By the• Court.
Lumpkin, J.delivering the opinion.
[1.] It is unquestionably a relaxation of the law and a privilege to defendants, to permit them to deliver up the property in discharge of the damages recovered against them in actionsj of trover. But the verdict being in the alternative, they must elect to do one or the other. They will not be allowed to deliver in part and pay in part. Such an indulgence, were it sanctioned, might and would be frequently and grossly abused. Hence, we affirm the judgment of the Circuit Court in dismissing this illegality.
[2.] The discrepancy between the declaration, verdict and judgment is wholly immaterial. Mr. Mitchell does not deny but that the $25 note was for rent. But whether he did or did not, that-matter could only have become important, had Mr. Mitchell tendered a note of $25 in discharge of the judgr ment, which was refused by Mr. Printup, because it did .not purport to be for rent. It is not pretended that the defend*581;ant offered any note, whatever, answering to this description. lOn the contrary, this is the identical note which he proposed ■to pay in money.