
    Cooke v. Beale’s Executors.
    October Term, 1794.
    Special Bail — Surrender of Principal to Sheriff — Effect. —If the special bail, before or after judgment, surrender the principal to the Sheriff, his discharge is complete by the surrender, whether he return the receipt forthwith to the Clerk or not; and if any injury from an omission so to return it, result to the plaintiff, his remedy is by action against the bail.
    Special Pleas — Conclusion — When Demurrable. — A special plea concludes thus, “and this &c.” The et caltera cannot be construed to imply a verification, or a conclusion to the country, and is bad on special demurrer.
    Appellate Practice — Refusal of Lower Court to Allow Amendment of Pleadings in Proper Case-- — Effect.—If the inferior Court refuse leave to a party to amend his pleadings where it should he allowed, the appellate Court will reverse for that, as error.
    'The case was as follows: In April 178S Beale recovered a judgment against Willis, for whom Cooke was special bail. Upon the return of a ca. sa. “not found,'” a sci. fa. issued against Cooke on the 18th of May following, who pleaded in bar, that on the 2d of November 1784, he rendered the body of the said Willis to the jail of the county of Frederick (where the writ was served) according to the act of Assembly in that case made and provided, and took a receipt, for the body of the said Willis, from the sheriff, in the following words: viz, received &c. and this &c. — To this plea the plaintiff demurred specially, stating for a cause thereof 1st, that the defendant doth not set forth in his plea, that he returned the receipt forthwith to the clerk of the court where the suit was depending: 2dly, because the defendant in his plea neither tenders an issue to the country, nor offers to verify his plea by the record. The County Court gave judgment for the plaintiff upon the demurrer. The defendant then moved to amend his plea on payment of costs by inserting these words: “That he forthwith lodged the receipt with the clerk of the court, agreeably to the act of Assembly in that case made and provided, and this he is ready to verify” which motion was over-ruled by the court. He then moved to have leave to put in a new plea which was likewise over-ruled. In the record *is a certificate of the clerk of Frederick court, that the receipt mentioned in the plea was filed in his office on the 6th of May 1785.
    Upon an appeal to the District Court, the judgment of the County Court was affirmed, from which the defendant appealed to this court.
    Marshall for the appellant.
    The judgment against Willis was entered up .in Aj)ril 1785, and the sci. fa. issued in May of the same year. The surrender of the principal was in November 1784, and the receipt appears, from the record, to have been lodged with the clerk on the 6th of May 1785. The 1st question is, whether the appellant, was discharged, tho’ the receipt was not lodged immediately with the clerk? And this will depend upon the construction of the act of Assembly, 5th Geo. Ill, C. 6. Upon the literal construction of the act, it is evident, that if the sheriff refuse to give the receipt, or if the receipt be not returned to the clerk, still the bail is discharged. The latter part of the 4th section, which says, “that the receipt shall be by the bail forthwith delivered to the clerk of the court where the suit is depending,” is merely directory to the bail, who is discharged by the act of surrendering the principal, tho’ he should fail to return the receipt. But if there be a doubt upon this clause, it is completely explained and removed by the 5th section which speaks of the right of a special bail to discharge himself by surrendering the principal, without qualifying that right by any condition whatever. The words are, “that where the special bail, in any action or suit, where judgment hath been, or shall be given, are or shall be entitled to discharge themselves bjr surrendering the principal, it shall and may be lawful for such bail to make such surrender, either before the court where judgment was obtained, or to the sheriff of the county, where the original writ in such suit was returned, and thereupon the bail shall be discharged:” So that the bail is discharged upon the surrender.
    If I am right in giving to the act its literal exposition, I feel great confidence in saying that it is founded upon good reason. For it would be strange, if the sheriff, by refusing to give the receipt, should prevent the bail from relieving himself. If _ then the returning of the receipt forthwith is not a prerequisite to the bail’s discharge, it was unnecessary to aver it in the declaration. But if I am wrong in my construction of the law, I then contend that the couit should have permitted the defendant to amend his plea. He cited 1 Burr. 317 — 322. I admit that the court possesses a discretionary power in allowing amendments, but *this is a legal discretion, and if it be improperly exercised, a superiour court will correct their judgment in this respect. It is to advance the justice of the case, that the defendant should be permitted to try the cause upon its merits.
    As to the 2d cause of demurrer, I answer that the et castera is tantamount to the tendering of an issue, for it will be construed to supply what the defendant ought to have added — the case of Sayer v. Pocock. —Cow. Kep. 407 is a strong authority as to this point.
    Wickham for the appellee.
