
    Cloud v. Catlett’s Ex’or.
    April, 1833.
    (Absent Brookjo. J.)
    Detinue — Special Bail — Recognizance —By recognizance of special bail in detinue, taken by a justice in the country, the bail is made to undertake, that in case the principal shall be cast, he shall restore the chattels sued for, or the alternative value thereof (without adding “as the court shall adjudge”), or pay and satisfy the condemnation of the court, or render his body in execution &c. or that the bail will do It for him: Hjotíd, this is a good recognizance of special bail, according to the statute 1 Rev. Code, ch. 128, § 53.
    Same — Same—Same—Scire Facias Thereon — What It Must Show,  — ln scire facias upon a recognizance of special ’bail in detinue, it is not necessary tliat tbe scire facias should shew, that the execution against the principal had been superseded for the specific thing and given for the alternative value, according to the statute 1 Rev. Code, ch. 134, § 46, and a scire facias omitting to state such matter, is good on general demurrer.
    Same — Same—What Necessary to Charge. — It is necessary to charge the special bail in detinue, that the execution against the principal should be superseded as to the specific thing and given for the alternative value, and that a ca. sa. should be sued out against the principal, without effect; but if these proceedings be omitted, it is matter of de-fence for the bail, of which he can avail himself only by plea; dissentiente Tucker, P.
    This was a scire facias, sued out by Cloud against the executor of Catlett, upon a recognizance of special bail entered into by Catlett in his lifetime, for one Lehew, in an action of detinue brought by Cloud against Lehew in the circuit court of Shenandoah.
    The scire facias — reciting that D. Cloud, at a circuit court held for the county of Shenandoah on the 27th April 1826, by the judgments of the court, had recovered against S. Lehew certain chattels [specifying them] of the aggregate *value of 7S0 dollars, if they might be had, if not, then the value of them aforesaid, and 14 ^dollars for his costs &c. whereof the said Lehew was convict as appeared of record, execution of which judgment still remained to be made ; and that, before M. E. a justice of the peace of Shenandoah, J. Catlett “personally appeared, and undertook for the said S. Rehew, that in case he should be cast in the said suit, he the said S. Rehew would restore the aforesaid property or the alternative value thereof, or pay and satisfy the condemnation of the court, or render his body in prison in execution for the same, or that he the said J. Cat-lett would do it for him,” as appeared by the recognizance filed in the said suit; and that the said Eehew had not restored the chattels aforesaid to the said Cloud, nor paid him the aforesaid value and costs, nor rendered his body to prison, nor the said J. Catlett for him ; and.that the said J. Cat-lett, since entering into the recognizance, had died, and A. Catlett was his executor— therefore, commanded the sheriff to make known to the executor, that he should be at the clerk’s office of the said circuit court, at the rules there to be held, on &c. to shew cause why Cloud should not have execution against the estate of the bail in the hands of his executor, of the said judgment, according to the form and effect of the recognizance &c.
    The defendant appeared and craved oyer of the recognizance in the scire facias mentioned ; which being read to him, he demurred, and the plaintiff joined in the demurrer ; the entry of the demurrer, and joinder in the record, being in these words— “And the said defendant demurs generally, in which the plaintiff joins.”
    The recognizance set out on oyer was as follows : “Memorandum, that upon the 17th May 1824, J. Catlett, of the county &c. personally appeared before me M. E. a justice of the peace &c. and undertook for S. Rehew, at the suit of D. Cloud, in an action of deti-nue now depending in the circuit court of Shenandoah for certain chattels [specifying them] of the [aggregate] value of 1300 dollars, that, in *case the said S. Rehew shall be cast in the said suit, he the said S. Rehew will restore the aforesaid property or the alternative value thereof, or pay and satisfy the condemnation of the court, or render his body in prison in execution for the same, or that he the said J. Cat-lett will do it for him” &c.
    The circuit court held, that the law upon the demurrer was for the defendant, and gave judgment for him; to which this court, on the petition of the plaintiff, allowed a supersedeas.
    Johnson, for the plaintiff in error.
    The demurrer, as here pleaded, is so loose and vague, that it is impossible to understand from it the issue of law it was intended to present; the circuit court ought not to have admitted it; and this court ought not to tolerate such an irregular practice. The appellee’s counsel will, doubtless, state the grounds, on which the judgment of the circuit court, that the plaintiff was not entitled to judgment upon his scire facias, is to be vindicated.
    Leigh, for the defendant in error.
