Aycock v. Leitner

29 Ga. 197

• Court: Supreme Court of Georgia
• Decided: August 15, 1859
• Status: Published

Opinion

— Benning J.

By the Court.

delivering the opinion.

Were the objections to the motion to enter up judgment against the bail, good ? The Court below thought they were not, and we think so too.

[1.] The first of them, was, that a fi. fa. was issued before the issuing of the ca. sa. Is there any law that discharges the bail, if a fi. fa., and not a ca. sa., is the first execution issued? We know of none; we were cited to none. Certainly, so far as the principal is concerned, the plaintiff may have first, a fi. fa., and then, a ca. sa. (Tidd Pr. 1005, 986.) Indeed, there is authority, that he may have both at the same time. (2 Mod. Ca. 302; Com. Big. “ Execution HP) And if it be true, that the plaintiff has the right, so far as the principal is concerned, why is it not true, that he has it also, so far as the bail are concerned? The exercise of the right, deprives them of nothing. Whether it be a fi. fa., or a ca. sa., that is the execution first issued, is not material to the bail. Whichever it be, they can equally discharge themselves, at their pleasure, by a surrender of their principal ; for which ever it be, he still remains equally, in their custody, or in their power.

Therefore, we can see nothing in the objection.

The second objection was thus stated : “ Because, the ca. sa. being returnable to the November Term of 1857, had an entry of non est inventus, dated January 11, 1858.”

But the November Term was adjourned uutil a day in January, and the day on which the entry was dated, was a day in that adjourned Term. The adjournment of the Court in this way, merely enlarged the November Term, and made-it include the days in January, during which the Court sat-This return, therefore, was perfectly regular. Besides, the fact, that the Sheriff kept the writ in his hands, till January, when he might have returned it in November, was to the benefit of the bail.

[2.] We can see nothingvalid,then,in the second objection.

The third objection was, “that the sci. fa. was directed to the Coroner.”

Aycock, the bail, was the Sheriff. Therefore, it would not have been proper to direct the sci. fa. to him. He Acknowledged service of it, in the following words: “ I acknowledge-due and legal service of this writ of scire facias, and waive service, and all service of Coroner, or any other officer.”

This waiver was, we think, sufficient to cure any defectin' the direction of the sci. fa., if there was any defect in it; and we do not say that there was.

[3.] We think, then, that this objection also was invalid; consequently, we must affirm the judgment of the Superior Court.

Judgment affirmed.