The opinion
Merrioic, C. J.
The motion for a new trial in this case ought to have been granted.
The plaintiff sued the defendant, Brown, for damages for harboring three runaway negroes, and for consenting and permitting one of them, by collusion, to go aboard of a flatboat descending the river to New Orleans, from whence, he escaped to Cairo, and thence to Pittsburg in Pennsylvania.
The jury gave a verdict in favor of the plaintiff for $1300, the value of the slave Tom, and $160, the value of the services of the two other slaves whilst in the possession of the defendant.
After the rendition of the verdict, the defendant, having discovered that the plaintiff had received from the owners of the steamboat Niagara six hundred dollars, in a compromise in full for the price and value of said slave, which was carried away by said boat, moved the court for a new trial, and thereupon the plaintiff entered a remittitm’ of $000 upon the price of the slave, and the motion for a new trial was overruled.
We think the new trial ought to have been awarded, notwithstanding the remittitm'. Although the defendant and the owners of the steamboat might be bound each for the value of the slave, still a recovery against and payment of the value of the slave by either, vested the slave in the one from whom the damages were claimed and received. If the plaintiff had already claimed and received the value of the slave from the owners of the steamboat, this Ktis (estimatio, like a sale, has transferred the property in the slave to the persons so paying. See Dig. VI, 1; Leges 21, 46, 47 and 63 ; see also the case of the Succession of Samuel Martin, 7 An. 45.
The plaintiff, if those circumstances are proven, was divested of his property in the slave, and he cannot be permitted to recover his value a second time from another, who, while he pays the price of the slave, can not become the owner.
The judgment being reversed as to Gersham Brown, must also be reversed as to said Edmund Brown.
It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is further ordered that this case be remanded to the lower court for a new trial, there to be proceeded in according to law, and it is further- ordered that the plaintiff pay the costs of the appeal.