Opinion
(December Term, 1844.)
A ca. sa. issued on a judgment against several persons must be returned as to all before the bail of any one can be subjected.
APPEAL from SURRY Fall Term, 1842; Nash, J.
Morehead for plaintiff.
J. H. Bryan and Boyden for defendant.
Scire facias against the defendant as bail of one Samuel Falkner and Joseph M. Richardson. The defendant pleaded nul tiel record, no ca. sa., etc. The court found the issue as to nul tiel record in favor of the plaintiff; and the jury, under the instructions of the court, found the issue of fact as to the ca. sa. in favor of the defendant. Judgment being rendered accordingly, the defendant appealed.
The facts are stated in the opinion delivered in this Court.
The defendant was sheriff of Surry, and on a writ at the instance of the plaintiff he arrested the six defendants mentioned in the writ, and returned no bail bond with the writ. There was judgment against the said six persons, on which first a fi. fa. and then a ca. sa. issued. The sheriff returned the ca. sa. non est inventus as to Richardson and Falkner, two of the defendants in the execution, and made no return as to the other four, whose names were in the execution. The plaintiff made no motion to the court against the sheriff on account of his defective return, but issued his scire facias against him to subject him under the statute as special bail to Richardson and Falkner. The sheriff pleaded, first, that there was no ca. sa. returned non est inventus; and, secondly, that the plaintiff had issued a fi. fa. (242) before he issued his ca. sa. The court was of opinion, and so instructed the jury, that the ca. sa. produced by the plaintiff in evidence did not sufficiently support his side of the first of the above issues; and we are of the same opinion. The ca. sa. in England is generally but a formal writ, not intended to be executed, but to be simply lodged in the sheriff's office, to remain there four days and then to be returned non est inventus. It is placed there only as notice to the bail that they are looked to on their bail pieces. But it has been repeatedly decided in this State that a ca. sa. here is intended to be an effectual execution, and to be enforced against the defendants, if to be found in the county; and that for the benefit of all the persons concerned — the plaintiff, the defendants, and each of them, and their bail and each of them. The law requires that the ca. sa. should be as broad as the judgment. Should not the return, then, be as broad as the execution before the bail is liable? We believe that there is not an authority to be found, either in the English or American law books, to support the plaintiff in his demand. We find that where one of the defendants in a ca. sa. has been arrested and returned by the sheriff to be in prison, and the other is returned non est inventus, the plaintiff may then have sci. fa. against the bail of him that has fled the country. But in said case the plaintiff had procured a full return of the ca. sa. to be made as to all the defendants in it. If the defendants lived in different counties, still, if the plaintiff thought proper to take a joint judgment against them all, he would be compelled to make his ca. sa. to each of the several sheriffs, if he chose so to proceed, as broad as his judgment. And before he could be able to proceed against the bail of any one of such defendants, the sheriff should, as it seems to us, make his return as broad as the ca. sa. It may be asked what right has the bail of one of the defendants to demand anything more of the plaintiff than to show a ca. sa. as to his principal, and a return on it of non est inventus. The answer seems to be at hand: it is because the bail, by law, has a right to see that a proper ca. sa. against all the defendants has been issued and placed in the hands of the sheriff to be effectually executed by him. If he has a right to (243) demand of the plaintiff to do all this as a preliminary step in pursuing him as bail, would it not be absurd, and apparently trifling with the forms of judicial proceeding, for the plaintiff to be then permitted to turn round to him and tell him, "Sir, you now have no right to demand that the sheriff shall make any other return on the ca. sa. to save you from liability, except as against your own principal"? We must again say that we think that the evidence was not sufficient in law to support the issue. Secondly, although a fi. fa. has first been issued, the bail are not thereby discharged, but are still on a ca. sa., being subsequently returned non est inventus, subject to be proceeded against. Petersdorff on Bail, 335.
PER CURIAM. No error.
Cited: Jackson v. Hampton, 28 N.C. 37; s. c., 32 N.C. 580; Kelly v. Muse, 33 N.C. 189.
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