
    Elisha Clapp, Adm’r of Nathaniel Robbins, Deceased, vs. Hannah Walters — 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.J
    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 11 defendant," such judgment cannot be construed to be against him in his individual capacity.
    This was an action brought by the appellee against John Eobbins and Lucy Eobbins, administrator and administratrix •of Nathaniel Eobbins, deceased, to recovera negro woman and •damages for her detention. Pending the appeal in this court the death of John and Lucy Eobbins -was suggested, and Olapp, .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 he 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, "VV. T. McFarland, upon the entry of the said motion for anew 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. McFaeland, pro Plaintiff.
    “ J. B. Jenkins, for Defendant.”
    Taylor, for appellant,
    made the following points:
    1st. The court erred in not granting the instructions asked1 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, hut especially upon the legal ground presented by the record for awarding a venire de nova 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 Diet. 726; 1 Wilson, 65; 2 Tidd’s Prac. S30; 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 Diet. 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 remit-, titur 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 provis: ions ” of the constitution, the existence of slaves and slavery in the state is recognized and a period of ,timn 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 0. & T. decrees 18, 35, pp. 78, 92.
    ISTor 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 remittitxir 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.
    How, whether or not we give the name of “ detinue ” to this action, it is certainly one of equivalent import, and subject, só 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 Plead, pp. 139 to 141.
   Mr. Justice Lipscomb,

after stating the facts of the case, delivered the opinion of the court, Mr. Justice Wheelee not sitting.

The appellant’s counsel contends that the court below erred in refusing to give the instructions asked to the jury and set iortb in tbe bill of exceptions, and in support of bis position has referred the court to the Constitution of Coahuila and Texas, Preliminary Provisions, section 13, page 314. The article referred to is in the following words, i. e.: “ From and after the promulgation of the constitution in the capital of each district, no one shall be born a slave in the state, and after six months the introduction of slaves under any pretext shall not be permitted.” Whether the section cited ever was binding and valid in Texas or not is wholly immaterial to sustain the correctness of the court in refusing the charge asked; because the claim of the property in the slave before the date of the •constitution of Texas was not repugnant to the section cited from the constitution of Coahuila and Texas. The slave, if born before the date of the promulgation or introduced within six months from its date, could be held in slavery. The constitution of Coahuila and Texas was adopted 11th March, 1827; when it was promulgated in the capital of the several •districts, if ever, we are not informed. But as a matter of history, it is said never to have been published in the department ■of Texas. But this, as we have before observed, is not material, because in the absence of proof to the contrary, we are bound to believe that the claim to her as property was not repugnant to law.

The next objection presented by the appellant’s counsel is to the refusal of the court below to set aside the verdict and grant a new trial. The motion was based on the fact that there was no evidence that the slave was worth more than nine hundred dollars, consequently the excess over that amount found by the jury was unsupported by the evidence; and if the plaintiff had insisted on the full amount so found by the jury, there would have been good grounds for granting the motion for a new trial, but the remittitur of the three hundred dollars reduced the amount to a sum corresponding with the evidence, and removed all the ground for the motion. This is the common practice where the jury go beyond the evidence in the amount of damages, when the evidence is not very precise as to the amount, but varying as to different sums in suits of this sort, it has always been held competent for the jury to assume the highest amount. Nor is there any hardship in their so doing, because if valued too high, the party can relieve himself from payment by accepting the alternative and giving up the property sued for.

The appellant’s counsel contends that the verdict is so defective that no judgment could be rendered-on it, disposing of' the case, and that a venire de novo ought to have been awarded. Tie has labored this point with great earnestness, endeavoring-to fortify his position by various common law authorities, on the form of a verdict in the, common law action of detinue. It is, however, believed to be a sufficient answer to those authorities, to say that the common law forms have never been observed in our courts, nor indeed could they be, consistently with our system of jurisprudence. With us, suits are-brought before our courts for hearing, by petition and answer; we recognize no distinction between law and equity, and have-no such actions as trover and detinue; we are not very tenacious of forms; if the petition shows a good cause of action,, and the jury should, with a certainty to common intent, find the truth of such facts as will enable the court to give by its judgment the remedy sought by the suit, it is considered sufficient. The facts found by the jury are easy to be comprehended ; they say “ they find for the plaintiff twelve hundred dollars, or the return of the woman.”

