1855. January Term. Green V. 255; Gould on Plead. 3rd edit. 383-391. Nor is this a solitary determination; for in 3 Chit. Plead. 5th edit. 1183, note r, we are told that it "has been since fully confirmed by the Court of King's Bench on special demurrer." And there are in the books sundry prece- Thompdents, anterior in date, which are in precise accordance with it. Lill. Entr. 395-397, Farmer v. Ryves' bail; 1 Richards' Pract. B. R. 5th edit. 414-423; 3 Morg. V. M. edit. Dub. 1792, p. 405-406. The true solution of this whole matter, sustained by numerous authorities, whereof many have now been quoted, and oppugned by nothing in the shape of authority properly so called, seems to be this: That, for the purpose of ascertaining whether a ca. sa. has been sued out against the principal without his being taken or rendered by the return day, the writ itself, with the sheriff's return, must be filed, but (as this is the sole purpose of the requirement) it suffices if they be filed by the time the plaintiff has occasion to vouch them prout patet per recordum, (3 Burr. 1360, Hunt v. Coxe; 1 W. Blacks. 393, S. C.) that is to say, by the time he must reply to the plea of no ca. sa. sued out against the principal and returned; (for, unless in answer to such a plea, the plaintiff need not set forth anything on that subject-Cro. Jac. 97, Williams v. Vaughan; Moore, 775, S. C.; 1 Kel. 173, Aleway v. Roberts; 2 Lutw. 1269, Sparks v. Cole; 1281, Baxter v. Peach; 5 Dowl. & Ryl. 605, Philpot v. Maneall; 4 Leigh, jr. 470, 471, Cloud v. Catlett's ex'or;) that, where they have been so filed, the return, if actually made after the return day, nevertheless relates back to that time, and is, by force of the relation, as if it had been punctually put in then (3 Dougl. 410, Field v. Lodge)—a relation, of which the law does not permit the verity to be questioned for the purpose of sustaining such a defence as this, because in truth such a dispute could have no manner of connection with the merits; and that, therefore, the court, and not a jury, must decide, upon a bare inspection of the record, without an admixture of parol or other extrinsic son. 1855. January Term. V. son. evidence of any kind, whether there was or was not a ca. sa. sued out and returned, in manner and form as the plaintiff has averred in his replication. See 1 Ld. Green Keny. 347-348, Whitmore v. Rock. If, however, this Thomp be not the true rationale of the doctrine acted upon in Jackson v. Wickes, then there is one, and only one, other interpretation which is admissible, namely: that how material soever the true time of the actual return (in the sense which the counsel opposed to me contends for) may be, still that true time must be learned from the record, and from the record alone. Which may be done by taking as such time the date affixed by the sheriff to his return, if a date is affixed, and by considering the return, where no such date is affixed, as having been made punctually at the return day-the sole possible conclusion which, under such circumstances, the court. can arrive at, with its attention confined (as my previous remarks have, I trust, shewn that it must be) to the record exclusively. For either a false date affixed, or a false impression made in consequence of no date being affixed, the sheriff would (on the hypothesis of the true time being material) be responsible in an action of the party grieved, against him; but in such a proceeding as this, the parties to it would be concluded by the return. 6 Mass. Rep. 495, Ruggles v. Ives; 15 Mass. Rep. 232, Winchell v. Stiles; 17 Mass. Rep. 600-601, Bean v. Parker; 10 Wend. 525, Boomer v. Lane; 2 Cowen & Hill's Notes (to Phill. Evid.), 1st edit. 1085–1086. And whichever of these is the correct exposition, it results equally that, in our case, the court below did right in sustaining the special demurrers to the rejoinders; for, if the former is, the rejoinders had, with the faults imputed to them in the demurrers, those of seeking to make the cause turn upon an immaterial fact, and of seeking to try that fact before an improper tribunal; if the latter is, they had at least the latter of those faults. Our case is not materially distinguishable from that of Jackson v. Wickes, upon the ground that in ours the plaintiff below has (as it rested in his option to do, 2 1855. January Green V. son. Saund. Rep. 72, Z, note h to Underhill v. Devereux), concluded his replication agreeably to the precedents in Term. Clift's Entr. 188, Barry v. Lincoln; 2 Lutw. 1286, Redman v. Idle; 2 Ld. Raym. 1256, Parkins v. Wilson; 3 Ld. Raym. 346, S. C.; 1 Clerk's Instr. 263, 265; Thomp2 Morg. Mod. Plead. 430, 431; 3 Chitt. Plead., 5th ed., 1182, 1183; instead of concluding them as in that case; for the decision there was, as we have seen, expressly rested upon the ground that if the replication had been concluded in the same manner as ours, still there would have been no possible rejoinder but one; and that one a rejoinder differing essentially from those of the now plaintiff in error, which must consequently be bad. Therefore, upon whatever ground the case of Jackson v. Wickes, and that class of authorities and precedents whereof it is the prominent representative, may stand, I submit that, without over-ruling them now, it is impossible to reverse the judgment of the court below, for the sole objection which has been alleged against it in the petition for a supersedeas.