
    Branch and Others v. Webb.
    March. 1836,
    Richmond.
    (Absent Brooke, J.)
    Special Bail — When Judgment Creditor Entitled to Re-co urse against. — To entitle a judgment creditor to recourse against special hail, it is sufficient that a ca. sa. against the debtor has been directed to the sheriff of the county where the action was brought and judgment recovered, and returned by him non est inventus, though the debtor reside in another county.
    Same — Scire Facias — When Returnable. — A scire facias against special bail may be made returnable at rules in the clerk’s office.
    Same — Same—Same—Appearance—Surrender of Principal on Return Bay — Effect—Statute.—when a scire facias against special bail is returnable at rules on the first Monday of the month, the return day is the appearance day. and the process being returned executed, a surrender of the principal on the return day is not in time to discharge the bail, under the statute 1 Rev. Code, ch. 128, § 54.
    Scire facias, in the county court of Buckingham, by Webb against Branch, Lancaster and John Morris, special bail for John P. Morris. The facts of the case were stated and agreed by the parties.
    It appeared by the case agreed, that in an action of debt brought by Webb against John P. Morris in the county court of Buckingham, Branch, Lancaster and John Morris, at May term 1823, became special bail for the defendant. At August term following, Webb recovered judgment against John P. Morris for 521 dollars, with interest &c. and costs; and in the same month, sued out a H. fa. against the defendant, which was returned x'“Satisfied in part, and as to the balance, no effects.” On the 13th November, Webb sued out a ca. sa. against him, returnable to the 3rd Monday in December, which was directed and delivered to the sheriff of Buckingham, and was returned “not found.” At the time of the judgment rendered, and of the ca. sa. sued out, the defendant John P. Morris was a resident, not of Buckingham, but of the adjoining county of Cumberland, and so had always continued. On the 30th December 1823, Webb sued out his scire facias against the three special bail, returnable at rules on the 1st Monday in January 1824, which was the fifth day of the month. The scire facias was delivered to the sheriff on Saturday the 3rd day of January, executed by him on the same day, and returned at rules on the 5th. And on the 5th, the bail surrendered the body of the principal to the sheriff, took his receipt for him, filed it in the clerk’s office, and gave notice of the surrender to Webb’s attorney, he himself not being a resident. On the 10th, another fi. fa. was sued out for Webb against John P. Morris, which was returned “no effects, ” But no ca. sa. was ever sent to Cumberland where the debtor resided, and no other ca. sa. but that of the 13th November 1823 was ever sued out against him. And the question referred to the court was, Whether, upon this state of the case, Webb was entitled to judgment against the bail?
    The county court, gave judgment for the bail. Webb appealed to the circuit court, which reversed the judgment, and gave judgment for Webb. And then the bail appealed to this court.
    Taylor, for the appellants.
    1. Webb was not entitled to his sci. fa. against the bail; for a ca. sa. regularly sued out against the principal, and return of non est inventus, was necessary to fix the liability of the bail; but here, the ca. sa. was put into the hands of the sheriff of Buckingham where the principal debtor 'did not reside, ^instead of being sent to Cumberland where he did reside; and the return upon it should have been “no inhabitant,” instead of‘‘not found,” according to the provision of the statute concerning sheriffs, 1 Rev. Code, ch. 78, \ 18, p. 280. But the return of “no inhabitant” would not have entitled Webb to recourse against the bail. It is obvious that the design was to entrap the bail, not to take the principal in execution. It would have been just as well if the ca. ,sa. against the principal had been sent to the most remote county in the state. In England, indeed, the practice is to send the ca. sa. to the county in which the original action was laid and the original process served on the defendant, and to have a return of non est inventus from the sheriff of that county; and this is sufficient to charge the bail. 1 Bac. Abr. Bail in civil causes; D. p. 341; Tidd’s Pract. 993, 4. For, in England, the execution cannot be sent to any other county, and it was so too, formerly, in Virginia; Brydie v. Bangham, 2 Wash. 72. But by our statute of executions, a ca. sa. or any other execution on a judgment of one county, may be sent to any other county where the defendant or his property shall be found; 1 Rev. Code, ch. 134, ‘i 12, p. 529. —2. It is doubtful, whether, upon the construction of the statute concerning proceedings in civil suits, Id. ch. 128, '& 70, p. 506, a scire facias against bail can be made returnable to the rules: for if it may, the plaintiff may sue out his scire facias, and have it executed on the very return day, and so preclude the bail from all opportunity to surrender the principal. 3. The bail surrendered the principal in due time. The statute, Id. <* 54, p. 502, provides, that the bail may surrender the principal to the court or to the sheriff, before or after judgment, provided such surrender be made before the appearance day of the first scire facias against the bail returned executed, or of the second returned nihil. Here, the scire facias was served *on the bail on Saturday; Sunday was not a judicial day; and the bail surrendered the principal on the following Monday, which was the return day, and the first day of the rules for that month. The question is, whether the return day was the appearance day? The process was made returnable to the first Monday, because it was returnable at the rules, and that was the first rule day. But the statute provides, that the rules may be kept open for six days; Id. 'i 69, p. 506. The word may, there, means must; the statute surely did not intend to give the clerk any discretion; and it has been always so understood in practice: the rules are,always kept open six days. The bail might have appeared on the last of these rule days, for any other purpose than to surrender their principal; as, for instance, they might have appeared on the last rule day, to plead in abatement or in bar. WJhy should not the last of the rule days be an appearance day for the surrender of the principal? Why should the rules be kept open for some purposes, and not for others? The last rule day is an appearance day, for all purposes. Though the first day of the rules is always the return day of process, it does not follow that it is the appearance day; for, in the english practice, the fourth day after the return day is the appearance day.
    Johnson, contra.
    1. It is admitted that in England, in order to charge the bail, the ca. sa. against the principal must be sent to the county where the original action was laid and the original process served on him, and that the return of “not found” must come from that county. Our statute authorizes the plaintiff, but it does not require him, to send his execution to any other county where the debtor shall be found: he may do it, if he chooses, but it certainly does not follow that he must. It is not his duty to take, care of the bail; it is their business to take care of themselves; and when he takes out his ca. sa. against the principal, which is the process *by which they are to be charged, they should look to the consequences, and take measures to discharge themselves. It would have been a much more questionable point, if the ca. sa. against the principal had been sent to any other county than that in which the action was laid, the defendant arrested, and the judgment recovered whether that proceeding would have been regular to charge the bail. 2. There can be no doubt that a scire facias against bail, like a scire facias for any other purpose, or any other process, may properly be made returnable to the rules, and executed on the return day. The statute expressly mentions a scire facias among the process that may be made returnable to the rules, and makes no exception of the scire facias against bail. Nor can there be any hardship arising out of the provision to the bail; for the law allows the bail to surrender his principal, at any time from the day he becomes bail, to the day before the scire facias against him is returned executed. 3. When a scire facias or other process is made returnable to the first day of the rules, the return day is the appearance day; Kyles v. Ford, 2 Rand. 1. Here, then, the principal was surrendered by the bail, upon, not before, the appearance day; and, of course, the surrender was not in time to discharge the bail. The law is now altered, by the statute of 1823-4, Supp. to Rev. Code, ch. 207, p. 265, which provides, that upun scire facias against bail, returnable to a rule day, the bail may discharge himself by surrendering his principal at any time before the end of the next ensuing term; and that the scire facias against bail returnable in term shall be executed at least ten days before the return day. But this very enactment proves what the law was before.
    
