| Ala. | Jan 15, 1845
— The omission of the jury to ascertain the several values of all the slaves, covered by their verdict, being carried into the judgment, is a fatal defect, and was so held in an action of the same kind for the recovery of patents for land, in the case of Cummings v. Tindall, 4 S. & P. 357; and afterwards in Haynes v. Crutchfield, supra. It is certainly true, that our Courts have never recognized any course of proceeding; tending to authorize a forced separation of children of tender years from their parents, when slaves ; but no such principle seems involved here, as the contingent value is for the protection of the defendant, if the thing recovered is incapable of being produced. The plaintiff by his writ of distringas can always compel the delivery of the specific thing, and a Court, most probably, would feel constrained to allow him to pursue his remedy by that mode of enforcing the judgment, unless it was informed its use could be only vexatious. In Buller’s Nisi Prius it is said if no value is found, the defect cannot be supplied by a writ of inquiry.
As this error will cause a reversal, we shall only consider the other questions raised, so far as they may again enter into the case, for the reason that most, if not all, are so presented as to leave it doubtful if they enter into the final judgment.
2. As to the identity of the slaves and their respective values, these are questions to be determined solely by the jury, and the Court could not properly reject any evidence bearing upon these points. Some of these slaves were proved to be likely, whether all were so, or were of the same or different values, was a fair subject of discussion to the jury, but the defendant has no reason to complain of inferences against him, when the means certainly were within his power, of stripping all uncertainty from this part of the case.
3. The objection to the reading of the receipts to the jury we, perhaps, should feel constrained to disregard, inasmuch as it did not point specifically to the question of law discussed here ; and it is as strongly inferable that the Court’s attention was not drawn to the omission, to show the papers were made by the persons signing them, at the time, when they had authority from'the defendant to act for him. There is another reason why, even if there was error in this admission of the evidence, the error cannot avail the defendant. It is, that the
4. There is no question but that the several persons who gave the receipts, would themselves be competent witnesses to prove the payment or other discharge of the accounts, and there may be a doubt, whether any evidence could be given of their hand-writing. [Baker v. Blackburn, 5 Ala. 417" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/baker-v-blackburn-6502006?utm_source=webapp" opinion_id="6502006">5 Ala. Rep. 417.] But under no circumstances, could such evidence be proper, without showing the receipts were in existence, or signed at a time when the persons signing, had the authority from Bell to bind him. The circumstances of this case do not present the same question as was involved in Stark v. Keenan, 5 Ala. 590" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/starke-v-keenans-exrs-6502049?utm_source=webapp" opinion_id="6502049">5 Ala. Rep. 590, as there, the writing proved was signed by an executor, who, by law, is invested with the power to bind his testator’s estate, in the same manner as an individual may bind his own.
5. The question as to the slave which died pending the suit, is not important to be considered, for the reason that it does not appear to enter into the verdict. But if it was, we may remark, that there seems to be no good reason, why a recovery should be defeated, by an accident to property, over which the plaintiff had no control. Such was the conclusion of this Court in White v. Ross, 5 S. & P. 133, as well as of other Courts. See cases cited in Bettis v. Taylor, 8 Port., 564" court="Ala." date_filed="1839-01-15" href="https://app.midpage.ai/document/bettis-v-taylor-6529464?utm_source=webapp" opinion_id="6529464">8 Porter, 564.
6. In actions of detinue, which involve only the title to the slave at the time of suit brought, the writ is a sufficient demand. [Vaughan v. Wood, 5 Ala. 304" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/vaughn-v-wood-6501982?utm_source=webapp" opinion_id="6501982">5 Ala. Rep. 304.] If the defendant has any title, or right, by which he is authorized to retain the chattel sued for, it is matter of defence to the action.
For the error we have previously ascertained, the judgment is reversed and the cause remanded.