
    *Bolanz & al. v. Commonwealth.
    November Term, 1873,
    Richmond.
    a. Scire Facias—Return.—A scire facias upon a recognizance Is made returnable to tbe term of the court. It Is Properly placed upon tbe docket at that term.
    2. Continuance—Passing Over a Term.—Prisoner charged with a felony in tbe county court, appears at the August term, and on bis motion bis case is continued until the first day of tbe October term; passing over the September term. This is not error.
    3. Variance between Indictment and Scire Facies.— Prisoner is indicted for embezzlement, which is a felony, and be Is admitted to bail. The recognizance is conditioned for bis appearance to answer an indictment for embezzlement. Tbe scire facias upon tbe recognizance recites it, that be was to appear "to answer of a certain felony whereof be stands accused.” This is not a variance.
    4. Recognizances—Sureties on—Liability.—Tbe fact that after tbe recognizance was executed by bis sureties, tbe prisoner was appointed a deputy United States marshal, and continued to act as such until tbe time for his appearance in court, does not relieve bis sureties in tbe recognizance from their liability.
    At the August term for 1870, of the County court of Pittsylvania, William Reahy, who was sheriff of the county of Pittsylvania in the year 1870, was indicted for feloniously embezzling the moneys of the county, amounting to $9,413.29, which were under his care and management by virtue of his office of sheriff. At the same term of the court Reahy, who had been arrested and bailed for his appearance, appeared in court, and upon his motion his case was continued until the first day of the next October court; and he entered into a recognizance with Mathias Bolanz and John A. Giles as his ^sureties, in the penalty of $5,000 on his part, and the like sum on the part of his sureties, conditioned for his appearance in court on the first day of the next October court, to answer the indictment,; and not to depart thence without the leave of the court. This order, in stating the charge against Reahy, says: “Wm. Reahy, who stands indicted for embezzlement, appeared,” &c.
    On the 17th of October, that being the first day of the October term of the court, Reahy failed to appear, and his recognizance was forfeited, and it was ordered that a writ of scire facias be issued against him and his sureties, returnable to the next court. The scire facias was issued on the 21st of October. In reciting the condition of the recognizance entered into by Reahy and his sureties, it says, upon condition that he “should make his personal appearance before the said court on the first day of the next October term of said court, to answer of a certain felony whereof he stood accused.” It was served on Bolanz on the 21st of October, and on Giles on the 8th of November 1870.
    On the 21st of November, which was the first day of. the term of the court, Bolanz appeared, and demurred to the scire facias; and the attorney for the commonwealth joined in the demurrer. On the next day he obtained leave to withdraw the demurrer; and he then moved the court to strike the cause from the docket, as being-improperly docketed; but the court overruled the motion ; and he excepted. Bolanz then again demurred to the scire facias, and filed the plea of nul tiel record; and the attorney for the commonwealth joined in the demurrer, and took issue on the plea. And on the motion of said defendant the cause was continued until the next term.
    At the February term for 1871, the defendants had leave to file special pleas in writing; and the cause was continued until the next term.
    *At the March term of the court Giles demurred to the scire facias and pleaded nul tiel record; and the attorney joined in the demurrer and took issue on the plea. And each of the defendants filed a special plea, the substance of which was, that, by the laws of the State he was authorized at any time before the first day of the October term 1870 of the court, the time at which Ueahy was recognized to appear, to apprehend said Ueahy and deliver him into custody, and thereby discharge his obligation as bail. But that Ueahy had been appointed by D. B. Parker, marshal of the United States for the district of Virginia, his deputy, and he had been acting as such from a short time after the execution of the recognizance by the defendant, until and after the said first day of the October term 1870 of the court; and that the defendant had, therefore, no power or authority to avail himself of said provision in the laws of the State, &c.
    The attorney for the commonwealth demurred to the pleas. And the cause coming on to be heard, the court overruled the demurrer of the defendants to the scire facias, and sustained the demurrer of the attorney for the commonwealth, to the special pleas; and upon the plea of nul tiel record, held tha t there was such a record; and rendered a judgment in favour of the commonwealth against the defendants foi$5,000, the sum mentioned in the writ, with costs. And thereupon they applied to the judge of the Circuit court of Pittsylvania for a writ of error to this judgment; which was awarded. The cause came on to be heard upon the appeal in November 1872, when the Circuit court affirmed the judgment of the County court: and then Bolanz and Giles obtained a writ of error to this court.
    Dabney, for the appellants.
    1. The sci. fa. was improperly docketed at the November *term of the court. A sci. fa. is a civil suit, which may be pleaded to, and must be matured as any other civil suit, the only difference being that the declaration is contained in the writ served on the defendant, and which is the commencement of the action. Foster on sci. fa., 73 Law Library, p. 305; Alice v. Gale, 10 Mod. R. 112; 2 Coke Inst. 470 ; 2 Wm. Saun. 72; Com. Digest Title Pleader, 3 and 10; Rex v. Hare & Mann, 1 Strange R. 146. It may be made returnable to the rules; and if so, upon failure of the defendant to appear at the first rules, a judgment nisi is entered against him, and a rule to plead at the next rules; if he fails to appear and plead at the next rules, the conditional judgment is confirmed, and so docketed at the next issue term of the court; at which time it becomes final, unless set aside by the defendant. That a sci. fa. is treated by the Code in the same light as an ordinary summons will be seen by reference to Code of 1860, chap. 170, § 6, p. 707. The 30 day limitation contained in this section, was intended to prevent judgment by default from being matured in those cases in which, by the provisions of ch. 171, sec. 1, and as amended by subsequent acts of assembly, two rule days, and an issue term in the same court may take place within thirty days. It is true (see sec. 5, ch. 171,) that a suit may be brought to a term of the court; but if so, it must be matured from term to term by analogy to the rules; or, perhaps, it may be matured at the rules following the term to which the process is made returnable. See opinion of Judge Green in 2 Rand. R. 1. The sci. fa. being regulated by the same rule, must be matured in the same way; and therefore it was error in the court to compel Bolanz to plead at the November term, 1870.
    2. The court erred in overruling the demurrer to the sci. fa. Leahy was in-dieted at the August term, 1870, *of the County court. He was recognized to appear on the first day of the October term, no notice being taken of the intervening September term, and the case having been continued to the October term previously to the application for bail. By the general principles of the common law a court must ex necessitate rei continue its judicial power and existence only by acting from term to term in the regrdar order in which such terms are appointed; any deviation from this course, unless provided for by special legislation, is irregular and void. Hence we see that in Virginia'it has been deemed necessary to provide such special legislation. See Code of 1860, ch. 162, §§ 15, 16, p. 686. The 16th section declares the old common law and principles, and prescribes that all continuances not otherwise specially provided for, shall be from term to term; and the only special provision is in the 15th section of the same chapter. The acts of 1866-7, ch. 208, § 2, p. 982, provide that a person indicted for felony shall be tried at the same term at which he is indicted, unless he show good cause for continuance, and then he shall be tried at any term, whether monthly or quarterly. See acts of 1866-7, ch. 208, sec. 2, p. 932. See also in this connection sec. 13 of chap. 207, pp. 928-9. Clearly, then, the case of Leahy should have been continued to the September term, and if admitted to bail he should have been recognized to appear at that term. If it was competent for the Count3' court to skip one term, it could, in its discretion, have skipped twenty; and thus would have been authorized to recognize Ueahy to appear at some term in the year 1880; and upon default of appearance have held his sureties liable on the recognizance. It scarcely requires any citation of authority to show that bail is not bound upon a recognizance illegally taken, . or requiring performance of conditions' not authorized by law, or not within the * jurisdiction of the officer or court taking the recognizance; the cases, however, of Hamlett v. Commonwealth, and Saunders v. Commonwealth, 3 Gratt. 82 and 214; Byers v. Floyd, Governor, 7 Leigh, 641; Bartoletts v. Commonwealth, 1 Leigh. 586; Archer v. Commonwealth, 10 Gratt. 627 (see op. of Daniel, J., p. 638;) Wood v. Commonwealth, 4 Rand. 329, are referred to as clearly establishing this principle.
    
