
    Henry v. Stone.
    May, 1824.
    Sheriiis — Return—Right to Contradict. — A Sheriff cannot contradict his return, but must obtain leave of the Court to amend it.
    Same — Bail-Bond—How Remedy Lost Thereon, — when a Sheriff has arrested a defendant and taken appearance bail, and makes a return that the defendant is committed to jail, he loses his remedy against the bail on the bail-bond.
    This was an appeal from the Superior Court of Law for Halifax County. The case was this: ■
    John Stone brought an action of debt in the County Court of Halifax, against John Henry, surviving obligor óf himself and James Ryburn, on a bail-bond, in which Henry became appearance bail for Ryburn, in a suit between Berryman Green and the said Ryburn. Stone was the Sheriff of Halifax, who served the writ in the suit of Green v. Ryburn, and a bail-bond was executed, as above mentioned, to the said Stone, as Sheriff of Halifax, in the penalty of £2,000, for the appearance of the said Ryburn on the fourth Monday in November, 1810.
    The declaration charges, that the said James Ryburn did not appear, before the Justices of the said County, according to the exigency of the said writ, as according to the condition of the said writing obligatory, he ought to have done; but therein totally failed, &c.
    The defendant pleaded : 1. Conditions performed. 2. That the said Ryburn was arrested at the suit of Berryman Green, and was committed to jail for want of appearance *bail, and was actually in custody of the said Sheriff, on the return day of the said writ; so that the said bond in the plaintiff’s declaration set forth, (if it was ever executed,) became a nullity, of no effect, and this he is ready to verify. 3. That a writ issued on behalf of Berryman Green, as aforesaid, with an endorsement, that bail was required: that the said writ was delivered to a deputy of said plaintiff Stone, to be by him served on the said Ryburn, and afterwards returned to the Clerk’s office, with an endorsement made by the said deputy, that the said James Ry-burn was committed to jail; in consequence of which, a conditional judgment was entered against the 'said Ryburn, and the defendant as his common bail; which said conditional judgment, not having been set aside, was afterwards confirmed against Ry-burn, and the defendant as his common bail: that the defendant afterwards petitioned the Judge of the Superior Court of Haw for the County of Halifax for a super-sedeas to the said judgment and proceedings of the County Court, which was awarded; but the judgment was afterwards affirmed: that the defendant then obtained a supersedeas from the Court of Appeals, where the judgment aforesaid was reversed, and judgment entered for the appellant’s costs in both Courts; which said judgment remains in full force: that the cause of action set forth in the declaration, is the same identical cause of action, for which the defendant was impleaded in the former suit of Green v. Ryburn, and for which a judgment was finally rendered in favor of the defendant, by the Court of Appeals, &c.
    The plaintiff demurred generally to the third plea.
    As to the second plea of the defendant, the plaintiff replied, that he ought not to be barred from having or maintaining his action, because the said James Ryburn was not in custody at the return day of the writ, in'the suit of Green v. Ryburn; but that he had been discharged from custody, upon the bail-bond being executed by Ry-burn and Henry. The defendant demurred to this plea, assigning causes.
    *At another day, leave was granted the defendant to withdraw his plea of conditions performed, and he filed an additional plea, to this effect: that after the making of the writing ogligatory aforesaid, to wit: on the 4th day of November, in the condition of the said bond above mentioned, the said Ryburn appeared before the Justices of the County Court of Halifax, at the Courthouse of the said County, to answer the said Berryman Green in the plea aforesaid, according to the form and effect of the condition aforesaid; and this he is ready to verify by the records thereof, in the said County Court of Halifax remaining, &c.
    Stone replied, that there is not any such record of appearance by the said James Ryburn made before the Justices of the said County Court of Halifax, on record remaining, as the said John Henry above, by pleading, hath alledged; and this he is ready to verily, &c.
    As to the third plea of the defendant, the plaintiff replied, in effect, that a writ was directed to the Sheriff of Halifax, at the suit of Berryman Green against James Ry-burn, and delivered to the said Sheriff, with an endorsement, that bail was required : that, by virtue of the said writ, the said Sheriff, by his deputy, arrested the said Ryburn, and detained him in custody, and committed him to jail: that the said deputy returned the said writ, with an endorsement thereon, that he had executed the same, and that he had committed the said Ryburn to jail, for want of bail: that, after the said Ryburn had been committed as aforesaid, and before the return-day of the said writ, to wit: on the 29th day of October, 1810, he the said Ryburn, did tender the said Henry to the said Stone, as the surety and bail of the said Ryburn, for his appearance, according to the exigency of the said writ, and they executed a bail-bond for that purpose; in consequence of which, he the said John Stone discharged the said Ryburn out of custody, and permitted him to go at large: that the said Stone did afterwards, to wit: on the - day of -, 1810, return and file the said bond in the Clerk’s *office of the said county: that the said Ryburn not having appeared, according to the condition of the bond, judgment was rendered against him. and the said Henry, as his bail, in favor of the said Berryman Green, by the County Court of Halifax; which judgment was afterwards affirmed by the Superior Court of Law for the same county; and a supersedeas was awarded by a Judge of the Court of Appeals: that the judgments of the County and Superior Courts were reversed, and the Court of Appeals gave judgment, that the Sheriff not having returned that the said John Henry was the bail for the appearance of the said Ryburn, that the judgment was erroneous as to the said Henry; and they gave judgment accordingly against the said Ryburn for £130, and costs, &c.; and that the cause of action, set forth in the declaration, is not the same identical cause of action, for which the said John Henry was impleaded by the said Berryman Green, in his former suit against the said Ryburn, and in which a judgment was finally rendered in favor of the said Henry, by the Court of Appeals.
    The County Court decided, on the first plea above mentioned, (which is called the additional plea,) that there was no such record, as the plaintiff, by replying to that plea, had alledged. The Court also decided, that the matters of law arising upon the demurrer filed by the defendant to the replication of the plaintiff to the second plea of the defendant, were for the plaintiff; and, therefore, over-ruled the same. To the replication to the third plea, the defendant demurred; but, the Court overruled that demurrer also, and ordered a jury to be impanneled to ascertain the damages sustained by the plaintiff. The jury rendered a verdict for the plaintiff, for 1891. 15s., with interest.
    The Court gave judgment for the penalty of the bond, to be discharged by the . amount of the verdict, and costs.
    The defendant appealed to the Superior Court of Taw. That Court (by consent,) ordered that the judgment should *be reversed and annulled; and, by like consent, that the verdict, and all the proceedings subsequent to the filing the declaration, be set aside, and the cause remanded to the County Court, to be sent to the rules by that Court, and further proceeded in.
    The same pleadings were had as in the former instance, and the result was the same. An appeal was again taken to the Superior Court, and the judgment was again affirmed. From this judgment, Henry appealed to this Court.
    Wickham, for the appellant.
    Leigh, for the appellee.
    May 31.
    
