
    A. H. Lamar et al. v. Joel Williams, et al., Admr., &c.
    1. Practice : revivor op suits in name op administrator : case in judgment. — The following entry on the minutes of the court — “Death of plaintiff suggested, and leave given to revive in the name of his legal representative when made known, which,is accordingly done in the names of J. W. and W. L.,” — together with a recognition of J. W. and W. L. as plaintiffs in an amended declaration, and in all other subsequent proceed- • ings in the cause up to and including final judgment in the court below, is such a recognition of the right of J. W. and W. L. to represent the deceased plaintiff as will estop defendants from objecting thereto on writ of error in this court.
    2. Same : entry op judgment : where verdict is por a part and AGAINST A PART OP THE DEPENDANTS : CASE IN JUDGMENT. — Where the verdict is in favor of a part of the defendants and against the others, the judgment thereon, if entered against “the defendants” generally, will not be erroneous. 'The judgment will be construed with reference to the verdict upon which it is rendered, and it will be held to be against only those defendants against whom the verdict was given.
    3. Same : instruction : when not erroneous to assume a pact as proven. — If an instruction be otherwise unobjectionable, it will not be error if it be assumed in it that a fact is proven which is fully established by the proof, and about which there was no contradiction in the evidence.
    4. Same: instructions: duty op dependant to prove appirmative depence. — When there is nothing in the plaintifTs evidence tending to prove an affirmative defence relied on by defendant, it is not improper for the court to charge the jury that it is incumbent on defendant to prove his defence to then satisfaction.
    5. Master and slave : right op master to recover por damage done by another in whipping his slave. — It is no answer to an action of trespass by the owner of a slave against a person who had whipped the slave without the owner’s consent, that the slave so whipped had been guilty of harboring defendant’s slave.
    6. Same : instructions : when improper instructions cured by another which is correct. — An improper qualification made by the court to an instruction asked is no ground of reversal, if the benefit of the rule of law claimed in the instruction be secured to the party asking it by another instruction which is given, which fully and fairly presents the rule to the consideration of the jury.
    7. Evidence : witness : rule as to competency op a party where the REPRESENTATIVES OP A DECEDENT ARE PARTIES. — The proviso to Al't. 190, Eev. Code, p. 510, which prohibits a party from establishing his claim by his own oath against the estate of a deceased person to a greater sum than fifty dollars, extends not only to cases where the claim sought to be established is a fixed debt, but also to all cases in which the surviving party litigates with the representatives of the deceased party any right or claim whatever; and the survivor in such a suit, where the amount in controversy is over fifty dollars, cannot be a witness to establish any fact in support of his demand-if he be plaintiff, or if he be defendant to defeat the demand of the plaintiff. See Griffin v. Lower, 37 Miss. R. 458.
    Errob to' the Circuit Court of Rankin county. Hon. John Watts, judge.
    This was an action of trespass by plaintiffs’ intestate to recover, damage for injuries done to his slave by defendants.
    The pleadings are stated in the opinion of the court. The case as it appears from the evidence is substantially this: defendants, Lamar and Kersh, came to the house of Simon Williams, plaintiffs’ intestate, and stated to Williams that another slave had charged plaintiffs’ slave with harboring a runaway slavebelonging to said Lamar, and asked permission of Williams to carry his said slave to a neighbor’s house to confront the slave so charging him with harboring the said runaway slave of Lamar. Williams granted the permission as asked, and thereupon defendants carried, the slave to a neighbor’s and gave him a very severe whipping for the purpose of extorting from him information concerning the said runaway slave. The plaintiffs’ slave, in consequence of the whipping and of exposure he suffered in reaching home after the whipping, was confined to his bed about seven weeks, and required the attendance of a nurse and medical assistance. No permanent injury was done to the slave. The physician’s bill was one hundred and five dollars.
    After the plaintiffs’ testimony closed, the defendants, Lamar and Kersh; were offered as witnesses in their own behalf to prove a license from plaintiffs’ intestate to whip his slave, and further to prove that the punishment inflicted was not excessive. Upon objection of plaintiff, they were excluded as incompetent witnesses.
    The jury found a verdict against Lamar and Kersh for two hundred and sixty-five dollars, and acquitted the other defendants of the alleged trespass.
    