      It is true that the act of a court of general authority, where it acts under colour of jurisdiction, is more liberally construed than the act of an officer with special authority, who must show his precept for his act; but it is equally true, that where a court-plainly usurps jurisdiction and violates the direct mandate of the law under which it exists and acts, its order is not voidable, but ipso facto void. Suppose the County court had recognized Beahy to appear at some day in vacation, could the bail, in the event of his default, have been held liable on the recognizance? Plainly not. Is not the present case equally strong? To aid the court with the power' to skip a term would enable it, by skipping more than three terms after indictment, to allow a prisoner to evade all responsibility to the law and to escape a trial altogether.
    3. The court erred in not finding for the defendants on the plea of nul tiel record. The acts of 1866-7, ch. 209, § 4, p. 942, prescribe what shall be the condition of a recognizance. The recognizance of record in this cause, of which oyer was craved, is conditioned for the appearance of the defendant on the first day of October term, to answer an indictment for embezzlement. The sci. fa. recites no such record, but merely recites that the recognizance was conditioned that Beahy should appear, &c. to answer us of a certain felony whereof he stood accused, &c. The record recited is clearly and fatally variant *from the record produced, and the cases already cited are relied on to show that the issue on the plea should have been found for the defendants.
    It may be proper to mention in this connection, that as the recognizance was made part of the record in the cause by the demand of oyer, this defect could also have been considered on demurrer, and furnished a conclusive ground, in the absence of any other, for sustaining the demurrer filed in the cause.
    4. The court erred in sustaining the demurrer to the special pleas filed by the defendants.
    The commonwealth, in cases of bail, undertakes to assure to them the right to arrest and surrender to the proper officers of the law, their principal at any time before appearance day, and thereby to discharge themselves from all liability. See 2 Tidd. Prac. 1129; Reese v. United States, 9 Wall. U. S. R. 13. This is in the nature of a contract with reciprocal conditions; and if for any reason the commonwealth is unable to assure to the bail the enjoyment of this right, or to protect them in its exercise, their liability ceases.
    The gist of the plea is, that the bail was prevented from exercising this right by the qualification and acting of their principal as a United States deputy marshal, protected by the laws of the United States, as such, from all arrests and interference except at the hands of the officers of justice; that the laws of the United States, protecting such officers, are paramount over the State laws, and imposed heavy penalties on any private person interfering with or arresting such officers. Of these laws the court must take judicial notice; and the facts of the plea having been admitted by the demurrer, it would be a monstrous proposition for the commonwealth to hold the bail bound on their contract when it has been unable *to protect them in the exercise of their right to arrest and surrender their principal.
    The Attorney-General, for the Common-. wealth.
    
