Cook and others v. Campbell and Loraine

Cook and others v. Campbell and Loraine. IN debt on recognizance of bail, the defendants pleaded, 1st. JVul tiel record. 2d. That the ca. sa. against the principal was not duly issued. The plaintiffs replied, taking issue on both pleas. Under these circumstances, the plaintiffs gave notice of bringing on the trial by record, and th‘e defendants of setting aside the whole proceedings, for irregularity in the ca. sa. Both motions came on together, and the record being admitted, judgment was demanded, against which the defendants relied on the irregularity, to prevent its being allowed. Boyd, for the defendants, insisted, that to warrant any proceedings against bail, there must be eight days between the teste and return of the copias ad satisfaciendum. 1 Sell. Prac. 550. 2 Salk. 601. Ball v. Manucaptors of Russell, 2 Ld. Ray. 1176. S. C. This objection appearing on the face of the record, was, he urged, a sufficient reason for refusing the application for judgment; and -though the matter ought not to have been availed of by plea, still that informality would not prejudice. In favour of bail the court go great lengths, and 1 Black. 74. would be found a stronger case than the present. Van Wyck, contra. There cannot be any cause assigned for the practice mentioned. The writ has lain four days in the sheriff’s office, and is all which is requisite. [MAJORITY — Per Curiam.] Per Curiam. The plaintiffs must have their judgment, and the motion on behalf of the defendants be denied. There is no such practice of this court, as that of requiring eight days between the teste and return of the ca. sa. nor is there any reason why it should be necessary.