¶1delivered the opinion of the court.
¶2This case was submitted to the jury upon instructions asked by the defendant, and the verdict being against him he has certainly no right to complain of the instructions given. The third instruction he asked was properly refused, as the circumstance alluded to in that instruction was in evidence before the jury and it was not the province of the court to say what inference they should draw from it. There was evidence of negligence before the jury which justified the verdict rendered; and we should have no disposition to disturb it on the ground of any supposed preponderance of testimony one way or the other.
¶3But we do not see how this judgment can be sustained upon such a petition. There was no averment of negligence in the petition. It is true, the defendant did not demur, but putjn an answer averring due diligence on his part and a loss of the negro without his fault, and the case was tried upon the question of negligence or no negligence, upon the basis of the defendant’s answer. There was no issue in the case; indeed, no cause of action whatever, so far as I can discover, is stated in the petition. It states a bailment of a slave to defendant for safe keeping, and a refusal of defendant to deliver him up when requested. It is nowhere averred that it was the duty of the defendant to deliver up the slave on request, or that any. contract was made, express or implied, to this effect, or that any contract was broken. No conversion is alleged to make it an action of trover (at common law), or any contract stated by which it could be construed as an assumpsit, or any misfeasance or negligence to bring it within the class of actions on the case. The gist of the action, as the facts developed on the trial show, was negligence, but there was no averment on this subject.
¶4The old rule of the English judges that a verdict would supply whatever of necessity must have been proved to the jury has never been held to extend to cases where the gist of the action is omitted. Nor have the various statutes of *170amendments and jeofails enacted in several of onr states and embodying this principle ever been construed to embrace a case where no cause of action is stated. (1 Bac. Abr. p. 16; 1 Petersdorf Ab. 871; Winston’s Exec’r v. Francisco, 2 Wash. 189; Chichester v. Voss, 1 Call, 71.) Our statute upon this subject contains nothing new or additional to the old rule. (2 R. C. 1855, p. 1256, clauses 8 and 9.) Indeed, the 10th section of the 6th article of the practice act (R. C. 1855, p. 1232) declares that the objection, that the petition does not state facts sufficient to constitute a cause of action, is not waived by a failure to demur or to suggest the objection in the answer.
¶5The defendant in this case, under the instructions given by the court, was held to that degree of diligence “ which persons of ordinary care in their business ordinarily take of their own property.” The instruction was the defendant’s, and it was certainly not for him to complain of it; but, as the case goes back, we may with propriety suggest whether such a rule of diligence as this is applicable to bailees of this character. If by “ ordinary care in their business” is meant such care as was reasonably to be expected of persons engaged in the business which defendant followed, there can be no objection probably to it; but if it was meant merely to require that care or watchfulness which a master usually exercises over his slaves on his farm, or in his work-shop, or about his house, that is not the diligence which he is expected to exercise who is employed in the business defendant undertook.