
    *Green v. Thompson.
    January Term, 1855,
    Richmond.
    Absent Field, P. (He sat in the court below in this case.)
    1. Writs — Ca. Sa. — Scire Facias against Bail. — A writ of capias ad satisfaciendum against the judgment debtor must be issued and returned non est inven-tus, before a scire facias can issue against the bail.
    2, Same — Scire Facias against Bail — What Return Must Show. — Under the Act of Assembly, passed March 5th, 1824, Sup. Rev. Code, p. 265, ch. 127, § 4, where the writ of scire facias against special bail is returnable to rules, it must appear by the return thereon, that there was at least ten days between the service of the writ, and the first day of the next succeeding term, or the writ will be of no avail.
    In 1845, Charles . Green , became special bail for one John Green, in a suit instituted against him by one Francis J. Thompson. In August of that year, Thompson recovered judgment against John Green. On the 26th February, 1848, the plaintiff, Thompson, sued out of the clerk’s office of the county court of Rappahannock a scire facias, returnable on the first Monday in March following, against Charles Green, as special bail. The defendant, Green, craved oyer of the record of the recovery against his principal, which was in the county court of Rappahannock, and then demurred specially, setting forth as causes of demurrer, that the scire facias did not show that the recovery was at a quarterly term, and that it was in other respects uncertain, informal, and insufficient, and pleaded two pleas. 1. That there was not, before the suing- out of the scire facias, any capias ad satisfac-iendum issued against his principal, and returned by the sheriff non est inventus. 2. That there was a capias ad satisfaciendum issued against his principal, on the 28th January, 1848, returnable on the second Monday in February, 1848, upon which the sheriff did not return non est inventus, until after the *scire facias was sued out and was returnable, to wit: on the first Monday in March, 1848.
    The plaintiff, Thompson, joined in the demurrer, and replied separately to the two pleas, as follows : That after the recovery of the judgment against the principal, and before the issue of the writ of scire facias, he sued, out a writ of capias ad satisfacien-dum upon the said judgment, returnable on the second Monday in February, 1848, ,and afterwards and before the day on which it was so returnable, delivered it to the sheriff, to be executed according to law, who, on the return day, to wit: the second Monday in (being the, 14th day of) February, 1848, returned the same non est inventus, concluding, “ as by the said writ of ca. sa., and the return thereof endorsed on the said 'writ, duly filed and remaining of record in the said county court of Rappahannock, more fully appears, with a verification by the record. ”
    The defendant, Green, rejoined to the first replication, that the sheriff did not return on the ca. sa. therein mentioned, that the principal was not found in his bailiwick, until the scire facias had been sued, out and was returnable, to wit: on' the first Monday in March, 1848, which came on the 6th day of March, concluding with a verification; and to the second replication in the words of his second plea, concluding with a verification. The plaintiff demurred to each rejoinder, suggesting as causes of demurrer, that the defendant had not denied that there was any such record, as the plaintiff in his replication had alleged; but instead thereof, had pleaded matter by way of verification, so as to make an issue to be tried by the country ; that the issue so tendered was immaterial, &c. The defendant joined in these demurrers. And upon these pleadings thus made up in the county court, the cause having been, by consent, removed to the Circuit Court, judgment was given for the plaintiff, and execution was awarded against the bail for the amount of the recovery against the principal, and the costs of the scire facias.
    *To this judgment, the defendant, Green, obtained a supersedeas from this court.
    Patton, for the appellant:
    Execution, issued iri January, returnable the 14th February, 1848. The execution was not in fact returned until after the emanation of the scire facias, and after it was returnable, to wit: to March rules, 1848. By the act’in the Supplement to Rev. Code 1819, the time for the bail to surrender his principal was extended. Sup. Rev. Code, p. 265, ch. 207.
    By the act of 184S-6, p. 64, there was a limitation of proceedings against special bail, so that if this scire facias be not valid and effectual, the bail is forever protected by the statutory bar.
    The law is conceived to be well established, that no scire facias can be sued out against bail, until a ca. sa. against the principal has been sued out and returned non est inventus. 1 Bacon’s Abr. 471, tit. Bail in civil causes, D.; Tidd’s Pr. 1147-1148. 7 Bacon’s Abr. 143, tit. scire facias, C.; 7 Com. Dig., tit. Bail, R. 1 ; 1 Shepp. Abr. 266; 1 Clerk’s Instr. 255; 1 How. Exch. Pr., Pleas Side, 329 ; 1 Archb. Pr., 2 ed. 319 ; Petersdorf on Bail, 354, 397; 2 Saunders’ Rep. 71, c. d., note 4 to Underhill v. Devereux.
    The great point of dispute in England seems to have been, whether not only the return of non est inventus must be made on theca, sa., but whether the ca. sa. with that return must be actually filed or brought back into the custody of the custos brevium. It is of very little importance in this case, whether it is necessary that the return should be filed or not before the scire facias is issued. It is distinctly pleaded, that it was not returned non est inventus, and that plea is demurred to.
    We have no information on this record, how or when, or in what form the return was made, or whether or when it, was filed in the clerk’s office, if it was so filed at all.
    In my judgment, the principle of the case, as presented *by the pleadings, is exactly that which was presented by the decision in 3 Johnson R. 514, Pearsall v. Eawrence. Mr. Green in his printed argument, endeavors to destroy the, force .of that authority, by. arguing that it turned upon the provisions of the statute. But the statute is only .declaratory of what is the settled and generally recognised rule of the common law, that there must be a return of non est inventus before the issuing of the scire facias. Our statutes are as incompatible with the rules and practice of England, as those of New York. In England it seems to have been the , practice, when a party intended to proceed against bail, to file a ca. sa. in the sheriff’s office, without any intention of having it executed, even when the principal could be taken, and after the return day the bail was fixed, because the bail could have notice of the writ by searching in the sheriff’s office, where he could find the ca. sa., and thereby know he was to be proceeded against; and if the ca. sa. did not lay a certain number of days in the sheriff’s office, and was not entered in a public book in the sheriff’s office, the proceedings against bail would be stayed. Vide Petersdorf on Bail, p. 399.
    Now no such means of knowing that he is to be proceeded against are furnished to the bail in Virginia. We have no sheriff’s office in which is kept a public book for that purpose, and no sheriff in this State would be authorised to return non est inventus, when he knew where the defendant was. True, we have an execution book kept by the clerk, required by the statute, and there is no distinction between executions to 'be executed, and those to be falsely returned, for the purpose of fixing' bail.
    In England it may be a’ matter of form, whether a return on the execution is made or filed, since, as is shown by Mr. Green, the bail’s liability is fixed after the return day of the execution, neither the death of the principal nor his surrender entitles the bail to exoneration.
    True, as a matter of indulgence, the courts even there *will allow bail to discharge themselves on the return day of the scire facias executed. But it is not matter of right, and bail is fixed by the return day of the ca. sa. Here the law is not so. Bail may surrender, by law, on the last day of the term next after the return of the scire facias is executed ; and it follows, that here he might plead the death of the principal any time before, actus Dei nemini nocet
    There is another ground fatal to the judgment in this case. No scire facias returnable in term time has any effect, unless there be ten days between the service of the writ and the return day. Sup. Rev. Code, p. 265-6. In this case the scire facias was served on 4th March, 1848, the return day was the 6th March, and the ensuing term was on the second Monday of the same month, viz: the 13th ; so that there was not ten days from the service to the return, or to the ensuing term. True, the letter of the statute applies to a writ returnable i'n term. But the obvious spirit and equity of the law applies to this case. It is plainly within the mischief, and it would be a fraud on the law if bail could be deprived of the full time to surrender his principal, intended by the statute, by the contrivance resorted in this case.
    Green, for the defendant in error :
    I. It is objected, that the scire facias was issued prematurely, because, until a capias ad satisfaciendum against the principal had not only been issued and become returnable, but, moreover, been in fact returned, no such proceeding was maintainable. And, in order to found this objection, it is assumed as admitted by the demurrers of the plaintiff below, that the scire facias did emanate before there was a ca. sa. so returned. I shall endeavor to maintain the contrary of both these propositions.
    1. As to the first, the case of Pearsall v. Eawrence, 3 Johns. Rep. 514, is not (beyond a mere dictum which I shall notice here-
    432 after) an authority bearing upon the ^question ; for the ground of • the decision there, as appears incontestibly from the declarations, both of the counsel on the side which was successful, and of the judg'e who delivered the opinion of the court, was a statute of Néw York, set out in 1 Danl. Prac. 202, moire accurately than in the report, and which statute neither was in fact declaratory of the former law, nor purported so to be, but rather the reverse. On the other hand, in New Hampshire (5 N. H. Rep. 9; Mahurin v. Brackett), and in Kentucky (3 A. K. Marsh. 330, Malone et al. v. Samuel) , — where no legislative sic volo stood in the way — the precise point (in effect) has been decided against the now plaintiff in error ; for, in each of them, it was held that proceedings against bail were well instituted, though there did not exist, at the commencement of them, any return of non est inventus upon a ca. sa. against the principal ; such return being made afterwards, by leave of the Court, as an amendment, in lieu of no return at all as to the principal, in the former, and, in the latter, in lieu of another return; which, had it remained unaltered till a decision upon' the scire facias, must have been fatal to the plaintiffs therein. 11 Mass. Rep. 234, Herrick v. Richardson. And in Massachusetts, the same point, in substance, though not presented in the same form, was decided in the same manner, in a case which I shall hereafter introduce, in in another connection. 4 Pick. 120, Bradford v. Earle.
