Malpass v. Fennell, 48 N.C. 79, 3 Jones 79 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 79, 3 Jones 79

LOVETT MALPASS vs. OWEN FENNELL.

In a sci. fa. to subject a sheriff as special bail, by reason of Ills having failed to take a bail-bond, it is not necessary to describe the suit in which the default is alleged to have occurred, by setting out the declaration. But it is necessary, in sucli a scire facias, to sot out how the sheriff became bail.

The courts below have power to amend a sci. fa., to subject bail.

Scire facias to subject a sheriff as bail, tried' before his Honor, Judge Ellis, at the last term of New-IIanover Superior Court.

The scire facias first returned was as follows:

“to the coroner, &c.

“ Whereas, Lovett Malpass, lately in our Superior Court recovered against Daniel Highsmith the sum, &c., in a suit then and there prosecuted against the said Daniel Highsmith: also, the further sum of, &c., for costs, whereof the said Daniel Highsmith was convicted, and though judgment be thereof given, yet execution thereof still remains to be made; and as Owen Fennell, high sheriff, became special bail, and liable, by virtue of an act of Assembly of this State, &c., as special bail to abide by, and perform therein the judgment of our said court, or to surrender the said principal' into our prison, or the Court aforesaid on that occasion, or in case he fails so to do in discharge of the said bail which, hitherto in all things on that occasion, both principal and bail aforesaid have failed to do. As to us, the said plaintiff Malpass insinuated, as well as supplicated, to provide in that behalf a fit remedy for him, so we on our part, &c., do command you to make known to the said Owen Fennell, as aforesaid that he appear, &c., to show cause why execution shall not issue against him on said judgment “by reason of the premises,” &c.”

Defendant pleaded to the sci. fa. various pleas which were found by a jury, but as the only point involved in the decision is the validity of the sci. fa., these are omitted.

At a subsequent term, the plaintiff got leave to amend the sci. fa., and the following is a copy of it as amended:

“ Whereas, Lovett Malpass, lately in our Superior Court of Law, held, &c., recovered, &c., in a suit then and there prosecuted against the said Daniel Ilighmith of frespass on the case, whereof the said Daniel Highsmith was convicted, as, by the record of said' court, manifestly appears; and though judgment be thereof given, yet execution thereof remains to be made, or surrender the said principal into prison : Which, hitherto, in all things, both principal and bail aforesaid, have failed to do.” Then follows the command to the sheriff to make known to the said Owen Eennell, bail, to appear, to show cause, &c.

The defendant objected in the Superior Court,

1. That the Court could not allow the scire facias to be amended.

2. That in its amended form it was defective; because it did not set forth the declaration in the action against Daniel Ilighsmith, and did not sufficiently show how the defendant became liable as bail for the said Iiighsmith.

3. That there was no declaration filed in the case against said Highsmith, (the same not having been required), and the Court could not, consequently, see whether that was the same record referred to in the scire facias.

4. The record in the said case, Malpass v. Iiighsmith,. was incomplete and defective. So that the Court could not pronounce it to be a record such as was recited in the sci.fa.

The Court overruled these objections, and gave judgment for the plaintiff; from which the defendant appealed.

No counsel appeared in this Court for the plaintiff*.

ReuL, and W. A. Wright, for defendant.

Battle, J.

The objections to the plaintiff’s recovery, taken by the defendant in the Court below, will be considered by us in the order in which they are stated.

The first is, that the court could not allow the sci/re facias to be amended. That the Court had such power, is too well settled by repeated adjudications of this Court, to be now questioned.

The second is, that in its amended form, the scire facias was defective, because it did not set forth the declaration in the original action, and did not sufficiently show how the sheriff, became liable as bail for the defendant in that action. The first part of this objection is not well founded. It is not necessary to set out in the scire facias the declaration in the action, in which it is alleged that the defendant became bail. The only thing required in that particular is to state the cause of action, and that is done in the amended process in this case, where it is said that the judgment was obtained in “ an action of trespass on the case.” It may be that this part of the objection is supposed to be supported by the case of Smith v. Shaw, 8 Ire. Rep. 233. If so, it is a mistake. In that case the declaration, spoken of, is the declaration which has to be filed upon the scire facias, when the pleadings are drawn out in full, and not the declaration in the original action.

The second part of this second objection is well founded. The scire facias ought to show how the defendant became bail, that is, by stating that the writ, in the original cause of action, came to his hand as sheriff, that he arrested the defendant therein, and failed to take bail, whereby, and by force of the statute in such case made and provided, he became special bail, &c. The original and the amended scire facias are both defective in this particular, and being a defect for the want of a substantial averment, it is fatal, Smith v. Shaw, cited above. See, also, the case of Neal v. Hussey, decided at the present term ante 10, where the scwefacias is unobjectionable.

The third and fourth objections apply to defects in the pleadings and the entry of the judgment in the original action, which, from the indulgence shown by counsel to each other, we suppose would not now be insisted on, even if it were necessary. But our opinion upon the latter part of the second objection, makes it useless for us to consider them any further.

The result is, that there being no cause shown for a venire de novo, the defendant is not entitled to one. But for the fatal defect in the scire facias, apparent upon the record, we must do as we did in Smith v. Shaw, reverse the judgment of the Court below, and arrest the judgment in this Court.

Per Curiam.

Judgment reversed.