    There is an essential difference in reason, between a surrender before and after judgment. In the first case, the sheriff is not authorised to keep the body a moment after the judgment is rendered, unless the plaintiff pray him in custody. But in the latter case, the sheriff is to keep the body in the same manner, as he must have done, if he had been prayed in custody in the former case. This distinction will enable us the more clearly to give the law in question its true exposition. Tt is to be observed that the fourth section relates to a surrender before judgment; the 5th and 6th sections to a surrender after. If it be before judgment, and made in court, nothing farther is necessary for the bail to do; for this reason, because the plaintiff, who is supposed to be always in court, having notice of the surrender, may, if he chuse, pray the principal in custody, and therefore he cannot suffer but from his own neglect. But if the surrender be before judgment, and to the- sheriff out of court, as the plaintiff is not presumed to have notice of what is done in pais, it is reasonable, and by this law, it is made an essential part of the duty of the bail, as a condition of his discharge, that he forthwith return the receipt to the clerk, that the plaintiff may have notice of it, so as to pray the principal in custody. So much for -the 4th section. But if the surrender be made after judgment, then the Sth section does not require a receipt to be returned ; for this reason; because, by the 6th clause, the sheriff is directed in such case to keep the principal in his custody, in the same manner, and subject to the like rules, as are provided for debtors committed in execution, during the space of 20 days, &c. This, which I conceive to be the fair and liberal construction of the law, seems to be strong^ supported by the reason and justice of the case. • For were it otherwise, the sheriff and the debtor might, by collusion, defeat the plaintiff of his security by a surrender made out of court, and by keeping out of sight that sort of notice, which is required by the law to be given him, and which, if given, would enable him *to claim the body of the principal. Nay, this might happen without collusion. For the sheriff, not being bound to give the creditor notice of the surrender, the creditor would most frequently be ignorant of the fact till judgment was given, and the body discharged. It has been argued as a hardship on the other side, that the sheriff might refuse to give a receipt. To this I answer, 1st that the sheriff, in such case, would be liable to the bail, and 2dly the bail might avail himself of such refusal by pleading it, and would be excused; for it is a rule, that if an officer be bound and is required to do a particular act, his refusal shall not place the party for whose benefit it was to be done, in a worse situation, than If he had done it.
    As to the 2d objection, the case relied upon from Cowper is not apposite to the present in any respect. The omission, there, was of words merely formal, and the question was made after a trial and verdict. The defect in this case is in a substantial part of the plea, and is specially demurred to. So that the statute of Jeofails, which might cure a great deal after verdict, cannot help even formal defects, if stated as cause of demurrer. But it is contended, that the et ceetera must necessarily mean “and this he is ready to verify.” But may it not as well mean a conclusion to the country?
    As to the amendment: The motion was made after demurrer, argument and judgment thereon. I admit, that the discretion of the court in allowing amendments, is a legal one, and subject to the correction of a Superior Court, if improperly exercised. Yet I ask, will this court permit an amendment against the justice of the case. If the defendant in this case could claim it upon Mr. Marshall’s principle, namely, that the cause might be tried upon its merits, then it might be always claimed as of right; and if so, a defendant who wished for delay, would always put in a frivolous plea, so as to force the plaintiff to demur, and, after faking that chance, claim the privilege of amending. If it be quite indifferent, whether the justice of the case favored the amendment asked for, (the reverse of which I think appears in the record) this court will presume that the Inferior Court did right, unless the party seeking to impeach their judgment, had stated enough upon the record to destro3r this presumption. Besides, will this court do a vain thing? For if I am right upon first point, what good purpose could it answer to allow the amendment, since by correcting the plea according to the facts appearing in the record, the defendant could not succeed. ^Marshall in reply. The 4th section of the law relates to surrender, both before and after judgment. Mr. Wick-ham contends for his exposition of the laws because otherwise the creditor might be entirely defeated of his security by not having it in his power to pray the principal in custody.
    But if I can shew, that even his construction would not in every instance remedy the supposed inconvenience, then there can be no necessity, for giving the law that construction. Now it is to be recollected, that when that law was made, there was a General Court in Virginia, embracing the whole state within its jurisdiction. Of course, the surrender might be made in some remote county, far distant from the court, a day or two before the judgment was rendered. So that it would be impossible to return the receipt in time for the plaintiff to pray the principal in custody. In this case, therefore, the supposed inconvenience, which it is contended was meant to be prevented, would happen even upon Mr. Wickham’s construction, and, since it is not presumable that the legislature would attempt a vain thing; so it is not to be supposed they meant it. The 6th section supposes that the creditor will in 20 days obtain notice of what is doing in pais, and therefore compels him to do so, under pain of losing his security. And why may he no't also get notice by the same means, where the surrender is made before judgment? As to collusion, this may as well happen between the sheriff and the creditor, to prevent the surrender, as between the sheriff and the principal, or bail, in order to deprive the creditor of his security. So that we must at last resort to the literal meaning of the words, which seems plainty with the appellant.
    This plea, if wrong, was most probably entered by the clerk, and is his mistake; for there appears in the record a letter from the defendant’s attorney to the clerk, desiring him to plead a surrender generally, and the formal defect arises from his want of skill, and therefore ought to be amended.
    
