Page images
PDF
EPUB

Of the Scire facias against Bail, and herein of the Tefte and Return of the Writ, &c.

IN

N B. R. if the fuit was by bill, the ca. fa. taken out against the principal in order to ground proceedings by fcire facias against the bail, must have eight days between the tefte and return; and muft lie four days, exclufive, 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 perfon, and therefore it is incumbent on the bail to fearch 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 teste and return.

The fcire facias against the bail must not bear tefle the fame day as the ca. fa. against the principal.

Two feire facias's were quafhed, the ca. fa. and the first feire facias bearing tefte on one and the fame day. Barnes

95.

But the fcire facias against the bail may bear tefle the very day of the return of the ca. fa. against the principal. Stra. 866. Ld. Raym. 1567.

But a feire facias muft not bear tefte on a Sunday, for it is not dies juridicus. Dy. 168. a.

If the fuit be by original in B. R. there must be fifteen days between the tefte and return of each writ. Att. Prað. 346. and the tefte and return may be both inclufive, and in this, whether the days fhall be exclufive or inclufive, there is no difference between proceedings by bill or original. Stra. 765.

But if the fuit be by bill in B. R. it is fufficient if there are fifteen days between the tee of the firft fcire facias and return of the fecond; as if the first be tested on 24th October, and the fecond returnable on the 7th November, this is good. Att. Pract. 347.

The faire facias must be returnable as the original proceedings are, that is at a day certain or a common return. Ld. Raym. 1417.

In C. B. if the fuit was on a writ of attachment, or a bill against a privileged p ifon, fifteen days between the tefle and return of a feire faias are not requifite; but if by original

aliter,

Of the Scire facias against Bail, and herein of the Tefte and Return of the Writ, &c.

aliter, and must be returnable on a general return. Pract. 67.

Att.

But in C. B. in a feire facias against bail, if there be fifteen days between the tefte of the firft and return of the fecond feire facias, that is fufficient. Pract. Reg. 377Rules and orders, 2 vol. 114. Pract. Utr. Banci. 27.

When the fuit in B. R. is by bill, and the two feire facias's are made returnable in fifteen days, as they may-each writ fhall have feven days between the tele and return, and not one ten and the other five. Att. Pract. 347. Pract. U. B. 27.

But in Elliott and Smith, Stra. 1139. It was held, that if there be fifteen days between the tefle of the firft and the return of the fecond feire facias against bail, it is fufficient, without any regard to the number of the days between the tefte and return of each writ.

There were but fourteen days between the tefte and return of a feire facias; and the court held it aided by the 17 Car. 2. c. 8. Lutw. 26.

In B. R. when the fuit is by original, the philazer makes out the fcire facias.

In C. B. the philazer makes out the firft fcire facias, and the prothonotary the fecond. Barnes 96.

An alias fire facias must not iffue till the first be returnable; and if it do, it is void. Att. Pract. 348.

And the alias muft bear tefle the day of the return of the firft in all cafes, except in cafe of a feire facias quare executionem non on a writ of error, and then it is not neceffary. Att. Pract. 348.

If the plaintiff does not wifh the bail to be fummoned on the first feire facias; but would have a nihil thereto returned, it ought to be delivered to the theriff, or left in his office, fometime before the return thereof. Reg. 5 Geo. 2.

In Miller and Yarraway, Burr. 4 pt. 1723. It was faid, that a fcire facias against bail must lie in the fheriff's office four days at least before the return.

Every alias feire facias mult lie four days, exclufive, before the return thereof in the office. Reg. E. 5 G. 2. B. R. So every feire facias, on which a feire feci is returned, ought to be delivered to the fheriff, or left in his office, four days, exclufive, before the return. Ibid. and Att. Pract. 347.

But,

Of the Scire facias against Bail, and herein of the Teste and Return of the Writ, &c.

But, if the party is fummoned the day before, or on the day of the return, that is fufficient.

The fheriff muft indorfe the time of his receiving it.

A feire facias against bail is not amendable; but the court, on motion, will quafh it, if irregular. Stra. 401, 1165.

