
    Evan P. Thomas, et al. vs. William J. Estes, et al.
    In a trial of right of property, a verdict of the jury, in favor of the plaintiffs in the execution, is equivalent to the special verdict required by the statute, that the property in issue is subject to the plaintiffs’ execution.
    The provision of the statute regulating trials of right of property, that if the property levied on be assessed by the jury to a greater value than the amount of the execution levied on it, the actual amount due shall be indorsed on the execution issuing on the claimant’s bond, does not apply to the judgment of the court, but is merely mandatory on the clerk.
    Where the verdict in a trial of right of property was in favor of the plaintiffs in the execution, and assessed the separate value of each article levied on, and in issue, but the judgment of the court did not pursue the verdict, and was not in the alternative, either for the property or its assessed value: Held,, that the judgment was erroneous, but that this eourt would correct the error, and enter • the proper judgment.
    In error, from Lowndes circuit court.
    Evan P. Thomas and William G. Thomas, recovered a judgment at law against William J. Estes, John Fletchall, and Joseph W. Carroll, for one thousand and eighty-three dollars and thirty-three cents. An execution on this judgment was levied on the following negroes; Sukey, Margaret, Queen Victoria, Martha, Frank, and Martin Van Burén; who were all claimed by John Rickman as his property; he made the necessary affidavit, and gave the bond, as required by the statute. An issue was accordingly made up at the April term, 1841, of the court, between the plaintiffs in the execution and the claimant of the negroes. The cause was subsequently submitted to a jury, who brought in the following verdict:
    “We, the jury, find that the property levied upon, to wit; Sukey, worth four hundred and fifty dollars, Margaret, worth four hundred dollars, Victoria, worth, three hundred and fifty, Martha, worth three hundred, Frank, worth one hundred and fifty, Van Burén, worth one hundred, are the property of the said defendant, John Fletchall, in said execution mentioned, and are worth in all, seventeen hundred and fifty dollars.”
    
      The judgment of the court was in these words :
    “ It is therefore considered by the court that the plaintiff recover of said interpleader, John Rickman, the said negroes Sukey, Margaret, Victoria, Martha, Frank, and Van Burén, as aforesaid, worth the sum aforesaid, if to be had; if not, then the sum of seventeen hundred and fifty dollars, and the costs in and about this cause expended, or so much thereof as shall be sufficient to satisfy the said execution, which was issued on a judgment, &c.”
    The errors assigned are:
    1. Damages are assessed against the claimant, without a finding by the jury that the claim was for purposes of delay and fraud.
    
      2. The Verdict of the jury is not in conformity with the statute.
    3. The verdict is in the alternative, either for tlie recovery of the negroes, or their value, instead of the amount of the debt, damages and costs.
    
      Howard, for plaintiffs in error.
    1. The verdict in this case is defective, because it does not find that the property is subject to the execution which the plea puts in issue, and the statute expressly requires. H. & H. Dig. 654. The legal title to the property might be in the defendant in the execution, and still not be subject to the judgment. It would be in the case of a naked trust.
    
      2. Damages in the amount, of the costs are assessed against the claimant, without a proper finding, and when the statute does not authorize any damages, unless the jury certify that the claim was fraudulent, or for purposes of delay. H. & H. 654, s. 35.
    3. The verdict is, in the alternative, either for the recovery of the negroes levied on, or their value, without confining the amount to the judgment. The verdict is uncertain in other respects.
    The judgment should be in the alternative for each slave, if to be had, if not, for the value, as in detinue, and the finding should be separate for each slave, otherwise the verdict is uncertain. 3 Monroe R. 59. Buckner v. Haggin, 2 Munf. 195.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was a writ of error to Lowndes county circuit court.

It was an issue to try the right of property seized in execution. It was objected to the verdict, that, in finding for the plaintiffs in execution, it does not find the property subject to the execution. The jury passed upon the issue between the parties, which was, whether the property was subject to the execution of the plaintiffs in the execution. In finding for those plaintiffs, they found that fact sufficiently. We think that finding in accordance with the law, and generally good.

The judgment, however, is not in keeping with the verdict. A trial of the right of property is assimilated, by the statute, after issue made, to the action of detinue. 1 H. 227, Penrice v. Cocks. After a verdict for the plaintiffs in execution, the court should have pronounced a judgment, in the alternative, for the specific property, if to be had, and if not, for its value as assessed by the jury. H. & H. 654, s. 79. This, and no more, is the proper judgment, as based^ on the verdict, that the court should render. The statute goes on to provide that in the event the property which is the subject of such verdict, should be assessed to an amount greater than sufficient to satisfy the original execution, the actual amount due on such execution shall be indorsed on the execution sued out upon the judgment against the claimant, which shall be a full satisfaction of the judgment against the claimant. This does not constitute a part of the judgment of the court, but is mandatory upon the clerk. In this instance the judgment should have reiterated the verdict in the name of each separate slave mentioned therein, and in their several values, in order to tender the alternative to the claimant to restore all or any of the slaves, or to pay the value of such as he did not deliver.

The judgment of the court below must therefore be reversed, but this court, giving the judgment which the court below should have given, directs that a judgment be entered up in favor of the plaintiffs in execution, for the specific slaves, if to be had, and if not, for the separate value of all as assessed by the jury.  