Kennedy v. Spencer

COLLIER, J.

— The defendant in error sued out a scire facias against the plaintiff, as the bail of Carter C. Hooper and Obadiah Hooper, in the Circuit Court of Mobile county, against whom the defendant had theretofore prosecuted an action to judgment, and had a ca. sa. issued, which was returned, “ not found.”

Many points have been made for the plaintiff in error, — - we shall, however notice but two, considering them as decisive of the case.

In the first place, it is insisted, that the ca. sa, upon the judgment against the Hoopers, should have issued to the county of Pickens, in which they resided, and that the Circuit Court erred in sustaining a demurrer to the plea of the plaintiff, which alleged their residence in, and the non-issuance of á ca sa. to that county.

At the common law, it was necessary, in order to charge the bail, that a capias ad satisfaciendum should be sued out, and directed to the sheriff of the county in which the defendant was arrested, and be returned non est inventus.”*

Our statute directs, that the plaintiff shall not proceed against the bail, “until execution hath been returned, that the defendant is not to be found in his proper county.”']†

Stress has been laid in argument, upon the word “proper,” as changing the practice in this particular; and it is argued, that by the “ proper county,” we are to understand the county of the defendant’s residence. We think otherwise, and understand it to refer to the law as it existed at the passage of the act; and to be declaratory of it. The proper county for the purposes of the action must he taken to be. the County in which the defendant is found, when suit is brought; so that if there are several defend-ants against whom a suit is prosecuted to judgment, arrested in as many different counties, a ca. sa. could not properly issue against all, to the county where the judgment was rendered, but one should issue to each county in which a defendant was arrested.— Nor can a change of residence, pending the action,, make it necessary to follow a defendant, with process, to any county in which he may have settled himself.

It is further objected, that the bail bond is not so-set forth or described in the scire facias, as to have authorised a judgment against the plaintiff; and that the defect is not cured by a declaration.

The only recital in the sci.fa. is as follows', — - “You-are hereby commanded to make known unto Joshua Kennedy, who was bail and security for the said C. C. Hooper and Obadiah Hooper, upon the original process, whereupon the judgment aforesaid was given, not only for their appearance to answer to the plaintiff upon the process, aforesaid, but that they should abide by, and perform the judgment and order of said Court, that should be given thereon— that he be and appear before, &c. to shew cause., &c.”

In the case of Toulmin vs Bennett & Laidlaw, * this Court decided, that a scire facias which recited the liability of the bail in terms precisely similar, could not be sustained. And that a sci.fa. unaided by á declaration, subserved the two-fold purpose of a writ and declaration, and should contain the requisites ©f both. — That the plaintiff in a sci fa. might aid a defective writ, by declaring, if he thought proper ■ but that he could not recover, unless the record disclosed a good cause of action.

The English practice is to state the bail bond, and set out the judgment against the principal, proutpa-tet per recordum.* This strictness was held not to , . , ., be necessary, in the case just cited, — and it was there considered sufficient, if the sci fa. disclosed a cause of action, with the certainty essential to a declaration.

In as much as the record does not sufficiently disclose a legal liability against the plaintiff, the judgment is reversed, and the cause remanded, if it is desired.

GOLDTHWAITE, J. not sitting.

* Dunlap’s iac'

† Aik. Dig. 53‘

* & 320-

* 2Dun!aps Pi-. 1081.