    A general demurrer, in the most technical form, would have given precisely the same information as to the point of law, as this informal pleading gave, and no more : it would merely have' denied that the plaintiff was entitled, upon his own shewing, to recover ; and this was denied by this informal demurrer. The plaintiff joined in it, and his objection to it, now, in this court, for want of form, comes too late. The points of law presented by the demurrer, are obvious. The statute requires, that the recognizance of special bail in detinue, shall be so changed from the form of the recognizance in other actions, “ as to subject the bail to the restitution of the thing sued for, whether animate or inanimate, or the alternative value, as the court shall adjudge ; 1 Rev. Code, ch, 128, § S3, IOS, pp. SOI, 512. The recognizance here is faulty ; because after stating the alternatives which the bail undertook his principal should perform, or render his body in prison, it omitted to refer the duty of the bail to the judgment *of the court, as the statute requires. The recognizance is so framed as to bind the bail for the alternatives specified in the recognizance, not “as the court should adjudge,” but whether the court should adjudge or not. In the form of the recognizance of special bail in detinue, given in Hening’s Justice, p. 137, the undertaking of the bail is, that the principal shall restore the thing, or the alternative value thereof, “as the court shall adjudge, or that the bail shall do it for him.” (It ought to be, that the principal shall restore the thing, or the alternative value, as the court shall adjudge, or render his body in execution for the same, or that the bail shall do it for him.) This judgment ox the court is essential to ascertain the responsibility of the bail; as is apparent from the 46th section of the statute of executions, 1 Rev. Code, ch. 134, p. 541, which provides, that “ if a distringas issue in detinue, the court, for good cause shewn, may direct it to be superseded so far as relates to the sxxecific thing, and to be executed for the alternative price or value only, if fixed in the judgment, or if the same shall afterwards be fixed by writ of inquiry.” In truth, the body of the principal cannot be touched on a distringas ; it is not till that is superseded, and the judgment is thus made one for the alternative value, that a ca. sa. may be sued out upon it; and until that is done, therefore, the principal cannot render his body in execution, or the bail do it for him ; because the principal cannot, at his own pleasure, discharge himself of the duty of restoring the specific chattel recovered, nor is it in the power of the bail to exempt him from it. To fix the liability of the bail in det-inue, then, it is essential the court should adjudge, that the distringas be superseded for the specific thing, and thus make the judgment a mere judgment for the alternative value, like any other debt; a judgment on which a ca. sa. may be sued out; and then the ca. sa. must be sued out against the principal without effect, before a scire facias can be maintained against the bail. Special bail can never be charged, in any case, till a ca. sa. against the principal has been returned non est inventus ; 1 Bac *Abr. Bail in civil causes, I). 341, for the bail is not bound to render the principal, until he knows by the plaintiff’s suing out the writ of ca. sa. that he means to proceed against the person of defendant; 2 Wms. Saund. 72 a, in notes. Therefore, even supposing that the objection to the ■form of the recognizance, in this case, can be got over, the scire facias is fatally defective ; for it does not shew (what it is essential to the plaintiff’s right to recover, it should shew) that the distringas had been superseded for the specific thing, and the judgment made a mere judgment for the alternative value, so as to give the plaintiff a right to sue out a ca. sa. without which the bail cannot surrender the body •of the principal in discharge of his undertaking. The bail rightly demurred to the scire facias, because it did not shew any right in the plaintiff to proceed against him, much more any title to recover. It was not necessary to allege by plea, the omission of proceedings necessary to fix his liability, when the plaintiff did not allege that such proceedings had been had. It behooved the plaintiff to shew in his pleadings, a title to recover.
    Johnson, in reply.
    When the statute requires, that the recognizance of special bail in detinue, shall be so changed as to subject the bail to the restitution of the thing sued for, or the alternative value, as the court shall adjudge, it is obvious, that the judgment of the court intended by the provision, Is the judgment for the specific thing or the value, in the alternative, not the subsequent order superseding the distringas for the specific thing. The bail must, therefore, discharge himself, if the principal do not discharge him, by restoring the specific thing, or the alternative value ascertained by the judgment. But, admitting it to be necessary, that the court should supersede the distringas for the specific thing, and that a ca. sa. should be sued out against the principal without effect, in order to fix the liability of the bail, yet it is not necessary, that the scire facias against the bail should allege that such proceedings have been had. In cases of judgments for debt, the plaintiff *must sue out a ca. sa. against the principal, and that must be returned non est inventus, before he can maintain a scire facias against the bail ; and yet the scire facias never alleges that such proceedings have been had. If they have not been had, the bail must plead that matter in bar. He cannot demur to the scire facias, for the omission to allege the preliminary proceedings against the principal.
    
