majority">RicháRdson, Judge,

delivered the opinion of the court.

The evidence of Mr. Yosti tended to show, first, that the plaintiff had no just claim whatever on the administrator for taking care of his own child, and that he was not entitled and never expected to receive remuneration from any person ; and, in the second place, that if he was entitled to any thing, he did not look to the defendant, as he was compensated by the owner of the slave, to whom he directly appealed, in the reduced price at which he was allowed to purchase Harry. In this view it was proper, not only to ascertain the price at which Harry was sold, but to inquire what he was worth. We think, then, that the court improperly refused to permit the witness to state the value of Harry at the time he was sold to the plaintiff.

It appears that the defendant excepted at the time to the ruling of the court in excluding this evidence, but did not assign it as a reason in his motion for a new trial. Formerly, exceptions taken during the progress of a trial were deemed to be waived if they were not noticed in a motion for a new *488trial, but it has since been decided that the act of 1849 introduced a different practice, and that such an omission will not preclude a party from insisting on his exceptions in this court. (Fine v. Rogers, 15 Mo. 315; Wagner v. Jacoby, 26 Mo. 530.)

The instructions which the court gave before the retirement of the jury stated the facts hypothetically in two different ways, covering the theory of each of the parties, and presented fairly and fully the law of the case. But the instruction, marked C, hurriedly given on the return of the jury, was erroneous, as it was vague and calculated to mislead. The other judges concurring, the judgment will be reversed and the cause remanded.

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