Opinion
December Term, 1849.
1. Where a judgment is against several and the sheriff had not taken bail from one, it was not necessary before the act of 1844, ch. 31, to issue a ca. sa. against all to subject the defendant as bail for that one.
2. Under the act of 1844, ch. 31, it is not necessary to issue a ca. sa. at all in order to subject the bail. That act applies to the remedy only, and not to the contract of the bail.
3. Where there has been a defective or immaterial pleading, so that the finding of the jury does not determine the right, the court ought to award a repleader, unless it appears upon the whole record that no manner of pleading the matter could have availed.
APPEAL from the Superior Court of Law of ORANGE, at Fall Term, 1848, Battle, J., presiding.
This is a scire facias against the sheriff as bail for one King, by reason that he did not return a bail bond. The writ was issued on 30 January, 1846, and recites a judgment entered on the fourth Monday of May, 1841, against King and two other persons, named Norfleet and Durham. The defendant pleaded nul tiel record, no ca. sa. against the principal, and that this suit was not commenced within four years from the said day of rendering the judgment against King and others. The plaintiff took issue on the two first pleas. To the third he replied a former suit against the defendant as bail for King within four years after, etc., to wit, on, etc., and that he was therein nonsuited on the second Monday of September, 1845, and that (544) this scire facias was sued out within less than one year thereafter, to wit, on, etc. The defendant traversed that this scire facias was sued out within the year, etc., and the plaintiff joined issue thereon.
Upon the trial the court adjudged that there was such a record. The plaintiff gave in evidence a record of a former suit against the defendant as bail of King, whereby it appeared that the commencement of that suit and the nonsuit therein were of the dates stated in the replication; and the jury found thereon that this action was commenced within one year after the said nonsuit.
Upon the other issue the plaintiff gave evidence that, in January, 1842, he took out a ca. sa. against King, Norfleet and Durham, and delivered it to the defendant, who returned thereon non est inventus as to King, and that he did not take the bodies of Norfleet and Durham, because he was directed by the plaintiff's attorney not to do so. And evidence was given by the defendant that he was so directed by the attorney of the plaintiff.
Thereupon the presiding judge, in conformity with the decision of the Supreme Court in the former case, as he understood it, instructed the jury that the plaintiff had lost his right of action against the defendant, as the bail of King, by failing to proceed on a ca. sa. against all the defendants in the original action. And he further gave his opinion to the jury that the act of 1844, ch. 31, did not help the plaintiff or enable him to maintain this suit without having issued a ca. sa. The jury thereon found that there was no ca. sa., and there was judgment for the defendant, and the plaintiff appealed.
Norwood, McRae, A. W. Venable and Iredell for plaintiff.
H. Waddell, Bryan and W. H. Haywood for defendant.
There was a mistake in supposing that in the former case of Trice v. Turrentine, 27 N.C. 236, this Court held that the plaintiff was barred of any action against the defendant because he had not proceeded properly on a ca. sa. before that suit was commenced. All the Court could then decide was that the plaintiff, for that reason, could not maintain that suit. But it was never supposed that the plaintiff might not by a proper ca. sa. entitle himself thereafter to a scire facias against the defendant on which he could have judgment. That case, however, after having been sent back with an order for a venire de novo, terminated in a nonsuit; and then the present suit was commenced without any further ca. sa. The question is, can it be maintained? The plaintiff insists, upon two grounds, that it can. The one is, that, notwithstanding the opinion formerly given to the contrary, the ca. sa. which was issued was sufficient, as the law then stood; and the second is, that no ca. sa. is necessary as the law stood when this suit was brought and now stands. The Court has bestowed much consideration on both points, and has come to a conclusion favorable to the plaintiff on each of them.
On the first, the Court, in case of Jackson v. Hampson, post, 579, has said all that is necessary. For the reasons there given, the Court holds that the ca. sa. and the return were sufficient to charge the defendant as bail for King; and therefore the plaintiff would be entitled to a venire de novo for error in the instruction as to that issue.
