Lee v. Bryan , 3 Ala. 278 ( 1842 )

GOLDTHWAITE, J.

The proper judgment in this case would have been to declare the slaves subject to the plaintiff’s execution, and that he should recover from the claimant the damages assessed by the jury, together with his costs in that behalf expended. Hughes v. Rhea, Conner &. Co. 1 Ala. Rep. N. S. 609. Although the judgment as rendered, is irregular, and certainly erroneous, so far as it throws the plaintiff on the slaves for his damages, and costs, it cannot be reversed at the instance of the claimant, unless he can show that injury will result to him, if it is permitted to stand. In no aspect in which we can view this case, can we arrive at the conclusion that he is, or can be injuriously affected by the judgment. He, by law is liable immediately for the damages assessed, as well as for the costs, afid yet neither can be collected from him, as the judgment now' stands. Nor is he liable personally for the debt for which a recovery is erroneously given, because the judgment directs that it shall be levied from the slaves found subject. We are not aware that he could be subjected to the payment of the sum ascertained, even if the slaves were eloign-ed. We mention this merely to show, that if one slave only had been in controversy, and that one of very little value, the plaintiff would have no remedy on the judgment upon the principle of a devastavit, superior to that which he might have on the bond. We might also add, that the judgment, as rendered, is of no other avail to the plaintiff, than to authorise him to have the slaves sold in satisfaction of'his debt.

We do not consider the irregularity as attributable to the Court below; it is at most, a mere error of the clerk, whose duty it is to enter judgment on the verdict, according to law; and that ascertains what the recovery is to be, with as much precision, in a case like this, as it does in one in which a verdict is rendered for a specific sum of money.

The judgment must be affirmed, not because it is regular, but because the errors complained of, do not injuriously affect the claimant. .

As the judgment has been superseded by bond, and is in form, a money judgment, the damages on affirmance, without instructions to the contrary, might be computed on the debt irregularly recovered. We think it proper to direct, that damages shall be ‘ computed alone on the sum for which the claimant is liable, that is, the damages assessed by the jury. The claimant himself ought not to be prejudiced by the irregularity, even in a collateral matter.