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torneys, it is ordered that the second and third pleas filed in defendant's answer at a former term be stricken out.

"And thereupon came a jury of good and lawful men, to wit: William Alexander, Daniel Marston, Alexander Moore, John Church, William B. Gayle, Elisha B. Cogswell, C. C. Herbert, James G. Sheppard, Ephraim McLean, A. C. Crawford, William G. Davis, and William M. Sergeant, who, being elected, tried, and sworn well and truly to try the issue joined, after some time returned into court the following verdict, to wit: 'We, the jury. find for the plaintiff twelve hundred dollars, the value of the four negro slaves in suit, with six and a quarter cents damages. C. C. Her bert, foreman.' And thereupon the plaintiff, by his attorney, in open court, released the said judgment for twelve hundred dollars, as aforesaid. It is therefore considered by the court, that the plaintiff recover of the defendant the negro man Lindsey, the negro woman Betsy and her child, and the negro boy Billy, the negro slaves in the petition of plaintiff mentioned, and also six and a fourth cents, the damages by the jurors aforesaid assessed, and also his costs about his suit in this behalf expended.

673*] *To the entry of said judgment the defendant objects, on the ground that the same is not in accordance with the verdict of the jury; but the objection was by the court overruled. The said verdict is in words and figures as follows: 'We, the jury, find for the plaintiff twelve hundred dollars, the value of the four negro slaves in the suit, with six and a quarter cents damages.' And the motion of the defendant to set aside said verdict, and for a new trial, having been heard, was by the court overruled. To which opinion of the court, as well in causing said judgment to be sustained as in refusing to set aside said verdict, the defendant excepts, and tenders this his bill of exceptions, which is signed, sealed, and made a part of the record.

JOHN C. WATROUS."

Upon this exception, the case came up to this court, and was argued by Messrs. Johnson and Harris, for the plaintiff in error, and Messrs. Walker and Volney Howard, for the defendant in error.

The counsel for the plaintiff in error contended

I. That the verdict was illegal, and ought to have been set aside.

1. It will be seen, by reference to the plaintiff's petition-particularly to the prayer thereof-that this suit was brought for the recovery of the slaves "in specie" (not for the recovery of their value), and for damages for their unlawful detention. The important issue, viz.: whether the right of property was in the plaintiff or the defendant, was, in the verdict of the jury, entirely omitted. (See Coffin v. Jones, 11 Pick., 45.)

2. It did not embrace all the issues, which it should have done. (See Crouch v. Martin, 3 Blackford, 256; Patterson v. United States, 2 Wheat., 223; Jewett v. Davis, 6 N. H., 518.) 3. It should have found the value of each of the slaves separately.

II. That the judgment was illegal, because it was not responsive to the verdict.

The counsel for the defendant in error contended, that

This was a suit by petition, under the statute laws of Texas, for four slaves, claimed by plaintiff below, and damages for illegal detention. The suit was for the specific slaves, and not for their value. The issue joined was as to the ownership of the slaves; which issue the jury, in fact, found for the plaintiff. If there be any error in form, it is cured by the verdict, and the amendment laws of Texas. (Act of Texas. 1846, p. 202, sec. 7; p. 365, sec. 5; p. 392, sec. 104; p. 393, sec. 115; pp. 396, 397, secs. 132, 133.)

*There is no distinction in Texas be- [*674 tween courts or suits at law or in equity. In the case of slaves, from their peculiar character as house-servants, or from their necessary connection with plantations, a bill in equity may be filed to compel their delivery. (Murphy v. Clark, 1 Smedes & Marsh., 221.) An action lies in Texas for the specific slaves claimed, in which a statement of the facts by petition is all that is required.

This case is not an action of detinue, but more closely resembles a replevin, which is not confined to cases of distress for rent. (1 Chitty's Plead., 161, 162, 164.)

The release of the damages may have deprived the plaintiff of his alternate right to the money, but the waiver of that alternate right could not deprive the plaintiff of his remedy under the judgment for the specific thing.

The error, if any, should have been met by a motion below in arrest of judgment; whereas the motion (under which the exception was taken) was to set aside the verdict, which was substantially a motion for a new trial, the refusal of which furnishes no ground for a writ of error.

The action being by petition, in the nature of a bill in equity, for the specific delivery of the slaves, and the jury having found substantially the right of property to be in the plaintiff, all errors of form may be disregarded, and this court may enter now such judgment as should have been entered in the court below for the plaintiff.

Mr. Chief Justice Taney delivered the opinion of the court:

This is a writ of error to the District Court of the United States for the District of Texas.

The common law has been adopted in Texas, but the forms and rules of pleading in common law cases have been abolished, and the parties are at liberty to set out their respective claims and defenses in any form that will bring them before the court. And as there is no distinction in its courts between cases at law and equity, it has been insisted in this case, on behalf of the defendant in error, that this court may regard the plaintiff's petition either as a declaration at law or as a bill in equity.