    In England, to which, perhaps, ttie Court will most look for guidance, it has been repeatedly stated, in books of very good credit (many of which have been quoted on the opposite side), that a capias ad satis-faciendum against the principal must be sued out and returned non est inventus, to which, in some books (Harris’ Pract. B. R. 277; 1 Richards’ Pract. B. R. 5th ed. 392), is added that the writ so returned must also' be filed, - before any proceedings can be had against bail upon their recognizance. But the supposed requirement of a previous filing has long since been exploded‘*(1 Eev. 225, Gee v. Pane), while, as to the other supposed requirement of a previous return, all the authorities cited in all or any of the books which have been quoted, or in any which I have ever seen, to maintain that assertion, are (in chronological order) 4 Eeon. 36, Anon. ; 1 Eeon. 58, Eullwood v. Eullwood; Moore, 432, Hobbs v. Tadcastle; Cro. Eliz. 597, Gouldsb. 174, S. C.; Poph. 186, S. C. cited; Cro. Eliz. 618, Walmsley v. Havard; W. Jones, 29, Sparrow v. Sougate ; 138, Calfe v. Dingley ; Cro. Car. 481, South v. Griffith; 1 Roll. Abr. 333, pi. 1, S. C. ; 308, pi. 13, Thompson v. Barcock; Style, 281; 288, 323, S. C. ; 2 Eutw. 1273, Sparks v. Cole; 1 Ed. Raym. 156, Wilmore v. Clark; 10 Mod. 267, Waddall v. Manucaptors of Jocar; 1 Barn. & Aid. 212, Thackray v. Harris ; and, from a review of them all, it is apparent, that in not one of them was there either occasion or any opportunity to decide that a ca. sa. must be actually returned against the principal before the emanation of a scire facias or the commencement of an action of debt against the bail, in the sense now contended for by the counsel for the plaintiff in error. In other words, it was not, and could not have been, in any of them, judicially determined that the ca. sa. must be so returned, if by actual return is meant that it is delivered by the sheriff, or any deputy for him, with an indorsement of non est inventus upon it, or with such a return in any manner accompanying it, either to the custos brevium or to any person whatever. In vain, I am persuaded, will any decision to that effect be looked for in England ; and that such is not the law there, may be shewn, as I conceive, both upon abundant authority and upon principle. What is really meant by the statement in question, I shall endeavor to make plain in the sequel.
    (1) In the sense attributed to those statements by the counsel on the other side, authority stands opposed to them. Thus in Redman v. Idle, 2 Lutw. 1282-1287, which was a case of scire facias against bail, the defendant pleaded, in bar, that “after the rendition of the judgment” against the principal, “and before the day of the impetration of the first writ of scire facias [against the bail] to the sheriff of Middlesex directed, no writ of capias ad satisfaciendum on the said judgment was [by the plaintiff] sued out, and by any sheriff of the said county returned into the court here;’’ the plaintiff replied, that, after the judgment and before the first writ of scire facias was issued, he sued forth a ca. sa. against the defendant in.the original action, and that it was returned non est inventus. The defendant rejoined, that “the aforesaid writ of capias ad satisfaciendum [in the replication] specified was de facto delivered to [the sheriff] long after [the return day thereof] and after the emanation and return of the scire facias aforesaid, and that [the plaintiff], by fraud and covin between him and [the sheriff], procured the said writ of capias ad satisfaciendum to be returned in form aforesaid, absque hoc that the said writ was delivered to the said sheriff before the day of the return thereof, as it ought to have been, and as by the writ and the return thereof above is supposed,” concluding with an averment; and, upon a demurrer thereto, judgment was given for the plaintiff, on the sole ground, that “the traverse time of the delivery of the ca. sa. to the sheriff was not material, ” according to the reporter, who is one of the most reliable, and who refers in support of this ground of decision, to 2 Lev.
    The case is introduced by Comyns into his Digest, (tit. Bail, R. 4,) thus: “ The bail may plead that no capias ad satisfaciendum issued against the principal secundum cur-sum cur«, Lutw. 128S ; Tho. 282. But if a capias ad satisfaciendum issued, it is well, though it was not delivered to the sheriff before the scire facias. R. [that is, resolved, or ruled,] Letw. 1287.” Surely the ca. sa. could not be actually returned non est inven-tus before the scire facias issued, if it was not delivered to the sheriff before the scire facias itself. The decision, therefore, seems to be, and, as understood by “ the most able lawyer (among his cotemporaries) in Westminster *Hall, ” (so Lord Kenyon calls him, in 3 Durnf. & E. 64, Pasiey v. Freeman,) it is absolutely in point to the present question.
    Again: death of the principal before return of a ca. sa. discharges the bail, and is pleadable in bar of an action, whether debt or scire facias, upon the recognizance, (W. Jones 138, Ralfe v. Dingley ; 1 Roll. Abr. 336, pi. 2; 450, pi. 7, S. C. ; Style, 324, Barcock v. Thompson ; 2 Lilly’s Ent. 585, A, Anon ; 3 Salk. 57, pi. 9, Anon.,) because a surrender of the principal before such return, would be performance, according to the strict legal construction of the contract of bail, (1 Ld. Raym. 156, Wilmore v. Clark; Tidd’s Pract., 9th ed., 283, Healey v. Medley; Petersd. Bail, 367; ) and when, by the act of God, such performance is rendered impossible, that operates as a perfect legal excuse for the non-performance, and, as completely as an actual surrender itself would discharge the bail at law. But, though a surrender after such return, and even after proceedings have been well and validly commenced upon the recognizance, provided it be not then too long delayed, entitles the bail to be released —by the indulgent practice of the court, (1 East, 89, Clark v. Bradshaw ; Tidd’s Pract. 9th ed., 282; Petersd. bail, 400 ;) — the death of the principal within the same period, conduces nothing towards the release of the bail; and the reason of it, expressly stated in some of the cases, is, that the plaintiff’s right of action against the bail being complete immediately upon the return, the latter cannot afterwards obtain exoneration by means of the court’s indulgence, upon merely shewing an impossibility of compliance with the terms on which alone such indulgence is granted. Cro. Jac. 97, Williams v. Vaughan ; 165, Tymberley v. Coleman ; 1 Roll. Abr. 336, pi. 1, S. C. ; 1 Freem. 338, Menate v. Cotlo ; 8 Mod. 31, Glynn v. Yates ; 1 Stra. 511, S. C.; 2 Stra. 717, Barry v. Barry ; 2 Ld. Raym. 1452, S. C. ; 1 Barn. B. R. 26, Ivory v. Machen ; Barnes, 106, Whitehead v. Gale ; 2 Wils. 66, Filewood v. Popplewell; 5 Durnf. & E. 363, Perigal *v'. Mellish. Which points being settled, from them, in connection with some decisions to be presently mentioned, we get a distinct criterion for determining, by authority, the precise time (with reference to the return of a capias ad satisfaciendum against the principal) at which the bail becomes fixed ; that precise time being the punctum temporis, before which death of the principal does, but after which it does not, exonerate the bail; and the substance of the decisions alluded to being accurately represented in the following extract from a good writer : “ The death of the principal at any stage of the proceedings before the return of the capias ad satisfacien-dum against the principal. discharges the bail; but, as they are in strictness fixed by the return of non est inventus, if the defendant die after the ca. sa. is returnable, though while the writ remains unreturned in the sheriff’s office, the court will not relieve them. ” Petersd. Bail, 388-389. The first of these decisions was made in the case of Boyland v. Crook, et als. which is reported, in 1 Richards. Prac. B. R. 5th ed. 396, 2 Crompt. Pract. 3d ed. 83, and 2 Sell. Pract; 2d ed. 56, in these words: “Motion to stay proceedings against the bail; the ca. sa. was returnable the last return of Michaelmas, viz : 28th November, and the principal died 1st December, the ca. sa. being then iri the sheriff’s office, and not actually returned till the 3d December; and the motion was denied. ’ ’ To the same effect precisely are two other English cases — Field v. Lodge, 3 Dougl. 410 ; and Rawlinson v. Gunsten, 6 Durnf. & E. 284. And to them may be added a decision exactly similar, in the Massachusetts case before mentioned, of Bradford v. Earle, 4 Pick. 120. Whether the ca. sa. was in the sheriff’s office, or elsewhere, could make no possible difference, so long as it remained in the custody and power of himself, or any of his deputies; nor could it make any difference whether, under such circumstances, there had or had not been written upon it, or any paper accompanying it, what is called the sheriff’s return ; since, up to the *moment of his parting with such custody and power, he might make or alter any return on it, ad libitum, without asking leave of the court.
    Some passages, in direct conflict with these decisions occur in Com. Dig. tit. Bail, Q. 5, A. S ; in the former of which it is said : “ If the principal die before a capias against him returned and filed, the bail shall be excused ; ” and, in the latter, “ so he may plead that the principal died before a capias returned and filed against him. ” But, upon an examination of all the authorities cited in support of these positions, it will be found, that it neither was, nor could have been decided in any of them, that the capias must be filed, or even returned in the sense of a delivery to the costos brevium, or any other person out of the hands of the sheriff himself, in the life-time of the principal, in order to fix the bail; and nothing that sounds like it is even said in any of the books so cited, except by Rolle in his own Abridgement, (1 Roll. Abr. 450, pi. 6, 7;) and in Style 324, Barcock v. Thompson. Such a dictum, though adopted by Comyns, (if the mere incorporation of it into his Digest is to be regarded as an adoption,) cannot stand in the way of the numerous contrary decisions which I have quoted.
    (2) By the terms of the recognizance the bail engages that the defendant shall pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he (the bail) will do it for him. These words, says Holroyd, J., in Sar-dón v. Procter, 7 Barn. & Cress. 800, “have been construed to import, not that the defendant is bound to surrender at all events, but only in case he .is required by the plaintiff in the action so to do ; and the suing out of the ca. sa. is notice to the bail, that the plaintiff does not require the defendant to be rendered. ” Subsequent non-compliance with that demand is a breach of the recognizance, and fixes the bail; and (conformably to the general rule, that an action in any case cannot be commenced until a cause of action has accrued, but may be ^instituted as soon as it has,) before the bail are fixed by such breach of the recognizance, an action (either debt or scire facias) cannot ; but as soon as they are so fixed, (in point of fact, no matter whether the requisite evidence thereof is then immediately forthcoming or not,) an action may be instituted against them. This happens as soon as the return day of the capias ad satisfaciendum is come— numerous decisions in point having settled that it need not be both come and gone, (2 Ld. Raym. 1567, Stewart v. Smith; 2 Stra. 866, S. C.; W. Kel. 142, Ashlett v. Beake ; 8 Durnf. & E- 628, Shivers v. Brooks ; 629, n, Cruikshanks v. Steward; 1 Crompt. & M. 672, Sandland v. Claridge ;' without a surrender of the principal. Before that time the demand, which the legal construction of the contract of bail requires, is only begun, and till then it continues, because, till then, the ca. sa. can be executed ; but after that the defendant cannot be taken upon the execution, the force of which is then spent, and therefore the demand, made only by means of it, is then at an end. “ Rendering,” says Parker, C. J., in Weddall v. Manucaptors of Jocar, 10 Mod. 267, “ is to be understood rendering upon demand, viz : at the return of the capias: for then is the legal demand completed. Not rendering then is a refusal; and then the bail becomes liable. ” It is obvious, from the reason given, that, in this extract, “ return ” is synonymous with “ return day, ” which is the sense very frequently put upon the word in other passages ; and is an unquestionably proper use of it, as appears from 3 Blackst. Comm. 275, 277; Burr. Law. Diet. v. Return ; and from the decision of the court, which turned on that precise point, in The Bank v. Della Torre, 2 Speers, 501.