The second point arises under the act of 1844, to which his Honor referred. It enacts in the first section, "that hereafter no capias ad satisfaciendum shall issue upon any judgment, unless upon affidavit that the defendant has property sufficient to pay the debt which cannot be reached by a fieri facias," etc. The second section is, "that no court shall permit an issue of fraud to be made up and tried under the act for the relief of insolvent debtors unless the creditor shall make an (546) affidavit, in writing, of his belief of the alleged fraud or concealment, and specify the particulars thereof." And the third enacts, "that whenever a plaintiff shall be desirous of subjecting the bail of a defendant in any judgment to the payment thereof, he shall be at liberty to proceed in the first instance by scire facias against the bail, without having previously issued a capias ad satisfaciendum against the defendant, but that the suit shall not stand for trial at the appearance term."
The first question is whether the statute operated immediately on contracts and judgments then existing or only on such as should be made or rendered afterwards. There is a natural presumption that statutes are meant to operate prospectively; and, as far as they affect rights to things or of person they can, by one fundamental law, have no other operation. But remedial acts, such as promote repose, enforce existing obligations by curing defects in existing remedies or adding a new one, are entitled to a benign interpretation, so as to give to every one the benefit of them at once. At all events, there is no ground for denying to their terms their full force by excluding from their operation any case or person covered by the language. The terms of this act leave no doubt of the intention that it should have full effect in all cases from its passing. The first section, by the words "hereafter" and "any judgments," includes all judgments, rendered or to be rendered, and denies thereafter a ca. sa. thereon, except upon the conditions prescribed. It was the purpose of the act that a creditor should not have the process of a ca. sa., as a part of his remedy, unless he could show by affidavit that it was probable that process would produce satisfaction. That writ was to be used as a remedy for raising the money, and not solely as a punishment on the debtor. This is the legitimate and moral purpose of the writ, in view of (547) the Legislature, and hence it was then enacted that "hereafter" it should not be used for any other. The second section speaks as plainly, that no court shall permit an issue of fraud to be made up, so as to keep the debtor in jail or on bonds, unless the creditor could state a probable cause to change it by setting forth some particular fraud and by swearing to his belief of it. Both of those sections might reasonably go into effect at once; and, since that is so, and their words authorize it, the Court must put that construction on them. It is believed, indeed, that no one has doubted the correctness of the construction, for, up to the present time, no attempt has been made to take out a ca. sa. upon any judgment, though then existing, without an affidavit. The third section was, obviously, produced by the first. The act of 1777 required a ca. sa. before proceeding against bail; and, after enacting that a plaintiff should not have a ca. sa. but upon affidavit, it occurred to the writer of the act of 1844 that the remedy against bail might be injuriously impaired thereby. Therefore, the provision was inserted that, without any affidavit and without any ca. sa., the creditor should have his action against the bail at once. Hence the construction seems necessary that the creditor was to be at liberty to go thus against the bail in whatever case the ca. sa. was denied to him by the previous section; and as that has been shown to be immediately, and in all cases, except upon affidavit, it follows that all bail may be thus sued immediately. And with that agree the words of the third section: for they are, "whenever" — at whatsoever time, now or hereafter — "a plaintiff," that is, any plaintiff, "shall be desirous," etc., he may have his scire facias at once.
