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

IF the plaintiff proceeds by scire facias, the usual way js to sue out a scire facias, and get it returned nihil; and then sue out an alias scire facias, and upon a nihil also returned to that, after. a rule given, sign judgment on the scire facias. But if the plaintiff would have the parties summoned, either upon the first or second sci. fa. the sheriff will make him out a summons, which he must give to an officer, with instructions for the execution thereof; and, at the return of the writ, the shei iff will return scire feci; for, in all cases of scire facias against bad, there must be a scire fec i returned, or two nihils; for two titbits amount to a warning.

Where two writs of fare facias issue returnable in different terms, the first must be entered of the term wherein it is returnable; and an award of the second is sufficient, without setting 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 signer of the writs—liut if by originals with the filazer.

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

Where a scire facias against bail is not returned, the plaintiff cannot proceed upon an alias sci. fa. without an entry of the first 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 serve a copy thereof on the bail.

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

But if they enter an appearance in time, the plaintiffmust declare in scire facias, and the proceedings to issue or demurrer are the same as in other cases.

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

A-*--* H E form of a declaration in scire facias is as folJ. lows:

Eajier Term, 20 Geo. 3.

[Prothonotary's name if in [Chief clerk's name if in

C. £.] B. R.]

^Middlesex to wit. Our Lord the king gave in charge to the sheriff of Middlesex his writ, close in these words, to wit, George the third, &c. [here insert the proceedings, from the suing out the scire facias, exactly as they have been—whether if only cne scire facias, and a scire fec i returned thereto; or if a scire facias and nihil returned, and then award of an alias scire facias, and scire fec i returned thereto, inserting the writs and returns] And the said E. F. and G. H. at that day having been solemnly demanded, came by £K R. their attorney, upon which the said A. B. prays execution to be adjudged to him of the debt and damages (or of the damages, costs and charges, as the action was) aforesaid, according to the force, form, and effect

of their said recognizance, CSV.

*

0. P. for the plaintiff. £>>. R. for the desendant.

A declaration on a scire facias, returnable the last return of the term, may be intitled of the same term generally. %W,ls. 154.

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

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

They can plead that no ca. fa. issued against 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 scire facias issued. Cra.fac. 163. cSV.

Hut they can plead, that the principal died before any judgment against him; because they cannot have a writ of en or to reverse that judgment.

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

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

Also now by 4^ 5 Ann. c. 16. s.\7.. payment of the sum recovered may be pleaded as well to a fit. fa. as to an action of debt.

For other pleas, vide the books.

Bail pleaded to a scire facias, payment by the principal before the return of tne second scire facias; and it was resolved the plea was bad, for, in strictness of law, the recognizance was forseited by suing out the first fit. fa. against the bail. Ld. Raym. 157. But vide the 4 C5f 5 Ann. c. 16. s. 12

Sci. fa. aeainst the desendant as bail for A. B. C. and D. the defendant pleads, that before the return of the second set. fa. the plaintiff took. A. in execution and still detains him—Demurrer inde. It was argued for the desendant, that the plaintiff having taken one of the principals in execution, had thereby disabled the bail to render him, and therefore.discharged him as to all the rest. Sed per cur. The bail have undertaken to bring in all four principals; and therefore though the plaintiff hath taken one, this does not discharge 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 sum than was laid in the action, the bail were not chargeable in that afiion. 1 Salk. 102. But now, where the plaintiff declares for, or recovers a greater sum than is expressed in the process on which he declares, the bail shall not be discharged, but be liable for so much as is sworn to and indorsed on the said process; or for any less sum which the plaintiff in such action shall recover. Pafih. 5 Geo. 2.

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

The practice of the courts, upon pleading to scire facias, h exactly the same as in other cases; only in the venire, dislringas, or habeas corpora and jurata, for a trial upon the scire facias, after the words, " in a plea of debt, trespass, fcfr." (as the action may be) add these words, " Whereupon a scire facias, &c."

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

And note, Though the recognizance be to levy of the lands and chattels, yet execution by the body is good, by the law and usage of this court. i Lev. 225. 1 Sid. 339. 2 Keb. 16c), 274. 3 Danv. Ab. 307. pi. 2, 4, 5, 6. 2 Sid. 12. 2 Injl. 395. 3 Dan. Abr. 325. G. p. 3, 339. p. 6.

And in Elliott v. Smith. Stra. 1139. It was held, that a ta. fa. may be taken out against bail, without a.ny f. fa. or return of nulla btna previously issued.

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

A judgment on afcire facias against bail was reversed 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 sufficient to levy the remainder, the plaintiff took out a second execution against the goods of the first bail. But, on motion to set aside the second execution, the court held it irregular, for the plaintiff might have levied the whole at first. Barnes 202.

If the plaintiff, in a scire facias, either for want of the damages being previously ascertained, or upon obtaining judgment by desault upon the scire facias, or judgment upon demurrer therein, is of necessity obliged to sue out a. scire fieri inquiry, in order to ascertain his damages, he must give the like notice of executing the same, as must be given in other cases of trial, and executing writ of inquiry. For which, vide the first vol. under those titles.

Note 5 A scire facias against bail is not amendable.

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Of the (swtv facias against Bail, and herein of declaring, pleading, Judgment, and Execution, &c

In & fare facias against bail, the plaintiff made a mistake in setting out the recognizance, which the desendant took advantage of, by pleading nul tiel record* And afterwards, the plaintiff moved to amend it, but was denied: for fcirt facias's against bail are never amended j and the course is, for the plaintiff to quash his own writ. This may be to deseat the bail of an opportunity to surrender, which he would have done, if he qould not have been sure of proceeding in bis plea. Grey v. Jefferson, Stra. 1165.

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