    For the sake of affording the bail some means and opportunity of really knowing that a ca. sa. had been issued, and a demand thus made for the render of the principal, the courts in England introduced a practice of requiring that the ca. sa. should be lodged in the ^sheriff’s office, and lie there four days exclusive before the return day, (2 Salk. 599, pi. 6 Anon.; 1 Barn. B. R. 314, Flanningant v. .Adey; 1 Barn. & Aid. 528, Howard v. Smith,) besides which, some, but not all of them, (McClell. & Y. 483, Smith v. Parker ; Tidd’s Pract. 9th edit. 1098-1099; Archb. Pract. 8th edit. 799-800 ;) until very recently, and none of them at any time except in regard to London and Middlesex, (2 Crompt. & J. 189-190,) required that it should also be entered in a book kept there, publicly, for the purpose ; and, if either of these requirements (in the particular court in which it existed) were not complied with, the court, would, on motion, relieve against it as an irregularity, (Barnes, 64, Merrett v. Montfort; 13 East 589, Cocke v. Brockhurst; 2 Chitt. Rep. 102, Hutton v. Reuben ; 5 Maulé & S. 323, S. C. ;) but, because the requirement wes founded only upon the practice of the court, and not upon either statute or common law, the failure to comply with it would not be pleaded in their defence by the bail — 7 Barn. & Cress. 800, Sardón v. Procter ; Tidd’s Pract. 9th edit. 1129. In V irginia we have not, and cannot have, either of those regulations ; for, in at least nine out of ten of our counties there is no such thing as a sheriff’s office ; but we have long had a better, in that provision of our law, which requires an execution-book to be kept in every clerk’s office. Prom that book, better than any where else, bail can obtain “ the notice, which the issue of the ca. sa. gives, that the body is proceeded against, and that he must fulfill his engagement;” and which notice is “all,” says Tucker, P., in Branch v. Webb, 7 Leigh 380, “ that he has a right to demand.” He has not the right to demand, moreover, as a condition precedent to his being sued upon the recognizance, that a return of the sheriff shall first have enabled him, in the words of the gratis dictum in Pearsall v. Lawrence, 3 Johns. Rep. 516-517, “ to ascertain what has been done upon the execution, in order (thereby) to determine his own liability.” For his “ engagement,” undertaken by entering into the '^recognizance, and which the mere issuance of the ca. sa. gives him notice that he is called upon to fulfill, requires him to cause, or at least see, at his own peril, that his principal (failing to pay and satisfy the condemnation of the court) “ render his body to prison in execution for the same,” in due time. So strong is this obligation upon him, that he cannot complain with effect, against either .the plaintiff in the action or the sheriff ; that the latter has not taken the principal when it was in his power to do it. 2 Saund. Rep. 71 c.-72, notes 4 and f to Underhill v. Devereux; Tidd’s Pract. 9th edit. 1098, .Sillitoe v. Wallace. An attempt to maintain that in this respect the law was altered among us, by R. C. 1819, ch. 78, § 18, was scouted by the court, in Branch v. Webb, 7 Leigh 377, 380-381. And the due time, within which this is to be done, is on or before the return-day of the ca. sa., here as well as in England ; for, though the relief granted there to the bail, upon a surrender afterwards, under certain circumstances, by the indulgence of the court, has probably been made his legal right here, by the statutes in R. C. 1819, ch. 128, § 54, and Supp. R. C. 1819, ch. 207, (see 5 Call 308-309, Ross v. Randolph; 7 Leigh 535, Step-toe’s adm’rs v. Harvey’s ex’ors,) still it is certain, those statutes did not convert such a surrender into a legal performance of the recognizance, or a complete substitute for performance, since they subjected the bail to the payment of costs of the proceeding upon the recognizance, and directed that judgment for the same should be entered against him therein. If the proceeding itself were instituted improperly,.prematurely, before the liability of the bail had become fixed, such a judgment could not have been either required or authorized.
    I conclude this head of my argument, therefore, with saying that, where the principal is not sooner surrendered or dead, or the like, the plaintiff is “entitled in all cases to sue out a scire facias on the return day of the capias;” ■p'hich are the very words of Lord Denman, *C. J., in delivering the opinion of the court in Armitage v. Rigbye, 5 Adol. & Ell. 76. Any contrary statement (so far as has been yet, and, I believe, so far as can ever be, discovered,) is naked assertion, not sustained, either in England or in Virginia, by decision, principle, statute, or rule of court, but opposed in England and several of the States of this Union to decision, and both there and here to principle.
    2. The fact assumed on the opposite side, that the scire facias in this case was sued out before a ca. sa. was actually returned against the principal, does not appear — but the contrary thereof does appear — judicially to the court. The replications having asserted, against the previous denial, expressed in the first and implied in the second plea, that a capias ad satisfaciendum had been sued and returned before the emanation of the scire facias, and having offered to prove that averment by the record ; and the rejoinders, which again contradicted that assertion in precisely the same manner as had been already done in the pleas, having declined that mode which the replications proposed of testing the truth upon the point so brought into question, it is nothing short of absurd (absit invidia verbo) to say, that demurring to them for that cause is an admission by the demurrant of falsehood in his own positive statements put forth in the replications. So ■ far otherwise, if the mode of trial proposed in them be proper, more especially if it alone be proper, his adversary’s declining it and insisting upon another instead is (in effect) an admission by the latter, that if tried in that (the proper) mode the disputed fact would be found against him and in favor of the demurrant. At any rate, whether upon this ground or upon some other, if the mode of trial which the replications proposed was the proper one, the rejoinders seeking to draw the matter ad aliud examen, were bad upon demurrers assigning especially that cause. T. Raym. 50, May v. Spencer; 1 Lev. 193, Dring v. Respass; 2 Salk. 521, Fanshaw v. Morrison; 2 Ld. Raym. 1138, S. C.
    “Now, the case of Jackson v. Wickes, 7 Taunt. 30, 26 Marsh, 354, is a decisive authority that, upon the question whether a ca. sa. has been sued out against the principal and returned non est inventus before the institution of proceedings against the bail, the proper and only correct mode of trial is by the court— the conclusive and only admissible proof is bjT the record; that a jury cannot have anything at all to do with it; and that the court, in deciding it, can regard nothing whatever besides the record. For, in that case, the defendant having pleaded, in bar of a proceeding against him as bail, upon his recognizance, that no ca. sa. had been sued out against the principal and returned before the commencement of that proceeding, the plaintiff replied, a ca. sa. sued out and returned, “as by the said writ of capias ad satisfaciendum and return thereof duly réturned and filed” would appear, and that he was “ready to verify by the record,” concluding with a prayer ‘ ‘that the record of the writ and the return thereof might be seen and inspected by the court;” to which the defendant having demurred specially, for the reason (among others) “that the plaintiff had introduced new matter by setting out the record of the writ, whereto the defendant must plead in rejoinder before the issue could be perfected, but by the conclusion, of a prayer to the court to inspect the record, the defendant was excluded from so doing;” the court, after hearing counsel in support of the demurrers, but without hearing counsel on the opposite side, unanimously gave judgment for the plaintiff; and Gibbs, C. J., said: “Thedefendant has the full benefit of every possible rejoinder which he could make, for a day must be given to inspect the record.” If there had been any “possible rejoinder” which, consistently with the rules of law, the defendant could have made, had the replication not concluded with such a prayer as it did, save and except a mere denial that the record alleged by the plaintiff existed, the judgment must have been different. 1 Chit. Plead. Sth edit. 678-679; Steph. Plead. 1st edit. 251-*255; Gould on Plead. 3rd edit. 383-191. Nor is this a solitary determination; for in 3 Chit. Plead. Sth 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 precedents, anterior in date, which are in precise accordance with it. 1411. JEDntr. 39S-397, Parmer v. Ryves’ bail; 1 Richards’ Pract. B. R. Sth edit. 414-423 ; 3 Morg. V. M. edit. Dub. 1792, p. 40S-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 Dutw. 1269, Sparks v. Cole; 1281, Baxter v. Peach; 5 Dowl. & Ryl. 605, Philpot v. Maneall; 4 Beigh, 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, Pield v. Dodge) — 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 ^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 Dd. Keny. 347-348, Whitmore v. Rock. If, however, this 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. Por 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. Dane; 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 trj- 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 *Saund. Rep. 72, ¡5, note h to Under-hill v. Devereux), concluded his replication agreeably to the precedents in Clift’s Entr. 188, Barry v. Dincoln; 2 Dutw. 1286, Redman v. Idle; 2 Dd. Raym. 1256, Par-kins v. Wilson ; 3 Dd. Raym. 346, S. C. ; 1 Clerk’s Instr. 263, 265; 2 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 Sth 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, "comprehend this case? Its words manifestly do not. As the law stood before, bail might have entitled themselves even after the commencement of a suit upon the 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 returnable — the 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, 2Rand., 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 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. Chañe. Decis. 343, Franklin v. Franklin; Walk. Michig. Rep. 395, Barstow v. Smith; 1 Mann 469, Bidwell v. Whittaker; Willes 3.97, Coleham v. Cooke; and especially 3 Kelly 146, Ezekiel v. Dixon.
    
