Opinion
(Fall Riding, 1797.)
It is not necessary in a sci. fa. against bail to set forth that a ca. sa. issued against the original defendant. If the bail wish to avail themselves of the want of a ca. sa., they must do it by plea.
DEFENDANT executed a writ as sheriff, upon a defendant sued by these plaintiffs, and returned a writ without a bail bond; whereby he became answerable as bail himself. There was judgment against the defendant, and a capias ad satisfaciendum against him, returned non est inventus; and this is a scire facias to charge Troy as bail. The defendant demurred generally; and his counsel now argued that the sci. fa. is in the nature of a declaration and should state all circumstances material and necessary to support the plaintiff's demand; and this scire facias does not state that any ca. sa. ever issued, which is expressly required by the act of 1777, ch. 2, sec. 19. And of this opinion the Court seemed to be, but ordered precedents to be searched; and on this day Mr. Jocelyn, for the plaintiff, produced the entry of a sci. fa. against bail, in Atkinson v. Wilcox, in Lilly's Entries, 307, and divers other cases from same book, where no mention is made of the ca. sa.
The return of the ca. sa. is equally necessary in England as it is here; and the want of it may be made an exception, but it must be stated in the defendants plea. We will not change the precedents; Therefore, let judgment be for the plaintiff.
Vide 2 Co. Inst., 184, 187.
NOTE. — See Arrenton v. Jordan, 11 N.C. 98. See, also, Howzer v. Dellinger, 23 N.C. 475.
Cited: Gray v. Hoover, 15 N.C. 477.