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Of the Scire facias against Bail, and herein of the Tejle and Return of the Writ, &c.
IN B. R. if the suit was by bill, the ca. fa. taken out against the principal in order to ground proceedings by fcirt facias against the bail, must have eight days between the tefte and return; and must lie four days, exclusive, in the sheriff's office. Salk. 599.
The ca. fa. against the principal being left in the sheriff's office, gives notice to the bail, that the plaintiff will proceed against the person, and therefore it is incumbent on the bail to search whether any ca. fa. be left in the office. Burr. Rep. 4 pt. 1360.
A ca. fa. returnable, pending error, is no regular foundation for proceeding against the bail. Barnes 83.
If by original, it must have fifteen days between the tejle and return.
The scire facias against the bail must not bear tejle the fame day as the ca. fa. against the principal.
Two scire facias's were quashed, the ca. fa. and the first scire facias bearing teste on one and the fame day. Barnes
JBut the scire facias against the bail may bear tejle the
very day of the return of the ca. fa. against the principal. Sira. 866. Ld. Raym. 1567.
But a scire facias must not bear teste on a Sunday, for it is not dies juridicus. Dy. 168. a.
If the suit be by original in B. R. there must be fifteen days between the tejle and return of each writ. Att. Pracl. 24-6. and the tejle and return may be both inclusive, and in this, whether the days (hall be exclusive or inclusive, there is no difference between proceedings by bill or original. Stra. 765.
But if the suit be by bill in B. R. it is sufficient if there are fifteen days between the tejle of the fitst scire facias and return of the second ; as if the first be tested on 24-th Odoler, and the second returnable on the -jth November, this is good. Att. Pracl. 347.
The fire facias must be returnable as the original proceedings are, that is at a day certain or a common return. Ld. Rj\m. 1 41 7.
In C. B. if' ihe suit was on a writ of attachment, or a bill against a privileged p ifon, fifteen days between the tejle and return of a fcirt j'.uias are not requisite; but if by original
Os the Scire facias against Bail, and herein of the Tejie and Return of the Writ, &c.
aliter, and must be returnable on a general return- jftt. Pi ail. 67.
But in C. B. in a scire facias against bail, if there be fifteen days between the tejie of the first and return of the second scire facias, that is sufficient. PrcSi. Reg. 277' Rules and orders, 2 vol. 114. Frail. Utr. Band. 27.
When the suit in B. R. is by bill, and the . two scire facias's are made returnable in fifteen days, as they may—each writ shall have seven days between the tejh and return, and not one ten and the other five. Att. Pract. 347. Pract. U. B. 27.
But in Elliott and Smith, Sira. 1139. It was held, that if there be fifteen days between the tejie of the first and the return of the second scire facias against bail, it is sufficient, without any regard to the number of the days between the tjle and return of each writ.
There were but fourteen days between the tejle and return of a scire facias; and the court held it aided by the 17 Car, 2. c. 8. Lutw. 26.
In B. R. when the suit is by original, the philazer makes out the scire facias.
In C. B. the .philazer makes out the first scire facias, and the prothonotary the second. Barnes 96.
An alias scire facias must not issue till the first be returnable; and if it do, it is void. Att. PraSl. 348.
And the alias must bear tejle the day of the return of the first in all cases, except in case of a scire facias quare executionem non on a writ of error, and then it is not necessary. Att. Pract. 348.
If the plaintiff does not wifh the bail to be summoned on the first scire facias; but would have a nihil thereto returned, it ought to be delivered to the lheriss, or left in his office, sometime before the return thereof. Reg. 5 Geo. 2.
In Miller and Yarraway, Burr. 4. ft. 1723. It was said, that a scire facias against bail must lie in the sheriff's office fur days at least before the return.
Every alias scire facias must lie four days, exclusive, before the return thereof in the office. Reg. E. 5 G. 2. B. R.
So every scire facias, on which a scire seci is returned, ought to be delivered to i!-.e sheriff, or left in his office,four days, exclusive, before the return. Ibid- and Att. Pract.
Of the Scire facias against Bail, and herein of the Te/le and Return of the Writ, &c.
But, if the party is summoned the day before, or on the day of the return, that is sufficient.
The sheriff must indorse the time of his receiving it.
A scire facias against bail is not amendable; but the court, on motion, will quash it, if irregular. Stra. 401, 1165. .