      
       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.
    
   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 inven-tus? The counsel for the appellant insists, that the ca. sa. must be returned non est inventus before - proceedings "can be commenced against the bail by scire facias or otherwise; while the counsel for the appellee contends, that it is only necessary to sue out a ca. sa. returnable to a certain day, and when the return day has come, or come and gone without the principal being taken or surrendered, that the bail is fixed without an actual return of the writ, and that it suffices if it is returned and filed at any time before the plaintiff has occasion to vouch the record; that is, at any time before the plaintiff has to file his replication to the plea of no ca. sa. against the principal. And the counsel for the ap-pellee, in his written argument, at page 11, after reviewing the authorities in support •of the proposition contended for by the appellant, says: “And from a review of them all, it is apparent, that in not one was there any occasion to determine that a ca. sa. must be actually returned before the emanation of a sci. fa., in the sense now contended for by the counsel for the pltff. in error; or, in other words, it was not judicially determined in any of them that a ca. sa. must be so returned, if by actual return be meant that it is delivered by the sheriff with his endorsement of non est inventus upon it, either to the custos brevium, or to any other person; and I think it is very clear that no decision to that effect can be found in England.” But, still, it by no means follows, that because the English decisions have not gone» to that extent, that it is not decided that a ca. sa. must be returned non est inventus before a scire facias can emanate against the bail. It seems to me that the apparent conflict in the authorities may be reconciled by the fact, that in England the return of non est inventus to a ca. sa. is made in a public book in the sheriff’s office, and in which book the bail and all other persons may search ; and that before a scire facias can emanate against the bail, the ca. sa. must be returned non est in-ventus, by an entry to that effect in this public book, where the bail may search and see for himself; and that when such entry is made the ca. sa. is then returned in the sense spoken of by the elementary writers ; which '*entry fixes the bail; and that the return of the writ itself, with the sheriff’s endorsement thereon corresponding with the entr3r in the public book in the sheriff’s office, to the custos brevium, is mere matter of form, and not necessary to fix the bail; and that it is only necessary that this return to the custos brev-ium, and the filing of the writ, should be had before the bail are called on to plead ; for if not done then, the bail ma3r plead nul tiel record — the writ not being esteemed a record until it is returned to the custos brevium and filed. Petersdorff, p. 199, under the head of proceedings preparatory to suing bail, says: “The writ (that is, the ca. sa.), on being left at the office (that is, the sheriff’s office), should be entered in the public book.” And inTidd’s Practice, page 1148, it is said, that “two books are kept in the sheriff’s office, wherein entries are made of writs of ca. sa. against principals ; one a public book for such writs to be returned non est inventus, and in which book the bail and all other persons may search.” And this, it seems to me, solves the difficulty and explains the seeming inconsistency of dicta and decisions. This being true, it is the return of non est in-ventus, entered in the public book of the sheriff to the ca. sa., which ca. sa. is also entered there, which fixes the bail, and not the return of the writ itself to the custos brevium to be filed, which, when done, constitutes it a record. Eor the same author adds, “that in order to charge the bail, the writ must lie four days in the sheriff’s office, which must be the last four days before the return.” And Petersdorff, page 199, says: “After the expiration of these four days the plaintiff should obtain a return of non est inventus, which the sheriff is justified in making, notwithstanding he may know where the principal is to be found.” It is manifest, then, to my mind, that, according to the practice and proceeding in England, an entry or return of non est inventus is made by the sheriff in his book, as is the sheriff’s return in this country made by the clerk in the execution book; and in England, after this entry of *non est inventus is made by the sheriff, it is his duty to return the writ itself, with the endorsement of non est inventus, to the custos brevium to be filed; and in England, in order to fix the bail, the writ must be entered in this public book four days before the return. When, therefore, it is said by Tidd, and Williams, and Petersdorff, to which may be added innumerable dicta of judges, to the effect that before proceedings can be had against the bail in the action upon their recognizance a capias ad satisfaciendum must be sued out against the principal and returned non est inventus, we have onl3r to refer this declaration of this legal principle to the return to be made by the sheriff in his public book, which is open to inspection to all, and we at once reconcile what, without it, would be irrconcilable.

