
    Bates v. Gordon.
    [Monday, July 12, 1790.]
    Detinue — Form of Judgment. — In detinue, if the jury find for the plaintiff, the slaves, if to he had, or 2501. for each slave, and damages Id ; and the Court render judgment for the slaves, if to he had, and if not, the price found hy the jury, with the damages and costs, it is not error, [though no price or value he laid in the declaration],
    
      
       See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
      Executor — Damages—De Bonis Propriis — Principal Case Disapproved. — In Hudson v. Ross, 1 Wash. 75, the court said : “In the case of Bates v. Gordon, where the executor was stated as a party, this court affirmed the judgment with damages and costs, to be levied of the estate of the testator in the hands of the executor, if so much be had, if not, then the damages and costs of the executor’s proper goods. * * * On reviewing that subject, we disapprove of that decision in awarding the damages against the proper estate of the executor, in case of deficiency in that of the testator.” See mono-graphic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   David Bates, son and heir of John Bates, brought an action of detinue for sundry-slaves, in the possession of Andrew Gordon, administrator of Alexander Gordon, deceased. The declaration claims the slaves, without laying a price or value. The cause was tried on the plea of non det-inet, and issue thereon; and the jury found the following verdict: “We of the jury' do find for the plaintiff the slaves mentioned in this declaration, if to be had, or the sum of two hundred and fifty pounds current money for each slave, and damages one penny.”

*On this verdict, the Court rendered judgment for the slaves, if to be had, and if not, the price found by the jury with the damages and costs. From this judgment, there was an appeal- to the General Court.

In October 1786, the cause came on to be heard before the General Court, when the judgment was reversed, as to the price for the slaves, and affirmed as to the residue.

To the judgment of the General Court, the plaintiff Bates brought a writ of error; and now on a hearing, the judgment of the General Court was reversed, and that of the County Court affirmed; and it was further ordered, that the appellant Andrew Gordon, should pay the costs and damages of the appeal out of the effects of his intestate, in his hands to be- administered, if there were such effects, but if not, that he should pay them out of his proper goods and chattels.  