COLLIER, C. J.
— The assignment of errors lead us to consider—
First — The regularity, in point of law, of the verdict and judgment against William J. Bettis, as rendered upon the trial of the right of property. -: -
Second — Whethér William J. Bettis, was legally a party to the proceeding in the Circuit court.
Third — The correctness of the several decisions of the judge of the Circuit court, pending the trial before the jury. . . '
First — The plaintiff, in the first place, objects to the judgment of the Circuit court, because the jury find ten per cent damages on the amount of the execution,- in favor of the defendant in error, without declaring by their verdict, that the. claim of property was interposed “ for purposes of vexation or delay.” The section of the statute wliich confers the right to impose damages, in such a case, is as follows: “In all trials of the right of property, as aforesaid, when the jury may be of opinion [572]*572that the claim was made to said property for purposes of vexation or delay, they shall have power to give such damages as the case may require, not exceeding fifteen per cent on the amount of the execution.”
It is a clear rule, that a statute imposing a penalty, must be strictly construed, and closely followed in its application. The court cannot lessen or increase the penalty, and if the form of procedure, — the measure or description of proof, are prescribed,- — they must be regarded, or the statute itself cannot be allowed to operate —(Broadwell vs. Conger, 1 Penning. R. 210; Fairbanks vs. Antrim, 2 N. Hamp. R. 105.) How, the act no where requires that the jury, in -giving damages, shall express, by their verdict, the causes which influenced them; but it declares the only causes that could authorise such verdict, and, guided by reason, we are bound to suppose, that they did not usurp a right, but honestly, entertained the opinion, that the claim to the property in controversy was made “ for purposes of vexation or delay.”
But it- is insisted for the plaintiff, that the case'of Logwood vs. the Huntsville Bank, (Ala. Rep. 23,) and the subsequent cases in this court recognising it, are authorities, to shew the judgment in the case at bar to be erroneous. The case mentioned, was a proceeding by notice and motion, under the charter creating the bank; and the court only .decide, that a party, pursuing a summary remedy given by statute, must conform strictly to the terms of the act, and the conformity must be shown by the record. That case, it may be remarked, was a judgment by default: had it been submitted to the jury on an issue, several facts, supposed to he essential, would [573]*573either have been intended to exist, or else have been considered as waived, and the record then need only have shown such a compliance with the statute, as was necessary to give the court jurisdiction. The dissimilarity of the two cases is strikingly apparentin that cited, the record did not discover that the court had jurisdiction of the proceeding — in the case at bar, the fight of the court to hear and determine the case, was undeniable. Again : the one is a case strlcli juris, while the other is governed by move liberal rales.
We have shown that penal statutes are subject to a strict construction, yet the application of the rule will not sustain the objection. On trials at the Circuit, the judge informs the jury, that if, in their opinion, the claim of property was made for purposes of vexation or delay, they are authorised to give such damages as they may think proper, not exceeding fifteen per cent on the amount of the execution. When the jury return to the court their verdict, by which they assess damages, not exceeding the maximum authorised, they declare what, in their opinion, is the appropriate measure. More than this surely cannot be necessary, in order to legalise their action. •
In Rountree vs. Smith, (1 Stew. R. 157,) it was held in an action against a sheriff for the escape of a debtor, that the jury should expressly find, that such debtor or prisoner did escape with the consent, or through the ne-gligence of the sheriff, or that such prisoner might have been re-taken, and the sheriff and his officers neglected to make immediate pursuit. Tins case, however, bears no analogy to.the one at bar, for the statute, in totidam verbis, requires such to be the expressed finding of the jury.
[574]*574It is further objected, that the judgment is irregular, in-being rendered against William J. Bettis, in his individual capacity, for damages and costs, instead of directing the amount to be levied Be bonis iniostulis. Our statutes no where, in express terms, authorise the claim of property levied on, to'be made by an executor or administrator, so that the question of the personal liability of the claimant, must be determined by a reference to the fitness-of the thing, and the analogies of the law. It cannot be denied, even if an administrator incurs a personal responsibility, according to the stipulations of his bond, that he may make good the issue on'his part, by showing title in bis Intestate-(Mansell vs. Israel, 3 Bibb’s Rep. 510.)