Whatever may be the laws of Texas in this respect, they do not govern the proceedings in the courts of the United States. And although the forms of proceedings and practice in the State courts have been adopted in the District Court, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended

together in one suit. The Constitution of the United States, in creating and defining the ju675*] dicial *power of the general government, establishes this distinction between law and equity; and a party who claims a legal title must proceed at law, and may undoubtedly proceed according to the forms of practice in such cases in the state court. But if the claim is an equitable one, he must proceed according to rules which this court has prescribed (under the authority of the Act of August 23d, 1842), regulating proceedings in equity in the courts of the United States.

There is nothing in these proceedings which resembles a bill or answer in equity according to the rules prescribed by this court, nor any evidence stated upon which a decree in equity could be revised in an appellate court. Nor was any equitable title set up by Butterworth, the plaintiff in the court below. He claimed in his petition a legal title to the negroes, which the defendant denied, insisting that he himself was the legal owner. It was a suit at law to try a legal title

The defendant (Bennett) in his plea or answer claimed under an inward to which Butterworth and a certain Junius Amis and a certain John D. Amis were parties; and averred that, in execution of this award, the said negroes had been delivered by Butterworth to John D. Amis as his property, and by him afterwards trans ferred to Bennett for a valuable consideration. To this plea Butterworth replied, that all the parties to the submission and decision in the plea set out, did not assent and agree to the same, and that Butterworth did not sell, convey, and deliver the negroes in the petition mentioned, in compliance with the terms, or any of the terms, of the said decision. And upon these allegations a jury was sworn, who found for Butterworth (the plaintiff in the court below) in the following words: "We, the jury, find for the plaintiff twelve hundred dollars, the value of the four negro slaves in suit, with six and a quarter cents damages."

And the record proceeds to state, that thereupon the plaintiff (Butterworth), by his attorney, in open court, released the said judg. ment for $1,200; and thereupon the court adjudged that he recover of the defendant the four negroes mentioned in his petition, and the six and a quarter cents assessed by the jury, and his costs.

It does not appear whether any direction to the jury, as to the law of the case, was asked for by either of the parties, or given by the court; we have nothing but the pleadings, con862

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fused and loose as they are, and the verdict and the judgment.

Now, if anything is settled in proceedings at law where a jury is impaneled to try the facts, it is, that the verdict must find the matter in issue between the parties, and the judg ment of the court must conform to and follow the verdict.

*But here the matter in issue was the [*676 property in these negroes, and the verdict does not find that they are the property of the plaintiff or the defendant, but finds for the plaintiff their value, which was not in issue. It ought, therefore, to have been set aside upon the motion of either party, as no judgment could lawfully be entered upon it. It was a verdict for a matter different from that which they were impaneled to try.

In the next place, if any judgment could have been rendered on the verdict, it ought to have been a judgment for the money found by the jury. For the trial of facts by a jury would be of very little value, if, upon a verdict for money to a certain amount, the court could infer that the jury intended to find something else, and give a judgment for property instead of money. And lastly, when the plaintiff, in the District Court, released the $1,200 found by the jury, there was nothing of the verdict remaining, upon which the court could act or give judgment for either party, but the six and a quarter cents damages which the jury found in addition to the value.

The judgment is evidently erroneous, and must be reversed. And as these errors are patent upon the record, they are open to revision here, without any motion in arrest of judgment, or exception taken in the District Court.

ORDER.

This cause came on to be heard on the tran script of the record from the District Court of the United States for the District of Texas, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said District Court, with directions to award a venire facias de novo.

S. C., 8 How., 124.

Cited-18 How., 62; 20 How., 433, 525; 21 How. 486, 488: 23 How., 486; 1 Black., 315; 1 Wall., 600: 3 Wall.. 661; 6 Wall., 137; 10 Wall., 261; 16 Wall., 386; Otto, 130: 9 Otto, 381; McAll., 363, 445: 1 Woods, U. S., 305; 14 Blatchf., 325; 15 Blatchf., 436.

547; 2 Woods, 172; 3 Woods, 565; 3 Dill., 265; 1 Abb. HOWARD 11

OF

CASES

ARGUED AND ADJUDGED IN

THE

Supreme Court of the United States,

IN DECEMBER TERM, 1851.

BY BENJAMIN C. HOWARD,

Counselor at Law, and Reporter of the Decisions of the Supreme Court
of the United States.

JUDGES

OF THE

SUPREME COURT OF THE UNITED STATES

DURING THE TIME OF THESE REPORTS.

The Hon. ROGER B. TANEY, Chief Justice.
The Hon. JOHN M'LEAN, Associate Justice.
The Hon. JAMES M. WAYNE, Associate Justice.
The Hon. JOHN CATRON, Associate Justice.
The Hon. JOHN M'KINLEY, Associate Justice.
The Hon. PETER V. DANIEL, Associate Justice.
The Hon. SAMUEL NELSON, Associate Justice.
The Hon. ROBERT C. GRIER, Associate Justice.
The Hon. BENJAMIN R. CURTIS, Associate Justice.