It is said, however, that if the act be thus construed, it violates a vested right of the bail to have a previous ca. sa., and, therefore, that the Legislature had not the constitutional power to pass it. The Court concurs in the position that the Legislature cannot inter partes divest a right. But this (548) act, as the Court thinks, has no such purpose or effect. It operates on the remedy against the defendants and their bail, and that only, and without in the least impairing the obligation of the contract between the bail and the creditor, or adding to its terms, or touching a vested right. It has been so often said that there can be no vested right in a remedy, and that the Legislature hath authority to abrogate or modify remedies, or create new ones, that no authority need be cited therefor. It is established everywhere in this country. The only question in such cases is whether the act operates upon the remedy or, under that guise, annuls contracts or destroys rights. If a statute take away all remedy for an acknowledged right or on contracts of a certain description, which were lawful when made, the Court, however reluctantly, would be obliged to say that the legislative power had been transcended; for, without some remedy, contracts would, in truth, have no legal obligation, and rights no value. But what particular remedy shall lie in each case; whether it shall be more or less direct or expeditious; within what period it shall be prosecuted, and with or without what reasonable guards against abuses of different modes of proceeding, and many other matters of the like kind, are all proper subjects of legislative discretion; and, of course, the will of the lawmakers is binding on the citizens. An action of assumpsit, for example, may be given on an existing contract, on which debt only laid before, or vice versa: as where assumpsit was given to the assignee of a bond against the obligor, or debt to the assignee against the maker of a note. So, reasonable statutes of limitation have been held to apply to actions on contracts entered into before the law passed. So, a statute may prohibit certain pleas, unless verified by the party's oath. The Legislature might, no doubt, on the other hand, give the remedy by an attachment on an existing contract without an affidavit to the debt or the absconding or foreign residence of the debtor; or (549) might require an affidavit of debt or of a purpose to abscond as a prerequisite to holding a defendant in an ordinary action to bail. The policy of such enactments might, in many cases, be doubtful. But the power to make them, as long as they are limited to the method of proceeding, cannot be denied, nor, indeed, the usefulness of the exercise of the power in many cases. The act under consideration seems to be one of that kind purely. The whole scope of it is to regulate the remedy against the bodies of the defendants in judgments, and that against their bail. There is nothing else within the purview. It does not in the least touch the contract of the bail, or give the creditor a right against the bail which he had not before. What is the contract of bail in our law? It is an obligation entered into by the bail with the principal in double the sum for which the defendant in a writ is held in arrest, payable to the sheriff by his name of office and assignable by him to the plaintiff, and dischargeable upon the prisoner's appearance and rendering himself at the day and place required in the writ, and his sureties discharging themselves therefrom as special bail of such prisoner. Rev. St., ch. 10, secs. 1-2, and ch. 109, sec. 19. That is the whole contract, as set forth in the statutes. It is a conditional contract and not an absolute engagement by the bail to pay the debt; and, clearly, the Legislature cannot convert it into an absolute obligation by other means than the nonperformance of the conditions in it. Those conditions are such as render the contract of the bail, in substance, that of bail to the sheriff and bail to the action in England. They are, that the bond shall be forfeited unless the defendant shall appear to the action or unless the sureties shall discharge themselves as special bail. The provision for the discharge of the bail obviously refers to the terms of the engagement at common law of special bail or bail above, as they are indifferently called. Those are, that (550) that if the defendant be condemned in the action he shall pay the condemnation money or render himself a prisoner for the same, or, if he fail to do so, the bail undertake to do it for him. 3 Blk. Com., 291, appen. III, sec. 5; Archb. Pr., 102; 1 Sellon's Pr., 150. That is the whole contract in England, and the only difference between the contract of the bail there and here is in the form merely; it being there by recognizance or bail price, as it is called, and here by bond given to the sheriff, as being the more convenient mode, instead of requiring the party to carry his bail to any and every court in the State. Now, there is, certainly, nothing in the act of 1844 which interferes with that contract, either in its terms or its spirit. By the act of 1777, which prescribed that form of a bail's engagement, it was further provided, in favor of the defendants and their bail, that the latter might, under that contract, discharge themselves, not merely by rendering the principal at the day of condemnation, but at any time before judgment against the bail — thus extending the time for the performance of the condition. It is agreed that a bond entered into in that state of the law cannot be affected by a subsequent statute which would deprive the bail of the right thus to render the principal, for that is a part of the contract, as it enters into the condition. But in respect of the remedy which the creditor is to have against the bail for failing to pay the condemnation or to render the principal at all, the matter is different; and it is under the control of the Legislature. It might, for example, be enacted that the debt or covenant might be brought on the bond, instead of a scire facias. So, instead of issuing a ca. sa., it might be provided that the creditor should make a personal demand on the bail to render the principal; or, instead of one ca. sa., there should be two; or, as here, that none should be necessary. That a provision for a ca. sa. is not a part of the contract, but a mere regulation of the remedy, is clear, from the fact that a ca. sa. need not be set forth in the scire facias or declaration, but (551) it is matter of defense to the action merely. Arrenton v. Jordan, 11 N.C. 98; Gray v. Hoover, 15 N.C. 475. It was argued, indeed, that the contract was entered into in reference to the law then regulating the remedy, and therefore it ought to be regarded as incorporating those provisions of the law. But that is arguing in a circle, and amounts to a denial, in another form, of the legislative power to modify remedies in any case. Persons may, indeed, be supposed to enter into contracts in reference to the existing remedy on them; but that is not of the essence of the contract, and can only be supposed to have such reference to the remedy as being likely to continue, indeed, but, still, as being subject to the constitutional power of the Legislature to change it. Upon the whole, therefore, the Court holds that the act of 1844 gives the plaintiff this suit without a previous ca. sa., and, consequently, as far as that matter goes, that the plaintiff would be entitled to judgment non obstante veridicto that there was no ca. sa.