Keeping this in view, the authorities cited by the appellee’s counsel, in his written argument, for and against the proposition contended for by the appellant, harmonise and become intelligible. At page 9, for example, of the written argument, it is said: “Prom these decisions, with some afterwards to be cited, we get a pretty distinct criterion for determining by authority the time at which bail becomes fixed, the substance of the decisions alluded to being accurately represented in the following extract from a good writer.” That extract is as follows: “The death of 'the principal at any stage of the proceedings before the return of the ca. sa. against principal, discharges the bail; for they are in strictness fixed by the return of non est inventus.” And then it is added, “if the defendant dies after the ca. sa. is returnable, though while the writ remains unre-turned in the sheriff’s office, the court will not relieve them.” Here isa palpable contradiction in terms, on the supposition that there is but one return spoken of in reference to the writ, and that the one which is to be made by the sheriff of the writ itself to the custos brevium to be filed, but perfectly intelligible as explained by Mr. Tidd; that is to say, if we are to understand that the sheriff makes the return to the process of ca. sa. of non *est inventus in his public book, and a return of the process itself afterwards to the custos brevium to be filed. In this extract it is said, the bail is discharged by the death of the principal before the return of the writ, and it is the return of non est in-ventus that fixes the bail; and in the next clause it is said, if the defendant die before the writ is returned, the court will not relieve them; which is a contradiction in terms. It is obvious, however, that the author meant, that the death of the principal at any stage of the proceedings before the return of the ca. sa. entered in the sheriff’s public book to the writ, discharged the bail; but,' as they are in strictness fixed by the entry of this return of non est in-ventus in the sheriff’s book, if the defendant dies after this entry, though the ca. sa. is returnable to the custos brevium, and though the same may not be returned to the custos brevium, but is remaining in the sheriff’s office, the court will not relieve them. The handing over the writ itself by the sheriff to the custos brevium, with the corresponding endorsement, to be filed and made a record, is mere matter of form, in which the bail can have but little interest.

