316 Ca. sa. for residue of debt. Form of entry of re Form of Sci. Fa. [Bk. III. A ca. sa. may be issued for the residue of the debt after a part has already been recovered under a fi. fa., and the same rules apply as to fixing the bail for the residue of the debt (1). Before a scire facias is sued out against the bail upon the recognizance, the bail piece ought to be filed, and an entry be made of the recognizance on a roll, and docketed (m). This, however, may be done at any time before the bail are called upon to plead ; but if it be not done they may plead nul tiel record; and if the roll be carried in afterwards they may withdraw their plea, and the plaintiff will have the costs of the plea to pay (n). In the Queen's Bench the recognizance is not a record till entered. In the Common Pleas it is a record immediately upon the first caption, and binds the lands before it is filed at Westminster (o). The form of entry of the recognizance in all the Courts, should cognizance. commence with a statement of the writ. By the General Rules of H. T., 2 Will. IV. r. 1, s. 80, "a scire facias upon a recognizance taken in Sergeants' Inn, or before a commissioner in the country, and recorded at Westminster, shall be brought in Middlesex only, and the form of the recognizance shall not express where it was taken." Form of The plaintiff may proceed either by scire facias or by action of debt (p). The bail are only liable to the sum sworn to by the affidavit of debt and the costs of suit, not exceeding in the whole the amount of their recognizance (q). The scire facias against the bail must issue out of, and be made scire facias. returnable in, the Court in which the action was depending and in which the record is supposed to remain (r); and if the recognizance be recorded at Westminster, it must be brought in Middlesex only (s). In form it sets out the recognizance, the judgment, and that the principal has not paid the damages, nor rendered himself, and then commands the sheriff to make known to the bail that they be at Westminster, &c., on, &c., to show, &c. (t). The scire (1) Stevenson v. Rocke, 9 B. & C. 707. See further as to the points of practice, 1 Chitty's Arch. Prac. 8th ed. 800. (m) See ante, p. 304. (n) 2 Wms. Saund. 6th ed. 72 a; Tidd's New Prac. 157. (0) 1 Chitty's Arch. Prac. 8th ed. 801; Tidd, 9th ed. 277. (p) Ante, p. 305. (q) 1 R. G. H. T., 2 Will. IV. s. 21; Vansandau v. Nash, 2 Dowl. 767. (r) 2 Tidd's Prac. 8th ed. 1150; 2 Wns. Saund. 6th ed. 72 a; Gullam v. Hardisty, 3 Salk. 320; 2 Chitty's Arch. Prac. 8th ed. 1026. (s) R. H. T., 2 Will. IV. r. 80. (1) See references to the forms, post, Append. And further as to the practice, 1 Chitty's Arch. Prac. 8th ed. 800; 2 Tidd's Prac. 8th ed. 1150. facias must strictly pursue the terms of the recognizance on which it is founded (u). The scire facias may issue either separately against each of the bail (a), or jointly against both, the recognizance upon which the scire facias issues binding the bail jointly and severally. But if the scire facias issues jointly against both, both defendants must be in Court before either are declared against (y), and if one only be summoned and declared against, the proceedings against him will be irregular (y). But although the scire facias be joint, yet the execution may issue upon it severally against either of the bail, the record upon which it issues binding jointly and severally (2). 