A scire facias ordered to be quashed, on plaintiff's motion, without costs, before plea pleaded, although the desendant had entered an appearance. Barnes 431.
The alias seb e facias differs in nothing from the first, except in the te/ie and return, and adding, after the words, "We command you," thefe word?, "as we have before commanded you."
A scire facias is an action, and requires a new warrant of attorney. Ld. Raym. 1048, 1253.
Of the Scire facias against Bail, astd herein o^ relieving them [by Motion] after they are said to be fixed.
WHEN a non eft inventus is returned to the ca. fa. taken out against the principal, the bail are then said to be fixed with the debt and damages recovered, because of the desault made by the party; but notwithstanding they arc said to be fixed, the court will relieve them, if they come in upon the scire facias against them, and surrender the principal in time.
Bail have ex gratia curia, till the return of the second cire facias to surrender the principal.
Bail may be relieved by motion, where they cannot plead the matter to the scire facias against them. As where a non ejl inventus is returned to a ca. fa. the condition of their recognizance being then broken, they cannot plead a render of the principal afterwards; nor would the courts formerly have accepted such render; but they may now, upon render of the body, upon the return of the second scire facias, move the court to stay the proceedings against them.
This indulgence of the courts arose from the great mischief which happened to bail, by a plaintiff's taking out a ca. fa. and making it returnable the next day,—so that bail had not time to bring in the body ; wherefore the courts indulged the bail so sar as to permit them to render the body upon the return of the first fci. fa. if the ca. fa. was returnable de die in diem. Cro. Car. 618.
But if the ca. fa. was returnable at the next summons, the bail was held strictly to render the principal upon the return of the ca. fa. and not after. Ibid. 738.
But afterwards the savour was extended, to admit a render any time before the return of the second scire facias, or upon the return ftdente curia; but afterwards this practice was disallowed. Moor 850. 3 Bul/i. 182.
However, it has since become the practice again both in B. R. and C. B. as appears by 1 Wils. 270. in B. R. Where the court held, that the bail must render the principal the quarto dit of the return of the second fci. fa. fedentt curia, [and it is not sufficient before a judge at chambers] or they come too late afterwards, even though the same day—and so is the practice in C. B. as appears by Ld. Raym. 156, 7. so that they always admit a render upon the return of the second fci. fa. [i.e. the quarto die poft of the return day] fedente curia, or any time before that. But all the admittances of
Of the Scire facias against Bail, and herein of relieving them [by Motion] after they are said to be fixed.
these renders are ex gratia curia, and riot ex merito jujlitia, for the condition of the recognizance is broken by the nonrender upon the return of the ca. fa. and therefore these renders cannot be pleaded, but the party must be relieved by motion.
If scire fed is returned to the first scire facias, the bail may surrender the principal on the appearance day of the return of that scire facias.
If there be no ca. fa. sued out, returned and filed, it is no ground for a motion to quash the scire facias against the bail; but the bail must plead it, and be discharged by that means.
A ca. fa. may be void as to the principal, and yet well enough to ground a scire facias against the bail; as if a ca. fa. be sued out above a year after judgment, without reviving the judgment by scire facias; for the bail are strangers, and cannot take advantage of that error in a collateral action. 2hd. Raym. 1096. 6 Mod. 304. Holt. 90.
A motion was made to stay proceedings against one of the bail, who had been excepted to, and had not justified, but had omitted to get his name struck out of the bail-piece.— The court denied the motion in its present form, as in the case of Fulk and Birk, 4 Geo. 3. saying, that whilst the name remained upon record, proceedings could not regularly be stayed; but, as in that case, they now gave leave to enter an exoneretur on the bail-piece, nunc pro tune, on payment of costs. Humphrey v. Leite, Burr. 4 pt. 2107.
The bail are not liable if the principal dies any time before the return of the ca. fa. and they may plead it to the
But the death of the principal, after the scire facias brought, does not discharge them, if he was alive at the capias returned. Cro. Car. 165. I Rol. Abr. 336, Use.
A motion was made to stay proceedings against bail, because the principal died after a capias ad fatisfaciendum returned; but before the return of the second set. fa. against the bail, but denied, because it was the bails omission, that they did not surrender him, he living till after the return of the ca.sa. 1 Mod. 31. 2 Ld. Raym. 1452. 2 Stra. 717.
Motion to stay proceedings against the bail, the ca. sa. was returnable the last return of Michaelmas, viz. 2.%th Isov.
Vol. II G and