Bet us, then, take the next case cited by the appellee’s counsel in support of his proposition. That is the case of Boyland v. Crook, 1 Richards’ Prac. B., where it is said, “bail fixed on return of ca. sa. — ■ though not filed, and even if returnable and in office, though not returned.” Here is another contradiction, without this solution furnished by Tidd. Unexplained, it is a declaration that bail is not fixed until return of ca. sa., and jret fixed, though ca. sa. not returned. The meaning, however, is obvious, which is, that the bail is fixed by the entry of the return of non est inven-tus in the sheriff’s public book, though the writ itself is still in the sheriff’s office returnable to the custos brevium, and not actually returned to him. So of the case of Eield v. Bodge, cited by appellee’s counsel to the same point, where it is said, the defendant died after ca. sa. was returnable, but before it was actually returned and filed, *and the court held that the filing of the return was mere form— and so says Mr. Tidd ; but this, no doubt, was after the entry of non est inventus in the public book of the sheriff. And so of the case of Rawlinson v. Gunsten, 6 Durnf. & East. Then comes the case of Redman v. Idles’ ex’x, &c., which is said to be a decision in point for the appellee, but which will be found, manifestly, to have been decided because of the pleadings, and does not settle any principle at all. That was a scire facias on a recognizance of bail. The defendant pleaded in bar that no writ of ca. sa. issued against the principal before the emanation of the scire facias. Replication, that before the emanation of the scire facias, the plaintiff prosecuted a ca. sa. against the defendant in the original action, and that it was returned non est in-ventus. The defendant rejoined, that the writ of ca. sa. in the replication specified was de facto delivered to the sheriff after the return day, and after the emanation of the sci. fa., with an absque hoc, &c., to which rejoinder the plaintiff demurred, and judgment was given for the plaintiff. And rightly; because the rejoinder was a palpable departure in pleading. The defendant deserted in his rejoinder the ground he took in his plea, and resorted to another ground,, which is Mr. Stephens’ definition of a departure in pleading. A departure in pleading, says that author, page 416, “cannot take place until a replication, but it occurs more frequently in a rejoinder. As in debt on a bond to perform an award, the defendant pleaded, no award. Replication, that there was an award, and tendered in proper time. Rejoinder, that the award was not tendered in proper time. Demurrer to rejoinder, and judgment for plaintiff. ” So that this case does not decide anything except a question of pleading.

