Page images
PDF
EPUB

Of the Scire facias against Bail, and of Proceedings therein.

WH E N a desendant is admitted to bail by the court where the action is brought, his sureties or bail stipulate, that the desendant shall, if he be condemned in the action, satisfy the plaintiff his debt and costs; or else, that he shall surrender himself a prisoner; or in case he does neither, that they (his bail) will pay what the plaintiff recovers for him. Therefore after the plaintiff has recovered judgment in his action, he must, before ever he proceeds against the bail, look to satissaction from the desendant; and the plaintiff has his election of three forts of executions, either of which he is at liberty to pursue against the defendant, viz. by elegit against his lands and goods; by fieri facias against his goods only; or by capias ad fatisfaciendum against his body; by which writ, he may be imprisoned till satissaction is made.—If the plaintiff proceeds by elegit or fieri facias, he aims at a satissaction by a seizure pf the desendant's property; and by taking out either of those writs of execution, he cannot fix the bail; but if he would look to the bail to make him satissaction, his execution must be by a capias ad satis faciendum against the principal; and that is the only writ which has effect to fix the tail, as it amounts to a demand on him to surrender himself a prisoner; which if not done by the return thereof, or if he is not surrendered by the bail in discharge of themselves, it is presumed that the bail are ready to pay the debt and damages recovered.

If the plaintiff therefore would ever resort to the bail, his execution must be by capias ad fatisfaciendum against the principal; for then he shews, that he would have the body till satissaction is made him; which writ of ca.fa. must be returned by the sheriff, with a turn ejl inventus, for the bail are liable only on sailure of their principal.

When the recognizance is forseited by the desendant's not being surrendered by his bail, or surrendering himself to prison, the plaintiff may either bring his action cf debt on the recognizance, or proceed by fire facias, by which the sheriff is commanded tp make known to them the judgment recovered, and the force and effect of their recognizance entered into, that the desendant has not surrendered himself.to the prison of the marshal of the Marjhalfea or Fleet, as the cafe isj and therefore, that they appear in court and shew

cause,

Of the Scire facias against: Bail, and of Proceedings therein.

cause, why the plaintiff should not have execution against them, for his debt and damages recovered.

In order to ground the proceedings by scire facias against the bail, the plaintiff, before he sues out the writ ofscirt facias, must enter the recognizance of bail on a roll, carry in the same, and docquet it; so he must, if he proceeds by action of debt on the recognizance. The entry on the roll is to this efsect in B. R.

Michaelmas term 20th George the third (the term this declaration is of)

Middlesex ss. A. B. complains against C. D. £$c. [go through the declaration] and the said C. D. by John Palmer his attorney, comes and desends the wrong and injury, when, &c. and thereupon E. F, of Charing Crofs, in the county of Middlesex, mercer; and G. H. of Fleet-Jlreet, in the city of London, grocer, [describing the bail as in the recognizance] came into the court of our lord the king, before the king himself, at IVejU minster, in their proper persons, and became pledges and manucaptors, and each of them became pledge and manucaptor for the said desendant, that if it should happen that the said desendant should be condemned in the plea aforesaid, then the said manucaptors granted, and each of them did grant, that all such * damages, costs, and charges [if the action be in debt, and judgment be recovered on a verdict, say, did grant, that as well the said debt, as all such damages, costs, and charges—or if

* In B. R. where the suit is by Bill, the bail are not bound in a sum certain, but only undertake that the desendant fha.ll pay the condemnation money, or render his body to prison; and the recognizance being geneial, muit be reduced by the judgment to a certainty. But in C. B. the bail are bound in a sum certain, upon condition, that if the defendant be condemned in the said action, he Ihall pay the condemnation money, or render himself a prisoner to the Fleet for the same; or upon failure thereof, that they will do it for him.

Of the Scire facias against Bail, and of Proceedings therein.

in debt and judgment was by desault, fay, did grant, that as well the said debt, as all damages] as should be adjudged to the said plaintiff in that behalf, should be made of their and each of their lands and chattels, and t© be levied to the use of the said plaintiff, if it should happen that the desendant should not pay the said plaintiff, or render himself on that occasion, to the prison of the marshal of the Marstalfea, of our said lord the king, before the king himself.