* II. In the argument at the bar, another objection has been started. This is based upon an act passed 5th March, 1824, within two months after the transaction had occurred, upon whose legal effect, the Court of Appeals had to decide in Branch v. Webb, as was observed by Brockenbrough, J., in that case, 7 Leigh 379. Does the meaning or operation of the statute, in regard to the time which must elapse between the service of a scire facias and its return day, or any subsequent period, While the case was upon the docket of the Supreme Court of Appeals, Mr. Green, apprehending that his engagements elsewhere might prevent his being present at the hearing, caused to be printed "Heads of an Argument," of which he placed copies in the hands of the judges and opposite counsel. Of this paper, to which Judge Tyler frequently makes reference in his opinion, or rather of so much of it and the oral argument delivered in connection with it, as related to the topics discussed in that opinion, the foregoing is a somewhat condensed statement-less condensed than it would have been, but for the Judge's reference to it. Term. V. Thomp son. 1855. comprehend this case? Its words manifestly do not. January As the law stood before, bail might have entitled themselves even after the commencement of a suit upon the Green recognizance, to have judgment therein for the plaintiff entered for costs only, by making a surrender of their principal, "provided that such surrender" were "made before the appearance day of the first scire facias against the bail returned," (as in our case it was) "executed.” R. C. 1819, ch. 128, sect. 54. And the mischief, as the Legislature manifestly regarded it, (then very recently and also very strikingly developed), which was to be remedied, was, that what was designed as an indulgence to the bail, might, by force of this proviso, be rendered a mere illusion. To prevent which, whether the scire facias was (as in our case it was) made returnable to rules, or made returnable to a term-the only two ways in which it could possibly be made returnablethe Legislature making such provision for each case as it thought fit, enacted in reference to the former, “that hereafter, when any scire facias against special bail, returnable to any rule-day, shall be returned executed, the bail may discharge himself from his recognizance, by surrendering his principal at any time before the end of the next term of the court succeeding such rule day,” instead of its being necessary for him, as formerly, to make the surrender before the return-day of the scire facias-that being in such cases the appearance-day, 2 Rand., Hyer v. Ford; 7 Leigh 57, Branch v. Webb. Construed literally, this statute ameliorated the condition of bail, by securing a longer time within which to surrender the principal after the service of the scire facias, in every case that could happen. And even if no good reason can be suggested why the time so secured should be made a determinate space of ten days in one description of cases, (while the scire facias is, in the words of the statute, "returnable in term-time,”) and in all others, a variable term, sometimes longer, sometimes shorter than that, but always longer than the previous law had secured; still, it is undeniable that the Legislature might, in their discretion, or at their pleasure, so discriminate. The sole question is, whether in point of fact they did. And as the statute, than which none ever was framed with less of verbal ambiguity, shows on its face that they contemplated distinctly both classes of cases, and made in language of singular clearness and precision, a different, but yet an always effective, and in no respect antagonistic, provision for each. I submit that it is not possible to maintain the negative side of that question, without utterly subverting the soundest and most authoritative rules of interpretation; of which rules very striking enunciations and illustrations will be found in 3 A. K. Marsh 489, Clay v. Hopkins; 27 Maine Rep. 286, Swift v. Luce; 6 Dan. 338, Sneed v. Comas; 9 Porter 268, Bartlett v. Morris; 1 Maryl. Chanc. Decis. 343, Franklin v. Franklin; Walk. Michig. Rep. 395, Barstow v. Smith; 1 Mann 469, Bidwell v. Whittaker; Willes 397, Coleham v. Cooke; and especially 3 Kelly 146, Ezekiel v. Dixon. TYLER, J. The main question presented by the pleadings in this cause is not free from difficulty. It has been very fully discussed, and the written argument of the counsel for the appellee presents an elaborate review, with great frankness, of all the authorities bearing on the question. I regret that, on the eve of the adjournment of the court, my time is so limited as not to have afforded an opportunity to collate all the authorities referred to, with a view to reconcile an apparent conflict. The investigation, however, which I have made, has satisfied me that the chief difficulty in the case has arisen from the fact, that the practice and proceedings in England, in reference to the execution and return of process by the sheriff, are unlike our own. The question in the case is: can proceedings be had against bail, upon their recognizance, before a ca. sa. sued out against the principal and returned non est inventus? The counsel for the appellant insists, that the ca. sa. must be returned non est inventus before pro 1855. January Term. Green V. Thomp son. |