It is said, in commenting on this case in the written argument, that Comyns introduces it thus: “The bail may plead no ca. sa. against the principal, secundum cursum curias; but, if a ca. sa. issued, it is well, though it was not delivered to the sheriff before the scire facias ^'emanated and that is all true in the state of the pleadings in that case; because the defendant having pleaded that no capias ad satisfaciendum issued at all, and the plaintiff having replied that one issued and was returned, the issue to be raised was as to whether the capias issued or not, and the travers of the time of delivery of the ca. sa. was not material, as is said in 2 levinz, cited by appellee’s counsel, in his written argument; and, therefore, if in the state of the pleadings as properly made up, the plaintiff had proved the issuing of the ca. sa. it was well, though not delivered to the sheriff. The return, then, of non est in-ventus, which is uniformly said to be necessary to fix the bail, must be the return, to be made by the sheriff to the court in the public book kept in his office, and this is doubtless the return which Petersdorff says the plaintiff should obtain at the expiration of four days; and at page 72 Saunders’ Reports, Sergeant Williams in note says: “The recognizance is forfeited upon the return of non est inventus to the ca. sa., and the plaintiff may proceed against the bail. If, then, there is no forfeiture of the recognizance until a return of non est inventus, the plaintiff’s cause of action has not accrued until the return, and the action is prematurely brought before the return.” In this country we have no sheriff’s office or public books. The writ of ca. sa. is issued by the clerk of the court, entered in his execution book and delivered to the sheriff; and I am not prepared to say, nor is it material in this case to determine, whether if the sheriff actually makes his endorsement of ‘ ‘non est inventus” on the writ before the emanation of the scire facias, that such endorsement so made would not be such a return as would fix the bail, or whether the writ so endorsed must be delivered to the clerk to constitute a return to fix the bail. Because in this case, the defendant in the court below, by his plea, alleged that no return of non est inventus had been made to the ca. sa. before the emanation of the scire facias; and to this plea the plaintiff replied that a ca. sa. issued on the *28th of January, 1848, before the emanation of the scire facias, and was returned on the 14th of February, 1848, being- the return day, with a conclusion that “this the plaintiff is ready to verify by the record.” To this there was a rejoinder of the same matter as contained in the plea, and a demurrer thereto, and judgment for the plaintiff. The question as to the truth of a sheriff’s return, is a question of fact to be tried by a jurjT. The return is prima facie evidence of its truth, and throws the onus on the party impeaching the return, but it does not conclude third parties. The de-fence pleaded by the defendant was, that there was no return of non est inventus made to the ca. sa. before the emanation of the scire facias. This was a question of fact to be tried by a jury. But the plaintiff replied and did not conclude his replication with a tender of issue or verification, but vouched the record so as to raise an issue of nul tiel record, to be tried by the court. In this, I think, the plaintiff committed the first fault in pleading, and the defendant not pleading, no such record, and not demurring to the plaintiff’s replication, rejoined the matter contained in his plea to which the plaintiff demurred. I think the plea contained a sufficient defence to the plaintiff’s action, and that the plaintiff ought to have replied, and had the matter of the plea tried by a jury instead of concluding his replication so as to have the question tried by the court; because if there is no forfeiture of the recognizance until a return of non est inventus to a ca. sa., and the defendant is not concluded by the sheriff’s return, the defence was well pleaded, and the demurrer to the rejoinder admits necessarily that no return was made to ca. sa. before the emanation of the writ of scire facias. It is, in truth, a general demurrer with specific objections to the form of the rejoinder. But I can see no objection to the form of the rejoinder, and the matter of fact being sufficiently pleaded, the demurrer is taken as admitting that the facts alleged are true. The plaintiff had a right to sur-rejoin or demur, and in adopting the latter alternative, K'he admits he has no ground for denial; and, in addition to this, I think the plaintiff committed the first fault by vouching the record so as to raise an issue to be tried by the court, when the question as to whether the sheriff’s return was true or not, or whether it was made at one term or another, was a question of fact to be tried by a jury. I am, therefore, for reversing the judgment and entering such judgment here on the demurrer as the court below ought to have entered.

