Hensley v. Baker

• Decision Date: 31 July 1846
• Citation: 10 Mo. 157
• Parties: SAMUEL HENSLEY v. ROBERT E. BAKER.
• Court: Missouri Supreme Court

10 Mo. 157

SAMUEL HENSLEY

v.ROBERT E. BAKER.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM CALLAWAY CIRCUIT COURT.

SCOTT, J.

Baker, the sheriff of Callaway county, by virtue of an execution against Jos. D. Johnson, levied on and sold on the 4th July, 1845, a negro man slave, the property of said Johnson, when Samuel Hensley became the purchaser for the sum of $303, who refused to pay the amount bid by him on the ground that the slave was unsound; thereupon the sheriff again offered the slave for sale, when he sold for the sum of $252. This was a proceeding commenced by virtue of the 42nd section of the act concerning Executions, to recover from Hensley the difference between the sum bid by him on the first sale, and the sum for which the slave sold at the last auction.

It appears that the slave, in the summer of 1831, was wounded by a cut on the under part or calf of his leg. This wound was never healed. It would occasionally fester and run. At times the slave complained of it, and it prevented him from doing full work. The purchaser of the slave at the last sale said he would not take one hundred dollars for his bargain; that the slave had lost no time since he had him in consequence of the sore, and that it had healed up. The slave was present at the sale, and his leg examined. The sheriff was heard to say that nothing was the matter with the leg but the scratch of a brier. Hensley was told of the hurt the slave had received though he was at the same time informed that the wound was healed. This information was derived from one of the plaintiffs in the execution, who said he had known the slave all his life. The defendant, Hensley, demanded a jury to try the motion; but the court refused, and directed two issues to be tried, namely, whether the slave was constitutionally unsound, and whether the plaintiff in the execution and the sheriff had practiced a fraud on the defendant in the sale. These issues were found against Hensley, and judgment for the difference between the sums bid at the sales was entered against him. The defendant excepted to the refusal of the court to permit a jury to try the motion, and also to the issues directed, and to the reading of the return of the sheriff, which disclosed the facts on which the motion was predicated.

The statute directs that this proceeding shall be by motion. Hart v. Robinett, 5 Mo. R. 11. It is not usual to call juries to try the truth of the facts on which motions are predicated. It is obvious that such a course will involve a court in interminable confusion. It might have ten juries at one time in the same cause. In such proceedings a jury cannot be demanded as a matter of right. Courts possess a discretion in relation to such matters. When a fact is important and much contested, although it is involved in a motion, a court may take the advice of a jury upon it. The...