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Of the Scire facias against Bail, and herein of appearing thereto.

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F the plaintiff proceeds by fcire facias, the ufual way is to fue out a feire facias, and get it returned nihil, and then fue out an alias fcire facias, and upon a nihil also returned to that, after, a rule given, fign judgment on the fcire facias. But if the plaintiff would have the parties fummoned, either upon the firft or fecond fci. fa. the fheriff will make him out a fummons, which he must give to an officer, with inftructions for the execution thereof; and, at the return of the writ, the fheriff will return feire feci; for, in all cases of scire facias against bail, there must be a faire feci returned, or two nihils; for two nihils amount to a warning.

Where two writs of feire facias iffue returnable in different terms, the first must be entered of the term wherein it is returnable; and an award of the fecond is fufficient, without fetting it forth at length.

The writs and returns in B. R. if by bill, must be filed at the Treasury Chamber, or at the King's Bench office, with Mr. Heberden, the figner of the writs-Eut if by original, with the filazer.

In C. B. they are entered on the prothonotary's remem

brance roll.

Where a feire facias against bail is not returned, the plaintiff cannot proceed upon an alias fci. fa. without an entry of the firft upon the roll. Ld. Raym. 822, 1252.

After the writs and returns thereto are filed, the plaintiff must take out a rule to appear, and ferve a copy thereof on the bail.

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The above rule expires in four days exclufive, but Sunday is not one; and, if the parties do not enter an appearance, at the expiration thereof judgment may be figned on the fcire facias.

But if they enter an appearance in time, the plaintiff muft declare in feire facias, and the proceedings to iffue or demurrer are the fame as in other cafes.

Of the Scire facias against Bail, and herein of declaring, pleading, Judgment, and Execution, &c.

T

HE form of a declaration in feire facias is as follows:

Eafler Term, 20 Geo. 3.

[Prothonotary's name if in C. B.]

Middlefex to wit.

[Chief clerk's name if in B. R.]

Our Lord the king gave in charge to the fheriff of Middlefex his writ, clofe in these words, to wit, George the third, &c. [here infert the proceedings, from the fuing out the feire facias, exactly as they have been-whether if only one fcire facias, and a fcire feci returned thereto; or if a feire facias and nihil returned, and then award of an alias fcire facias, and feire feci returned thereto, inferting the writs and returns] And the faid E. F. and G. H. at that day having been solemnly demanded, came by 2. R. their attorney, upon which the faid A. B. prays execution to be adjudged to him of the debt and damages (or of the damages, cofts and charges, as the action was) aforefaid, according to the force, form, and effect of their faid recognizance, &c.

O. P. for the plaintiff.

2. R. for the defendant.

.

A declaration on a fcire facias, returnable the last return of the term, may be intitled of the fame term generally. 3 Wilf. 154.

A man may plead in abatement, or in bar to a scire facias, as well as other actions. Lucas 112.

There are but few pleas in bar which can be pleaded by bail to a feire facias.

They can plead that no ca. fa. iffued againft the principal, or that he died before the return of the ca. fa. or that the plaintiff had other execution.

But they cannot plead, that the principal died before the fcire facias iffued. Cro. Jac. 163. &c.

But they can plead, that the principal died before any judgment against him; because they cannot have a writ of erior to reverfe that judgment.

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Of the Scire facias against Bail, and herein of declaring, pleading, Judgment, and Execution, &c.

If the principal furrendered himself, or the bail rendered him [upon or before the return of the ca. fa. or otherwise, fuch render cannot be pleaded, though upon fuch render afterwards the court will discharge them on motion. Vide ante.] But fuch furrender, or render, are not sufficient, unless the plaintiff, or his attorney, have notice thereof; and this is requefted, that the plaintiff may, if he pleafes, charge him in execution, alfo that he may not be at any further trouble or charge against the bail. Leon. 58. 2 Bulft. 260. Moor 883.

Alfo now by 4 5 Ann. c. 16. f. 12. payment of the fum recovered may be pleaded as well to a fci. fa. as to an action of debt.

For other pleas, vide the books.

