
    Solomon Tifft and William Clark vs. Alexander Virden.
    The proceeding by motion for an award of execution on a replevin bond after a distress for rent, is a summary remedy, and must therefore conform to the statute in all material respects.
    The bond is the foundation of the jurisdiction of the court; therefore it must appear upon the record that the bond had been lodged in the office of the clerk of the court, or the court has no power to award an execution.
    If the record shows that the bond was lost before it was ever lodged in the proper office, the court cannot take jurisdiction of the case.
    ERROR from the circuit court of Hinds county; Hon. John H. Rollins, judge.
    It appears from the record, that on the 17th day of June, 1844, Alexander Yirden gave notice to Solomon Tifft and William Clark, that he would, on the 29th day of June, 1844, move for judgment against them in the circuit court of Hinds county, on a bond made by them and payable to him in the penalty of two hundred and seventy-five dollars, dated the .30th day of December, 1843, conditioned to pay him at the end of three months from the date thereof, one hundred and twelve dollars and fifty cents, rent in arrear and unpaid. The notice stated that the bond had been lost, and an affidavit of that fact had been filed in said court. The affidavit states the proceeding by distress for rent due by Tifft to Yirden, the execution of the bond by Tifft and Clark, the return of the bond to the office of the justice who issued the distress warrant, and the subsequent loss of the bond, warrant, and all the other papers in the case. When the motion was called for hearing, Tifft and Clark insisted on their being permitted to contest the law and facts arising in the cause without pleading in writing; the court refused to permit them to do so, and they filed a bill of exceptions. They then demurred, and assigned as causes of demurrer, — “ 1. That there is no sufficient showing that the bond is lost, and could not be produced. 2. This motion cannot be maintained on a lost bond; the lodging of the bond is indispensable to give the court jurisdiction to proceed by motion under the statute.” The court overruled the demurrer, and a jury was empanelled and sworn to “ inquire whether said defendants made and delivered the bond in the plaintiffs’ motion mentioned, and whether, if the same was made, it has at any time since the delivery thereof been paid or otherwise discharged,” — who found that “the defendants did make and deliver the bond in the plaintiffs’ motion mentioned, and that since the making and delivery thereof it has not been paid nor discharged.” The court thereupon rendered judgment in favor of Virden, for one hundred and twelve dollars and fifty cents debt, and three dollars and fifty-four cents damages. To reverse which judgment the defendants have brought the case to this court by writ of error.
    
      D. Mayes, for plaintiffs in error.
    The 1st section of the act for the better securing the payment of rent, (Revised Code, 168,) provides that the distress-warrant shall issue by a justice of the peace “of the county where the lands and tenements leased are situated.”
    The 2d section directs the manner in which goods distrained may be replevied.
    The 3d section provides, that “ if the money shall not be paid, according to the condition of such bond, it shall be lawful, and full power and authority are hereby given to the court having jurisdiction of the amount of such bond, where the same shall be lodged upon motion of the party to whom the saméis payable, to award execution thereupon with costs;” provides for ten days’ notice, that the officer shall take no surety, and that execution be so indorsed.
    The notice and the bond on which motion was made, properly constitute part of the record without bill of exceptions. Tooley et al. v. Culbertson, 5 How. 272. The notice states that the bond'was lost, and therefore was a notice for a motion on a lost bond, and not on bond filed. It informs the parties, that affidavit was filed of the loss of the bond. The affidavit therefore was, as appears from the notice, the foundation of the motion, and not a bond filed. The record is certified by the clerk to be “full, complete and perfect,” yet there is no bond in it; therefore no bond was filed. The question then fairly arises, can the circuit court entertain this proceeding by motion, ascertain the bond by a jury, and enforce payment by a judgment, quod recuperit, when the statute under which the proceeding is had, provides that the bond be filed and that the court “ may award execution thereon.” The bond under the statute is in lieit of a judgment, and upon that the court may award execution as a court in a proceeding by sci. fa. awards execution upon a judgment when revivor is necessary.
    
