Dale v. Mosely , 4 Stew. & P. 371 ( 1833 )

Lipscomb, C. J.

Mosely recovered a judgment, in •the Circuit Court of Monroe County, against Samuel Dale, and sued out an execution, directed to the sheriff of Perry County, which was levied on two negro men slaves. James Dale, the present plaintiff, .claimed the slaves, as his property, and filed an affidavit, and gave bond, as required by our statute, for a trial of the right of property.

The issue was made up in the usual form, by the plaintiff in the execution, averring that the slaves were the property of Samuel Dale, and liable to be sold, in satisfaction of the execution levied on them; which averment was traversed, by the claimant.— The jury found the slaves to be the property of the defendant in the execution, and assessed the value of. the slaves separately.

The claimant moved the Court for a new trial, which was granted, as to one of the slaves, and refused, a.s to the other. This judgment of the Court is now brought up for revision, on a writ of error.

The defendant in error moves to dismiss the writ of error, because it has irregularly issued.

After the issue had been formed, and a verdict on it, we believe that the Court below, had no authority to sever the matter put in issue, and found by the jury ; that the new trial should have been entire or not at all. We believe it would have been competent, fox; the Court below, to have offered the complainant his choice, to take a new trial for one of the slaves, on condition of his relinquishing claim to the other. But this was not done, and the consequence is, that the claimant has sought to reverse the judgment of condemnation, against the one, whilst the suit as to the other remains undetermined. The claimant was not compelled to accept the new trial: he might, then, have brought the whole case up.

The writ of error must be dismissed.