To test the question by analogy,--suppose an administrator to detain, in that character, the possession of personal property, to which another person had a paramount title. The true ov/ncr is not forced to the necessity o'f asserting his right to the iking against him in iris fiduciary character, but mny charge him ¡iorsonaily, upon "the’ ground of his possession- And in this there is no hardship,, for the administrator may retain possession, to enable him, if a recovery is hud against him, to restore the property to its rightful owner.
In respect to the damages for a detention, in legal contemplation, the use of the thing would afford an adequate indemnification, and if the question of titie Was litigated in-good faith, to protect the rights supposed to pertain to the.intestate’s estate, the administrator, ího'ughprímarily liable, might look to that source for reimbursement
If the law were.otherwise, it would frequently operate [575]*575injuriously to the true owner of properly. Was the administrator only chargeable in his representative character, the estate'of the intestate co.ukl alone be resorted to, and if the property was disposed of in the course of administration, before the determination of the suit against the administrator, co that if could not be reached, the owner would be referred to the estate of the intestate, and if that were insolvent, he would come in as other creditors. But the insolvency of the administrator, when charged in his own right, cannot work a loss to the owner, as the law authorises the delivery of property to the plaintiff, immediately on commencing his suit,’ upon his indemnifying, by bond and- surety, the defendant; unless the defendant himself will execute a bond, with surety, to have the property forthcoming, to satisfy such recovery as may be- had against him.
The rule, that he who has the possession of property, which he detains against the rightful owner, is liable to an action, — is so strict, that it has been holdcn; where there are several executors, and one only has the possession, he alone must be sued-(2 Starkie’s Evi. 494; 1 Saund. on Pl. & Evi. 436.) And a defendant will not be allowed to give in evidence, in tli'e action of detinue, (as he may in trozar,)
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COLLIER, C. J.
— The assignment of errors lead us to consider—
First — The regularity, in point of law, of the verdict and judgment against William J. Bettis, as rendered upon the trial of the right of property. -: -
Second — Whethér William J. Bettis, was legally a party to the proceeding in the Circuit court.
Third — The correctness of the several decisions of the judge of the Circuit court, pending the trial before the jury. . . '
First — The plaintiff, in the first place, objects to the judgment of the Circuit court, because the jury find ten per cent damages on the amount of the execution,- in favor of the defendant in error, without declaring by their verdict, that the. claim of property was interposed “ for purposes of vexation or delay.” The section of the statute wliich confers the right to impose damages, in such a case, is as follows: “In all trials of the right of property, as aforesaid, when the jury may be of opinion [572]*572that the claim was made to said property for purposes of vexation or delay, they shall have power to give such damages as the case may require, not exceeding fifteen per cent on the amount of the execution.”
It is a clear rule, that a statute imposing a penalty, must be strictly construed, and closely followed in its application. The court cannot lessen or increase the penalty, and if the form of procedure, — the measure or description of proof, are prescribed,- — they must be regarded, or the statute itself cannot be allowed to operate —(Broadwell vs. Conger, 1 Penning. R. 210; Fairbanks vs. Antrim, 2 N. Hamp. R. 105.) How, the act no where requires that the jury, in -giving damages, shall express, by their verdict, the causes which influenced them; but it declares the only causes that could authorise such verdict, and, guided by reason, we are bound to suppose, that they did not usurp a right, but honestly, entertained the opinion, that the claim to the property in controversy was made “ for purposes of vexation or delay.”
But it- is insisted for the plaintiff, that the case'of Logwood vs. the Huntsville Bank, (Ala. Rep. 23,) and the subsequent cases in this court recognising it, are authorities, to shew the judgment in the case at bar to be erroneous. The case mentioned, was a proceeding by notice and motion, under the charter creating the bank; and the court only .decide, that a party, pursuing a summary remedy given by statute, must conform strictly to the terms of the act, and the conformity must be shown by the record. That case, it may be remarked, was a judgment by default: had it been submitted to the jury on an issue, several facts, supposed to he essential, would [573]*573either have been intended to exist, or else have been considered as waived, and the record then need only have shown such a compliance with the statute, as was necessary to give the court jurisdiction. The dissimilarity of the two cases is strikingly apparentin that cited, the record did not discover that the court had jurisdiction of the proceeding — in the case at bar, the fight of the court to hear and determine the case, was undeniable. Again : the one is a case strlcli juris, while the other is governed by move liberal rales.
