
    Robert Anderson et al. vs. Uriah Tyson.
    In an action of replevin under the statute of 1842, a judgment in favor of the plaintiff for so much money, is erroneous ; it should be in the alternative, for the property, if to be had, if not, then for its value.
    The judgment in replevin, if in favor of the plaintiff, where the defendanthas elected to give bond and retain possession of the property, should be entered against both principal and surety in such bond.
    On appeal, from the Panola circuit court; Hon. James M.' Howrey, judge.
    Uriah Tyson filed in the clerk’s office, an affidavit that Robert Anderson and John Simmons wrongfully detained from his possession, five bales of cotton, to the possession of which he was legally entitled, and his right of action for which had accrued within a year.
    A writ of replevin issued upon this, and the property was Seized by the sheriff, but was restored to the .defendants upon their entering into bond according to the statute. After the mistrials the jury, on a third trial, found for the plaintiff Tyson, and assessed his damages at $106 80; "the judgment of the court was in accordance with the verdict; “ that the plaintiff recover of the defendant, the sum of $106 80, assessed by the jury, together with his costs.” From this judgment the defendants appealed.
    
      D. C. Glenn, for appellant.
    The error complained of in this case is very apparent; the writ of replevin was for five bales of cotton; defendants had levied upon this cotton with an attachment for rent; this writ was then sued out under, and in compliance with the late act of the legislature. Acts of 1842, 124. Upon issue joined, judgment went for the plaintiff, and was rendered for $106 80 damages. This was clearly erroneous; the act provides that when the property is left in possession of defendant, and plaintiff recovers, (as in this case) the judgment of the court shall be against the defendant and his securities, that they restore the property, or pay the value to the plaintiff, as assessed by the jury, and also damages as assessed for wrongful detention. Acts of 1842, ch. 15, sec. 5. According to the act, the judgment should be in the alternative, here it is single; by the act, it should be against defendant and his securities, here it is against him alone; by the act, it is required that the value of the property and also damages for the detention both be assessed, here a simple sum is assessed, it does not appear for what. In fact it is no judgment according to law.
   Per Curiam.

This was an action of replevin, brought by the defendant in error, for five bales of cotton. The jury found in his favor for the sum of $106 80. The property had been permitted to remain in the hands of the defendants below, on their giving bond. The jury should have found for the plaintiff, and assessed the value of the cotton, and the judgment should have been in the alternative against the principal surety for the cotton if to be had; if not, then for the value thereof. This is the direction of the act which gives the action of replevin. Acts of 1842,124, sec. 5. The judgment is for so much money, the defendant cannot therefore deliver the property in satisfaction.

Judgment reversed, and cause remanded.  