      “ A proceeding by motion is summary, and in derogation of the comman law, and can never be indulged unless it be authorized by the express letter or manifest intention of some statutory enactment.” Doioning v. Dean's executors, 3 J. J. Mar. 378; Wood v. Sayre, 7 Monroe, 663. Does the statute give, by manifest intention, a remedy on lost bond by motion, or authorize a judgment quod recuperit, or give authority of any kind save to award execution on a bond filed 1 It is a rule, “ that upon a new statute, which prescribes a particular remedy, no remedy can be taken, but the particular remedy prescribed by the statute.” 2 Burrow, 1157. Therefore if a statute gives a particular remedy under particular .circumstances, it can only be adopted when the particular circumstances exist. It is contended by the counsel for Virden, that his affidavit constitutes no part of the record. I contend for the same.
    The bond, to be valid as a statutory bond, so as to authorize this proceeding on it, should conform to the requisitions of the statute. This is conformable to principle, and embraced in Cornell v. Rulan, 3 How. R. 54.
    The bond recited in the notice and motion does not conform to the statute.
    1. It does not “ mention that the same was entered into for goods or other estate distrained for rent, and restored to the debtor.” Rev. Code, 169.
    2. It does not appear that it was “ given to the sheriff or officer serving such distress.” Ib.
    It may have been by the party himself that the bond was taken, and the statute only authorizes the award of execution on a bond given to the officer. It must be by reason of the official character of the person taking the bond, that it has the effect of a judgment.
    The statute does not require pleadings in writing. The court would not permit objection in point of law to notice, &c. without demurrer.
    The defendant’s counsel contends in the court below, that we ■cannot object without demurrer, and that court sustains him. Here it is by him contended, that we cannot demur. We ■thought so then, and could only,fail because the notice, &c. was considered part of the pleadings. If we were right then, the court erred in requiring us to demur. If we were wrong, then the court erred in overruling the demurrer, for the notice does not even charge the nonpayment of the money, or any essential fact in the case. The motion was no part of the pleadings, they were ore terms, or in writing. If the former, not the subject of demurrer; if the latter, there was nothing in the nature of pleading but the notice, which was insufficient.
    The jury were sworn “the truth to speak upon the issue joined,” and there was no issue joined. This has been repeatedly decided by this court to be error.
    The jury find, “ that the defendants did make and deliver the bond in the plaintiff’s motion mentioned.” The bond in the motion mentioned does not conform to the statute.
    
      D. Shelton, for defendant in error.
    The only matters urged by the plaintiffs in error are the two ■questions raised by the demurrer. The demurrer is to the notice, affidavit, and motion. A demurrer cannot lie to the notice, ■because it is no part of the pleadings and because the demurrer as itself an appearance, and therefore is itself a waiver of notice. It cannot lie to the affidavit, because that is no part of the pleadings nor of the record. The fact that it was lodged or filed with the papers in the cause, did not make it part of the record. If used at all in the cause it was part of the proof to the court, made necessary by law, before secondary evidence of the existence and loss of the bond described in the motion could be given. It was no more part of the record than the affidavit of a lost note would be in an action of assumpsit on the note. The demurrer, therefore, can apply only to the motion.
    