      
      Detinue. — On this subject, see monographic note on “Detinue and Replevin" appended to Hunt v. Martin, 8 Gratt. 578.
    
    
      
      Same — Special Bail — Recognizance—Scire Facias Thereon — What It Must Show. — In Catlett v. Russell
      
        6 Leigh 355, Carr, J., said: "I wish it distinctly understood, that I do not mean by anything said here, to detract from the case of Cloud v. Catlett's JSx'or, in the slightest degree. My best judgment approves that decision, as sound and clear law. That was a scire facias against bail, liable by his undertaking in the original action; and I think, that the scire facias was sufficiently full, and gave sufficient notice, that the distringas had been superseded, and the ca. sa issued. I consider the case before us, essentially different.”
      And, in the same case, Cabell, J., said: “The omission to state, even in a scire facias at common law, what is essential to the plaintiff’s recovery, is no cause of demurrer. Thus, in a scire facias against the executor of one who had been special bail in an action of .detinue, to show cause why the plaintiff should not have execution of the judgment, against the estate of the bail in the hands of the executor, it was not stated, either that the distringas for the specific thing had been superseded, or that a ca. sa. against the principal had been returned non est in-ventus. Nobody doubted that these things were essential to the plaintiff’s right to recover. But the court held, that the absence of them was not to be taken advantage of by demurrer, but must be shown by plea. Cloud v. Catlett's Ex'or. 4 Leigh 462.”
      In this case (Catlett v. Russell), Judge Tucker referred (p. 375) with approval to his opinion in the principal case.
    
   CARR, J.

This demurrer is so loosely pleaded, that I feel some unwillingness to tolerate it. It is, simply, that the defendant demurred generally, without saying whether to the scire facias or the recognizance of bail. It may be presumed that it is to the recognizance ; for, if the purpose were not to object to it, there could have been no reason for demanding oyer of it. Accordingly, the counsel in support of the demurrer, made his first attack upon the recognizance ; though he did also take the position, that the scire facias was defective in not stating that the distringas had been superseded for the specific thing, and the ca. sa. issued.

With respect to the recognizance, I cannot see any substantial defect in it. I have examined the subject with my best care, and looked into the scanty materials which the books furnish us on the subject of detinue, and the proceedings in it; but they give me no light. Our statutes must guide us, together with the reason of the case, and the analogies of the law. Iri actions of debt &c. where bail is required, the undertaking of bail is, that if the principal be cast, the principal will pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that the bail will do it for him. Upon this undertaking, the bail is never considered as fixed for the debt, unless the debtor has failed both to pay and to render his body ; and to prove that he has failed, there must be a ca. sa. issued without effect, before the scire facias can issue against the bail. In actions of detinue, the statute directs that the recognizance shall be so changed, as to subject the bail, to the ^restitution of the thing, or the alternative value, as the court may adjudge. With respect to these words, as the court may adjudge, it seems to me that they refer to the alternative value ; meaning, that the bail shall be subjected to the restitution of the specific thing, or the alternative value, as fixed in the judgment of the court. This idea is founded, in some degree, on a clause of the execution law, which being in pari materia, may be taken as a part of the same statute : “if a distringas issue in detinue, the court, for good cause shewn, may direct it tp be superseded, so far as it relates to the specific thing, and to be executed for the alternative price or value only, „if fixed in the judgment, or if the same shall afterwards be fixed by a writ of inquiry.” It strikes me, that the judgment of the court, in these two passages, relates to the same thing. By the words as the court may adjudge, the law cannot mean, that the bail shall restore the thing, or pay the value, as the court may adjudge that he shall do the one or the other ; for we know that the court has no such power. I do not, however, consider these words as having much bearing on the questions involved. The bail, in detinue, undertakes that the ' defendant shall restore the specific thing, or pay the condemnation of the court, or render his body to prison in execution for the same, or that he will do it for him. If the" principal does either of these things, the bail is discharged ; if he does neither, the bail is liable. Now, I think, that a careful examination of this recognizance will satisfy any one, that the bail is substantially bound, according to the requisitions of the law ; that the doing of either of these three things by the principal, will release him, and that he can only be rendered liable by his doing none of the three. Neither the alternative value, nor the render of the body, can be demanded till the distringas is superseded ; nor can there be a failure in the render, till a ca. sa. (as in all other cases) has issued ineffectually.

