Windham v. Williams

Mr. Justice Handy delivered the opinion of the court. The testimony appearing in the record in this case cannot be taken into consideration, because it is not properly presented by bill of exceptions. The paper alleged to be a bill of exceptions has not the essential requisites of such a proceeding. It does not purport upon its face to be a bill of exceptions, nor does it show to what alleged error it was taken, nor whether taken pending the trial, or to the overruling the motion for a new trial. It does not purport to set out all the evidence given on the trial; but on the contrary, it appears, from the grounds of the motion for a new trial, that one Benjamin Windham was examined as a witness for the plaintiff, to which the defendant excepted ; and yet no such testimony is set forth in the record. The case, then, as presented here, must depend upon the points made apart from the bill of exceptions. The first objection made to the proceedings below is, that the oath administered to the jury was insufficient. The recital of the oath in the record is, that a jury of good and lawful men came, “ who being impanelled, tried, and sworn truly to try the issue joined between the parties,” &c. The sufficiency of the recital of such an oath, and the principles applicable to it, were fully considered by this court in the case of Dyson v. The State, at the last term; and the oath here falls fully within the reasons there stated. It is sustained both by principle and authority. Harris, Entries, 293. The next objection is to the verdict, which is, that “the jury find the issue in favor of the plaintiff, and he is entitled to the possession of the slaves,” which are named and the value of each separately found, and the damages for detention are assessed at $5900. We cannot perceive any valid objection to this verdict. It responds to the issue by finding it in favor of the plaintiff, and adds, what is probably unnecessary, but what cannot for that reason vitiate the verdict, that the plaintiff was entitled to the possession of the slaves, and finds their separate value, and the amount of damages for detention. Here every thing is ascertained which the law requires, in order to render a judgment upon the verdict. If more is found than is necessary, [319] it may be disregarded as surplusage, but it does not vitiate that which is necessary and well found. Nor is there any error in the judgment, as is insisted. It is in strict conformity to the 5th section of the act of 1842, Hutch. Dig. 818, which provides that in such cases the judgment shall be, “ that the defendant restore the property to the plaintiff,” &e., and not that the plaintiff recover of the defendant the property, &e., as is insisted on. Another objection is, that there was no evidence that the plaintiff’s right of action accrued within one year before the commencement of the suit. We cannot determine with propriety whether this objection is well founded or not, as, according to the view above taken of the bill of exceptions, the evidence is not before us. Regarding the case as not presenting the evidence, we cannot properly ascertain whether any point is sustained by evidence or not, and therefore this objection could not prevail. But if we could notice the bill of exceptions, it would appear from it that letters of administration of the estate of the plaintiff’s intestate were granted to the plaintiff in April, 1848; and the record shows that this action was instituted in June, 1848. The right of action accrued to the plaintiff by his letters of administration, and thus it appears that the right of action did accrue within one year. The remaining ground of error urged is well founded. Upon the delivery of the slaves by the sheriff to the defendant, two bonds were executed by the defendant for the forthcoming of the slaves, one embracing the slaves named in the verdict, and the other embracing a slave not found in the verdict to belong to the plaintiff. These bonds had different sureties to them, and the judgment was rendered against the defendant and sureties upon the latter bond, instead of the bond for the slaves found by the verdict to be the property of the plaintiff In this respect the judgment is erroneous, and is reversed; and this court, proceeding to render such judgment as should have been rendered by the court below, doth adjudge that the plaintiff in error and Luke J. Hester, Joshua McH. Hicks, and Patterson Windham, restore to the defendant in error the slaves named in the verdict and adjudged to the defendant in error, severally, [320] or pay him the value of each of said slaves assessed by the verdict, and also that they pay him the damages assessed by the verdict for the detention of said slaves.