Bail pleaded to a fcire facias, payment by the principal before the return of the fecond fcire facias; and it was refolved the plea was bad, for, in ftrictnefs of law, the recognizance was forfeited by fuing out the firft sci. fa. against the bail. Ld. Raym. 157. But vide the 4 & 5 Ann. c. 16. S. 12.

Sci. fa. against the defendant as bail for A. B. C. and D. the defendant pleads, that before the return of the second fci. fa. the plaintiff took A. in execution and still detains him--Demurrer inde. It was argued for the defendant, that the plaintiff having taken one of the principals in execution, had thereby difabled the bail to render him, and therefore discharged him as to all the reft. Sed per cur. The bail have undertaken to bring in all four principals; and therefore though the plaintiff hath taken one, this does not difcharge the bail as to the other three, for they ought, as they took upon them, to bring in all four. 2 Lev. 192.

I Vent. 315.

Formerly, if the plaintiff recovered a greater fum than was laid in the action, the bail were not chargeable in that action. I Salk. 102. But now, where the plaintiff declares for, or recovers a greater fum than is expreffed in the procefs on which he declares, the bail fhall not be difcharged, but be liable for fo much as is fworn to and indorsed on the faid procefs; or for any lefs fum which the plaintiff in such action shall recover. Pafch. 5 Geo. 2.

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Of the Scire facias against Bail, and herein of declaring, pleading, Judgment, and Execution, &c.

The practice of the courts, upon pleading to fcire facias, is exactly the fame as in other cafes; only in the venire, diftringas, or habeas corpora and jurata, for a trial upon the feire facias, after the words," in a plea of debt, trespass, c." (as the action may be) add these words, "Whereupon a feire facias, &c."

Scire facias against Fane and Barker, bail of Barrell, judgment thereon, and a ca. fa. against Fane only taken out. Per cur. Though the fcire facias was joint, yet the execution may be feveral.

And note, Though the recognizance be to levy of the lands and chattels, yet execution by the body is good, by the law and ufage of this court. I Lev. 225. I Sid. 339. 2 Keb. 269, 274. 3 Danv. Ab. 307. pl. 2, 4, 5, 6. 2 Sid. 12. 2 Inft. 395. 3 Dan. Abr. 325: G. p. 3, 339. p. 6. And in Elliott v. Smith. Stra. 1139. It was held, that a ca. fa. may be taken out against bail, without any fi. fa, or return of nulla bona previously iffued.

If bail bring error upon an award of execution in a feire facias against them, matter which lies properly in the mouth of the principal, or might have been pleaded to the fcire facias, is not affignable for error, after execution awarded against them. Wraight v. Kitchingham. Stra. 197. Salk. 262. 4 Mod. 306.

A judgment on a fcire facias against bail was reverfed for want of a warrant of attorney. Salk. 603.

A moiety of the damages was levied on one bail; and the other bail not having goods fufficient to levy the remainder, the plaintiff took out a fecond execution againft the goods of the first bail. But, on motion to fet afide the fecond execution, the court held it irregular, for the plaintiff might have levied the whole at first. Barnes 202.

If the plaintiff, in a feire facias, either for want of the damages being previously afcertained, or upon obtaining judgment by default upon the fcire facias, or judgment upon demurrer therein, is of neceffity obliged to fue out a feire fieri inquiry, in order to afcertain his damages, he must give the like notice of executing the fame, as must be given in other cafes of trial, and executing writ of inquiry. For which, vide the firft vol. under those titles.

Note; A feire facias against bail is not amendable.

4

Of the Scire facias against Bail, and herein of declaring, pleading, Judgment, and Execution, &c.

In a fcire facias against bail, the plaintiff made a mistake in fetting out the recognizance, which the defendant took advantage of, by pleading nul tiel record. And afterwards, the plaintiff moved to amend it, but was denied: for fcire facias's against bail are never amended; and the courfe is, for the plaintiff to quash his own writ. This may be to defeat the bail of an opportunity to furrender, which he would have done, if he could not have been fure of proceeding in his plea. Grey v. Jefferfon. Stra. 1165.

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