With some of my brethren, the chief difficulty in the case, seems to be the failure in the scire facias to allege, *that the court had superseded the distringas, and awarded the ca. sa. I cannot think this was necessary. To my mind the scire facias sets out the record of the judg'ment with sufficient fulness; and if the fact were, that there had been no su-persedeas of the distringas, and award of other executions, this should have been shewn by plea.

Examine the scire facias : — after stating the judgment with all its particulars, and undertaking of the bail, the writ states, that Lehew, the principal, had not restored the chattels to Cloud, the plaintiff, nor paid the alternative values thereof and the costs, nor surrendered his body to prison, nor Catlett for him. Are^not these allegations, in this, judicial writ, founded upon the express ground, that the supersedeas and ca. sa. have been awarded ? How could the principal be said to have failed to pay the condemnation, or deliver his body in execution, if there had been no ca. sa. ? and how could the bail be said to have forfeited his recognizance by not doing it for him, until a ca. sa. ? And when he is called on to shew cause why Cloud should not have execution against him of the judgment aforesaid according to the form and effect of the recognizance, can he fail to understand, that this, takes for granted the superseding the dis-tringas, and issuing the ca. sa. ? Is it not a fair call on him to plead the want of these prerequisites to charge him, if the fact would support him ? What is this superseding order of court ? ' Is it a judgment 7 surely not: such an idea supposes two judgments for the same thing in the same cause. For, in the original proceeding, the verdict was for the chattels if to be had, if not then their alternative valué ; and the judgment of the court followed it 'exactly. The order, then, was no judgment; there was nothing to be adjudged; but the court, upon the motion of the plaintiff, without notice even, being informed, that their process of dis-tringas was ineffectual, superseded it, and opened to the plaintiff the common law process of execution. Was this ever denied ? is it not a motion of course ? Hook at *the effect of the distringas : it commands the sheriff to distrain the defendant by his goods and chattels, lands and tenements, so that neither he nor any persons by his authority, may lay hands on them; and the sheriff takes house, lands, and goods, and receives the issues and profits, until the defendant produce the specific thing of the value of so much, or the value if the thing is not to be had; and when the defendant in contempt, stands out against the severe and rigorous process, and frustrates the judgment of the court, and the justice of the case, can it be supposed, that the court would hesitate, at the motion of the plaintiff, whose sole concern it is, to-award him the other executions, which issue in the commonest cases ? Assuredly, not. As far as my experience goes, the plaintiff in such case has only to shew, that the dis-tringas has been ineffectual, and that he wishes it superseded ; it is done of course. And why need this be stated in the scire facias, more than any other motion made in a cause ? Why more than to state in every scire facias against bail, that a ca. sa. has issued ? In no case, can you come upon the bail by scire facias, unless you have issued a ca. sa. without effect, by which the bail has had notice, that the body is demanded. And if you omit this, the bail may defeat the scire facias, but not by demurrer. Thus in Williams v. Vaughan, Cro. Jac. 97, Moor 775, Williams brought scire facias against Vaughan, who -was bail for Gouch, in debt; and set forth the judgment, and that Gouch had not rendered his body, nor paid the condemnation ; Vaughan demurred, because it was not alleged that a ca. sa. issued first against the principal ; sed non allocatur. And I rather think, that, since that time, it has not been attempted, at least I have met with no later attempt.

I think the scire facias good, and am for reversing the judgment, and awarding execution for the alternative value.

CABELL,, J., concurred.

*TUCKER, P.

I do not think there is any defect in the recognizance; but I am of opinion that the scire facias is defective.

It seems to be agreed, on all hands, that the bail is only to be responsible upon the failure of the principal to perform the whole of the alternatives mentioned in the recognizance. One of them is to render his body to prison in execution for the alternative value, not for the specific thing, for that is only to be obtained by distringas. The failure to perform this requisition, can only be ascertained by the return of a ca. sa. non est inventus, as some of the books say; or, as it is said in others, the issue and return is necessary to notify the bail that the plaintiff designs to proceed against him; but all agree that the ca. sa. is essential to sustain the scire •facias.