      
      See monographic note on "Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.
      To the point that a sheriff may amend his return by leave of court, the principal case is cited in Capehartv, Cunningham, 12 W. Va 750. See principal case also cited In Carr v. Mead, 77 Va. 160.
    
    
      
      Kor a more particular account of the pleadings, see Judge Green’s opinion.
    
   JUDGE GREEN,

delivered the opinion of the Court.

All the pleadings in this case having been set aside in the Superior Court, by consent, and the cause remanded to the County Court, where the defendant pleaded, and the plaintiff replied de novo, our attention is of course confined to this last set of pleadings. The first plea is, that the defendant in the original action, (Ryburn,) appeared acording to the condition of the bond; which the defendant was ready to verify by the record. Upon this plea, the plaintiff took issue, and it was decided by the Court against the defendant. The third plea states the return by the Sheriff, “that the defendant Ryburn was iii custody;” and that a copy of the bail-bond was also returned: that, thereupon, a judgment was rendered in the office against Ryburn, and the bail, the defendant in this action; which was reversed in the Court of Appeals, and final judgment given for the bail; and relies, that the cause of action, upon which the Court of Appeals pronounced judgment for the defendant, *was the same as that now asserted by the plaintiff. To this, the plaintiff replied, repeating, in substance, the facts stated in the plea, and traversing that the two suits were for the same cause of action. The defendant demurred, and the demurrer was rightly over-ruled; for, the judgment of the Court of Appeals, even if given in relation to the same cause of action, was given between other parties, and not being given on the merits of the contract, is no bar to this action.