      
      The principal case is cited in Green v. Thompson. 1 Pat. & H. 155, 457.
    
    
      
      American edi. New York, 1807. — Note in Original Edition.
    
   BROCKENBROUGH, J.

The first objection made to this judgment is, that the plaintiff Webb had not entitled himself to a scire facias against the bail. But I think *the very authorities referred to by the appellants’ counsel clearly shew that he was entitled. “A scire facias is the usual and proper remedy against the bail, where judgment has been obtained against the principal, and no satisfaction made by him. This is founded on a record, to wit, the act of the court in admitting the party to bail, and the judgment against him. But it must appear that the party himself hath not satisfied the judgment; and hence it hath become a settled rule, that there must be a capias returned against the principal before the scire facias is to issue against the bail.” 6 Gwyl. Bac. Abr. Scire Facias, C. 7, p. 117. The note to that authority, for which it quotes Cro. Jac. 97, says, it is “not necessary to recite it (the capias) in the scire facias. ” And the editor of the book in another note, says, “the course is to get the sheriff to return non est inventus on the ca. sa.” With this Tidd agrees, p. 994. These requisites to suing out the scire facias have been more than complied with on the present occasion. The plaintiff first sued out a fi. fa. by which a part of the money was made, and a return of “no effects” as to the balance. He then sued out a ca. sa. which was returned “not found. ”