      It is necessary to set out only the sixth instruction given in behalf of defendants, to a proper understanding of the opinion of the Court on the assignments of error which relate to the charges given and refused in' the court below.
    6th. If the jury believe from the evidence that Lamar gave the negro a reasonable whipping in point of severity, with the assent of Simon Williams, and that subsequently the negro got wet when he could have avoided it, and was thereby made sick, Lamar cannot be held responsible for damage sustained by said sickness.
    Defendants, Lamar and Kersh, sued out this writ of error.
    
      W. P. Harris, for plaintiffs in error.
    
      Shelby and Harper, for defendants in error.
   Handy, J.,

delivered the opinion of the court:

This action was instituted by the intestate of the defendant in error, against the plaintiffs in error, to recover damages for unlawfully seizing and beating a slave belonging to the intestate. Pending the action, the death of the intestate was suggested, and an order was made to revive the suit in the name of his administrators, in whose names it was subsequently carried on and tried.

The defendants below pleaded : 1. Not guilty. 2. Justification by license, and averring agency of the slave in harboring the slave of defendants as the cause of the beating.

' Several grounds of error in the record and in the rulings of the court upon the trial are insisted upon, which we will proceed to consider.

The first error insisted upon is, that it does not appear that the suit was revived in the name of the administrators of the intestate; that no consent was given to make them parties, nor sci.fa. issued to bring them’in, nor appearance by them. The entry in the record is these words: “ August term, A. D. 1858, death of plaintiff suggested, and leave given to revive in the name of legal representatives when made known, which is accordingly done in the name of Joel Williams and William Lane.” The amended declaration subsequently filed contains averments in tbe name of “ plaintiff’s decedent”; and in tbe proceedings thereafter tbe plaintiff is stated sometimes as Joel Williams,' admr., &c.,” and sometimes as Joel Williams and William Lane, admrs., &c.; ” and in tbe bill of exceptions as tbe plaintiffs’ intestate. From this it is manifest that the administrators were made parties, and appeared to 'the suit, and were so treated by tbe defendants. But the supersedeas bond executed by tbe defendants is made payable to these administrators as plaintiffs in the judgment. Under these circumstances tbe objection is without force.

Tbe next objection is, that tbe judgment is not according to tbe verdict, there being four defendants and the verdict being that Moore and Lamb were not guilty, and that Lamar and Kersh were guilty, and damages were assessed against tbe two last; but tbe judgment was that tbe plaintiffs recover “of the defendants tbe sum of two hundred and seventy-five dollars, tbe damages assessed in the verdict.” The uncertainty arising from tbe use of the word "defendants” generally in tbe judgment is removed by reference to tbe verdict and tbe damages assessed, which were only against two of tbe defendants. The judgment refers directly to tbe verdict, and has its force according to tbe verdict.

Tbe next error assigned is upon tbe fourth and fifth and ninth and tenth instructions given in behalf of tbe plaintiff Tbe fourth instruction states tbe rule, in substance, that if tbe defendants assert tbe consent of tbe owner as a justification for whipping tbe slave, they must prove tbe consent to tbe satisfaction of tbe jury. This was certainly correct. The defendants bad pleaded justification by the consent of the owner to the whipping. There was nothing in tbe plaintiff'’s evidence tending to prove such consent; and it was surely proper for tbe court to tell tbe jury that it was incumbent on tbe defendants to prove their own ground of defence to tbe satisfaction of tbe jury.