CLOPTOJST, J.

I concur in the opinion of Judge Tyler, that the judgment should be reversed, upon the question which he has discussed. I am also of opinion, that upon a proper construction of the act of 1824, (Supplement to the Code, p. 265,) under which the proceeding in this case was had, will lead to the same result. That act provides, “that when a scire facias is returnable to a rule day, and is returned executed, the bail may discharge himself, by surrendering his principal, at any time before the end of the term of the court succeeding such rule day, in the same manner, and' upon the same conditions, as if the said writ had been returnable to the first day of the said term; and from and after the first day of June next the service of a writ of scire facias against the bail, returnable in term time, shall be of no effect, unless it appear upon the return thereof, that it was executed at least ten days before the return day.” Before the passage of this act, the plaintiff might, at his election, have his scire facias made returnable at rules in the clerk’s office, or to the next term of the court, and in this respect the act makes no change; and when the scire facias was returned executed, the bail could only discharge himself by surrendering his principal before the appearance day and paying the costs of the scire facias.

From this provision resulted the mischief which the act of 1824 intended to remedy, and the serious character of the michief is forcibly depicted in Branch and others v. Webb, 7 Leigh, 371. In that case, the scire *facias was sued out on the 30th December, 1823, returnable at rules on the fifth day (the first Monday) of January following; was delivered to the sheriff on the third day of January, executed on the same day, and the bail thus deprived of all reasonable prospect of surrendering his principal in time, before the appearance day, as it could not be done on Sunday; and although he surrendered him on Monday, the appearance dajr, it was of no avail to him, and he was irrevocably bound. The act of 1824 was passed within two months, in consequence, it is supposed, of this case, to protect the bail against the danger of being caught by the wary and astute proceedings of the creditor, by ensuring to the bail, after the execution of the scire facias upon him, a more reasonable time in which to surrender his principal.

At the time, as already remarked, whether the scire facias was returnable at rules, or the next term of the court, there existed no difference between the manner in which, and the conditions upon which the bail could discharge himself, by surrendering his principal. The distinction drawn between the two in the act of 1824, must have reference to the difference then, for the first time, made by the act itself, by the last and immediately succeeding clause of the section, which enacts, that the scire facias, if returnable in term time, shall be of no effect, unless it appear by the return, that it was executed at least ten days before the return day ; the only construction which seems to give meaning and effect to the provision in the first clause, that the rights of the bail shall be the same, whether the scire facias is returnable at rules or to vhe next term. That the case provided for in the first, is within the equity of the last clause of the section, is clearly manifest, and I think no proper rule of construction is departed from, by bringing it within the enactment.

The Legislature must at all times be intended to know the existing law and its mis-chiefs, and the nature of the remedy they provide, and it must be supposed to *have been their intention, to make the one commensurate with the other. When the Legislature passed the act of 1824, with the law as it existed before them, and legislating with a view to the hardships in the case of Branch v. Webb, can it be supposed, that they were ignorant that a rule day might often be the day, before the first day of the term, and thus left the case of a scire facias returnable at rules a casus omissus, and not within the remedy they were providing; or that, knowing this, they purposely intended a different measure of relief? I do not think that either of these suppositions can be made, and that by a reasonable construction of the whole law, it will be seen that the Legislature intended to apply the same rules to both cases, and reserve the symmetry of the law. When the scire facias is returnable at rules, the bail may discharge himself by the surrender of the principal, in the same manner and upon the same conditions, as if it were returnable to the first day of the term. Under this provision, are not his rights the same in both cases; or can he be subjected to a more stringent rule in the first than the second, and required to act in a different manner, under different conditions? I think not, and that, by enacting that the bail may discharge himself in the same manner and üpon the same conditions as if the writ were returnable to the first day of the term, and when returnable in term time, shall be of no effect, unless executed at least ten days before the return day, the Legislature intended to fix a minimum of time before the first day of the term, that the bail should have notice by the execution of the writ upon him. It is clear, that in both cases, the bail has the same time to surrender his principal from the first day of the term; and that he shall have the same notice before the first day, is a construction supported, not only by the equity of the principle, but by the reason and consistency of legislation, and is not opposed by any necessary import of the words used of a contrary character.

In this case, the scire facias was executed on Saturday, *the 4th of March, returnable to the first Monday, 6th; the next term of the court came ori the second Monday, the 13th of March. The scire facias, therefore, does not appear by the return upon it, to have been executed ten days before the first day of the term, and can have no effect.

THOMPSON, J.

The court is of opinion,' that, as the emanation of a ca. sa., atid’a- return to that writ of non est inventus is necessary to forfeit the recognizance and fix the bail in legal contemplation, and is an indispensable prerequisite to the commencement of proceedings by debt or scire facias; and that, as the plaintiff’s demurrers to the rejoinders of the defendant confess that the ca. sa.-, which issued, was not so returned before the emanation of the scire facias it was prematurely sued out before the plaintiff’s cause of action had accrued on the recognizance, and that therefore, the court below erred in sustaining the plaintiff’s demurrers to the defendant’s rejoinders.

The court is further of opinion, that although the scire facias in this case, was made returnable to a rule day and not in term time, and therefore not within the letter of that provision of the statute of March 5th, 1824 (Sess. acts 1823-4; and Supp. to Code of 1819, p. 265, c. 207, § 1,) requiring at least ten days previous service of a sci. fa. before the term to which it is made returnable, and that such previous service should appear by the date of service stated in, prefixed or subjoined to the return of the officer executing it; yet, according to a liberal construction of the act, by its reason and spirit and most manifest equity, in order to suppress the mischief within the contemplation of the Legislature, and to advance the rights and remedies it manifestly intended to confer on bail, we must interpret the Legislature as intending (and we think that intention is sufficiently manifested by the words of the law, liberally construed,) whether the sci. fa. be made returnable to rules or to the term, to require at least ten days between *the service of the writ and the term at which the bail could surrender his principal. In the majority of cases, perhaps, a service at any time before the rule day to which it was returnable would give the bail much more than ten days previous notice in which to seek out, arrest; and surrender the principal, as the act gave him until the next succeeding term, and during the term, to make the surrender. To extend to him that indulgence not theretofore accorded, and to fix a minimum period of previous service, before the term, or ultimum tempus within which he might surrender was incontestibly the object of the law, which would be wholly evaded and frustrated by holding, that no particular period of previous service was required by the act, when the writ was returnable to a rule day, though it should happen on the day or on the day before the term, as in some cases, it might so happen.

In this case, the return does not shew ten days previous service; but, on the contrary, it appears from the proceedings, and the pleadings, that it was actually served' less than ten, and only six or eight days before the term. This defect in the service of the scire facias, if there were no' other objection, in the opinion of the court, presented an insuperable impediment to rendering any judgment upon'the sci. fa. so served and returned.

Therefore, it is considered by the court, that the said judgment be reversed and annulled, (with costs &c.) and this court proceeding to render such judgment as the court below should have rendered, it is considered by the court, that the plaintiff’s demurrers to the defendant’s rejoinders be Overruled, and the scire facias dismissed with costs.  