
    Lyons, Surviving Executor of Claiborne, v. Gregory.
    Tuesday, November 22, 1808.
    Appellate Practice — Judgment Twice Reversed — Second Appeal. — Where tie judgment of a District Court reversing that of a County Court, is not in its nature final, but remands the cause for further proceedings: and the subsequent judg-raent of the County Court is also reversed by the District Court; the Court of Appeals, if the original Judgment of the County Court he correct, will reverse all the subsequent judgments, and aifirm that.
    Judgment  —Scire Facias — Limitation—Statute.—The act of 1792, for limiting the time within which a scire facias may be issued on a judgment, (Rev. Code, 1 vol. c. 7(S, s. 6, p. 108,) did not apply to a scire facias, previously sued out, by leave of the Court, to revive a judgment which was more than ten years old when such leave was given.
    Records — Destruction—Admissibility of Minute of Judgment. — Where the records of a Court have been destroyed, an imperfect minute of a judgment may be admitted to record under the act of Assembly, in lien of the original; provided the substantial parts thereof appear; and the record of such minute, made by order of the Court, is good evidence on a plea of nul tiel record; although the Clerk has failed to indorse upon it that the original was lost, or destroyed, and has also failed to make an entry to the same effect in the record-book.
    Judgment — Scire Facias — Variance.—what variance between a judgment, and the recital thereof, in a scire facias, or in the judgment thereupon, are not material.
    Philip W. Claiborne, in May, 1771, obtained a judgment of King William County Court against Richard Gregory, for 471. with interest from the 18th of that month, *and the costs. The Clerk certified a copy of the minute of the judgment, with his name annexed, without any initials, or other mode of expressing the nature of his office; and added his taxation of costs thus; “costs 146 lbs. nett tobacco, 15s. and Is. 3d.”
    About the end of the American war, the Court-House of King William County was consumed by fire, together with a number of its records, and, among the rest, the documents on which this judgment was founded. An act of Assembly was passed to remedy the evils arising from that and other accidents of the same nature; under which act Carter Braxton and Peter Lyons, executors of Claiborne, produced the minute aforesaid to the Court of King William County, and that Court admitted it to record, and ordered a scire facias to be issued thereon to revive the judgement. Two writs of scire facias were successively issued, to which nihils were returned by the sheriff; (thedefendant having removed out of the County,) whereupon a judgment default was entered at rules on the 28th day of March, 1793, and confirmed on the 31st of May ensuing, for 471. with legal interest thereon, from the 18th of May, 1771, till paid, and 146 lbs. tobacco, Is. 3d. and 15s. or ISO lbs. tobacco, “being the amount of the judgment in the said scire facias mentioned.”
    To this judgment, Richard Gregory obtained a writ of supersedeas from the District Court of King and Queen, which Court reversed the judgment, remanded the cause to the County Court, and gave him leave to plead. Of this leave he availed himself on the 28th day of August, 1800, pleading, 1st. Nul tiel record. 2d. Non delinet. 3d. Nil debet; and, 4th. That the scire facias was sued out on a judgment obtained more than ten years anterior to the suing out thereof. To the 1st of these pleas the plaintiffs replied that there is such a record as that stated in the scire facias, &c. to the 2d there appears no replication ; on the 3d plea they joined issue; and to the 4th the plaintiffs replied that leave of the Court was obtained to sue out the scire facias, although ten years had elapsed, after the date *of the judgment, before the leave was obtained. To this the defendant demurred generally, and the Court decided that point in favour of the plaintiffs. On examining the record, the Court declared that there is such a record as that mentioned in the scire facias: to which opinion the defendant filed a bill of exceptions. The issue joined on the third plea being tried by a Jury, a verdict was found, and judgment rendered thereupon for the plaintiffs.
    Another supersedeas was obtained by Gregory, assigning for error; 1. That the scire facias reciting the judgment says it was “for debt,” which words “for debt,” do not appear in the minute of the judgment produced of record; 2. That, in stating the costs, the scire facias doth not add to “146 lbs.” the word “nett” before “tobacco,” as the minute produced doth; 3. That, in the scire facias, the 15s. recovered in part of costs, is not followed by the words and figures “or 150 lbs. tobacco,” though these words follow in the judgment rendered upon the scire facias; 4. That the minute aforesaid ought not to have been admitted to record, instead, or as a memorial of the judgment, under the act of 17th December, 1787 ; because it is not certified to be a copy, nor is the cause of its rendition stated to be the default of the defendant, or any other appropriate cause, as nil dicit, &c. because the name, Edmund Berkeley, thereto subjoined, doth not appear to be the name of the Clerk of the Court; and because the original transcript of the minute is not indorsed by the Clerk, “that the original had been lost or destroyed;” 5. That an entry to the same effect was not made on the record; 6. That no issue was joined upon the plea of non detinet; 7. That the jury have found the debt due to the plaintiff, which cannot be, as he is an executor ; and, 8. That the law ought to have been declared for the defendant on the demurrer.
    On the hearing of this supersedeas, the District Court reversed the judgment “because the County Court had erred in permitting a copy of a judgment to go in evidence to the Jury which was variant from the judgment stated in the writ of scire facias;” from which judgment *of reversal, Peter I/yons, the surviving plaintiff, appealed to this Court. Warden, for the appellant, made the following points:
