# Bennett v. Butterworth (49 U.S. 124)/Dissent Daniel

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* Dissenting Opinion Daniel
United States Supreme Court
49 U.S. 124
Bennett v. Butterworth
Mr. Justice DANIEL.
In the opinion of the court pronounced in this cause I am unable to concur, regarding that opinion as reconcilable with neither the act of Congress (Judiciary Act, § 22) regulating the jurisdiction of this court, nor with the fundamental rules of pleading and evidence, but as in contravention of both. This cause is in effect, and in form except with regard to the frame of the petition, corresponding with the declaration at common law, in all its details and proceedings, an action of detinue for the recovery of four slaves. In every such action, the authorities tell us that it is requisite to describe the property demanded with so much certainty, that it may be delivered up in specie; and it was ruled by the older cases, that, where the property consisted of several articles, the plaintiff must show the value of each particular article, and not state the aggregate value. Subsequently, however, it has been ruled that the declaration may mention the separate value of each article, or it may state the value in gross; and this appears to be the established doctrine in England at this day. See Com. Dig., tit. Pleader (2 x 2). So in 1 Chit. Pl., p. 377, it is said, that, 'in actions for injuring or taking away goods or chattels, it is in general necessary that their quality, quantity, or number, and value or price, should be stated; the assigned reason is, that a former recovery could not else be pleaded in bar to a second action for the same goods; neither could the defendant properly defend himself.' Then with respect to the verdict and judgment, to be rendered in the action of detinue, the law is thus given in Com. Dig., tit. Pleader (2 x 12):-'The judgment against the defendant shall be for the recovery of the thing detained vel valorem inde and costs; and if judgment be upon confession non sum informatus, demurrer, &c., a writ of inquiry shall be awarded to inquire of the values. And after judgment, if a distringas goes ad deliberandum bona, and the defendant does not, the plaintiff shall have damages taxed by the inquest, so that it lies in the defendant's election to deliver the goods or the value.'
Sir William Blackstone in treating of the action of detinue, Vol. IV., p. 413, thus states the law:-'In detinue, after judgment, the plaintiff shall have a distringas to compel the defendant to deliver the goods by repeated distresses of his chattels; and if the defendant still continues obstinate, then (if judgment hath been by default or demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages (which being so assessed, or by the verdict in case of an issue) shall be levied on the person or goods of the defendant. So that after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrong-doer be very perverse, he cannot be compelled to a restitution of the thing taken or detained.' So, too, in Chit Pl., Vol I., p. 124, it is said,-'The nature of this action requires, that the verdict and judgment be such that a specific remedy may be had for the recovery of the goods detained, or a satisfaction in value, for each parcel, in case they or either of them cannot be obtained. The judgment is on the alternative, that the plaintiff do recover the goods or the value thereof, if he cannot have the goods themselves.'
The citation of these seemingly trite and familiar principles of law will not be deemed useless, when an application of them, and of the reasons on which they are founded, shall be made to the case under consideration. In the authorities above quoted, we have disclosed to us the propriety and necessity (resulting from the peculiar character of the remedy) for averring in the declaration, and of ascertaining by the verdict and judgment, the value of the property sought; because that value is to become the measure of redress to the plaintiff, in one branch of the alternative, in the event that the other shall prove fruitless. It is indispensable, therefore, that this measure be ascertained upon legal testimony and solemn investigation before the court, and under its supervising authority,-as indispensable, fully, as that the title to the property should be so ascertained; for both enter alike into the redress of the plaintiff, and flow from the same source. His right to the one rests upon the same foundation with his right to the other, and if he had no right to one, he had a right to neither. Nor can it be said that the measure of the plaintiff's redress rests mainly in the breast or in the action of the court; on the contrary, it rests rather in the opinion and action of the jury. The court cannot, even with the parties and witnesses before it, determine the value of the property, or the parties' right thereto. The court, be awarding a new trial, may correct an excess or irregularity of any kind on the part of the jury; but it could have no power to find for either party upon the issue before the jury, nor argument or diminish by one cent the measure of redress established by the jury. If, then, such a power belonged not to the court when in a course of regular judicial inquiry, with the parties and witnesses fully before it, does it not seem strange to contend, that such a power can be exercised collaterally by a different tribunal, neither trying the issue, nor weighing the evidence which the jury had before them, and in the absence of all or any of the circumstances, exercised upon ex parte affidavits before the jury, thereby overturning what twelve men upon their oaths, and in regular discharge of their functions, have done, and what the law through them had declared shall be the standard of value? And for what purpose, it may be asked, is this collateral