The first objection insisted on is, that the jury found the aggregate value of the slaves, instead of the separate value of each slave, as the statute requires. It is well settled, that if they had assessed no value, this would not have constituted an error of which the claimants could have availed themselves.—Hardy et al. v. Gascoignes & Holly, 6 Port. 447; Burnett, Wilroy & Co. v. Maxey, 9 ib. 410. That the jury have assessed the value in a manner not recognized by the statute, cannot place the plaintiff in execution in a worse condition than if they had assessed no value, and the most that can be said of this portion of their verdict is, that it was without any legal warrant, and wholly nugatory, and would not justify the court in basing any subsequent proceeding upon that portion of *145it which must be treated as surplusage. In other respects it is quite formal, and fully authorizes the judgment which was rendered.—See Lee v. Bryan, 3 Ala. 278.
2. The only remaining question is, must we regard the order setting aside the judgment and granting a new trial “ upon the payment of all the cost which had accrued in said cause” from the commencement up to the day the order was made, as vacating the judgment absolutely or conditionally.
The cases cited by the counsel for the plaintiff in error certainly sustain his view, that the language here employed, “ upon the payment of the cost,” has no other effect than to impose on the claimants an obligation to pay the cost, which might have been enforced'by attachment or execution. But we think that the previous decisions of this court would not justify us in placing this construction upon the language, nor do we regard it a correct exposition of the language of the order. The granting of a new trial upon the payment of all cost, is manifestly to make the grant conditional, or dependent upon the payment.
In Stephenson et al. v. Mansony, 4 Ala. 317, it was held that the court trying the cause may annex, as a condition on which a new trial is granted, that the party asking for it pay costs, or that it be granted unless the plaintiff remit damages. The court in that case ordered upon a motion for a new trial, that “ the plaintiff is hereby required to remit the f1,000 damages assessed by the jury, or a new trial is granted by the court on the payment of all cost.” The cost having been paid in vacation, a short time after the adjournment of the court, at the second term thereafter the plaintiff moved to release the damages and to strike the cause from the docket, but the court held that the cost was paid in due time, and the failure to enter the release by the plaintiff had the effect when coupled with such payment by the defendant, to re-instate the cause. So in Reese v. Billing, 9 Ala. 265, an order was granted setting aside a nonsuit, “if the plaintiff pay the cost by the next term,” &c. This court said, that by setting aside the nonsuit on the terms indicated, the cause was necessarily continued until the succeeding court should declare by a definitive order, whether the costs were paid, and the condition of the cause. As to the right to continue such motions, see Walker v. Hale, 16 Ala. 26.
The effect of the subsequent judgment was merely to deter*146mine that the condition upon which the new trial was awarded had not been complied with, and to disallow the motion, thereby giving to the judgment previously rendered its full effect. In our opinion, the court committed no error for which the plaintiff in error can complain, and the judgment is consequently affirmed.