      
      Return of Scire Facias.—As to this subject, see McVeigh v. Bank, 76 Va. 268.
    
    
      
      Continuance—See monographic note on “Continuances,” appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
      Variance between Indictment and Scire Facias.—See citation of principal case on this point in Allen v. Com., 90 Va. 358, 18 S. E. Rep. 437.
    
   Anderson, J.,

delivered the opinion of the court.

The purpose of the writ of scire facias is to give notice to the defendant of an application for award of execution. The writ may be returnable at rules in the office, or in court. And the order awarding execution is made upon due return of the process, unless good cause be shown against it. If the writ is returnable to rules, it is made at rules, and if not set aside at the next succeeding term, becomes a final judgment of the last day of the term. If the writ is returnable to the court, the order is made in court. It is not necessary to send the case to rules, because it is not a proceeding which requires a declaration or a rule to plead; the purpose for which rule days are required in the office. Code of 1860, ch. 171, sec. 4. The default of the defendant in not appearing is a sufficient foundation for award of execution. Williamson v. Crawford, 7 Gratt. 202. But now, by sec. 6, chap. 170, of Code of 1860, no judgment by default on a scire facias or summons shall be valid, if it become final within one month after the service of the process; which is not the case here. The court is, therefore, of opinion that there is no ground for reversal in the first assignment of error.

As to the second assignment of error: Where the law provides that a term of the court shall be held monthly, it would not be competent for the court to pass over one term prescribed by law, and adjourn to a subsequent term. That is, it would not be competent for the county court, at its July term, to adjourn to the first day of the September term, passing over the August term, if the *law required a term to be held in the month of August. But if the court failed to meet at the August term, by section 15, chap. 161, of Code of 1860, it would work no discontinuance; but every notice, recognizance or process given, taken or returnable to the August .term, and all matters ready for the court to act upon at the August term, shall be in the same condition and have the same effect, as if given, taken or returnable, or continued to the next court in course. And the 16th section provides for the continuance of all causes to the next term, where no order of continuance is made. These sections provide for cases in reference to which no order has been made, and the 16th section provides for a general continuance of the causes to the next term in course, where no order has been made by the court on the subject; but if the court had made an order continuing the trial of any particular cause to any particular day in the next term, or to the subsequent term, passing over the intervening term, the case would not fall within this provision of the statute. And no good reason can be perceived why the court may not, for good cause shown, on the motion of the accused, postpone the trial of a cause, to any particular day in the next term, or to a term subsequent to that. It could work no discontinuance; for the record shows that the cause was continued to a day, in the term oí a court competent to try it; which would not be the case, if it were continued to a day in vacation. In Sands’ case, 20 Gratt. 800, the cause was continued upon the motion of the commonwealth’s attorney, at the June term of the Hustings court of the city of Richmond, to the September term of that court, passing over the July term of the court. It had no term for the month of August. In this case the continuance of the trial from the August to the October term, was ordered on motion of the accused. The court is of opinion that *there is no error in that; and that the demurrer to the scire facias, on that ground, was properly overruled.

But it is contended that there is a variance between the seine facias and the recognizance ; which question was raised by the demurrer, the defendant having craved oyer of the recognizance ; that for that cause the demurrer should have been sustained, or the recognizance should have been excluded as evidence.

It appears from the recognizance that the accused was indicted for embezzlement, and was recognized to appear to answer that offence; as required by chap. 209, § 40, of acts of 1866-7, p. 942. The scire facias recites that he was to appear and answer, not for “a felony” generally, but “a certain felony whereof he stood accused.” Embezzlement being made felony by statute, the court can perceive no variance between the recognizance and the scire facias. Section 11, of chap. 211, of acts of 1866-7, p. 943, provides that “no action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have taken by a court or officer authorized to take it, and be substantially sufficient.” The court is of opinion that the recognizance in this case is substantially sufficient, and is substantially set out by the scire facias, and that there is no ground in this assignment of error for reversal.

The court is further of opinion, that there is no error in sustaining the demurrer of the plaintiff to the defendant’s special pleas. While it is true that the bail may be excused for his default in performing the condition of the recognizance, when it becomes impossible of execution by the act of God, or of the law, or of the cognizee, it is not competent for the accused to absolve himself or his bail by accepting office under the government of the United States. *The court is, therefore, of opinion to affirm the judgment of the court below.

Judgment affirmed.  