# Bennett v. Butterworth (52 U.S. 669)

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United States Supreme Court
52 U.S. 669
Bennett v. Butterworth
THIS case was brought up, by writ of error, from the District Court of The United States for the District of Texas.
In 1848, Butterworth filed the following petition against Bennett:--
'To the Honorable J. C. Watrous, Judge of the District Court of the United States for the District of the State of Texas, and which court has also Circuit Court powers.
'The petition of Samuel F. Butterworth, who is a citizen of the State of New York, against John H. Bennett, who is a citizen of the State of Texas, would respectfully represent unto your honor, that heretofore, viz. on the ___ day of March, 1846, at _____ to wit, in the district aforesaid, he, your petitioner, was lawfully seized and possessed of four negroes, slaves for life, whose names and descriptions are as follows, viz.: Billy, a negro man, of a dark complexion, aged about twelve years, of the value of five hundred dollars; Lindsey, a negro man, of a dark complexion, aged twenty-two years, and of the value of one thousand dollars; Betsy, a mulatto woman, of a light complexion, aged about thirty years, and of the value of eight hundred dollars; and Alexander, a boy of a very light complexion, aged about four years, and of four hundred dollars value, of his own property. And being so possessed, your petitioner, afterwards, to wit, on the day and year aforesaid, in the district aforesaid, casually lost the same out of his possession, and the same, afterwards, to wit, on the day and year aforesaid, in the district aforesaid, came to the possession of the defendant by finding. And your petitioner charges, that the said defendant, well knowing the said negro slaves to be the property of your petitioner, and of right to belong and appertain to him, hath not as yet delivered the above-described negroes, or any or either of them, although often requested so to do, to your petitioner; but hath hitherto wholly refused so to do, and hath detained, and still doth detain, the same from your petitioner, who says he has received damages, by reason of the detention of the slaves aforesaid, of five thousand dollars.
'In consideration of the premises, your petitioner prays your honor to grant him a summons, directed to the marshal of this district, and commanding him to summon the said defendant to be and appear at the next term of this court, to be held for this district, at the city of Galveston, on the first Monday in February next, then and there to answer the allegations contained in this petition; and that, upon the trial of the cause, your petitioner may have a judgment in specie for the said negroes, together with damages for the detention of the same, and also the costs of suit; and such other and further relief grant in the premises as shall be in accordance with right and justice; and, as in duty bound, he will ever pray, &c.
'SAMUEL YERGER, Attorney for Petitioner.'
To this petition the defendant demurred, pleaded not guilty, and filed two special pleas. The demurrer was afterwards overruled, and the two special pleas stricken out.
In June, 1849, the defendant filed an amended answer, consisting of two special pleas. The second was demurred to by the plaintiff, and the demurrer sustained; so that there remained only the first plea, to which the plaintiff also demurred, but his demurrer was overruled, and he then replied. The case then went to trial upon this plea and general replication. These pleadings have been stated thus particularly, in order to ascertain what was the issue upon which the parties went to trial.
The plea of the defendant set up a title to the slaves in himself; averring that a dispute had existed between Butterworth and one John D. Amis and one Junius Amis, which had been left to arbitration; that the referees had decided, amongst other things, that Butterworth should transfer certain negroes to Amis; that Butterworth delivered the negroes, which were those in question; that Amis sold the negroes to him, Bennett; and the plea concluded in this way:--
'Wherefore the said John H. Bennett says the said four negroes are his property, and not the property of the said Butterworth, and of this he puts himself upon the country.'
To this plea Butterwerth 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.
Upon these allegations a jury was sworn, who found the following verdict:--
'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. HERBERT, 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.
And thereafter, to wit, on the 25th day of August, 1849, the following order was made in said suit, to wit:--
'SAMUEL F. BUTTERWORTH v. J. H. BENNETT.
'On this day came on for hearing, by consent of parties, the motion filed by defendant's counsel, to set aside the verdict, for reasons therein set forth; after argument heard, the court being sufficiently advised, it is ordered that the motion be overruled,'
And afterwards, to wit, on the 25th day of August, 1849, the following order was made, to wit:--'SAMUEL F. BUTTERWORTH v. J. H. BENNETT.
'The counsel of defendant in this cause tendered his bill of exception to the opinion of the court herein, which was signed by the judge, and ordered to be filed of record; which bill of exceptions is in the words following, to wit:--
'United States District Court, District of Texas, Spring Term, 1849.
'SAMUEL F. BUTTERWORTH v. JOHN H. BENNETT.
'Be it remembered, that on this day, the 25th of August, 1849, the following judgment was rendered in the above-named cause, to wit: On this day came the parties, by their attorneys, and thereupon the demurrer of defendant to plaintiff's petition came on, and was argued, and because it seems to the court that the law is for the plaintiff, it is considered by the court that the demurrer be overruled. And the plaintiff's demurrer to defendant's first and second plea in this amended answer at the present term also came on, and was argued; and because it seems to the court that on the said first plea the law is for the defendant, it is considered by the court that the demurrer to the said first plea be overruled; and the plaintiff thereupon replied to said first plea. And because the law on said second plea is for the plaintiff, it is considered that said demurrer to said plea be sustained.
'And upon motion of plaintiff, by his attorney, 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. Herbert, 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.
'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 Mr. Johnson and Mr. Harris, for the plaintiff in error, and Mr. Walker and Mr. 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. U. States, 2 Wheat. 223; Jewett v. Davis, 6 N. Hamp. 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 suity 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 curred by the verdict, and the amendment laws of Texas. Act of Texas, 1846, p. 202, § 7; p. 365, § 5; p. 392, § 104; p. 393, § 115; pp. 396, 397, §§ 132, 133.
There is no distinction in Texas between 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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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