Hayter v. State , 7 Port. 156 ( 1838 )

COLLIER, C. J.

— The only question raised in this case is, whether the return by a sheriff “ not found,” on an original and alias scire facias, issued- on a recognizance against hail, in a criminal case, be equivalent to a personal service of the writ? If this question was unaffected by a statutable regulation, we might perhaps determine, that such returns authorised a judgment against the recognizors—3 Petersdorff, 355; 14 Petersdorff, 371, 2; 6 Bac. 103, 120. But the Legislature have forestalled our enquiries; for by the third section of the act of eighteen hundred and thirty-three, (Aik. Dig. 122,) it is enacted, that “notices or scire facias’ shall be directed to the sheriff, and a copy shall be served on each, by the sheriff; and one service on each defendant in said notice or scire facias, shall be sufficient to enable the State to recover.” Now here is an express legislative requisition of the personal service of such process, and in such a case as the one at bar, and must control the pre-existing law. The plaintiff was not before the court for its action against him. The judgment of the Circuit court must therefore be reversed, and the cause remanded for further proceedings.

GQLDTHWAITE, J. — Not sitting.