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,
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
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