The only real question in the cause, arises upon the second plea, and the replication thereto; to which the defendant demurred. That plea states the suing out of the original writ against Ryburn;' the demand for bail; the execution of the writ; the commitment of Ryburn to jail for want of bail; and the return of the writ by the Sheriff, that Ryburn was committed to' jail, for the want of appearance bail; and avers that Ryburn was, on the return-day of the writ, actually in the custody of the Sheriff, as appears by the record; so that the bond became a nullity, and of no effect; and concluded with a verification.

The plaintiff replied, admitting the suing out of the writ' — -its execution- — -the commitment of Ryburn to jail, and the return and endorsement of the writ, as stated in the plea; but avers, that after the endorsement on the writ, and before the return-day, the bail-bond was executed, and Ryburn discharged from custody; and, that he was not in custody at the return-day of the writ; and concludes to the country. To this the defendant demurred, and assigned for causes of demurrer, that the replication was not a full answer to the plea, and that it was repugnant to the record set forth in the plea.

The reference to the record in this plea, did not make that record a part of the plea. It was equivalent to the usual expression in a plea, stating the effect of the record, as to the point relied on, "as appears by the record;” unless the other party had denied the effect of the record, as stated in the plea, by taking issue thereon; or alledged *that something further appeared by the record, which he relied upon to obviate what was relied upon by the defendant, and upon which new allegation the defendant took issue. It was not competent to the Court, to look into the record referred to in the pleadings, to see if it established any matter which the parties, in their pleadings, had not al-ledged to exist. In this case, the Court was to determine upon the demurrer, and not whether the record proved what was admitted by the pleadings, or proved something which was not averred by the parties in their pleadings. The record of the suit, referred to in the plea, although copied by the Clerk into the record in this case, cannot be considered properly as any part of this record. The allegation of the plea, “that so- the bond became a nullity, and of no effect,” is mere surplusage, being a conclusion of law, and not an averment of fact; and the conclusion, “and this he is ready to verify,” although imperfect for the want .of the addition of the words “by the record,” is not so defective a's to be objectionable on a general demurrer; although it would be on a special demurrer for that cause. It is virtually an affirma-lion lhat he was ready to verify the matter of the plea by the record, as it could be verified in no other way. The case then presented is, that the defendant alledges that it appeared by the record and the Sheriff’s return, that Ryburn was actually in custody for the want of bail. The replication admits, that it does so appear; but insists, that the return was not true, and was made by mistake; that is, that the endorsement on the writ was true when made, to wit : several days before the return-day; but, that after the endorsement was made, Ryburn was discharged upon the bail-bond being given, and the endorsement on the writ not altered; and for this he puts himself upon the country.

The first enquiry then is, whether it is competent to the Sheriff to contradict his own return. It seems to me that he cannot. It is a matter of record to which he is privy; and although he may amend his return, by leave of the *Court, until it is amended, it must be taken to be true as to the Sheriff himself, who has made the return. This has been decided in the Supreme Court of Massachusetts. Pennington v. Loring, 7 Mass. Rep. 388. In that case, in a suit against the Sheriff for selling property without a due notice of the sale, he having returned on the warrant that he had advertised 24 hours, whereas the law required that he should advertise 48 hours; he offered to prove that his return was a mistake, and that, in fact, he did advertise 48 hours. • But, the Court unanimously determined, that it was not competent to the Sheriff to give such proof, although it might have been said, that it did not contradict the return. I think the same point has been decided in the Supreme Court of New York. If this be law, then, upon these pleadings, it must be taken that Ryburn was in custody at the return-day of the writ; for, that is the legal import of the return stated in the pleadings, and that fact would discharge the bail.

If a defendant be let to bail, and on the return-day of the writ, he surrendered himself in custody, it would discharge the bail. The act of 1645, chap. 14, Hening’s Stat. at "Large, vol. 1, p. 305, prescribes what shall be the substance of the bail-bond, “with condition to bring forth the party arrested, or perform the award of the Court;” and, upon this latter expression it was, that the bail, if he failed “to bring forth the party arrested,” was liable to a judgment in that cause, against himself; but, if he brought forth the party, he was discharged. (See the act.) This statute was repeatedly re-enacted, but never repealed until- January 1, 1820. If the surrender of the principal in custody on the return-day, would not discharge the bail, th.en it might happen, that he would have no means of discharging himself. If he lived, he might enter special bail, and so discharge himself as appearance bail. But, if he died before the return-day, judgment might be given against his estate, even if no executor or administrator had qualified; and the principal might not have it in his *power, to prevent such consequence, unless his surrendering himself in custody would have that effect. Such a surrender, though not an appearance, would have the effect of an appearance. See Rev. Code, 3792, chap. 67, § 20, 23; chap. 66, § 32.