JOHN J. CRITTENDEN, Esq., Attorney-General.
WILLIAM THOMAS CARROLL, Esq., Clerk.
BENJAMIN C. HOWARD, Esq., Reporter.
RICHARD WALLACH, Esq., Marshal.

RULES OF COURT.

RULE NO. 59.

ORDERED, That, when a case is reached in the regular call of the docket, and no appear ance is entered for either party, the case shall be dismissed at the costs of the plaintiff, and the 54th rule, adopted at December Term, 1849, be, and the same is hereby rescinded.

RULE NO. 60.

ORDERED, That, whenever any record, transmitted to this court upon a writ of error

or appeal, shall contain any document, paper, testimony, or other proceeding in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed; but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court, in order that a translation may be there supplied and inserted in the record.

PROCEEDINGS

IN RELATION TO THE

DEATH OF JUDGE WOODBURY.

AT the opening of the court, the Honorable Whereupon the Chair appointed the HonoraJ. J. Crittenden, Attorney General of the United States, rose and remarked substantially as follows:

As an officer of this court, and at the request of its bar, it becomes my duty to submit a brief and imperfect expression of our common regret for the loss of the distinguished member of this court, whose death this nation has recently been called upon to deplore.

Judge Woodbury was a man who for a long series of years occupied a most conspicuous position. The continued confidence reposed in him by his country, and the numerous honors which he shared, all testify to his great ness, and will be his noblest monument.

It has rarely happened that any citizen has enjoyed such a succession of exalted public honors as were shared by Judge Woodbury. Governor, Secretary of the Treasury, Senator. and, his last and greatest distinction, Judge of the Supreme Court of the United States, whose jurisdiction is more extended than any other upon the continent, and whose mandate is obeyed from Boston to San Francisco-all these honors, one after the other, were worn by him, but neither they nor any other human distinction could save him to us any longer. He has fallen in the midst of his earthly honors; he has fallen as all of must fall, and left with us only his fame, which is immortal.

Judge Woodbury was a man who wore his honors, great as they were, meekly; and it was his distinguishing merit, that he thought much less of them than of the duties they entailed.

The bar of this court deeply deplore the loss which they have sustained; and, not doubting the fervent sympathy of this court with them, I feel that my duty will be discharged by offer ing the resolutions which embody the senti ments of this bar, and by requesting, at their instance, that they may be placed on the records of this court, where they will remain as imperishable as his fame.

The resolutions are as follows:

At a meeting of the members of the bar and officers of the court, held in the Supreme Courtroom, on Monday, the 1st of December, 1851, Jonathan Meredith, Esquire, of Maryland, was called to the chair, and Alexander II. Lawrence, Esquire, of Washington, appointed Secretary. iv*] *On motion of Richard S. Coxe, Esquire, it was resolved that a committee of three gentlemen be appointed by the Chair to prepare and report to this meeting appropriate resolutions on the occasion of the lamented death of the late Honorable Levi Woodbury, one of the Associate Justices of the Supreme Court of the United States.

ble Reverdy Johnson, of Maryland; Richard S. Coxe, Esquire, of Washington; and R. H. Gillet, Esquire, of New York, to constitute said committee.

Mr. Johnson, on behalf of the committee, reported the following resolutions, which were unanimously adopted:

Resolved. That the Supreme. Court, the bar, and the nation, have sustained, in the death of the Honorable Levi Woodbury, a loss of extensive learning, indefatigable industry, unsuspected integrity, and high abilities. After filling, with great reputation, some of the most important offices under the national and state governments, his elevation to the bench was received with general satisfaction, and his premature and unexpected death with universal regret.

Resolved. That this meeting lament the death of Judge Woodbury, in the prime of life and usefulness, and that we will wear the usual badge of mourning during the residue of the term.

Resolved, That the Chairman and Secretary transmit a copy of these resolutions to the family of the deceased, and assure them of our sincere condolence on account of the bereavement they have experienced.

Resolved, That the Attorney-General be requested to move the court that these resolutions be entered on the minutes of their proceedings. JONATHAN MEREDITH, Chairman.

A. H. LAWRENCE, Secretary.

Whereupon Mr. Chief Justice Taney replied: The court is very sensible of the loss it has sustained in the death of Judge Woodbury.

He had been a member of the court but a few years; yet he was long enough on the bench to leave behind him, in the reports of the decisions of the the court, the proofs of his great learning and industry, and of his eminent qualifications for the high office he filled.

His life had been passed mainly in the public service before he became a member of this court. And in the various and important offices, judicial and political, to which he had been appointed, he was always found equal to the duties imposed upon him, and never failed to distinguish himself by the extent and accuracy of his information, upon every subject connected with his official duties, or upon which he was at any time called upon to act. The same learning and the same untiring industry marked his brief course on this bench. We all feel that we have lost in him an able, upright, and learned associate, and most truly and sincerely deplore his death; and we cordially unite with the bar in the resolutions they

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