¶1The judges delivered their opinions as follows.:
¶2I am of opinion, that the plea in abatement should be overruled, because the verdict in the case of Fort v. Jones, did not vest the property.in Fort; but. Jones, upon paying the damages, which it was in his option to do, had a right to keep th,e slave. And, besides, while the motion for a new tria.l was pending *69in this court, the event of the suit of Fort v. Jones, was still uncertain, inasmuch as a new trial might have been granted; and if granted, of course Fort would have taken nothing under his verdict in that case.
¶3In this case I am of .opinion, that the plea is not good, and the demurrer should be sustained. The verdict leaves it at defendant’s option to pay the damages or retain the slave. Besides, during the pendency of an appeal in this court, the case .could not have been considered as finally disposed of.
¶4I am of opinion, that the judgment of the circuit court should be maintained, and that the defendant should answer over, it not appearing that the suits are between the same parties. •The suit of Fort v. Jones, is still pending by reason of a motion for a new trial in this court; and the defendant in the last action, has not allowed the plaintiff, y/ho was defendant in the first action, the alternative of returning the slave, or .paying the amount of the verdict; but has acted very improperly in getting the slave into possession before the decision of tho question for a new trial before the court.
¶5gave no opinion in this case, having presided at the trial of the case of Fort v. Jones. And Brevard, J., gav® no opinion, having been of counsel for Fort and Biuse, while at the bar, in both cases.
¶6Motion refused.