But, suppose it were competent to the Sheriff to contradict his return; then, upon these pleadings, the case would be, that the Sheriff, having taken bail and discharged the defendant, nevertheless returned that the defendant was in custody when he was not. The effect of which was, that no judgment could be had, if the defendant failed to appear, either against the principal or bail; and the plaintiff could only proceed, either in the same suit by alias capias, or in a new suit against the Sheriff for his false return. And if, in the event of the plaintiff’s proceeding against the Sheriff, the Sheriff could maintain bis suit upon the bail bond, and the bail were subjected, the latter would have his remedy after paying the money, either by action or by motion, under the act of Assembly against his principal. Until the Sheriff had suffered damage from the breach of the condition of the bond, he could not sue upon it, and consequently, the bail could not resort, with any effect, to a bill quia timet. If the Sheriff had made a true return, and a judgment had been regularly entered against the bail, he would have been immediately entitled to an attachment against Ryburn, and, without the necessity of paying the money, might have had Ryburn’s property sold, and applied to the payment of the debt for his indemnity. The first act which author-ised a judgment against the bail, author-ised this attachment against the principal. 1645, 1 Hen. Stat. Large, chap. 14, p. 305. These provisions were introduced, both for the benefit of the creditor, and of the bail; and gave the bail a much better chance of indemnity than he before had, by expediting his remedies. This remedy of the bail was utterly frustrated by the Sheriff’s false return; and, although other more tedious and uncertain remedies remained to him, and ’^although he might have discharged himself from his responsibility of appearance-bail, by taking upon himself the obligations of special bail, yet his situation as appearance-bail may have been preferable to that of specail bail, since Ryburn may have left the State and left property behind him. But, whether the one or the other situation was preferable, the act of the Sheriff deprived the bail of his election, and varied his situation. His failure to make a true return was, (to use the expression of one of the English Judges,) contrary to the faith of the contract. Nothing is better settled in Courts of Equity, than that any act of the creditor, which deprives the surety of any remedy which he has for his indemnity, discharges the surety. The cases on this subject are referred to in Norris v. Crummey, lately decided. If such an act is apparently or manifestly for the benefit of the surety, he is nevertheless discharged; for, he ought to be the sole judge of his own interests, and ought not to be deprived of his legal rights, without his assent. Samuel v. the Court of Equity have been adopted in Courts of Law, and applied to the case of Howith, 3 Meriv. 272. These principles of bail. Moore v. Bowmaker, 6 Taunt. 379; Willison v. Whitaker, 7 Taunt. 53; Melville v. Glendening, 7 Taunt. 126; Rathbone v. Warren, 10 Johns. Rep. 587.

It is not necessary to enquire, whether the erroneous judgment entered by the Clerk against the bail, as appears by the third plea and replication thereto, ought to _ have any effect upon the liability of the bail, or his discharge from liability, under the second plea and replication; since that fact cannot enter into the consideration of a plea and replication, in which its existence is not averred. The matter of one plea or replication cannot be considered as incorporated with another. Every plea or replication should be, in itself, a complete bar, or answer to the bar; and every omission or defect, cannot be cured, by reference to other parts of the pleadings.

_ *Nor is it an answer to the propo-_ sition, that the bail is discharged by the failure of the Sheriff to make a proper return, (thereby depriving the bail of one of his legal remedies, for. his indemnity,) to say, as was said at the bar, that even if the proper return had been made, the bail might have been adjudged insufficient; and thus have lost that remedy, ' whilst he would have remained liable to the Sheriff. That was one of the risques of the undertaking of the bail; but, it was a contingent, and, if the Sheriff did his duty even to himself, an improbable hazard. The Sheriff, by failing to make a proper return, has made this contingent hazard a certainty.

The judgment over-ruling the demurrer to the replication to the second plea is, therefore, erroneous, and to be reversed, and judgment, thereupon entered for the defendant.  