But the main objection, on this part of the case, was that ca. sa. was put into the hands of the sheriff of a county where the defendant did not reside. I do not think that this objection is of any avail. The suit was brought in Buckingham, and there the bail became bound, and the judgment was rendered. In England, the rule is that the ca. sa. against the principal should be sent to the county where the original action was laid; Tidd 994, and it must be so in Virginia. Originally, the ca. sa. could not be directed to the sheriff of any other county than that in which the jurisdiction over the cause attached. A statute became necessary to authorize the issuing of such process to another county. Accordingly, by the act of October 1748 it *was enacted, that if the defendant against whom a judgment had been obtained, removed himself and his effects, or resided out of the limits of the jurisdictions of the court where the judgment was rendered, the clerk might, on application of the plaintiff, issue any writ of fi. fa. or ca. sa. and direct the same to the sheriff of any county where the defendant or debtor or his goods should be found. 5 Hen. stat. at large p. 536. This statute is still in force, and at the late revisal was extended to executions on judgments obtained in any court of record, instead of being confined to judgments in the county or other inferiour courts. 1 Rev. Code, p. 529. But although these statutes give the right to the plaintiff to send his execution to another county, they do not impose it on him as a duty to do so. He may still issue it to the county where the judgment was rendered. Nor does there seem to be any other statute which requires more of him, in order to fix the bail. The statute 1 Rev. Code, ch. 70, g 18, p. 280, referred to by Mr. Taylor, requiring the sheriff to go to the house or place of abode of a defendant, against whom he has a writ, before he shall return it “not found,” obviously applies only to original and mesne process, and not to executions.

The next and most important question is, whether the surrender of the principal by the bail was in good time. This depends on the statutes at that time in force. The statute 1 Rev. Code, ch. 128, l 54, p. 502, declares, that “every special bail may surrender the principal before the court where the suit hath been or shall be depending, at any time either before or after judgment shall be given; provided, that such surrender be made before the appearance day of the first scire facias against the bail returned executed, or of the second returned nihil;” or the bail may surrender the principal to the sheriff &c. In this case, the scire facias was executed on Saturday the 3d of January; it was returnable *on Monday the 5th; and on that day the bail surrendered their principal. Was this surrender made before the appearance day of the scire facias? This question renders it necessary that we should decide what was the appearance day of that writ.

It was said by judge Green in Kyles v. Ford, that “the laws in force before the statute of 1819, 1 Rev. Code, ch. 128, took effect, prescribed that the appearance should, in all cases, be the day after the court to which the process' was returnable, and that was also the rule day.” I find by reference to the revisal of 1792, ch. 66, § 20, 25, 35, that writs and other process were returnable to the next court for the district; that the appearance day was the first day alter the end of the court, on which day-rules were to be held; and that similar provisions were made as to the county courts, by ch. 67, I 9, 19, 28. Judge Green proceeded to say, that “the statute of 1819 does not in terms appoint any appearance day; but it may be inferred from various provisions of the statute, and indeed results from the terms of the writ, in the absence of any express provision on the subject, that the appearance day is the return day of the writ, if according to law an appearance can then be entered; or if not, then the first day thereafter on which an appearance can be entered. Thus, when the writ is returnable to the rules, the return day is the appearance day, as an appearance can be then entered at the rules. If the writ be returnable to the first day of the court, and the same day be the rule day, it is also the appearance day, since an appearance may then be entered at the rules. But if it be not also rule day, then the next rule day succeeding is the appearance day; for that is the earliest day at which an appearance can be entered, and a rule given or received by the defendant.” In these propositions I entirely concur. But it has been urged by the appellants’ counsel, that as, by the statute, the clerk *may continue the rules for six days, he is bound to do so, and that the sixth day should be in all cases held to be an appearance day. I cannot think that the sixth day is the appearance day. The statute says, that the plaintiff shall file his declaration on the rule day at which the writ shall be returned executed, or the defendant having entered his appearance may give a rule for the plaintiff to declare, on pain of his being nonsuited; and that, when the plaintiff hath filed his declaration, he may give a rule to plead with the clerk. 1 Rev. Code, ch. 128, 69, 72, 73. These provisions shew, that the sixth day cannot be regarded as an appearance day. If on the first rule day the plaintiff files, his declaration, the clerk is bound to receive it, and bound to enter the conditional order, if the defendant does not appear, or to give the rule to plead, if the defendant does appear. On the other hand, if the plaintiff fails, but the defendant appears on the first rule day, the clerk is bound to enter his appearance on that day, and to receive his rule that the plaintiff declare. These are cases in which, the clerk cannot do otherwise than consider the first rule day as the appearance day. He cannot make the sixth, or any other day, the appearance day against the legal rights of the parties. I think, then, we ought to adhere to the opinion expressed by judge Green, that “when the writ is returnable to the rules, the return day is the appearance day, as an appearance may then be entered at rules. ’ ’

In this case, Monday the 5th January was the return day of the scire facias; it was returned on that day, having been executed previously; that was the rule day, and the appearance day.- As the bail did not surrender their principal before that day, they are not entitled to an exoneretur. It is not our province to consider whether or not this is a hard law ,on the bail. The legislature changed the law in this respect within two months after this transaction occurred; but it does not apply to former cases.