inquiry to be allowed? Not, strange as it may seem, to settle any other alternate value of the property, nor to put any estimate upon it at all; but to let in other questions connected with the title, or with some proceedings in the court below, wholly disconnected with the value of the property. But it is said that the plaintiff below has released his right to the damages assessed by the jury, and therefore can no longer enforce them. What of that? What possible connection can exist between the power of the plaintiff to enforce his judgment, as affected by any act or indiscretion of his own, and the value of the property as assessed by the jury? Does the release of the estimated value render that value either greater or smaller than it was before? Possibly this act of the plaintiff may render his power to enforce the verdict and judgment less efficient; but to reason from that consequence to the value of the property as found by the jury, appears to me to be an argument as illogical as any that can be conceived. The estimated value, the true measure settled by the jury, remains unchanged, although it may have been released. The verdict has never been reversed or annulled. Moreover, it may not follow necessarily, that the release of the damages by the plaintiff below vitiates the judgment, or deprives the plaintiff of the power to enforce it; for we find by the authorities that a judgment may be by confession, or non sum informatus, or on demurrer, in either of which cases judgment may be entered, and that afterwards, if the defendant will not deliver the property, damages for the value and for the detention may be assessed; and such value, when assessed in the proper, regular, legal mode, is all for which execution can be had against the person or property of the defendant. But the inquiry is not properly instituted here whether the plaintiff, by error or indiscretion, has lost the power of enforcing his verdict and judgment; the question is purely one of jurisdiction, dependent upon the value of the subject, and that value ascertained by all the solemnities, and in the only mode known to the law,-solemnities, as I contend, nowhere to be properly gainsaid. Let it be supposed that there had been no release of damages or value by the plaintiff below. The principles applicable to the action of this court would be precisely those involved in the case as it now stands. Then let it be supposed that, after taking jurisdiction upon this collateral inquiry, this court should come to the conclusion that there was no error in the proceedings and judgment in the court below. What manner of mandate would be sent to that court? Would this court, upon its own estimate of the value of the subject founded upon affidavits, and because it had claimed jurisdiction upon such an estimate, order the Circuit Court to augment the damages assessed to the plaintiff below? Could they by so doing open again that which had become res judicata? If they should not do this, they would confessedly have effected a wrong to the plaintiff; and if they should attempt to do so, I desire to know their authority for such a proceeding, and what standard or measure for their mandate they would adopt; they would have repudiated the verdict of a jury and a judgment of the court, and what higher or other standard they would adopt I am at a loss to conceive. In defence of the proceeding permitted in this case, it has been contended that, by the practice of this court, in cases sounding in damages purely, a plaintiff is permitted to confer jurisdiction on this tribunal by laying his damages at an amount ad libitum, sufficient for that purpose. If the practice of this court is to be understood in the latitude in which it is just expressed, that practice must be deemed to be in consonance with neither the letter nor the spirit of the statute. In cases arising ex contractu or quasi ex contractu, which in their original form and magnitude might fall within the rule laid down by Congress, but which, in the progress of investigation by the application of payments or set-offs, should be brought below the minimum established by law, or in cases of tort, which, from their peculiar character, might also come within the reason of the same rule, (though the latter must be regarded as liable to strong doubt,) jurisdiction may be claimed. But if either the practice, or any express annunciation from this court, is to be apprehended as placing it at the option of parties, plaintiffs or defendants, to refer all their contests to this tribunal, however their character may be stamped and ascertained by the decision of the inferior courts, and in contravention of such solemn decisions, given upon full investigation by courts and juries, why then, by the rules or the practice of this court, the act of Congress is substantially repealed, and the proceedings of the courts below are a mere mockery. The value of the subject of the controversy, as ascertained in the court below, supplies the only safe and uniform rule as to jurisdiction, in cases wherein jurisdiction is dependent on value. My opinion, therefore, is, that it is incompetent to either of the parties, or to this court, in the indirect and collateral mode here attempted, and upon evidence entirely dehors and unconnected with the record, to impeach or inquire into the verdict and judgment rendered in the District Court of Texas; that such a proceeding is utterly subversive of the act of Congress limiting the right to appeals and writs of error, and equally subversive of the fundamental rule of pleading and of evidence, which establishes undeniable verity in the solemn proceedings of courts acting within the sphere of their jurisdiction, and establishes every fact and every conclusion embraced within the scope of those proceedings.
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