OCTOBER, 1816.

Garland

V.

Bugg.

Mr. Wickham's objection to the order of May 10th, 1809, that a fi. fa. was thereby awarded, while the distringas was in full force, is incorrect in point of fact. The distringas in this case had been executed merely as a distringas to compel the production of the specific thing, and was returned executed on the 11th of September, 1807. The return day of the writ had passed the return had been made the writ was out of the sheriff's hands it was functus officio; and there was no possibility of its being re-levied, without a trespass by the officer. It is true it was still operating on the property of the defendant; but that operation was removed by the order of the 23d of September, 1808; by which, and by its return-day having passed, it was annihilated. That it had been executed as a distringas merely to force the delivery of the slaves, is apparent from the language of the writ itself. (1.) When the last mentioned order came to act upon the distringas, it was not to change the purpose or effect of its past execution: that order professes no such thing; nor is any such power given to the Court by the act of Assembly: the language of both is future; the words used being “to be executed as to the alternative value."

The order of September 23d, 1808, had not itself the effect of an execution it merely authorized the levying an execution for a particular object. At the time of making the order, there was no execution out, on which it could operate. Its effect, therefore, was to remove the operation of the former, and to authorize the plaintiff to take out a new distringas, with the new object of the alternative value. But, until he should do so, this order of permission was a dead letter, not binding in any way the real property of the defendant. It does not appear that the plaintiff ever availed himself of this permission; and the Court will not presume it for the purpose of vitiating the order of May 10th, 1809. On the contrary, that order will be presumed to have been correct, until the contrary appears. When, therefore, the Court was moved for the writ of fi. fa. in May, 1809, it is not correct in point of fact that there was

(1) Note. The distringas issued in this case was to compel the production of the negro woman" of the price of $750, if she may be had, or the price aforesaid, if "she may not be had." And such appears to be the usual form of the writ of distringas but it seems that the sheriff is not authorized to determine that the slave cannot be had, and thereupon to receive the alternative value.

:

1816.

Garland

another execution of a different character in full operation. OCTOBER, There was at that time no execution out: the cause in the mean time had been carried up to the Court of Appeals after the return of the distringas; and it was on its return to the Court below, that the order of May, 1809, was made; as appears by that order itself.

The question is, whether, under these circumstances, the court erred in directing that the plaintiff might have either a ca. sa. or fi. fa., at option.

That order, I insist, was right both at common law and by statute.

1. At common law.

V.

Bugg.

The plaintiff is entitled to satisfaction of his judgment. True it is, he can have but one execution; but that must be an execution with satisfaction. Hence, if the defendant be taken on a ca. sa., it is held that this is no satisfaction, but a security merely; and if he die in prison, the plaintiff may have a fi. fa. against his goods, or an elegit against his lands. (a) The plain- (a) Blumfield's case, 5 Co. Rep. tiff may change his execution as often as he pleases, unless in 486, recognized the case of a valuable execution, on which there has not only in Taylor v. been a seizure, but a satisfaction. (b) But a distringas is not a Wash. 95. valuable execution: it is a mere measure of constraint: the Mercer, cited in (b) Dykes v. party is considered in contempt of the Court; and the rents, 2d Ld. Raym. 1072; Hayling issues and profits go to the King, or to the Commonwealth; v. Mullhall, 2 not to the plaintiff. (c) Bl. Rep. 1235; 1 Lilly's Abr.

Dundas, 1

57; 4 Com.

2. It is only in consequence of the statute 10 Geo. 3. ch. 5., 565; Hobart that the issues on the distringas are sold and applied to the Dig. 138; and plaintiff's demand; (d) a statute not in force in this country, 2 Mallory's Ent. and to which we have nothing analogous.

426. (c) 6 Com. Dig. 100-101-Title PROCESS. D 7.

If the distringas be not a valuable execution; there is no objection to its going at the same time with a valuable one. Like Gilbert's Law a ca. sa., it is a measure of constraint ;-a security merely; 27, 28, 30, 31. of Executions, and a ca. sa. and fi. fa. may issue together; (e) but both cannot ( 1 Sel. Pract. be executed :-if one be executed, the Court will quash the other (e) 4 Com. Dig. on motion. So, a distringas and writ of inquiry, or capias for damages, may be issued together. (ƒ.)

The doctrine laid down in 3 Bl. Com. 413, seems written di

rectly to fit this case. Mr. Wickham it is a mere dictum

says

230 -1.

138.

(f) Coke's Entries. DETINUE, pl. 1 p. 169. b. 71, accord't. ;Yelverton's Rep.

but Keilm. 64., the authority there referred to, fully supports the Rastall, 212– position of Blackstone; as also does 2 Mallory 426; and 8

213.

1816.

OCTOBER, Viner 40. pl. 15. But there can be no difficulty arising from the distringas and fi. fa. being both in operation at the same time; for a party, by suing out a second execution before the property taken on the first is sold, abandons the lien given to him by the first. (a)

Garland

v.

Bugg. (a) Echols v. Graham, 1 Call

492.

Friday, October 11th 1816, the President pronounced the 'Court's opinion, that there was no error in the said Judgment and Orders; all of which were therefore affirmed, with costs and damages for retarding the execution thereof.

Decided October 15th, 1816.

1. The condi

tion of a bond

Cooke against Graham's Administrator.

THIS was an action of debt on a bond, in behalf of Edward being" whereas Graham, administrator of William Graham deceased, against "the obligor "did lend to J. Stephen Cook in the Superior Court of Loudoun County.