317 scire facias out. turnable. The scire facias may be sued out and tested on the return day When the of the ca. sa. (a), or at any time afterwards, if in term time (b); may be sued for as the writ of scire facias does not come within the 12th section of the Uniformity of Process Act, the writ must be tested in term time (c), and must be made returnable on a day certain in When reterm (d). Four days exclusive are sufficient between the teste and the return of the scire facias (e), where one writ only is intended to be issued; but it is usual to allow a longer time where the bail are not summoned, but merely have notice of the scire facias (ƒ). The scire facias must be left at the sheriff's office four clear searching days before the return day (g). If an alias scire facias be issued, it should be tested on the return day of the first scire facias (h); and there must be fifteen days between the teste of the first writ and the return of the alias (i), without regard to the number of days between the teste and return of each (k). The scire facias must not bear teste on a Sunday, as that is not dies (u) 2 Chitty's Arch. Prac. 8th ed. 1025; 2 Wms. Saund. 6th ed. 72 b, n. (x) Gee v. Fane, 1 Lev. 225; Swainsbury v. Pringle, 10 B. & C. 754; Clarke v. Cornish, 8 Mod. 199. (y) Swainsbury v. Pringle, 10 B. & C. 754; Tidd's Prac. 1127; Impey, 477; but see Cocks v. Brewer, 11 M. & W. 53; per Parke, B., and Rex. v. Young, 2 Anstr. 448; Newton v. Maxwell, 2 Cr & Jer. 635; 2 Wms. Saund. 72 f, n. (z) Gee v. Fane, 1 Lev. 226. (a) Sandland v. Claridge, 2 Dowl. 115; Armitage v. Rigbye, 5 Ad. & El.81. (b) Stewart v. Smith, 2 Ld. Raym. 1567; 2 Stra. 866; S. C., Shivers v. Brooks, 8 T. R. 628. (c) Seaton v. Heap, 5 Dowl. 247; Edgell v. Curling, 8 Scott, N. R. 665; Bosanquet v. Graham, 7 Jur. 832. (d) Eden v. Wells, 1 Stra. 694; 2 (e) Bell v. Jackson, 4 T. R. 663. (g) Armitage v. Rigbye, 5 Ad. & El. (h) Goodwin v. Peek, 2 Salk. 599; Anon. 6 Mod. 86. (i) Anon. 7 Mod. 40; 2 Salk. 599. (*) 2 Sellon's Prac. 53; Elliot v. Smith, 2 Stra. 1139; Combe v. Cuttill, 3 Bing. 162. 318 Amendment of Signing Judgment on Sci. Fa. [Вк. III. juridicus (1). The alias scire facias must be left in the sheriff's office four days exclusive of Sundays (m), as well of the day on which it was lodged (n) as of the return day; the days must be the last four days (o). The scire facias against bail may, in the discretion of the scire facias. Court, be amended by the record of the recognizance (p) ; but the Court, in the exercise of their discretion, will not think proper to cure any irregularities of which the bail are entitled to take advantage (q). By R. G. H., 2 Will. IV. r. 81, "No judgment shall be signed for non-appearance to a scire facias, without leave of a Court or a judge, unless the defendant has been summoned; but such judgment may be signed by leave, after eight days after the return of one scire facias." In practice, the judges, before they grant leave to sign judgment, have required proof that notice has been sent to the bail, if their residence be known, or if it be not, that proper attempts have been made to ascertain it. But this is entirely discretionary with the judge (r). And the plaintiff must show, by affidavit, that he has attempted to summon the bail or to give them notice, and show what endeavours he has made for that purpose (s). Where the bail are not summoned, they may render their principal at any time within eight days from the return of the scire facias, under the R. G. H., 2 Will. IV. r. 81 (†); or even later, if they have not received notice of the scire facias (u). If a writ of error be allowed, though not returned, it is in itself a supersedeas, and may be pleaded by the bail to have been issued and allowed after the issuing, and before the return of the ca. sa. (1) 2 Sellon's Prac. 53; Barret v. Cleydon, 2 Dyer, 168 a. (m) Fraser v. Miller, 1 Dowl. 141; Anon. ib. 142. (n) Scott v. Larkins, 1 Dowl. 202. (0) Forty v. Hermer, 4 T. R. 583; Williams v. Mason, 1 East, 89, n.; 2 Wms. Saund. 