Clapp v. Walters

• Decision Date: 31 December 1847
• Citation: 2 Tex. 130
• Parties: ELISHA CLAPP, ADM'R OF NATHANIEL ROBBINS, DECEASED, v. HANNAH WALTERS
• Court: Texas Supreme Court

2 Tex. 130

ELISHA CLAPP, ADM'R OF NATHANIEL ROBBINS, DECEASED,

v.HANNAH WALTERS

Supreme Court of Texas.

December Term, 1847.

Appeal from Montgomery County.

A slave, if born in Texas before the date of the promulgation of the constitution of Coahuila and Texas, or introduced into the country within six months from its date, could be held in slavery without any violation of its provisions. [5 Tex. 535;14 Tex. 53.]

Where the jury, by their verdict, assess an amount in damages exceeding the value of the property sued for, as established by the evidence, a remittitur of such excess cures the objection which might otherwise be made to the verdict on the ground of its being contrary to the evidence.

In a suit brought to recover a slave and damages for his detention, damages for the hire should be computed from the time a demand was made for the slave to the rendition of the judgment. If no specified demand is proven, the service of the writ is the time from which damages should be computed. [4 Tex. 14;8 Tex. 427;14 Tex. 53.]

Where property has passed from the possession of a deceased to the possession of his legal representative, a person claiming a better right to such property may sue the latter either in his individual or representative capacity.

Where a party is sued as the legal representative of a deceased, and judgment is entered against him under the name simply of the “ defendant,” such judgment cannot be construed to be against him in his individual capacity.

This was an action brought by the appellee against John Robbins and Lucy Robbins, administrator and administratrix of Nathaniel Robbins, deceased, to recover a negro woman and damages for her detention. Pending the appeal in this court the death of John and Lucy Robbins was suggested, and Clapp, as administrator, was made a party. The jury returned the following verdict, to wit: “We, the jury, find for the plaintiff in the sum of twelve hundred dollars or return the said negro girl, as also ten dollars per month hire from the 10th day of December, A. D. 1835, to the 20th day of April, 1841.” The defendants moved for a new trial on the ground that the verdict was contrary to law and evidence. The plaintiff's counsel, on the motion for a new trial being entered, remitted on the record, in open court, three hundred dollars of the damages. The motion for a new trial was overruled and judgment entered substantially as follows: “This day came again the parties, etc., whereupon it is considered by the court that the plaintiff recover of the defendant the negro woman mentioned, and if she cannot be had, then the said sum of twelve hundred dollars' damages by the jury assessed, and also the further sum of ten dollars per month damages for detaining the said negro woman, amounting to six hundred and forty dollars, and also the costs, etc.; and thereupon came the plaintiff by her attorney and remits to and discharges the defendants from three hundred dollars, part of the aforesaid sum of twelve hundred dollars, damages aforesaid.”

There was no statement of the facts accompanying the record, and all that we can know of the evidence is collected from a bill of exceptions, which is substantially as follows, i. e.: “After the evidence and argument were gone through with, defendant's counsel moved the court to instruct the jury that if they found that the property in the negro girl, claimed by the plaintiff, was acquired previous to the adoption of the constitution, they should find for the defendant, which charge was refused. The testimony before the jury was that the negro girl was worth from seven to nine hundred dollars; the jury found a verdict for twelve hundred dollars or the return of the negro. Upon the return of this verdict the defendant's counsel moved the court to set aside the verdict because it was contrary to evidence, there being no testimony before the jury that the woman was worth more than nine hundred dollars. This motion was also overruled because the counsel for the plaintiff, W. Y. McFarland, upon the entry of the said motion for a new trial, in open court entered a remittitur for three hundred dollars.”

The following agreement was indorsed on the petition and signed by the counsel of the parties: “Defendant admits possession of the negro, the demand was properly made, and we agree to transfer this case to Montgomery county.

W. Y. MCFARLAND, pro Plaintiff.

J. R. JENKINS, for Defendant.”

Taylor, for appellant, made the following points:

1st. The court erred in not granting the instructions asked for by the defendants (see section 13 of the article “Preliminary Provisions” of the Constitution of Coahuila and Texas, relative to slavery), and also in not granting a new trial upon the general ground alleged in the motion, but especially upon the legal ground presented by the record for awarding a venire de novo when the verdict is too imperfect for a judgment to be rendered on it, and where the jury ought to have found the facts differently. 3 Tom. Law Dict. 726; 1 Wilson, 65; 2 Tidd's Prac. 830; 7 Term, 52; 1 East, 111; 5 Burr. 2269.

2d. Because the suit was against the defendants in their representative, and the judgments were against them in their individual capacity. 1 Saunders, 336, note (10); 1 Salk. 310; 3 Term, 685.

3d. There are two separate and distinct judgments, and each standing on the record as the judgment final of the court in the cause. There can be but one final judgment in a cause, upon its final determination, in a court of common law.

4th. The verdict is hypothetical, uncertain and repugnant, in the alternative, and for nothing definitely; not responsive to the issues, and one of the issues not found by it at all, that is, the right of property or the value of the property.

In such a case the right as well as the value must always be distinctly and expressly found by the verdict. 3 Tom. Law Dict. 737; 3 Salk. 374; 1 Saunders, 154-5; 1 Chit. Plead. 121-2; 2 Stark. 280.

5th. The judgments are not in conformity with the verdict, and are inconsistent, and in conflict with each other.

6th. Both the verdicts and judgments are in part for causes and grounds of action, that is, for one hundred and twenty-three dollars and thirty-three cents for hire, accruing after suit commenced. That is the amount, supposing the remittitur to have its full effect, as applied to the amount found by the verdict generally.

Webb, for appellee.

The court did not err in refusing to give the instructions asked for. There is nothing either in the constitution or laws of the state of Coahuila and Texas which prohibited slavery.

By the terms of the 13th article of the “preliminary provisions” of the constitution, the existence of slaves and slavery in the state is recognized and a period of time is allowed for their subsequent introduction. The laws of the state, also, acting in conformity with the constitution, recognize the existence of slavery. Laws of C. & T. decrees 18, 35, pp. 78, 92.

Nor did the court err in refusing to grant a new trial. The verdict was for $1,200 damages to be recovered of the defendants, if the negro was not restored to the plaintiff. It was an alternative verdict to compel the restoration of the negro girl, which the jury found to be the property of the plaintiff. In such verdicts it is the usual practice for juries to find as large an amount in damages as the testimony in respect to the value of the property will warrant, because the defendants cannot be injured by them. They can relieve themselves from the damages by restoring the property, and if they refuse to do so, it is a proof that they consider the property worth the damages assessed. If, therefore, the judgment had remained without the remittitur, the court ought not to have granted a new trial; but after the remittitur was entered, reducing the amount of the judgment to the actual value of the negro, as proven, there could be no pretext for granting a new trial.

Jennings, contra.

It is not alleged in the petition that the negro girl was ever demanded by Walters of the defendants below before suit; and to this demand they were entitled, before this action could be maintained against them. But the point on which I mainly rely is that it is not stated in the petition that the negro ever came to the possession of defendants below, administrators, and yet they are sued for that property in specie.

Now, whether or not we give the name of “detinue” to this action, it is certainly one of equivalent import, and subject, so far as substance is concerned, to the application of the same principles of law and justice. This objection to the petition I regard as fatal. 1 Chitty's...