# Bennett v. Butterworth (49 U.S. 124)/Opinion of the Court

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* Dissenting Opinion Daniel
United States Supreme Court
49 U.S. 124
Bennett v. Butterworth
The court have considered the motion made in this case to dismiss the writ of error for want of jurisdiction. From the mode of judicial proceeding adopted in Texas, the motion presents a new question, and one that is not free from difficulty.
The suit is not brought in any of the forms of action known to the common law. It is instituted by petition; and the plaintiff in the court below seeks to recover four slaves, which he alleges are his property, and are detained from him by the defendant. The value of each slave is averred separately in the petition, the whole amounting to two thousand seven hundred dollars. The verdict of the jury is as follows:--
'We the jury find for the plaintiff twelve hundred dollars, the value of the negro slaves in suit, with six and a quarter cents damages.'
And the record states, that thereupon the plaintiff released the judgment for twelve hundred dollars in open court; and the court adjudged that he recover of the defendant the said slaves and the damages assessed by the jury, and his costs.
This proceeding appears to be a substitute for the common law action of detinue, and resembles it in many respects. In that action, if the jury find that the property belongs to the plaintiff, and is detained from him by the defendant, they ought to find at the same time the value of each separate article in dispute, and the judgment of the court is that the plaintiff recover the property, or the value thereof as found by the jury, provided he cannot obtain possession of the property, together with his damages and costs. Upon such a judgment a writ of error certainly would not lie, when the value assessed by the jury was less than two thousand dollars. For the value of the property in dispute would be fixed by the verdict and the judgment of the court, and both parties would be bound by it.
But in the case before us, the finding of the jury and the judgment of the court differ from the proceedings in an action of detinue. The gross value of the four slaves is found by the jury, and not the separate value of each of them. And the value as found forms no part of the judgment of the court. The plaintiff was permitted to release it,-and although it is said in the record that he released the judgment for this sum, yet it appears that no judgment was rendered for it, and that it was released before any was given.
The judgment of the District Court therefore decides nothing more than the right to the property specified in the petition; and whether that judgment is erroneous or not is all that this court can examine into upon the writ of error. The sum which the plaintiff below (who is the defendant in error here) is entitled to recover, if the property is placed beyond his reach and he fails to obtain possession of it, can form no part of the judgment of this court. The only matter in controversy is the four slaves; and their actual value, whatever it may be, is the value of the matter in dispute.
Now if the judgment of the District Court had been for the defendant, the plaintiff would evidently have been entitled to maintain a writ of error. And as he sues for the specific property, and avers the value to be $2,700, he would have been entitled to the writ, even if he had laid his damages for the detention below $2,000. For the averment of value when he sues for property shows the value of the thing in controversy, as much as the averment of debt or damage, when he sues for money. And when he has rejected the value found by the jury, and refused a judgment for it, and is not bound by that finding, can he bind the defendant to it, and thereby deprive him of his writ of error, upon the ground that the property in dispute is not worth $2,000?
This is the question upon the motion before us.
In cases where the plaintiff sues for money, and claims in his pleadings a larger sum than $2,000, and obtains a judgment for a smaller amount, the sum for which the judgment is rendered is the only matter in controversy, when the defendant brings the writ of error. Because, if the plaintiff rests satisfied with it, and takes no step to reverse it, he is bound by it as well as the defendant. Both parties, therefore, stand upon an equal footing in that respect. But if the plaintiff brings the writ of error upon the ground that he is entitled to more than the judgment was rendered for, then his averment in his declaration shows the amount he claimed; and as that claim is the matter for which he brings suit, he is entitled to the writ of error if that claim appears to be large enough to give jurisdiction to this court. These principles have been settled in this court by the cases referred to in the argument.
In the case before us, the plaintiff avers in his petition that the slaves for which the suit is brought are worth $2,700. The right to these slaves must be the only matter in controversy here, whether the writ of error is sued out by the plaintiff or the defendant. If by the plaintiff, he would undoubtedly be entitled to it, upon the ground that the property in dispute, and which he is seeking to recover in this suit, is claimed to be worth more than $2,000; and he would be entitled, under the decisions of this court, to rely on the averment in his petition, to show that the amount in value of the slaves he claimed is sufficient to give jurisdiction to this court. Can he, then, be permitted to deny here the truth of his own averment, when precisely the same thing-the same property-is the matter in controversy upon the writ of error brought by the defendant? We think not. And as by his release he prevented a judgment from being entered, fixing the value, as between these parties in this suit, at $1,200, the averment in his petition must be regarded as determining the amount in controversy upon a writ of error brought by either plaintiff or defendant. Consequently, this court has jurisdiction upon this writ, and the motion to dismiss it must be overruled.
On consideration of the motion made by Messrs. Hughes and Howard, on a prior day of the present term of this court, to wit, on Friday, the 25th day of January last past, to dismiss this writ of error for the want of jurisdiction, and of the arguments of counsel thereupon had, as well in support of as against the same, it is now here ordered by this court, that the said motion be, and the same is hereby, overruled.

## Notes

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