
    Cornelius A. Vauters, Administrator of Hugh M‘Clane, against John Elders.
    This was an action of debt brought on a judgmerit in trover, to recover a balance due there- . . and verdict for the plaintiff
    tro\"or? “.Lrethe di“7fOT™certain sum, to be releasf™1iawmei'uof the alternative in Sr,fruti,fseuml ArKrif,undersuch property"in aischased by the SS?'this” ni“e wRftthe“teraalive by the do-plaintiff maj.“o of the damages,
    From this verdict the defendant has thought proper to appeal, on three grounds, for a new trial, and relies on the two first grounds as be-p ° # ing also sufficient to justify this Court in order-a nonsuit to he entered up. Before I pro-0 x x ceed to notice particularly the nature of the exceptions taken in the brief, it is essential to a, * correct understanding of their merits, that the circumstances in the iormer action should be brought to view. The action of trover was brought for the conversion of three negroes, wherein the Jury who tried the case gave the following verdict: “We find for the plaintiff 700 dollars, which sum is to he released by the plaintiff on the delivery of the negroes mentioned in the within declaration.” On this verdict judgment was entered up by the plaintiff on the 28th day of May, 1807. One month thereafter the defendant obtained an injunction in equity, whereby further proceedings at law were suspended till the month of February, 181], when the injunction was dissolved. On the 28th May, 1811, the plaintiff issued his execution; and on the 12th July following, it was levied on the three negroes, the subject matter of the action. They were sold in due form of law by the Sheriff, on the 5th of August, 1811, and purchased by the plaintiff at $660. The present was, therefore, an action to recover a remaining balance, due on the former judgment, wherein the plaintiff has obtained a verdict, as before stated. The defendant now moves this Court for a new trial, on the three following grounds, relying on the two first for a nonsuit.
    1st, Because the presiding Judge ought to have directed the Jury to find for the defendant, inasmuch as the defendant had complied with the condition annexed to the original verdict, on which this action was founded.
    2d, Because the original levy, which was produced by plaintiff for the purpose of showing that defendant had not complied with the original condition of the verdict, was wrong; being in the name of the Deputy Sheriff and not of the Sheriff himself, and,
    3d, That the verdict was contrary to law and evidence.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

It is proper to remark that the first ground was taken on the trial below, and was there contended to be immaterial whether the plaintiff came to the possession of the negroes by the delivery of the defendant, or by purchase at Sheriff’s sale: That the latter mode of coming at the possession of the negroes, would operate in law as a virtual fulfilment of the terms of the verdict. It is not pretended that the defendant did ever voluntarily put the plaintiff in possession of these negroes; on the contrary, during all the time, from May, 1807, to August, 1811, (four years and three months,) he discovered no disposition to avail himself of the alternative, held out to him by the verdict of the Jury, for delivering up those negroes in satisfaction of the sum recovered; and the - argument here, on this ground, is still predicated on the supposed legal effect of possession acquired under the Sheriff’s sale, and is considered as being tantamount to a delivery by the defendant himself. The fallacy of such conclusion will be strikingly obvious from the slightest examination. By a verdict in trover, the property converted is no longer in the plaintiff, but has passed, by operation of law, to the defendant; the Jury have no power to divest him of this legal right, by any accompaniment attached to their verdict, not sanctioned by law. The plaintiff can recover damages merely in this action for the injury which has been done him. It sometimes happens, however, where a plaintiff is willing to take back the property, or where justice seems to sanction the proceeding from special circumstances, that a Jury will find such a verdict as was given in this case. The law, for many years past, has been seen to look down with complacency, and, perhaps, delight, at every endeavour to promote the principies of J . . r • i i ’ justice and right, in a way which shall be least oppressive to its votaries, and, therefore, seemed to sanction this form of verdict; a verdict which imparts to the defendant the choice of availing himself of either alternative; but it will not suffer its benignity to be trifled with, or insulted. It regards the delay as the denial of justice, and, therefore, if the property is not returned within a reasonable time, by which is to be understood so much only as is necessary for that purpose under existing circumstances, the plaintiffis no longer restrained by the terms of the verdict, but may immediately after avail himself of the justice of the law, in calling on the defendant for the damages awarded against him. This privilege the plaintiff was in the act of enforcing by his execution, when he was impeded in his course by the application which the defendant made to the Court of Equity. For four years and upwards the plaintiff was prevented from coming at the fruits of his judgment; at length, the case not being tenable in equity, the defendant is consigned back to law : the plaintiff proceeds with his execution ; the negroes are sold under it, and are purchased by the plaintiff; the law, therefore, and not the defendant, has given the plaintiff the possession and right of property in the negroes in question; a right which before was in the defendant ; and the act and operation of law working by constraint upon the defendant, and in direct opposition to his will, can, in no correct sense, be taken for the act and choice of the defendant himself The first ground, therefore, in this brief is entitled to no weight or consideration, either as a ground of nonsuit, or for a new trial.

There is something of complexity in the second ground as taken, and the inference intended to be drawn from it, not very intelligible. If by it is to be understood, that the plaintiff’s possession of those negroes is not a legal one, by reason of the levy having been made upon them by the Deputy Sheriff, and not the Sheriff himself, it would seem to contravene the purport and object of the first ground as taken.

By whomsoever the levy may have been made, the sale in virtue of it was the mean by which the plaintiff became possessed of the negroes; and the defendant relies in his first ground on the efficacy of this delivery in law, to exonerate him from all further responsibility. The legality, or illegality of the levy, however, is not a question before this Court on the present appeal. Had it been deemed expedient^ the question might have been made in the action of trover, on a motion to set aside the execution for that cause; but in the present case it certainly affords conclusive evidence to show that the condition of the original verdict had not been com-' plied with, whether the levy made was legal oí illegal. I therefore see nothing in this ground which could justify a nonsuit or new trial.

On the third ground, that the verdict was contrary to law and evidence, I have only to remark, that from the preceding observations, 1 am of opinion that it is consistent with both.

Grimké, Bay, ColcocTc, apd Johnson, J. concurred.

Cheves, J.

I concur in the foregoing opinion, generally, for the reasons assigned by my brother Gantt. I think these alternative verdicts, as to the return of the property, become binding only by the mutual acquiescence of the parties,  