
    *Allen’s Ex’or v. Harlan’s Adm’r.
    February, 1835,
    Richmond.
    Detinue — When It Lies against Executor. — Detinue lies against an executor as such, if the goods demanded have come to his possession; otherwise, not.
    Same — Revival against Executor — Allegation of Possession — If in detinue, the defendant dies pending the action, it may he revived by sci. fa. against his executor, under the statute, 1 Rev. Code, ch. 128, § 38, if the goods demanded have come to the executor’s possession; otherwise, not; therefore, it must be suggested in the sci. fa. or alleged in a declaration thereupon, that the goods came to the executor’s possession, for if the executor’s possession be nowise alleged, there can be no recovery against him.
    Same — Form of Judgment against Executor. — Judgment in detinue against an executor as such, should be given against him, personally, for the goods by him detained, or the alternative value; but for all damages for detention, both in his testator’s time and his own, it should be against him de bonis testatoris. Sed Quere; see Catlett’s ex’or v. Russell, post.
    Detinue, in the circuit court of Surry, brought by Harlan’s administrator against Allen in his lifetime, to recover a parcel of carpenter’s tools. The declaration counted on a-bailment. Allen appeared, and pleaded non detinet; and'after issue joined, pending the action, Allen died. Whereupon, the plaintiff sued out a scire facias against Allen’s executor, reciting the action, the issue joined in Allen’s lifetime, and his death pending the action in that stage, and requiring the executor to shew cause, if any he could, why the action should not be proceeded in to final judgment, according to the statute in such case made and provided.  The scire facias did not allege or suggest, that the goods had come to the possession of the executor, nor was there any declaration filed upon the scire facias. The scire facias having been served on the executor, he appeared, and the cause was once continued upon nis motion. Without any new pleadings on either side, a jury was impanelled to try *the -issue joined (namely, the issue joined on the jalea of non detinet put in by Allen in his life" time, for there was none other), and the jury found that the defendant (that is, the executor of Allen) did detain the goods in the declaration mentioned, of the value of 300 dollars, and assessed the plaintiff’s damages for the detention to 13S dollars. Whereupon the court gave judgment, that the plaintiff should recover against the defendant the goods of the value of 300 dollars, if to be had, but if not, then the value thereof aforesaid, with his damages assessed as aforesaid, and his costs &c. And it was noted, that the parties agreed that the jury might find a general verdict as to the value of the tools, and waived all objection as to the form of the verdict. Allen’s executor applied to this court for a supersedeas to the judgment; which was allowed.
    Allison, for the plaintiff in error.
    Claiborne, for the defendant.
    
      
      Detinue — Revival against Executor — Allegation of Possession. — In support of the proposition that the scire facias in detinue should set forth the possession by the executor, see the principal case cited and approved in Catlett v. Russell, 6 Leigh 352, 357, 361, 362, 364, 375; Greenlee v. Bailey, 9 Leigh 527, 528, 529.
      See generally, monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
    
   TUCKER, P.

From the nature of the action of detinue, I think nothing can be more clear, than that it never can lie against a party who has never had the possession. Its object is to recover the identical property, which cannot be had from him who has it not. Hence the decision, that it will not lie against the executor of a bailee who has destroyed or converted the chattel; Bull. Ni. Pri. 50, and that where there are three executors, one of whom only has the property in possession, it will lie against him only. In short, it is an action given in respect to the supposed possession of the defendant, and therefore will not lie where he has never had it. In every as-spect, in which we can look at the action, this result is apparent. For, taking the doctrine of Burnley v. Lambert, 1 Wash. 308, as undeniable, — that detinue will lie against a part who has once had the possession, though he parted with it before the emanation *of the writ, because he cannot deprive the owner of an action which he once had; yet this is because he may be distrained by his goods and lands, until he regains the chattel and delivers it over in obedience to the exigency of the writ. Such a process may, indeed, be appropriate against one who, having once had the possession, has fraudulently eloigned it before action brought; but it would be unreasonable that the lands and goods of the executor himself, who never had possession, should be distrained for the omission to surrender what he had not; and it would be most mischievous, if the whole estate of the testator in the hands of the executor, should be sequestered, to the prejudice of all the creditors, and without benefit to the plaintiff in detinue; since the issues and profits cannot be appropriated to him, but must go to the commonwealth. But where the executor himself has the possession, the judgment is against him for the property, and the process of distringas properly issues against him, not against the testator’s estate.

On the first suggestion of the question, I was somewhat doubtful, whether the action of detinue (in which the testator might have waged his law, 3 Blacks. Comm. 152, 345), would lie against an executor upon the detention of his testator. It seems, however, unquestionable that it does; and, the declaration charges the finding or bailment and detention by the testator, and the subsequent possession and detention by the executor; and this last, as we have seen, is altogether essential. See Rastall’s Entries 210, 7 Wentw. 647, 648. But still it does not lie unless the executor has possession. 1 Wms. Saund. 216, note 1; Bro. Abr. Detinue, 19; 8 Vin. Abr. Detinue, D. pl. 1, 4; D. S, pl. 19; B. 2, pl. 1.

If then the action lies against the executor, it is susceptible of being revived under our statute, 1 Rev. Code, ch. 128, § 38. But it is obvious, that the scire facias to revive must set forth, by way ot suggestion at*least, the material allegation, that the property had come to the hands of the executor since the testator’s death. For otherwise, it does not appear that the action would have lain against the executor; and of course, it does not appear that it was susceptible of being revived against him. Where that is charged, the executor may plead non detinet, and if found for him the action is barred; but if found against him, the judgment must be for the thing, or its alternative value, against him personally, and for damages from the date of the detention by the testator, to the time of the verdict, to be recovered de bonis testa-toris. For though the profits since the testator’s death have been received by the executor, yet by pursuing the original action, instead of commencing a new one against the executor for his detention alone, the plaintiff shews his election to consider him as taking the profits qua executor, and he must take his judgment accordingly. If, indeed, he prefers, I have no doubt he may sue the executor in detinue, and recover damages for his detention, out of his own proper goods; since it is his own fault that he has detained the property of another, and it is no justification for his doing so, that he found the property among his testator’s effects, and held it only as executor. So too, if the property never came to the executor’s hands, the owner is not without his remedy, but may have it either by action of trover, if it was converted by the testator, or by action for money had and received if he had received it.

Such, I apprehend, are the principles applicable to this matter. In this case, those principles are disregarded, and the errors are gross and palpable. There is but one issue, and that is upon the detention of the testator. To that issue the jury has not responded at all, but has found that the executor detained; which it was not sworn to try, which was not in issue, and which indeed was not even charged any where in the pleadings. Upon this verdict, too, there is a judgment for the Mam-ages against the executor de bonis propriis, though it is fairly presumable, that a part of them accrued during his testator’s lifetime.

Iam of opinion, that the judgment should be reversed, and the verdict, and all the proceedings up to the scire facias, set aside. That scire facias, being irregular and defective, may then either be quashed on the plaintiff’s motion, and a new scire facias awarded; or he may file a declaration on the scire facias, containing the necessary suggestions; and if he fails to do either, this scire facias will be open to the demurrer of the defendant. And thus, in one or the other way, the case will be properly prepared for a final decision.

The other judges concurred. Judgment reversed &c.  