    The causes of demurrer are, 1st. There is not sufficient showing that the bond is lost, and could not be produced. 2d. The motion cannot be maintained on a lost bond.
    Now both these causes of demurrer to the motion are predicated upon the fact that the bond was lost and would not be lodged in the court. No such fact appears upon the motion ; it is upon the bond itself, before its loss, if it was ever lost before the trial; and upon the hearing of the demurrer to the motion, the court could not anticipate what evidence could be introduced upon the trial of the cause.
    But it may be urged, that the court below had no jurisdiction of the cause, and that therefore this court must reverse the judgment and dismiss the cause for want of jurisdiction in the court below.
    There is nothing in the record to show that the judgment was not rendered upon the bond filed. The contrary appears in but two places in the transcript filed : in the demurrer of the defendants below, and in the affidavit aforesaid. But I have already shown, that the demurrer was bad, because the pleadings (or motion) did not show the fact relied on in the demurrer, to wit, the loss of the bond. Therefore the demurrer being bad for that reason, is no evidence to this court of the loss of the bond. I have also shown that the affidavit is no part of the record, and therefore this court cannot notice it.
    The case, therefore, so far as it appears of record, is motion for judgment upon the bond, and a judgment for plaintiff on that motion. What secondary evidence was introduced for plaintiff on trial of that motion, this court cannot know. Tifft and Clark might have informed this court by their bill of exceptions embodying said evidence, but they did not, and this court must presume in favor of the correctness of the judgment below; that is, if to sustain the judgment it is necessary to presume that the bond was the evidence in the court below, this court must presume that the bond was introduced, there being nothing upon the record to show the contrary.
    But if I were to admit that the proceeding was upon a bond that was lost, and that the demurrer could apply for that reason, still it could not be sustained.
    The first ground of demurrer could not be sustained, because that objection is made upon the hypothesis, that the affidavit is Yirden’s only proof, preparatory to introducing secondary evidence of the contents of the lost instrument. Such was not the case and such is not the conclusion from the record. It is the reverse, for the presumptions are in favor of the correctness of the judgment below, and there being no bill of exceptions taken at the trial, there is nothing upon the record to show what evidence was introduced, on the trial, or whether that affidavit even constituted a part of it. The bond itself may have been found and read for aught that this court can know. The affidavit was filed several days before the trial.
    The second ground of demurrer is improperly stated as a question of jurisdiction. It is in fact a question of practice; the only question is whether, after the loss, the landlord was compelled to sue in debt on the bond, or make his motion for judgment; in either case the circuit court had jurisdiction. It is like the question whether, upon a particular sealed instrument, covenant or debt should be brought. But on the question of practice the case must be reversed if a wrong remedy was selected, provided the other party can establish, by the record, that it was a wrong remedy; but to do that, unless it is shown by the pleadings (motion in this case,) he must by his bill of exceptions exhibit the evidence on the trial in the court below, which is not done in this case. This court must therefore presume that proper evidence to sustain the motion was introduced below. Moreover the loss of an instrument never changes the remedy, except where it changes the jurisdiction from law into equity, as in cases of notes payable or indorsed to bearer, and negotiated before they become due, which change is made only because chancery alone can secure indemnity to the defendants; but where the jurisdiction remains in a court of law the remedy is not changed. The action, the proceedings, the judgment, is as much upon the instrument lost as if it were in court, the only change is as to the mode of proving the instrument sued on. The same facts are proved, but they are proved by secondary evidence, because it is out of the power of the party to produce the best evidence.
    The argument predicated upon the language of the statute has but little force. The terms “ where the same shall be lodged,” are directory as to practice, and establish a very salutary one, but it does not destroy the remedy if it is impossible to file the bond, and a proper showing of that fact is made; had such been the object of the law, the language would have been that no motion should be maintained unless the bond be so lodged. As such directory clause it is a useful provision, because it requires the plaintiff to put upon the file evidence that will enable the defendant to plead that motion, in bar of a future suit upon the bond ; that was the object of the clause. The same end is effected by the affidavit describing the bond, and thereby creating the same bar to a future suit. The section bears this construction upon its face. Such is its policy, and the statute being remedial, is entitled to a more liberal construction than that contended for by the plaintiffs in error.
   Mr. Justice Clayton

delivered the opinion of the court.

Judgment upon motion, for rent secured by replevin bond after distress. The notice states the bond to be lost; there is none in the record. There was a demurrer to the proceeding, in which the jurisdiction of the court is brought into question.

This is a proceeding under the statute, summary in its character. It must therefore conform to the statute in all material respects. The foundation of the jurisdiction of the court is the bond; without it no judgment could be given. If the bond had been once lodged in the office, in the terms of the statute, and subsequently lost, that might possibly be sufficient. But that does not appear in this case.

Enough must appear upon the record, to show that the court had jurisdiction. The awarding of the execution is only authorized by the bond, it is the groundwork of the whole proceeding. It must be lodged in the office, to give the court power to act. H. & H. 559, sect. 48; The technical objections of the defendant in error will not avail him, because he has not put any case in court, so far as the record exhibits. He has not shown the existence of facts necessary to confer jurisdiction.

The judgment must therefore be reversed.  