January

Term.

1855. day, the 4th of March, returnable to the first Monday, the 6th; the next term of the court came on the second Monday, the 13th of March. The scire facias, therefore, does not appear by the return upon it, to have Thomp- been executed ten days before the first day of the term, and can have no effect.

Green

V.

son.

THOMPSON, J. The court is of opinion, that, as the emanation of a ca. sa., and a return to that writ of non est inventus is necessary to forfeit the recognizance and fix the bail in legal contemplation, and is an indispensable prerequisite to the commencement of proceedings by debt or scire facias; and that, as the plaintiff's demurrers to the rejoinders of the defendant confess that the ca. sa., which issued, was not so returned before the emanation of the scire facias it was prematurely sued out before the plaintiff's cause of action had accrued on the recognizance, and that therefore, the court below erred in sustaining the plaintiff's demurrers to the defendant's rejoinders.

The court is further of opinion, that although the scire facias in this case, was made returnable to a rule day and not in term time, and therefore not within the letter of that provision of the statute of March 5th, 1824 (Sess. acts 1823-4; and Supp. to Code of 1819, p. 265, c. 207, § 1,) requiring at least ten days previous service of a sci. fa. before the term to which it is made returnable, and that such previous service should appear by the date of service stated in, prefixed or subjoined to the return of the officer executing it; yet, according to a liberal construction of the act, by its reason and spirit and most manifest equity, in order to suppress the mischief within the contemplation of the Legislature, and to advance the rights and remedies it manifestly intended to confer on bail, we must interpret the Legislature as intending (and we think that intention is suf ficiently manifested by the words of the law, liberally construed,) whether the sci. fa. be made returnable to rules or to the term, to require at least ten days between

Green

V.

son.

the service of the writ and the term at which the bail 1855. January could surrender his principal. In the majority of cases, Term. perhaps, a service at any time before the rule day to which it was returnable would give the bail much more than ten days previous notice in which to seek out, Thomparrest, and surrender the principal, as the act gave him until the next succeeding term, and during the term, to make the surrender. To extend to him that indulgence not theretofore accorded, and to fix a minimum period of previous service, before the term, or ultimum tempus within which he might surrender was incontestibly the object of the law, which would be wholly evaded and frustrated by holding, that no particular period of previous service was required by the act, when the writ was returnable to a rule day, though it should happen on the day or on the day before the term, as in some cases, it might so happen.

In this case, the return does not shew ten days previous service; but, on the contrary, it appears from the proceedings, and the pleadings, that it was actually served less than ten, and only six or eight days before the term. This defect in the service of the scire facias, if there were no other objection, in the opinion of the court, presented an insuperable impediment to rendering any judgment upon the sci. fa. so served and returned.

Therefore, it is considered by the court, that the said judgment be reversed and annuiled, (with costs &c.) and this court proceeding to render such judgment as the court below should have rendered, it is considered by the court, that the plaintiff's demurrers to the defendant's rejoinders be overruled, and the scire facias dismissed with costs.

3. Service of process of foreign at- | 2. In sci. fa. against bail, returnable
tachment against an absent debtor on to rules, there must be ten days between
an executor before qualification binds a the service of the writ and the next suc-
legacy to the absent debtor in favor of ceeding term of the court.
the attaching creditor. Idem, 101

ATTORNEYS AT LAW.

Idem, 427

BILL OF EXCHANGE.

Attorneys make a contract with their
A bill of exchange is placed by the
client, by which it is agreed that they holder in the hands of the cashier of
shall have ten per cent. on whatever the Farmers' Bank at Lynchburg, for col-
might be recovered in a certain chance-lection, and by him endorsed and sent
ry suit, commenced by them in the year
to the cashier of the Farmers' Bank at
1834, for their services in the prosecu-
tion of it; and if nothing were recov-
ered in it, then no compensation for
their said services, in attending before
the commissioners to take accounts, or
in court, or in taking depositions" in the
same. HELD:

4. QUERE: Could the act be taken ad-
vantage of unless specially pleaded, any
more than the act of limitations, bank-
ruptcy, &c.? (Vide opinion of Tyler, J.)
Idem, 48

5. There is a trust for the sole and
separate use of a married woman for
life, and for the support and mainte-
nance of her children.

QUARE: Whether the trust subject is
liable beyond the profits for the fees of
counsel, for professional services ren-

dered the beneficiaries?

Doswell v. Anderson et als. 185

BAIL.

1. A writ of ca. sa. must issue against
the judgment debtor, and be returned
non est inventus, before a scire facias can
issue against the bail in the action.

Green v. Thompson, 427

Richmond (the place of residence of the
acceptor). The note is not paid at ma-
turity, and is protested on the 20th of
August, 1842. On the same day, the
notary who protested the bill, and who
is ignorant of the residences of all the
parties but the acceptor, encloses notices
to them of the dishonor of the bill in a
letter to the cashier at Lynchburg, to be
forwarded by him to the several parties,
by mail. None of them live in Lynch-
burg.

reached the cashier at Lynchburg; nor
It does not appear when the letter
when the notice to one of the endorsers
(the defendant in the suit) was put in
the post-office at Lynchburg; nor when
the mails left Lynchburg. In a case in
which these deficiencies in the proof
existed, the jury found a verdict for the
plaintiff; and a motion for a new trial
being refused, judgment was entered on
the verdict. HELD:

1. The court, in the absence of proof
on these points, cannot hold that due
diligence has been used to serve the
notices of dishonor. The verdict of the
jury against the endorser must, there-
fore, be set aside, and a new trial
awarded.
Early v. Preston, 228

2. It is incumbent on the holder of a
bill of exchange or note to show that
due notice of the dishonor thereof was
given to the party whom he seeks to
hold liable, and the onus probandi is ex-
clusively on him.
Idem, 228

3. The question of due diligence, in
serving notice of dishonor, is a question
of law, and if there be doubt or diffi-

culty, in making proper deductions from
the evidence, it must be solved by the
court, as if the jury had not passed on
Idem, 228

the evidence.

4. The court will not take judicial