39 Mo. 530 | Mo. | 1867
delivered the opinion of the court.
The material question is whether the return of “not found within the county” upon two successive writs of scire facias, upon a recognizance of bail in á criminal case, may be taken as equivalent to service, and thereupon execution be awarded on failure to appear and plead. That such was the rule of the common law, there would seem to be no room for doubt. This was distinctly recognized in the case of the State v. Randolph, 22 Mo. 483. The same practice has been followed in several States of the Union, when not otherwise provided by statute — McRea v. Mattoon, 3 Pick. 53; Saus v. People, 3 Gilm. 327. The prisoner is to be considered as in the custody of his bail, who is bound to have him in court on the day named ; and he is not to depart until discharged by the court.. The bail must know that he is there, or, if not there, that a forfeiture of recognizance will be taken against them; and that upon a return of two nihils upon the writs of scire facias, and on failure to appear and plead, he will be in default, and that an execution will be awarded. The venue must be laid in the same county where the recognizance is taken, for the reason that the defendant is presumed to reside in the county — 1 Chit. 299. The statute authorizes him to plead payment only in discharge — R. C. 1855, p. 1240, § 57. It is not the commencement of a civil action, but only a continuation of the former proceeding, to which he is a party in Court, and such return of two successive writs may very well be deemed equivalent to notice. If the party be
It was objected, also, that the second writ was not expressed on its face to be an alias. So far as this imperfection may be a defect in the process, it was cured by the statute of jeofails.
The judgment will be affirmed.