*1 think the judgment of the circuit court must be affirmed.

CARR and CABEEE, J., concurred.

TUCKER, P.

I concur in the opinion, that this judgment should be affirmed.

It was first objécted, that the ca. sa. not having issued to the county in which the defendant resided, could not properly have been returned “not found” by the sheriff of Buckingham. I do not think so. The ca. sa. properly issued to the sheriff of the county were the venue was laid, where the original process issued, and where the defendant was taken. This is the established english practice; and was the practice in Virginia, as the law formerly stood, unless the defendant had actually removed the bulk of his effects out of the county. No ca. sa. could issue against him except to the county where he was sued. 2 Wash. 7-2. At that time, then, the ca. sa. must of necessity have gone to the county in which the action was brought, except under peculiar circumstances. And though the ca. sa. may now issue to the county in which the defendant resides, yet it does not follow that this must be done to charge the bail. The truth is, that the issue of the ca. sa. is not so much with the view to take the defendant, as to give notice to the bail that the plaintiff' means to proceed against the person of the defendant; Tidd 993. And hence it is the established law, that the return of non est inventus will be good, although the plaintiff knew where to find the defendant. Por the bail has undertaken to render his body to prison in execution, and all that he has a right to demand, is the notice, which the issue of the ca. sa. gives, that the body is proceeded against, and that he must fulfil his engagement.

If the ca. sa. may issue to the county where the suit is .brought, the sheriff is authorized to return non est inventus, ^although the defendant be no inhabitant. The section of the law which requires the return of “no inhabitant” does not extend to final process. At common law and according to the form prescribed by our statute, 1 Rev. Code, ch. 134, £ 1, the sheriff must return “not found within my bailiwick.” “No inhabitant of my bailiwick” is not a proper return; for notwithstanding that be the fact, the sheriff must take the party if he can find him within his bailiwick. No other return, therefore, but that of non est inventus can excuse him.

Next it is objected that the scire facias was improperly made returnable to the rules. But the statute is too explicit to admit of this defence. It provides that every writ of capias ad respondendum or scire facias shall be returnable, at the plaintiff’s option, either to the first day of the next .succeeding term, or in the clerk’s office, to some previous rule day. This act is general in its terms, and therefore included the scire facias against bail. It was subsequently repealed so far as related to the capias in the county court, but there was no repeal as to the scire facias. It therefore regularly issued.

It is next contended that the surrender on the Sth January entitled the bail to an ex-oneretur. I do not think so. The question depends on the answer to the inquiry, what is the appearance day? If the law has fixed no other day as the appearance day, it is obvious, that the day on which the writ commands the party to appear must be the appearance day. Formerly, the law did expressly declare, that the appearance day should be the day after the rising of the court to which the writ was returnable. 1 Rev. Code of 1792, ch. 66, £ 35. But now it is strongly intimated by a corresponding section in the subsequent revisal of 1819, ch. 128, £ 42, that the return day of the writ is the appearance day; for where an attorney undertakes to appear for the defendant, his appearance is required to be entered on the return day of the writ. Be this as it may, — if this clause *is to be construed as indicating the appearance day, then the return day is the appearance day; if not, then there is no appearance day expressly appointed by the law; and therefore the appearance day is that which is appointed by the writ. And so this court seems to have thought, in Kyles v. Eord. If I am right in this position, then Monday the Sth January, which was the return day of the scire facias, was the appearance day also. The defendant is commanded “to be at the office on the first Monday in next month [January] that being the day on which rules are to beheld &c. to shew &c.” Monday, therefore, was the appearance day; and whether we consider that day as distinct from the other rule days, or all six rule days as making but one day (as was decided, when I was at the bar, by judge White, one of the most distinguished judges of the general court), it will, in this case, amount to the same thing; for the surrender was not made until Monday; whereas the statute requires that it be made before the appearance day of the scire facias, and is not satisfied by a surrender on the appear-anee day, even though before the scire facias is returned. I think there is no ground whatever for considering the last of the six rule days as the appearance day.

Judgment affirmed.  