    1. That the record in the original suit having been destroyed by fire, the minute of the judgment, being recognised by the Oountj' Court as an authentic document under the hand of its Clerk, and admitted to record, was the best evidence to prove the rendition of the said judgment.
    2. That such minutes are always extended in the order-book so as to give judgments a more regular form; and that the insertion of the words “for debt,” in the scire facias, constitutes, on that principle, no variance between the judgment recited by it, and the judgment noted in the minute.
    3. That the taxation of costs is the work of the Clerk, and not of the Court; and that no variance between a mintute of them (as' made by him) and legal costs, can vitiate any judgment, or mintue thereof. On this point he quoted Heath’s Maxims and Rules of Pleading, p. 220, 224, 226.
    4. That the finding of the Court, on the plea of nul tiel record, is evidence that the minute of the original judgment, and of the costs noted-at the foot thereof, was entered of record, as expressed in the scire facias; notwithstanding the insertion of the words “for debt” in the judgment, and the omission of the word “nett,” and insertion of the words “ISO lbs. tobacco” in the statement of costs: because these only reduced the minute aforesaid, to the form which the Clerk might have legally given it in an execution, or an order-book.
    5. That the plea of non detinet on the scire facias was inadmissible, and an error of the defendant; and, had it been otherwise, was, in effect, put in issue and tried on the plea of nil debet; and that the finding of the Jury was a proper answer to that issue, and not liable to the exception taken to it.
    *6. That the judgment overruling the demurrer was correct, not only in consequence of the circumstances attending the judgment sought to be revived; such as the death of the original plaintiff, the removal of the defendant to distant parts, the existence of a tedious interval of war in this country, and occlusion of Courts; in consequence of which circumstances, the leave to sue out the scire facias had been granted; but, also, because the law, forbidding the issuing of a scire facias after more than ten years from the date of the judgment,  was not enacted when the leave was given and the scire facias issued ; or, if enacted, was not retrospective. Besides, the 14th section of the same act exempts a case like this from its operation ; and the case of Michell v. Cue and ux., 2 Burr. 660, had, long before, established a similar principle.
    Call, for the appellee, relied on the points stated in the petition for the supersedeas; observing that a scire facias must pursue the judgment in omnibus, and that the least variance is fatal; the reason of -which is, that the actual judgment is always liable to be executed, and, if it be not strictly pursued, a judgment on the scire facias is no bar to a future judgment on the original.
    The Sheriff’s return, too, of “not found” on the scire facias, was not the return which the law then in force required.
    It is now too late to affirm the first judgment of the County Court; for that was reversed by the District Court; and the plaintiff, not appealing, or making any objection went to trial again in the County Court.
    Wickham, contra. The original judgment of the County Court ws right, and ought not to have been reversed; and this Court must look into the whole record, and give judgment on the whole case. Knox v. Garland shews that the plaintiff could not have appealed from the judgment of the District Court reversing that judgment of the County *Court; since the cause was not thereby finally disposed of, but only sent back for another trial. In each of the cases of Robinson v. Gains,  and Biggers v. Alderson, there had been two judgments of the District Court, and the appeal was taken from the last only: yet this Court reversed them both, and affirmed the original judgment of the County Court.
    A number of captious objections have been taken in this case: but they are all unimportant; for the case of Peter v. Cocke’s executor,  proves that it is not necessary to state all the circumstances in describing a document, provided every thing material be mentioned. In this country the costs are never stated in the body of a judgment. In England the practice is otherwise; the taxing costs there being under the inspection of the Court; whereas here it is the mere act of the Clerk. The judgment is general for the costs, which are afterwards calculated by the Clerk. If, then, the alternative (15s. or ISO lbs. tobacco) was not mentioned; a complete bar to any objection on that account is, that the Court, as to costs, gave no judgment but that of the law.
    This cause was tried on the plea of nul tiel record: the Court sat to try the fact: and the copy, or extract, (under the circumstances, ) was the best evidence the nature of the case would admit of. Even in England, such a memorandum as this would be sufficient; for oyer may be dispensed with where the original is lost. So, a patent may be presumed.
    The act of 1792,  which limits the revival of judgments to ten years after their dates, was never held to operate upon judgments rendered prior to that act.
    The return of the sheriff on the scire facias was substantially good; and that is sufficient; for according to Rich. Prac. C. B. 316, 430, and Dalt. Sheriff, 279, the law requires no precise form in the return of any officer.
    The want of a replication to the plea of non detinet was unimportant. A special replication was not necessary; a “simili-ter” being sufficient: and it has often been held in this K'Court that the omission of a “similiter” is aided by verdict. 
    
