Conrow v. Schloss

The opinion of the court was delivered, February 16th 1867, by Woodward, C. J. — The writ awarded in the above case, after reciting the material facts alleged under oath by the petitioner, commanded Judge Stroud, if so it he, that he should, on a day certain, affix his seal to the exceptions alleged by the petitioner, according to the form of the .statute. This was the whole exigency of the writ. It was framed upon the statute of Westminster 2d, which was the statute referred to, and neither the statute nor the writ required more of the judge than that he confess and seal the exceptions or deny them. If he confessed and sealed them, they became part of the record, and the party would have his writ of error to remove them, with the record, into this court for review. If he denied them, the petitioner would have his action at law for a false return. The judge was not called on to show cause why he should not seal the exceptions, and we had nothing to do in this proceeding with the quality of the exceptions, and hence the voluminous argument introduced into the return, to prove that the petition was not entitled to the exceptions, was utterly irrelevant. • When the record comes up upon a writ of error will be the time for us to consider' whether the exceptions were duly taken under the [44] rules of the District Court, and whether they are sufficient in law, and we are not to be precipitated into a premature consideration of these points. The statute that gives the writ imposes no such duty upon us at present. R. P. White argued for the plaintiff in error, and ff. A. Remah, for the defendants in error. On the ground that the return was argumentative and uncertain, we allowed exceptions to be filed to it, and these brought out the fact that, notwithstanding the protestations and qualifications of .the return, it did, in reality, amount to a confession of the exceptions, and the judge accompanied it with an explicit and repeated oral declaration, in the presence of this court, of his willingness to seal the bills if we should be of opinion that he ought to do so. Seeing that it is now admitted on all hands that the return confesses the bills as alleged, we of course think the judge ought to sign them. And in saying so, we found ourselves entirely on the confession, and not upon the nature or legal - effects of the bills. When we issued the writ, we said this would be his duty, in the event of a confession, and that we stated the practice correctly, is shown by all the cases cited by counsel. The whole law of the writ was condensed into a few words in the case of Bridgman v. Holt, Show. Parl. Cas. 111, where, after giving the substance of the writ in Latin, it is said, “ Si ita is conditional; if the bill be true, and duly rendered, then this writ; and if it be returned quod non ita est, then an action for a false return, and thereupon the surmise will be tried, and if found to be so, damages, and upon such a recovery a peremptory writ commanding the same.” The writ we issued was preliminary and alternative. The return is quod ita est. Judge Stroud’s .offer to seal the bills may therefore be accepted as the legitimate fruit of the writ, and as obviating the necessity for any further process. Let the bills be sealed, and further proceedings stayed. Judge Strong was at Nisi Prius when the petition was presented and the writ awarded, but was absent when the final decision was made. Judge Agnew was present when the petition was presented and writ awarded, and heard the cause, but was absent at Nisi Prius when it was determined, and took no part in its final disposition. The bills having been sealed, and the writ returned, the case was heard January 13th 1868, before Thompson, C. J., Read, Agnew and Shabswood, JJ.; Strong, J., being at Nisi Prius. The court being divided in opinion, the judgment was affirmed January 20th 1868.