6th ed. 72 z. (p) Perkins v. Petit, 2 B. & P. 275; Buxom v. Hoskins, 6 Mod. 263; Reg. v. Aires, 10 Mod. 258, 354. (q) Fulwood v. Annis, 3 B. & P. 321; Stevenson v. Grant, 2 New Rep. 108; Braswell v. Jeco, 9 East, 316; Reg. v. Eyre, 1 Stra. 43; Holland v. Phillips, 10 Ad. & E 149. (r) Armitage v. Rigbye, 5 A. & E. 82. (s) Higgins v. Wilks, 1 Dowl. 447; Wimal v. Cook, 2 Dowl. 173; Saunderson v. Brown, 6 Dowl. 11; Jerv. N. Rules, 82, n.; Lockwood v. Orme, ib.; 1 Chitty's Arch. Prac. 8th ed. 802; Wilson v. Biden, 4 M. & P. 537; Newton v. Maxwell, 2 C. & J. 635; Wright v. Page, 2 W. Bla. 837; Er parte Rigbye, 6 N. & M. 773; S. C., 5 Ad. & E. 76. (t) Saunderson v. Brown, 7 Ad. & E. 261; 6 Dowl. 9, S. C. (u) Newton v. Flight, Jerv. New Rules, 83, n.; 1 Chitty's Arch. 803; Cole v. Buckland, 2 Stra. 872. against the principal, so as to avoid the proceedings against them by scire facias on their recognizance (x). pear. 319 Before judgment against the bail on the scire facias can be Rule to apsigned, there must be a rule to appear (y). By R. G. H., 2 Will. IV. r. 82, "a notice in writing to the plaintiff, or his attorney, or agent, shall be a sufficient appearance by the defendant on a scire facias." aside order for If a judge's order have been improperly obtained, allowing a Setting judgment to be signed on a scire facias, where the bail have not judge's been summoned, or had notice of the proceedings, they should judgment. apply to the court to set aside the order, or they will not be allowed to impeach it on a motion by them to set aside the proceedings (2). must issue By the Law Amendment Act, 3 & 4 Will. IV. c. 42, s. 3, the Scire Facias scire facias upon the recognizance must issue within twenty years within 20 "after the cause of such action;" that is, after the forfeiture of the recognizance, and "not after." (a) It seems that after a scire facias against bail, error brought on the principal judgment is not a supersedeas to the proceedings in the scire facias (b). For references to the forms of the writ of scire facias on recognizance of bail, see post, Appendix. (x) Sampson v. Brown and another, 2 East, 439. (y) 1 Chitty's Arch. Pr. 8th ed. 803. (z) Ludbrook v. Hewett, 1 Dowl. 488. (a) See ante, p. 14, and the prac tice, 2 Chitty's Arch. Prac. 8th ed. (b) 1 Rol. Rep. 371; Poph. 186; years. rule at com to writs of error. CHAPTER V. OF SCIRE FACIAS ON RECOGNIZANCE OF BAIL IN ERROR. The Ancient Rule of Common Law as to Writs of Error, p. 320. Depositing Money in Lieu of Bail, Construction of those Statutes, p. Amount of Bail, p. 323. Scire Facias on the Recognizance, p. 324. Proceedings on the Scire Facias, Release, Plea of, p. 325. Scire Facias, p. 325. Bail on Error before Parliament, p. 325. Bail on Error on a Prosecution for a Misdemeanor, p. 325. The ancient ANCIENTLY, on a writ of error being brought to reverse a judg mon law as ment, by one who was party or privy to the record (by whom only such a writ can be obtained) (a), for any error in the foundation, proceeding, judgment, or execution of a suit (b), no bail was required at common law; and it was early felt as an inconvenience, that the defendant, by bringing a writ of error, might delay the plaintiff of his execution, without giving any security for the prosecution of the writ, or for the payment of the debt or damages recovered by the former judgment in case it should be affirmed, or the writ of error should be discontinued, or the plaintiff in error should be nonsuited (c). To guard against this inconvenience, the Courts would not allow the writ, nor a supersedeas upon it, until some error was shown to them in the Statutes re- record (d). More effectually to prevent this evil, the statute 3 cognizance Jac. I. c. 8 (made perpetual by 3 Car. I. c. 4, s. 4), was passed, ed into to which enacts, that "no execution shall be stayed or delayed upon the suit and or by any writ of error or supersedeas, thereupon to be sued for quiring re to be enter prosecute (a) 1 Rol. Abr. 748; Sty. 254, 280; 2 Tidd's Prac. 8th ed. 1189. (b) Co. Litt. 288. b. (c) 2 Tidd's Prac. 8th ed. 1203. (d) 1 Hen. VII. 19; Eure v. Turton, 1 Vent. 266; Handasyde v. Morgan, 2 Wils. 144; 2 Tidd's Prac. 8th ed. 1203. |