"W $2500 of The declaration was, in the usual form, on a bond for five "the obligees

money, and thousand dollars, payable to the intestate in his life time."the said J. W. The defendant praying oyer of the condition of said bond, it "but before he was inserted in the record as follows:

"having failed,

failed paid

"$500, and

"said obligor

"Whereas the said Stephen Cooke did lend to Josiah Wat"whereas the <6 son, of the town of Alexandria, twenty-five hundred dollars “hath instituted" of the said William Graham's money; and the said Josiah "a suit against " said J. W. for "Watson having failed, but before he failed paid five hundred "the recovery" dollars; and whereas the said STEPHEN COOKE hath institut"6 of said mo"ed a suit against said Josiah Watson for the recovery of said "the said obli- « money; now the condition of the above obligation is such, 66 shall pay gor "the whole sum" that if the said Stephen Cooke shall well and truly pay the "so lent, if it 66 can be recov- "whole sum so lent, if it can be recovered from the said Jo"ered from the "siah Watson, or his endorser, or, in case it cannot be wholly " said J. W. or, "recovered, will lose the one half of that sum which cannot

66

ney; now, if

"in case it can"not be wholly "recovered, "will lose the one half of that sum which cannot be recovered, then the above obligation shall "be void, otherwise to remain in full force and virtue ;"-a plea stating" that he the said obligor "could not recover of J. W. or his endorser, the sum of money in the said condition mentioned, "or any part thereof, and that he paid to the obligee one half of the sum which could not be so "recovered, and the farther sum of five hundred dollars," is a good and sufficient plea in bar to an action upon the bond; without any farther averment that the said obligor had used due diligence in prosecuting the suit against J. W.; and without stating what measures be had taken to recover the money, or who the endorser was.

1816.

The defendant then

Cooke

V.

"be recovered, then the above obligation shall be void, other- OCTOBER, "wise to remain in full force and virtue." pleaded several pleas, among which it is sufficient to mention the second, the cause having been decided by this Court upon Graham's adthat plea only. It was in the following words :-" And the ministrator. "said Stephen, by leave of the Court, for farther plea, saith, "that the said plaintiff ought not to have or maintain his ac"tion aforesaid against him, because he saith, that he the "said Stephen could not recover of Josiah Watson, or his en"dorser, the sum of money in the condition of the said writing obligatory mentioned, or any part thereof; and the said Stephen farther saith, that he paid to the intestate of said plaintiff on the in the year

66

66

66

day of

one

half of the sum which could not be so recovered, and the far"ther sum of five hundred dollars: and this the said Stephen is "ready to verify."

To this plea the plaintiff filed a special demurrer, setting forth the following causes of demurrer :

"1st. Because the said defendant doth not set forth in his "said Plea, that any suit was brought and prosecuted by him "against the said Josiah Watson and his endorser.

"2. Because it does not appear by the said Plea that the "said defendant used all due diligence to secure and recover "the aforesaid sum of 2500 dollars of the said Josiah Watson, "or his endorser.

"3. Because the said defendant in his said Plea does not "shew that he used all legal ways and means to recover the "amount of the said 2500 dollars of the said Josiah Watson,

66

or of his endorser, or of the bail of the said Josiah Watson. "4. Because the said Plea does not state who the endorser "of the note of the said Josiah Watson for the said 2500 dol"lars was.

"5. Because the said defendant is bound to pay one half "of the sum that is not recovered of the said Josiah Watson, " or his endorser; and if the said defendant has recovered any part of the said 2500 dollars from the said Josiah Watson, or "his endorser, then he is bound to pay one half of the sum "not recovered to the said plaintiff as administrator aforesaid, " which one half is 1000 dollars,—and also bound to pay $500 "which he received.

ОСТОВЕЕ, 1816.

Cooke

V.

Graham's ad

ministrator.

"6. Because the said Plea is double and multifarious, in this "that it contains two distinct matters; to wit, that the de"fendant could not recover the 2500 dollars of Josiah Watson,

66

or his endorser, and that he had paid 1000 dollars, a part of "the said 2500 dollars, to the intestate of the plaintiff, which are allegations to which separate and distinct answers may "be made, and which therefore cannot be joined in one and "the same Plea.

"7. Because the said defendant in his said Plea does not "give any answer as to the sum of 500 dollars, stated in the "condition of the said bond to have been received by him of "the said Josiah Watson before the execution of the said “bond. (1)

"8. The said Plea and the matter therein contained is in"formal and insufficient in law."

The Superior Court of law adjudged this demurrer to be good, "because it was not alleged in the Plea that the defend"ant had used due diligence to recover the money from either "Watson or his endorser,or that he took any, and what "measures to recover the same."

After further proceedings on the other Pleas, a Judgment was rendered for the plaintiff, from which the defendant appealed to this Court.

Tuesday, October 15th 1816, the President pronounced the Court's opinion, " that the Appellant in his second Plea having pleaded that he could not recover from the said Josiah Wat"son in the condition of the bond mentioned, or his endorser, "the sum of money in the said condition also mentioned, or

any part thereof; and that he has paid to the Appellee's in"testate one half of what could not be recovered; (to wit, "one thousand dollars ;) as well as five hundred dollars, stat"ed to have been paid by the said Watson before he failed; "which averment is not only in the terms of the condition of "the bond, but also imports that due diligence had been used "by him to recover the same; and that averment not having "been controverted by the Appellee, but, on the contrary, ad"mitted by the demurrer; the said Plea, so confessed, forms

(1) Note. This allegation appears to have proceeded from a mistake of the plaintiff's Counsel.