We have shown that penal statutes are subject to a strict construction, yet the application of the rule will not sustain the objection. On trials at the Circuit, the judge informs the jury, that if, in their opinion, the claim of property was made for purposes of vexation or delay, they are authorised to give such damages as they may think proper, not exceeding fifteen per cent on the amount of the execution. When the jury return to the court their verdict, by which they assess damages, not exceeding the maximum authorised, they declare what, in their opinion, is the appropriate measure. More than this surely cannot be necessary, in order to legalise their action. •
In Rountree vs. Smith, (1 Stew. R. 157,) it was held in an action against a sheriff for the escape of a debtor, that the jury should expressly find, that such debtor or prisoner did escape with the consent, or through the ne-gligence of the sheriff, or that such prisoner might have been re-taken, and the sheriff and his officers neglected to make immediate pursuit. Tins case, however, bears no analogy to.the one at bar, for the statute, in totidam verbis, requires such to be the expressed finding of the jury.
[574]*574It is further objected, that the judgment is irregular, in-being rendered against William J. Bettis, in his individual capacity, for damages and costs, instead of directing the amount to be levied Be bonis iniostulis. Our statutes no where, in express terms, authorise the claim of property levied on, to'be made by an executor or administrator, so that the question of the personal liability of the claimant, must be determined by a reference to the fitness-of the thing, and the analogies of the law. It cannot be denied, even if an administrator incurs a personal responsibility, according to the stipulations of his bond, that he may make good the issue on'his part, by showing title in bis Intestate-(Mansell vs. Israel, 3 Bibb’s Rep. 510.)
To test the question by analogy,--suppose an administrator to detain, in that character, the possession of personal property, to which another person had a paramount title. The true ov/ncr is not forced to the necessity o'f asserting his right to the iking against him in iris fiduciary character, but mny charge him ¡iorsonaily, upon "the’ ground of his possession- And in this there is no hardship,, for the administrator may retain possession, to enable him, if a recovery is hud against him, to restore the property to its rightful owner.
In respect to the damages for a detention, in legal contemplation, the use of the thing would afford an adequate indemnification, and if the question of titie Was litigated in-good faith, to protect the rights supposed to pertain to the.intestate’s estate, the administrator, ího'ughprímarily liable, might look to that source for reimbursement
If the law were.otherwise, it would frequently operate [575]*575injuriously to the true owner of properly. Was the administrator only chargeable in his representative character, the estate'of the intestate co.ukl alone be resorted to, and if the property was disposed of in the course of administration, before the determination of the suit against the administrator, co that if could not be reached, the owner would be referred to the estate of the intestate, and if that were insolvent, he would come in as other creditors. But the insolvency of the administrator, when charged in his own right, cannot work a loss to the owner, as the law authorises the delivery of property to the plaintiff, immediately on commencing his suit,’ upon his indemnifying, by bond and- surety, the defendant; unless the defendant himself will execute a bond, with surety, to have the property forthcoming, to satisfy such recovery as may be- had against him.
The rule, that he who has the possession of property, which he detains against the rightful owner, is liable to an action, — is so strict, that it has been holdcn; where there are several executors, and one only has the possession, he alone must be sued-(2 Starkie’s Evi. 494; 1 Saund. on Pl. & Evi. 436.) And a defendant will not be allowed to give in evidence, in tli'e action of detinue, (as he may in trozar,) that the property was delivered to him as a pledge — (Starkie on Evi. 495; Bull. N. P. 51.) Nor will it avail him any thing, to show that the property was destroyed, or died after suit brought—(Skipper vs. Hargrove, Martin’s No. Ca. Rep. 74; Carroll vs. Early, 4 Bibb’s R. 270.)
Now,’ in the case at bar/tlie claimant received the possession of the slaves levied on, and stipulated to pay such [576]*576costs and damages as might be recovered against him, so that the slaves may be had forthcoming to satisfy the execution, if they are living; and if they are dead, it is right that it should be satisfied out of his estate, as he wrested them from its operation. So far as it respects the damages, it cannot be material, even in an equitable point of view, whether he is indemnified to .that extent: the jury, by their finding,' have said that the claim of property was not made in good faith. The costs rest upon the same ground, and docs not prove that the judgment is erroneous. If the administrator, in such a case, is aggrieved, by being forced to expend money to protect the estate of his intestate, the court that settles his accounts can do him justice.
