Kenan v. Carr , 10 Ala. 867 ( 1846 )

GOLDTHWAITE, J.

1. In the view we take of this case, it is not important to decide that the plaintiff in a sci. fa. may cure defects in the writ by filing a correct declaration, though such a course is intimated as free from objection in Toulmin v. Bennett, 3 S. & P. 220, and it is certain that in the King’s Bench, an amendment of the sci. fa. by the record may be made, though the practice is said to be otherwise in the Common Pleas. [Tidd’s Prac. 1123.] The objection is, that the declaration varies from the writ in stating the loss of the affidavit, and ca. sa. after the writ was issued and in which the record is vouched,. If the loss of these papers can be established in this suit — a point we shall hereafter consider — the objection ceases to be material, as the party might recover on the writ as it stands.

Th§ cases cited show that the party may declare, if he will, and when a part of the record is lost after the writ is issued, there seems no sufficient reason why the loss, if material to be averred, should not be so stated in the declaration.

2. But it is said that neither the writ or declaration contain any averment of the appearance of the debtor to the suit commenced against him. If such an averment is necessary in the English courts, at this day, it grows out of the fact, that until the party himself appears, or an appearance is entered for him by the plaintiff, the court will not proceed. Our practice is entirely different, as with us no appearance is necessary when the writ is served, and the giving of bail is an estoppel to the defendant to say that it was not. Without attempting to answer the minor objections to the form of the sci. fa. and declaration, we shall content ourselves with the observation that we have critically examined it, and can perceive no objections to warrant a demurrer.

3. The third plea overruled on demurrer is supposed by the plaintiff in error to present the question, that it was issued returnable to an improper term, as there were not fifteen days between the teste and return day. The writ issued on the 20th October, 1841, and is returnable to a court to be held the fifth Monday after the fourth Monday of September, so it may be conceded there is not fifteen days in which the sheriff could act. It is true, the Statute directs, that if there is not fifteen days between the time when a writ of execution issues and the next succeeding term, it shall be made returnable to next term subsequent to that. [Dig. 199, § 1.] But the most that can be claimed against a writ returnable to the one term instead of the other, is, that it is irregular, and it has been well settled, that bail cannot take advantage of mere irregularities. [Lord Raymond, 1096; Petersdorf on Bail, 366.] The distinction between matters which are prerequisite to requiring bail, or charging them, and mere irregularity in the process, are entirely different matters. In the absence of the one, there is no right to demand the bail, and therefore when taken or sought to be charged, they canaot be held bound, but on the other, when legally taken, there is no reason why they should avail themselves of a mere irregular-i'ty. The same reason is decisive to show the other pleas overruled are also bad. See also in this connection Campbell v. Cumming, 2 Burr. 1187; Cherry v. Powell, 1 D., & R. 50.

4. With respect to the proof that the affidavit and ca. sa. were lost, it may admit of question whether these papers are any part of what is technically called the record. But waiving this inquiry, we are clear the evidence of loss, as between these parties, was properly admitted. There seems to have been formerly, even if there is not at the present day, a doubt whether a recent record could be established by showing its loss or destruction and afterwards proving its contents. [Phil, on Ev. 386.] But the current of decision in modern times seems to be, that the loss of records may be established in the same manner as other documents. [Greenl. Ev. § 509, and cases there cited; Cowen & Hill’s Notes, 1066, 1067.] Perhaps it will be ascertained, that the distinction is between the parties to the records, these must be established by a dN rect application to the proper court for that purpose, while, as between strangers, or when the records come collaterally in question, their loss may be proved, and secondary evidence admitted. However this may be, the rule, in its qualified sense, is all that requires now to be ascertained, and under that we think the evidence was properly admitted. With respect to the supposition that the execution docket was better evidence, it may be answered, that the case does not show there was such a docket, but independent of this reason, the full proof of the contents was certainly more satisfactory than a mere abstract could be.

5. The affidavit on which the ca. sa. was issued, seems to be a substantial compliance with the terms of the act. The party is required to swear to the amount of the debt, and although this would sufficiently appear if the judgment was recited, yet there is nothing to require it to be so. When therefore, the party includes the interest due, as well as the principal sum, it seems to us that he is legitimately entitled to sue out his process under the act. [Dig. 70, § 2.]

6. In the English courts, there seems to be a wknt of harmony in the decisions, as to the extent of the liability of bail —the common pleas holding them liable for the whole extent of the recovery against the principal, whilst the King’s bench will enter an exoneretur on payment of the sum sworn to, and costs, and the latter is the rule also in the exchequer court. In all, it seems to be common that no damages are allowed for the delay of payment. [Petersdorf on Bail, 351, 386.] The reason for the refusal of damages probably has its source in the fact, that by the common law no interest was allowable when judgments were collected by execution, but it is evident, if this is so, that the rule ceased as soon as the statutes passed allowing interest. Whatever may be the origin of the rule, with us the bail has always been considered liable to the same extent as the principal, unless indeed, payment of the sum sworn to may warrant the discharge of the bail. We think there is no question, that in all cases where the principal is liable for interest, the bail are so likewise, and also for the costs of the sci. fa.

This closes the examination of the points raised at the bar, and it is only necessary to add our conclusion, that the judgment is affirmed.