      
      Amendment of Pleadings. — The principal case is cited on this point in Bowles v. Elmore, 7 Gratt. 389, which case also cites Graham v. Graham, 4 Munf. 205.
    
   The PRRSIDFNT

delivered the opinion of the court.

The question upon the first point, depends upon the law, which has been so fully commented upon at the bar; and is this, whether the special bail be discharged by the surrender to the sheriff, without his also returning forth with to the clerk the receipt obtained from the sheriff. The 4th section of the law upon which this question rests, points out two kinds of surrender; the first in court, upon which the bail is discharged, '^whether the directory part of the clause (which says that the defendant shall be committed to the custody of the sheriff) be complied with, or not. The other alternative is, “that such special bail may discharge themselves, by surrendering the principal to the sheriff of the county, where the original writ was served.” The discharge of the bail therefore is compleat by the surrender, and the following parts of the clause are directory only, and do not impose a condition, the non-compliance with which can prevent the discharge. This appears the stronger, since it begins with a direction to the sheriff what he is to do with the prisoner, and then goes on to direct what the bail shall do with the receipt. And this construction is farther enforced by a view of the 5th and 6th sections, respecting surrenders after judgment. The 5th makes no distinction between a surrender in court, and a surrender to the sheriff out of court, as to the discharge of the bail. The 6th, without taking notice of the discharge of the bail, proceeds to direct what shall be done in the case of a surrender in the country. The sheriff is to keep the prisoner in custody for 20 days; and the bail is to give immediate notice to the creditor. So that in both cases of a surrender in the country, either before, or after judgment, the discharge of the bail is compleat, and the plaintiff has a new remedy, if the directory part be not complied with, either against the sheriff, if he fail in his duty, or against the bail, if he neglect to do what the law requires of him. The difference in these remedies is important; since in an action founded upon the directory part, the sheriff or bail would be let in to shew a reasonable excuse for not complying with the law, or to shew that no damage thereby arose to the creditor. But they might be precluded from these advantages upon the sci. fa. if the bail were considered as not being discharged.

The court have given their opinion upon this point for the satisfaction of the parties, and as it may prevent further litigation. As to the second cause of demurrer, we think that the plea is insufficient for want of a proper conclusion. An et castera may be allowed to supply what must necessarily be inferred from what is expressed. But in this plea the words inserted will equally admit of a conclusion to the court or jury, and therefore the court cannot supply the words omitted by any necessary implication ; besides this defect is specially demurred to.

But the court are clearly of opinion that the defendant ought to have been permitted to amend his plea upon payment of costs: and upon this point, the judgment is to be reversed, and the cause *remanded to the District Court, with directions to admit such amendment. The parties will consider whether it be worth their while to prosecute the suit farther, after the decision of the court upon the first point in which the Judges are unanimous.  