But the state of the pleadings upon the statute of limitations is such that the plaintiff cannot have judgment on them and the verdict rendered thereon. The proviso in the act of 1715 gives, after an arrest of judgment or a nonsuit in either of the actions therein mentioned, one year to commence a new suit. But it is confined to those actions, and has nothing to do with the limitation to actions against bail. That is created by a subsequent statute, which has different provisions on this subject; 1831, ch. 18. It makes four years after the judgment rendered against the principal a bar to the suit against the bail, with several provisos, however; of which one is, that if the plaintiff shall sue his sci. fa. and be therein nonsuited, the time which elapsed between the day of issuing that sci. fa. and the nonsuit shall not be reckoned as a part of the four years. It is plain, then, that the matter replied here, and on which the (552) defendant took issue, namely, that this suit was brought within a year after a nonsuit in a former suit, and the verdict thereon does not in the least inform the Court whether this suit was or was not brought within four years after the judgment against the principal, or, if it was, whether there were still four years after deducting the time the former suit pended. The matter of the issue is, in truth, totally immaterial, and the bar alleged by the defendant has not been effectually passed on. The plaintiff cannot, therefore, have judgment; but there must be a repleader, by setting aside the defendant's rejoinder and the plaintiff's replication to the plea of the statute of limitations — thus going back to the first fault, which is the rule in such cases. The manner of doing so appears in Jefferson v. Morton, 2 Saund., 19. The counsel for the defendant insisted, indeed, that there ought not to be a repleader, because without it the plaintiff cannot have judgment, and because it is not grantable in favor of the party who made the first fault in the pleadings. The position as stated is true in part only, and is misapplied in the argument. The rule really is that if the verdict on the immaterial issue be given against him who made the first fault, no repleader shall be granted; but otherwise, if it pass for him. It is so laid down in Kemp v. Crews, 1 L. Ray., 167, and by Mr. Justice Buller in Webster v. Bannister, 1 Doung., 393, and was acted on in Tryon v. Carter, 2 Str., 994, and in divers other cases. The reason of the distinction is to prevent parties from falsely alleging immaterial matter, and thereby increasing the delays and expenses of litigation. If, after the party has had the immaterial issue formed against him, enough does not appear in the record to authorize judgment for him, he cannot have it, nor can he be entitled to make the other party condescend to a better issue. But if it be found for him, it is (553) thereby shown that his fault was not in an attempt to palm a falsehood on the court, but consisted in a mistake of the law merely; and, then, as in the case of a plea in abatement overruled on demurrer, it is allowed to the party to make up an issue on the point in controversy which will bring the suit to a determination on the merits. In such a case the court awards a repleader for its own sake, that it may be seen for which side the judgment ought to be given. 2 Tidd Pr., 922; Troubat's Edit. 2 Wms. Saund., 319 b. For the rule is as laid down by Lord Mansfield in Rex v. Phillips, 1 Bur., 292, that when the finding does not determine the right, the court ought to award a repleader, unless it appear upon the whole record that no manner of pleading the matter could have availed. Here the verdict is for the plaintiff, and therefore he ought prima facie to have judgment. It is the defendant who says there can be no judgment, because the issue was immaterial and the merits are not determined. Now, the consequence of that is not that the defendant ought to have judgment, but that such an issue shall be taken as will bring the cause to a decision on the merits in fact and law. That can only be done by a repleader in the manner above mentioned, and it was error in the Superior Court not to have awarded it. Staple v. Hayden, 2 Salk., 579. The judgment must therefore be reversed and the cause remanded with directions to award a repleader, and then a venire de novo.
PER CURIAM. Judgment accordingly.
(554)