Tbe fifth instruction is, that if tbe defendants whipped tbe slave in a cruel and unusual manner without tbe master’s consent, and tbe injuries sustained by him resulted from said whipping and tbe exposure tbe slave was subject to in getting back to bis master, &c., tbe defendants are liable for damages, &c. It is objected that this instruction assumes tbe fact as proved that tbe slave was injured and exposed. But tbis was clearly proved/ and no prejudice was done to tbe defendants by tbe reference made to it in tbe instruction. Moreover, tbe instruction must be reviewed with respect to the principle stated in it rather than its reference to facts which are assumed as proved, unless tbe facts assumed be disputed matters about which there is a failure or conflict of evidence; and tbe point of tbis instruction is, that tbe excuse set up and stated in tbe instruction is no justification for tbe whipping and tbe injuries that resulted from it.

Tbe same may be said of tbe objection to 'the ninth instruction, on tbe ground of its assuming as proved that wrong and injury were done to tbe slave. In other respects tbe objection to tbis instruction is rather to its phraseology than to tbe substance of tbe rule stated in it; which we consider correct.

Tbe tenth instruction states that, although tbe slave harbored the slave of tbe defendant, that would be no defence to tbis action, and should not influence the verdict, unless the whipping was by tbe master’s consent and without injury to tbe slave. Tbis was clearly correct.

Tbe next objection is made to tbe qualification of the first instruction asked by tbe defendant. Tbe instruction was, that if tbe jury believed from tbe evidence that tbe slave harbored tbe slave of Lamar, and that tbe master directly or tacitly assented to bis punishment, and that Lamar did not exceed the punishment due the offence, the plaintiff was not entitled to recover any damages: to which the court added, " unless tbe slave was injured by said punishment.”

Tbis instruction, taken with tbe modification, is not-wery clear. It is, however, susceptible of the construction that Williams’ consent to tbe punishment of tbe slave would not justify a punishment to such a degree as would injure tbe slave. But no prejudice was done to tbe defendants by this qualification of the ■instruction; for tbe sixth instruction given in their behalf gave them tbe full benefit of the rule stated in tbis instruction as asked, and submitted tbe question presented by it fully to tbe jury.

It only remains to notice tbe error assigned on account of tbe exclusion of the defendants as witnesses in their own bebalf.

It is insisted that the defendants were not debarred of the right of testifying by tbe proviso to Art. 190, Rev. Code, 510, because that proviso applies only to “ claims” against a deceased person’s estate, involved in a suit by or against the party offered as a witness; and that, the object of the defendants not being to establish any claim” against the estate o'f plaintiffs’ intestate, they were not within the proviso.

We do not think that the spirit of the statute justifies this position, or that the term " claim” should receive this restricted construction. If it be interpreted in the mere sense of & fixed debt against an estate, such as is contemplated by the statute in relation to the probate of " claims” against a decedent’s estate — as is contended in behalf of the plaintiffs in error — a plaintiff in any action ex delicto against the estate of a decedent, the cause of which had accrued in bis lifetime, or for the recovery of a specific chattel, would have tbe right to testify in his own behalf; and any defendant sued by the representatives of a decedent for a cause of action which accrued in the decedent’s lifetime would be authorized to testify to any thing which would avoid the demand, such as payment to the decedent, set-off, non est factum, and the like, because that would nbt be to set up any claim” against the estate. But this is clearly in contravention of the policy of the statute, as it has been recognized by us in the case of Griffin v. Lower, 37 Miss. R. 458. The spirit and policy of the proviso appear clearly to be, that a living party, either plaintiff or defendant, in an action in which the representatives of a decedent’s estate are a party, shall not be competent to testify in his own behalf to establish his demand or right, asserted and relied on in the action, against the estate, if the matter exceed the sum of fifty dollars; because an undue advantage would thereby be given to the living party, by enabling him to testify to matters which took place between him and tbe decedent, and which, resting entirely in the private transactions of the parties, could not be disproved or explained by reason of the death of the other party.

The ruling of tbe court on this point was correct; and, upon the whole case, the judgment is affirmed.  