Second — In regard to the second point, we think it cannot be seriously argued from the record, that the proceeding in the Circuit was discontinued by James Wilkins, or that William J. Bettis was not legally a party. Bettis voluntarily, by the assent of the court, and with the consent of the defendant in error, was substituted for Wilkins, and it is not for the plaintiff in error now to object, that all this was irregular — consensus toll'd er-rorem.
Third — The execution levied on,--the property claimed, it may be repeated, — -was from “ another county,” so as to render its return there necessary. The statute, so far as applicable to such a state of case, is as follows: “Wherever property shall be-levied on by virtue of an execution from another county, if the same shall be claimed, and bond given to try the right thereof, the trial .shall be had, as heretofore, in the county where the, levy [577]*577shall have been made, and it shall he the-duty of the sheriff to return the execution to the court from which it Issued, with his return endorsed, and to make out a copy of the same, and of his return, and return such copy to' the Circuit court of the county in which the levy shall be made, and the copy of such execution, shall be sufficient for the court to proceed on, and try the right of the property levied on.” In order to a compliance with this law, it is not only necessary for the sheriff to deposit a copy of the execution in the clerk’s office of the court to which the papers pertaining to the trial of the right of property are returnable, but he must also endorse a copy of the return made by him to the original: unless this be done, the copy made by the sheriff will not be evidence in itself.
The act, however, it may be observed, is merely affirmative, and does not necessarily exclude every other mode of proving a copy of the execution, so that the question arises, whether the proof made, as shown by the bill of exceptions,’was sufficient for that purpose. The deputy sheriff, who levied the execution, states that the paper offered as a copy, was made by himself, and that he regularly returned the original to its proper depository. It was, then, an examined or sworn copy, and according to all authority, is admissible on an issue to the jury.' The law is otherwise, where the issue is nul tiel record: there, the record must be produced sub pede sí-n-illi, or otherwise made authentic within itself, and if it be of the same court, it has been sometimes (though not uniformly) held, that the record itself must be inspected —(2 Bacon’s Ab. 612; Burk’s ex’ors vs. Treggs’ ex’ors, 2 [578]*578Wash. R. 215; 2 Saund. on Pl. & Ev. 755, 756; 1 Stark. Ev. 155, 156, 157; Geohegan vs. Eckles, 4 Bibb’s R. 5.)
The remaining questions arising on the bill of exceptions, are believed to have been settled by the decisions of this court.
In Carlton et al. vs. King, (1 Stew. & Por. R. 472,) it •Was decided, that on the trial of the right of proper^, it did not devolve upon the plaintiff in execution, to produce the judgment on which the execution issued.
The case of Hooper vs. Pair, (3 Porter’s R. 401,) was a trial of the right of property ; and the court say, that the statute regulating the proceeding, directs that the issue shall be so formed as to try the right of property^ and it was framed in such terms as to present the question, whether the property, at the time of the levy, was subject to the satisfaction of the execution; that the statute did not authorise an issue, which would allow the claimant to litigate the regularity or justice of the judgment of the plaintiff in execution.
In Collingsworth vs. Horn, (4 Stew. & Por. R. 237,) the claimant objected to a pluries execution, on the ground 'that the defendant therein, was dead at the time of its issuance. The court held, that the objection was not available for one who was a stranger to the execution, and that being preceded by an original and alias, was not absolutely void.
The case of Perkins and Elliott vs. Mayfield, (5 Porter’s R. 182,) following what was supposed to be the settled law of this couit, decided that the claimant could not be allowed to insist, that the judgment was too defective to authorise an execution to issue. And in Boren et al. vs. [579]*579McGehee, (6 Porter’s R. 432,) it was determined, that a defendant in execution could not object against a bona fide purchaser, at a sale made under it, that the judgment was'satisfied before the sale, though the satisfaction did not appear of record.
These cases are deemed decisive of the present, and it only remains to say, the judgment is affirmed.