespass. The rule ap-

Eears well settled, that there must be a possession in ict to enable the plaintiff to bring his action — Bac. Ab. 566.

But we think the court erred in restraining the plaintiff’s counsel from arguing the fact before the jury. TEe right oí appearing by counsel, and arguing matters of fact involved in the cause, is a right which the court ought not to have denied to the party.

Judgment reversed, and cause remanded for he# trial, &e.