In setting forth his rignt of action in the scire facias, the plaintiff must, as in every other case, shew his title to a judgment. It is true, that in the scire facias it is not necessary to set forth the issue and return of the ca. sa. for the want of it is a matter that must come out in the defendant’s plea. Yet the scire facias must, in every case, shew a title to the thing for which the plaintiff demands judgment, even supposing a ca. sa. has properly issued. In the action of debt, he shews a judgment for a sum certain, and he demands a judgment against the bail for that sum, which the bail was bound to pay him. But in detinue, the judgment is for the property, not for the price. From an examination of the old books of entries, T find, that the judgment, when by default or on demurrer, was formerly entered in the first instance, for the specific thing; and upon the return that it could not be had, but not till then, a writ of inquiry of the value was awarded, and a second judgment was entered for the alternative value. Coke’s Entries 169b ; 3 Blacks. Com. 413. This may possibly have given rise to the phrase in our statute, “as the court shall adjudge,” so much commented on at the bar. But where an issue is made up between the parties, the jury who try the issue, find *the value, and judgment is entered for the specific thing or for the alternative value if it cannot be had. Upon this judgment a dis-tringas issues, and upon that distringas, the sheriff is only entitled to receive the specific thing. He cannot receive the alternative value though tendered by the defendant, without a previous direction of the court that the distringas shall be superseded for the specific thing. Nor can the plaintiff direct him to levy for the alternative value, without a like direction. Neither party, therefore, can change the character of the jttdgment without the order or judgment of the court. This order, superseding the distringas for the specific thing, and directing it to be executed for the alternative value, is in strict analogy to the second jttdgment I have mentioned. And the provision requiring an order of the court for the conversion of the judgment for the specific thing into a judgment for the value — in other words, converting the action, in effect, from detinue to trover — is most wisely given. For the propriety of superseding the distringas for the specific thing, may depend upon various circumstances. One effect of the order is to change the property; to vest the specific thing in the defendant, and a right to its value in the plaintiff. Now, if the property is eloigned, or has been sold by the defendant, the order is most proper. But, if the slave be dead since the judgment, there would seem to be little reason in compelling the defendant to pay the value: certain it is, this court has been divided on the question on whom the loss would fall, in case of death of the slave before verdict; Austin’s ex’or v. Jones, Gilm. 341. Be this as it. may, it would certainly be inconsistent with every received principle to permit the defendant to keep the property against the will of the plaintiff, if the value found by the jury was inadequate, or to permit the plaintiff to waive the claim to the property itself, and take the alternative value, if that value was enhanced. Until such an order of court can be shewn, the plaintiff should not have, and certainly has not, any money demand against the defendant.

*Now, it seems to me, that as the scire facias calls upon the bail to shew cause why judgment shall not be rendered against him, which judgment can only be for money, it should appear on the face of the process itself, that an order had been made superseding the distringas for the specific thing, and directing it to be executed for the alternative value only. For how, in case of default, can the court see a justification for a judgment for the value? Or how, if this demurrer were overruled, can this court see that the plaintiff is entitled to judgment for it? It may be said, that as there is no defence, it will be implied, in like manner, as the issue and return of the ca. sa. will, in such case, be implied. But to this the answer is obvious ; that though the court may well imply an act of the party, namely, the issuing of the ca. sa. it cannot properly imply an act of the court. It could not, for instance, imply the original judgment of the court. The party must shew that judgment, as the foundation of his demand. But the order to supersede the distringas, is itself a judgment. It is the decision of the court upon a judicial question submitted to it, which, as has been shewn, completely changes the rights of the parties. Again; though the court, upon default of the defendant, may imply, and does imply, the act of issuing a ca. sa. yet I do not think the right to issue it can be left to implication. The scire facias must shew a right to take the bodj', before the bail can be charged for an omission to render it in execution : for, although the undertaking is that the defendant shall do some one or other of several things, yet, after all, the bail cannot be responsible until there has been a failure in all, and the last of them is the surrender of the body.

I have diligently searched the books of entries for the forms of scire facias against bail in detinue, but in vain. I have not been fortunate enough to find even a recognizance of bail in that action. I have been, therefore, compelled to examine the question upon the reason of the thing and the analogies of the law; and upon this examination I am satisfied, *that the scire facias is defective, and that the judgment should be affirmed.

Judgment reversed, and judgment entered for the appellant. 
      
      Note by the president. I think, that after the recital of the original judgment, concluding thus, “whereof the said S. Lehew was convict as appears of record,” the scire facias should have proceeded to recite something after this form — “And whereas afterwards, to wit, on the-day of-, at a circuit court continued and held for the said county, it was by the judgment of the said court, on the motion of the said D. Cloud, ordered that the distringas be superseded as to the specific thing recovered by the said judgment, and that the same be executed for the alternative price or value; and whereas, after-wards, to wit, on the-day of-, at a circuit court continued and held for the said county, it appearing to the court, that the distringas theretofore awarded the plaintiff was unavailing, upon the motion of the plaintiff, it was ordered, that he have execution against the said S. Lehew, as well for the alternative value of the said property as for his damages and costs adjudged to him as aforesaid.”
     