A feire facias ordered to be quafhed, on plaintiff's motion, without cofts, before plea pleaded, although the defendant had entered an appearance. Barnes 431.

The alias fcire facias differs in nothing from the first, except in the tefte and return, and adding, after the words, "We command you," thefe words, as we have before commanded you.'

A feire facias is an action, and requires a new warrant of attorney. Ld. Raym. 1048, 1253.

Of

[ocr errors]

Of the Scire facias against Bail, and herein of relieving them [by Motion] after they are faid to be fixed.

HEN a non eft inventus is returned to the ca. fa. taken out against the principal, the bail are then faid to be fixed with the debt and damages recovered, because of the default made by the party; but notwithstanding they are faid to be fixed, the court will relieve them, if they come in upon the feire facias against them, and furrender the principal in time.

Bail have ex gratiâ curia, till the return of the fecond cire facias to furrender the principal.

Bail may be relieved by motion, where they cannot plead the matter to the fcire facias against them. As where a

non eft 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 fuch render; but they may now, upon render of the body, upon the return of the fecond fcire facias, move the court to ftay the proceedings against them.

This indulgence of the courts arofe 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 fo far as to permit them to render the body upon the return of the firft 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 fummons, the bail was held ftrictly to render the principal upon the return of the ca. fa. and not after. Ibid. 738.

But afterwards the favour was extended, to admit a render any time before the return of the fecond fcire facias, or upon the return fedente curia; but afterwards this practice was difallowed. Moor 850. 3 Bulft. 182.

However, it has fince become the practice again both in B. R. and C. B. as appears by 1 Wilf. 270. in B. R. Where the court held, that the bail muft render the principal the quarto die of the return of the fecond fei. fa. fedente curia, [and it is not fufficient before a judge at chambers] or they come too late afterwards, even though the fame day-and fo is the practice in C. B. as appears by Ld. Raym. 156, 7. fo that they always admit a render upon the return of the fecond fei. fa. [i.e. the quarto die poft of the return day] sedente curia, or any time before that. But all the admittances of

thefe

Of the Scire facias against Bail, and herein of relieving them [by Motion] after they are faid to be fixed.

thefe renders are ex gratia curiæ, and not ex merito juftitia, for the condition of the recognizance is broken by the nonrender upon the return of the ca. fa. and therefore thefe renders cannot be pleaded, but the party muft be relieved by motion.

If fcire feci is returned to the firft fcire facias, the bail may furrender the principal on the appearance day of the return of that feire facias.

If there be no ca. fa. fued out, returned and filed, it is no ground for a motion to quafh the fcire facias against the bail; but the bail muft plead it, and be difcharged by that

means.

A ca. fa. may be void as to the principal, and yet well enough to ground a feire facias against the bail; as if a ca. fa. be fued out above a year after judgment, without reviving the judgment by fcire facias; for the bail are ftrangers, and cannot take advantage of that error in a collateral action. 2 Ld. Raym. 1096. 6 Mod. 304. Holt. 90.

A motion was made to ftay proceedings against one of the bail, who had been excepted to, and had not juftified, but had omitted to get his name ftruck out of the bail-piece.The court denied the motion in its prefent form, as in the cafe of Fulk and Birk, 4 Geo. 3. faying, that whilst the name remained upon record, proceedings could not regularly be ftayed; but, as in that cafe, they now gave leave to enter an exoneretur on the bail-piece, nunc pro tunc, on payment of cofts. 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 fci. fa.

But the death of the principal, after the fcire facias brought, does not discharge them, if he was alive at the capias returned. Cro. Car. 165. 1 Rol. Abr. 336, &c.

A motion was made to ftay proceedings against bail, because the principal died after a capias ad fatisfaciendum returned; but before the return of the fecond fi. fa. against the bail, but denied, becaufe it was the bails omiffion, that they did not furrender him, he living till after the return of the ca. fa. 1 Med. 31. 2 Ld. Raym. 1452. 2 Stra. 717. Motion to ftay proceedings against the bail, the ca. fa. was returnable the laft return of Michaelmas, viz. 28th Nov. VOL. II

G

and

« PreviousContinue »