The docquet paper "the entry of"Jofeph Lyon,

gentleman, one, $£c. of Michaelmas term 2Qth of George the third.

Middlesex ss. Recognizance of bail for C. D. at the suit of A.B.

Roll 273.

When the entry of the recognizance is made up, and the roll docquetted and carried in, and a capias ad faiisfaciendum also sued out, and got returned by the sheriff, with a ncn eft inventus, the recognizance thereby being forseited, because there is a desault in the party, the plaintiff may sue out a scire facias against the bail. But though the recognizance be absolutely foiseited in'law, yet the bail may surrender the principal afterwards, and the court, ex gratia, on motion, will relieve the bail, as will be shewn hereafter.

If the plaintiff has not sued out a ca.fa. against the principal, in order to ground his proceedings by scire facias against the bail, within a year after the judgment obtained,. St. scire facias should first go against the principal to revive the judgment, before a scire facias goes against the bail on their recognizance; but the bail cannot take advantage of this. Raym. :096. 6 Mod. 304. Holt go.

A fire facias does not lie against bail, unless a ca. fa. is sued out returned and filed; but it may be filed after the scire facias issues. Alt, Fracl, 343. I Lev. 225. Note on Reg. Eaft. 5 Gso. 2.

Os the Scire facias against Bail, and of Proceedings therein.

If the principal desendant dies after the return of the ca.fa. although his death be before the suing forth the first: scire facias, the bail are fixed with the debt and costs, in point of law; and the fire facias''s are only an indulgence of the court. 2 Witf- ^7

On a recognizance taken in B. R. the scire facias must be brought in Middlesex. 3 Danv. Abr. 313. for the recognizances in B. R. are not obligatory by the caption, but by their being entered of record in the court. Salk. 6co, 659. Hob. 195. Brownl. 69. S. C. Moor 883. S. C. Styles 9.

But if bail be taken by a commissioner in the country, the scire facias may either be sued out into Middlesex, where the recognizance is entered of record, or the county where taken. Lutw. 1287.

But in C. B. if a recognizance be taken in London at a judge's chambers, and entered on record as taken in London, all the prothonotaries held, that the scire facias ought to be directed to the sheriffs of London, anJ not to the ilieriffs of Middlesex. Bro. Abr. sol. 66. b. pi. 85. Although the recognizance is not a persect record till it is entered upon the roll, yet when it is entered in C. B. it is held, that it is a record from the first acknowledgment, and binds persons and lands from that time; for it is the acknowledgment before a judge that gives it the force of a record, though the inrolment be neceilaiy'for the testification and perpetuity of it. Hob. 195.

But in Andrews and Harborne, the prothonotaries certified, that upon such recognizance, the scire facias might be brought in Middlesex, or in London. Roll. Abr. 891. All. 12.

And so, as in B. R. where bail is taken by commissioners, the scire facias is sued out, either into the county where taken, or into Middlesex, where filed. Ait. Prac. 361.

But note, On a recognizance of bail in error, if it be entered to be taken at a judge's chambers in London, the scire facias must be sued there.

A scire facias against bail, is not amendable. Grey v. Jefferson. Stta. 1165.

But a scire facias may be quashed, on motion, without costs, before plea pleaded, though defendant has entered an appearance. Barnes 431.

Of the Scire facias against Bail, and of Proceedings therein.

If the judgment of an inserior court is removed into B. R. or C. B. by certiorari, and the party sues a scire facias to have execution, he ought to shew in his scire facias, that it is the judgment of such an inserior court, removed thither by certiorari', and ought to shew the particular limits of the inserior jurisdiction, and pray execution within the particular limits. But if the judgment be removed into B. JZ. or C. B. by writ of error, or false judgment, and assirmed, the party may have execution in any part of England; for by the assirmance it is become the judgment of the superior court. But then in a scire facias upon such a judgment assirmed, the plaintiff ought to alledge, that it was removed

thither by writ of errory &c. Vide Guilliam v. Hardy.

I Ld. Raym. 216.

Of

« PreviousContinue »