Gillespie v. White — 16 Johns. 117

Majority

p. 117

Gillespie against White.

Headnote

Jt ¡g &e ^ tice of thia any act is to be specified num constL1-aySthe noticed given) toother e3The "rule of Court^ofy<th| YOTk°frequi£ gafnstSe^in- £ T&g blu^fi^1”8 days™ the she-elusive of the means,dtSt it tum-laywh/ch !)nc] thf. ,d?y »» j* dehvemi to so to be reckl siVeiy : e and) raieis^at’isfied to the'^heril' wrifwhfch’ is fftu,r£ibie on tiie jyth day of month. Whether bail, in an action on ’their recognisance, can plead that the ca. sa. against their principal did not lie four days in the sheriff’s office? Quare.

The statute requiring a^. fa. to be first issued, when the defendant puts in special bail, (1 N. R. L 502.) is for the benefit of the principal himself, and not of his bail, who cannot plead that no Ji. fa. had been issued prior to the issuing a. ca. sa.: nor is it necessary for the plaintiff, in declaring on a of to a issued.

So, where a ca. sa. is issued after the year ana day, without a scire facias to revive the judgments the bail cannot take advantage of the objection.

IN ERROR, to the Mayor’s Court of the city of New-York.

The defendant in error, brought an action of debt on a recognizance of bail, against the plaintiff in error, in the Court below. The declaration stated, that the defendant in the Court below, became special bail in an action pending in that Court, for one William Swann; and that a judgment was rendered against Swann, for damages and costs, which he had not paid, nor rendered himself in custody.

The defendant below pleaded, that according to the -course and practice of the Mayor’s Court, all writs of ca. sa. to charge bail, should be left in the sheriff’s office four days exclusively, before the return day thereof, and that no ca. sa. was issued against Swann, and left in the office of the sheriff of the city of New-York four days, exclusively, before the return day thereof, and upon which, such sheriff had returned, that Swann was not found in his bailiwick, as ought to have been done before the commencement of this suit.

The plaintiff below replied, that on the third Monday of August, 1814, a writ of ca. sa. against Swann was issued out of the Mayor’s Court, directed to the sheriff of New-York, returnable on the third Monday of September, then next, which writ, afterwards, and four days exclusively before the return day thereof, to wit, on Thursday the 15th day of September, in the year 1814, was left in the office of the sheriff of the city of New- York, by the plaintiff, and was delivered by the plaintiff, to Simon Fleet, esq. who there, and from thenceforth, until, and after the return of the writ, 7 was sheriff of the city of New-York, to be executed in due *

p. 118

To this replication, the defendant below demurred generally, and the plaintiff joined in demurrer. Judgment was rendered in the Mayor’s Court against the defendant below, who brought a writ of error to reverse that judgment.

Caines, for the plaintiff in'error.

The 25th rule of practice of the Court below requires a ca, sa. issued against the principal, for the purpose of charging the bail, to lie four days in the office of the sheriff, exclusive of the return day. The question is, whether the four days are to be exclusive both of the day of delivery of the writ to the sheriff and the day of its return ? This must depend on the practice of the court. Is it then as a matter of practice plead-able ? Where matter of practice gives a right, or where the right is founded on the practice, it is pleadable. (2 Sellan, ch. 15. sect. 4. Carthew, 4. In Pet lifer’s case, (5 Co. 32.) matter of practice, as the awarding of execution against executors, upon two nihils returned on scire facias, was assigned for error. If assignable for error, it is pleadable. In Dudlow v. Watchom and another, (16 East’s Rep, 39.) it was decided, that the practice of the Court was pleadable, where the merits of the case depended on it. The plea there was, that no ca. sa, against the principal was returned, before suing out the scire facias against the bail; and the necessity of issuing the ca. sa. or not, depended altogether on the practice of the Court.

Again ; the declaration is defective. It does not state a sufficient cause of action. The statute (1 JV. R. L. 500. 502.'sess, 36. ch. 5- s. 7.) concerning judgments and executions, is express, that in cases where special bail is filed, no ca. sa. shall issue against the defendant, unless he is already in prison, until a fi.fa. has been issued in the Court, in which the defendant was arrested, and returned nulla bona. The plaintiff ought to have alleged-the issuing and, pet urn of nulla bona to the fi.fa.; and that the ca. sa. was thereupon issued. The attorney has followed the English

p. 119

precedents, without considering that our statute has altered the practice. Where any circumstances are required by statute to make an act good, it must be averred. (Plowd. 105. b. 376. b.

Sampson, contra.

The intention of the rule of the Court below is satisfied by four days, one inclusive, and the other exclusive. The issuing of a.ca. sa. is considered almost a matter of form, in England. There is nothing in the statute which requires the writ to lie four days in the clerk’s office, although it is rendered necessary that a ca. sa. against the principal should be issued and returned, before a suit can be commenced against the bail. (1 JY. R. L. 324. sess. 36. ch. 17. s. 6.) Its lying in the office of the sheriff or not, is a mere matter of practice; and its being there less than four days, exclusively is, at most, but an irregularity, which is to be taken advantage of by motion, and not by pleading. (1 Bac. Abr. (D.) Salk. 602. 3 Johns. Rep. 246 . 514. Tidd’s, Pr. 434.) If there had been no ca. sa. issued or returned, that might have been pleaded. But where there is a mere irregularity indhe suing out, or return of the writ, the bail cannot take advantage of it, by pleading. (2 Tidd’s Pr. 1044.) In Donnelly v. Dunn, (2 Bos. Pull. 47.) Buller, J. said, that it was of importance to the public, and to the profession, to put an end to attempts to introduce upon the record questions of practice which cannot be considered as legal defences, but which belong rather to what may be called the equity side of the Court. The court decided, that the bail could not plead the bankruptcy and certificate of their principal, in their discharge.

Caines, in reply, said, that as the writ was regular, no advantage could be taken of the fact, which is now objected, but by pleading.

The plaintiff relies on two grounds for reversing the judgment: 1. That the ca. sa. did not lie four days, exclusively, before the return day, in the sheriff’s office; and, 2. That there is no averment in the declaration that a ji,fa. had been issued against the principal.

p. 120

Without entering into the question, whether the bail can p]ea¿ that a ca. set. against the principal did not lie four days in the sherifl’s office. The replication states that fact; it gives us the means of computing; it was delivered to the sheriff on the 15th, returnable on the 19th of September, and was then returned non est inventus; there are four days exclusive of the return day. It is the practice of this Court and the King’s Bench, where any act is to be done within a specified number of days, to consider the day on which notice is given, and the day on which the act is to be done, the one inclusive, and the other exclusive, without any particular designation that the one or the other shall be exclusive. The terms of the rule of the Mayor’s Court, as stated in the plea, according to my apprehension, require the writ of ca. sa. to lie four days in the sheriff’s office, exclusive of the return day. The expression, four days exclusively before the return, mean only exclusive of the return day. This construction has been put upon the rule by the Court which is acting under it; and I do not feel disposed to say that the construction is wrong; indeed, I think it right.

The second exception is unfounded ; the statute 1 JV. R. L. 602. requires a Ji. fa. to be first issued where the defendant enters special bail; this, we have decided, is for the benefit of the principal himself, and he alone can take advantage of that writ not being first issued. If a judgment is more than a year and a day old, there must be a sci.fa. to revive it; and yet the bail cannot take advantage of a ca. sa. issued on such a judgment to ground proceeding against them, without a sci.fa.

Judgment affirmed.