    Saturday, November 26. The Judges pronounced their opinions.
    
      
      AppeIlate Practice — Judgment Twice Reversed —Second Appeal. — On this question the principal case is cited in foot-note to Knox v. Garland, 2 Call 241; foot-note to Biggers v. Alderson, 1 Hen. & M. 54: Horrel v. McAlexander, 3 Rand. 102; Jones v. Raine, 4 Rand. 390.
      See monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., IRob. 263.
    
    
      
      Judgments. — See monographic note on "Judgments" appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Rev. Code, 1 vol. c. S3, p. 38.
    
    
      
      Cb) Rev. Code, 1 vol. c. 33, p. 38.
    
    
      
       Rev. Code, 1 vol. c. 76, s. 5, p. 108.
    
    
      
       Ibid. 109.
    
    
      
       2 Call, 241.
    
    
      
       3 Call, 243.
    
    
      
       1 Hen & Munf. 54.
    
    
      
       1 wash. 257.
    
    
      
      
         Rev. Code, 1 vol. c. 76, s. 5, p. 108.
    
    
      
       See Brewer v. Tarpley, 1 Wash. 363.
    
   JUDGE TUCKER.

The appellant upon leave granted by the County Court of K. W. sued out a scire facias, to revive a former judgment, directed to the Sheriff of that County, in October, 1792; to which there was the return of not found made: a second scire facias was issued and returned in like manner; and judgment was thereupon entered at the rules in March, 1793. And that judgment became final (not being set aside, or pleaded to) at the succeeding Court in May. Upon a supersedeas to this judgment, the District Court of K. and Q. reversed the same, and remanded the cause to the Count}' Court, with leave to the defendant to plead thereto.

I said, the ground upon which this judgment was reversed in the District Court, in which I then sat, was, that, by the 48th section of the District Court Law, which took effect January 1st, 1793, it is directed that no judgment shall be rendered on the return of two nihils, unless the defendant reside in the District, or be absent from the Commonwealth; which regulation, it was supposed, extended to the County Courts, under the general provision in the County Court Law, that their proceedings, where not otherwise directed, shall conform, as near as maybe, to the proceedings and practice of the District Courts. But, I have since discovered a similar clause in the County Court Law, sect. 30, and, by the last section of that act, its commencement was postponed to the first of May, 1793. The office judgment was entered in March, and, there being no motion to set it aside at the next term, it was final thereafter.

*A second judgment having been rendered in favour of the appellants, and that judgment also reversed by the District Court, from which last judgment of reversal, there is an appeal to this Court, a question arises whether this Court can now correct the firsi judgment of the District Court, reversing that of the County Court upon the return of two nihils, on the grounds before mentioned, or not. And I am of opinion that we may. For, although where a judgment of reversal puts an end to the question of right between the parties, or to the action, such judgment (being in its nature final) cannot be disturbed, or inquired into in a collateral way, but remains in full force, unless reversed in this Court, upon an appeal, writ of error, or supersedeas; yet, where such judgment of reversal neither determines the right in question, nor the action, but merely directs a new trial, or new pleadings, for some error or omission therein, the whole of the proceedings (until a judgment in its nature final) are so far in fieri, as that this Court may take notice of the first error, where-ever it may happen: as appears from the cases of Robinson v. Gains, 3 Call, 243; and Biggers v. Alderson, 1 Hen. & Munf. 54, and Fisher’s Executors v. Duncan and Turnbull, ibid. 574, 577.

JUDGES ROANE and FLEMING

were of the same opinion.

Both the judgments of the District Court and the latter judgment of the County Court, were unanimously reversed, and the first judgment of the County Court affirmed, with damages according to law, from the date of the first writ of supersedeas. 
      
       Rev. Code. 1 vol. p. 89.
     