On applying this finding of the jury to the facts charged in the petition, we can be at no loss for the meaning of the-verdict. It clearly expresses two objects- — -that the woman, of right, belonged to the plaintiff, and her value. These facts being found, the court could but render judgment in accordance with them.

It is further contended that there is error because two-distinct judgments have been entered in one case, the last not setting aside the first. , The record shows that immediately following the verdict an informal judgment is entered, as follows: It is therefore “ordered and adjudged that the plaintiff recover of the defendants the amount as assessed by the jury,, and the further sum of her cost by him in this behalf.” The entry is. so entirely defective, and so far from conformity with the verdict, that is does not merit the. name of a judgment, and was correctly considered by the court as a nullity, at most; it was no more than an irregularity of the clerk’s, which the judge was bound to correct as soon as known; and surely it ■was not of a character that should occupy the time of this 'court after the remittitur had been entered and the motion for a new trial overruled. The judgment and decree was entered -up by the court, to the form or substance of which we can see no objection.

It is contended that there is error in the finding of the jury, in this, that hire for the detention of the slave has been given after the commencement of the suit, when it should only have been computed for the time previous thereto. It is believed to be well settled that where the suit is brought to recover the specific property, and damages for its detention, if the property sued for be a slave, that damages for the ■hire should be computed from the time of the demand to the rendition of the judgment; if no special demand is proven, the service of the writ is the time for -which the damages should be computed. Carrol v. Pathkiller, 3 Porter, 280. Another ground of error relied on is, that the suit is against the defendants in their representative character. There may have been some diversity of opinion to be found on the subject, but it is now considered as well settled, both on principle and the authority of adjudged cases, that where property has passed from the possession of the deceased to the possession of his legal representative, that the person claiming a better right to such property may elect to sue the defendant in possession, either in his individual or representative capacity.

This question was discussed with great ability by Chief Justice Collier, in Brewer v. Strong’s Ex’r, 10 Ala. N. S. 961, and resulted in a concurrence with the following conclusions of the court in Cattlet’s Ex’r v. Russell, 6 Leigh, 344: 1st. The thing sued for, which is demanded in specie, must have come to the hand of the executor himself, and be detained by him, to justify the action of detinue against him. 2d. That ■in an action of detinue against an executor, it is absolutely ■necessary to show that the testator had possession of the property before bis death. 3d. That although an executor or administrator is chargeable as such where he has succeeded to the possession of a chattel which the testator or intestate enjoyed up to the time of his death, yet one having a superior legal title may at his election maintain an action of detinue charging him in his representative or individual capacity. The petition in the case under consideration does not aver the facts of the possession in the intestate and in his representative; and -if exception had been taken at the proper time on account of these omissions, the petition would doubtless have been adjudged insufficient to sustain the action. And advantage could be claimed in this court, if all the facts in proof had been sent up, and there had been no proof of such possession in the absence of such statement of facts, and the want of such proof not otherwise appearing, we are bound to presume the evidence was sufficient to sustain the action. But we are not left to the influence of this rule in support of the verdict; the record shows that possession and demand was-admitted, and we must understand the admission to be such demand and possession as would sustain the action.

The only remaining objection to be noticed is, to the correctness of the judgment rendered on the finding of the jury. It is said the judgment is against the defendants in their individual, when it should have been in their representative capacity. The suit is against them as administrators; and if a fair construction of the judgment is against them individually, it is certainly erroneous. We believe, however, that the judgment will not bear that construction. It is the usual practice, after a party has been brought into court by his name, when he is afterwards referred to on the record, to call him the defendant; so when he is sued in a representative capacity, to use his proper name with the addition of- the character in which he is sued, and subsequently to refer to him as the defendant in the action; and if the judgment designates him as defendant, it means nothing more than the capacity in which he Has been.sued, which is shown with certainty by the record. Had the judgment charged them affirmatively in their proper persons when the record showed they had been .sued as .the representatives, it-would have been error, but it does no such thing; it is entered against them, not in their individual names, but as defendants, clearly to be understood representative defendants. The judgment is affirmed.  