
    *Withers’s Executrix v. Withers’s Executor.
    Decided Oct. 22, 1817.
    1. Detinue — Judgment-New Action. — After a judgment In detinue, a new action of detinue against the same defendant for the same thing, in which . the former judgment is not declared upon, hut is only relied on as evidence of title, cannot be maintained.
    2. Same — Same—Action on. — Quaere, whether any action other than a scire facias, can be maintained upon a judgment in detinue!
    In March 1814, William Withers, surviving executor of Thomas Withers deceased, brought an action of detinue, for a slave, in the Superior Court of Fauquier County, against Janet Withers executrix of Enoch R. Withers; the declaration being in the common form, but charging the detention by the testator, as well as by the defendant. Plea non detinet. Verdict for plaintiff for the slave, of $100 value, and $836 damages for detention ; subject to the opinion of the Court on a demurrer to evidence, which set forth, (among other matters,) 1. the record of an action of detinue for the same slave, brought in the County Court of Fauquier by Thomas Withers, in which he recovered judgment against Enoch R. Withers, (in August 1794,) for the slave, of 1001. value, and 361. damages:— 2. the record of a suit in the same County Court in Chancery, wherein Enoch R. Withers was plaintiff, alleging in his bill, that the said slave had been given to him by Thomas Withers (who was his father,) and that the trial of the action of detinue was had in the absence of his witnesses, so that he was unable to make defence at law; and therefore praying an injunction, which was granted: — the said record shewing, also, that the suit abated in March 1795, by the death of Thomas Withers, and was revived against his executors; after which, (in the year 1796), the complainant took three depositions, proving the gift ailedged in the bill; — an answer was filed by the executors, in 1809, denying the complainant’s allegations; and, in 1813, the suit abated by his death: — ■
    3. proof of the identity of the slave; of his being in the possession of Enoch R. Withers and of his executrix, ever since the judgment was obtained ; — of the death of Thomas Withers, December 14th, 1794; and of the qualification of his executors, January 26th, 1795.
    On this demurrer to evidence, the Superior Court gave judgment for the plaintiff, to which the Court of Appeals granted a Supersedeas.
    Call for the plaintiff in error.
    The judgment now in question can not be supported. — It is a subsequent judgment *in detinue for the same slave, for whom a prior judgment had been obtained. A new action of detinue ought not to have been brought, but a scire facias.
    Eeigh contra.
    The plaintiff’s title is never set forth in the declaration in det-inue. If the title be by a Judgment, the plaintiff may recover upon that title, by giving the judgment in evidence, as he might a bill of sale. — A scire facias would not have been a complete remedy: — it would not have given the intermediate damages, for detention of the slave, subsequent to the judgment whi e the suit in Chancery was pending.
    Call in reply.
    The form of the declaration in detinue is, in general, such as Mr. Eeigh states; but where detinue is brought on a Judgment, it is necessary to set it forth particularly, to prevent the defendant from being harrassed twice for the same thing.
    The plaintiff can get no better remedy by action of detinue, than he might by scire facias. — According to the principle of Mr. Eeigh’s argument, a plaintiff, having obtained a Judgment in indebitatus assumpsit, might bring the same action again, and give the judgment in evidence.
    The doctrine is laid down in Murrell v. Johnson’s adra’r, 1 H. & M. 450, that, while a judgment in detinue for a slave remains unsatisfied, the plaintiff .can not bring another action of detinue, against a third person, for the same slave.
    Eeigh. The marginal note to the case of Murrell v. Johnson’s adm’r, is not justified by the decision of the Court. 
    
    
      
       See monographic no(,(■ on "Detinue and Replevin" appended to Hunt v. Martin. 8 G-ratt. 578; mono-graphic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Note. It is true that the point was not involved in the decision of that case; hut this Court expressed it’s disapprobation of the instruction given to the Jury by the District Court; which instruction was, that a recovery of the slave might be liad in such subsequent action, unless the defendant to such action could prove payment of the value of the slave, by the original defendant, to the plaintiff. — If the converse of this proposition, viz. that such recovery cannot be had against a third person, while the judgment against the original defendant remains unsatisfied, be incorrect, quiere, under what circumstances could such recovery be had r - Note in Original Edition.
    
   JUDGE ROANE

pronounced the Court’s opinion.

The Court, (not deciding whether an action, other than a scire facias, can be maintained on a judgment in detinue, *or not,) is of opinion, that the present action is not brought upon the judgment, but is a new action of detinue, in which the former judgment is not declared upon, but is only relied upon as evidence of title, and not as fixing the value and damages, as to which, this action is in the nature of a new trial, in a case in which there has already been a judgment. —The judgment is therefore reversed with costs; and judgment is to be entered for the appellant.  