
    Evans v. Freeland.
    Saturday, January 11th, 1812.
    i. Scire Facias — Material Allegations. — A scire facias, purporting to be founded upon a judgment entered at Rules, in the clerk’s office of a County Court, but not mentioning that judgment was confirmed, by not being set'aside at the ensuing quarterly term, nor even that such quarterly term occurred prior to the suing out of the said scire facias, ought to be quashed, as not setting forth any legal cause of action,
    a. Bail — Delivery of Principal — Effect.—It seems that a special bail’s surrender of his principal to the sheriff is effectual, without his exhibiting a bail-piece, or other written evidence of his being bail; if the surrender be made in the County, in the Court of which he was accepted and entered as special bail in open Court, and it appear that the fact was known to the sheriff, who nevertheless refused to accept the surrender and hold the principal in custody.
    Upon a writ of supersedeas to a judgment of the Washington District Court, affirming a judgment of the County Court of Wythe, upon a scire facias against Jesse Evans and John Evans, special bail for John Armstrong, at the suit of Archibald Free-land.
    The scire facias described the judgment against Armstrong, on which the proceeding against the bail was founded, as having been “recovered at Rules held in the clerk’s office,” but said nothing of its being confirmed. The defendant pleaded a surrender of the said John Armstrong, in discharge of his bail, before the return day of the scire facias, to the Sheriff of the County of Wythe, where the‘original writ was, served. On the trial of the cause, they moved the Court to instruct the jury, ‘ ‘that it is not absolutely and indispensably necessary, to make a surrender effectual, that the bail should exhibit a bail-piece, if the sheriff is otherwise conusant of the bail’s undertaking, and where the surrender is in the County in the Court of which the special bail has been accepted and entered in open Court.” But the Court refused the instruction, and in lieu thereof, gave the following, *to wit: “that it is absolutely and indispensably necessary, to make a surrender effectual, that the bail should exhibit a bail-piece, or other written evidence of the fact; and that, even if the sheriff might be otherwise conusant of the bail’s undertaking; and where the surrender is in the County, in the Court of which the special bail has been accepted and entered in open Court, yet it is not sufficient without the exhibition of a bail-piece, or other written evidence of the fact:” to which opinion the defendants, by their counsel, excepted. A verdict was found for the plaintiff, but a new trial awarded; and, when it took place, the defendants renewed their motion, requesting the same instruction for which they contended before. The plaintiff’s counsel opposed the motion, and required the Court to give the instruction which had been given as aforesaid: but, the Court being divided in opinion, neither of the said instructions were given; whereupon the defendants again tendered a bill- ol exceptions, which was signed and sealed, &c.
    Verdict and judgment for the plaintiff.
    The pleadings presented various other points, but the following, only, were noticed in the opinion of this Court, pronounced on Saturday, the 11th of January, 1812.
    
      
      Sclre Facias — Haterial Allegations. — A scire facias upon an office judgment in a suit at law, which does not aver that the office judgment was confirmed "by the court or by rise of the next court, will be fatally defective. The case of Brans v. Freeland, 3 Munf. 119, is a sufficient authority to prove this proposition: Lee, J., delivering the opinion of the court in Roach v. Gardner, 9 Gratt. 92.
    
   “This- Court is of opinion, that the judgment aforesaid of the District Court is erroneous: therefore, it is considered, that the same be reversed and annulled with costs: and this Court, proceeding to give such judgment as the said District Court ought to have given, (not deciding upon the other points occurring in the case, further than to express its present impression to be that, under the actual circumstances of this case, it was not necessary for the plaintiffs in error, to have exhibited a *bail-piece at the time of the surrender in the proceedings mentioned,) is of opinion that the judgment of the said County Court is erroneous, in this, that the scire facias only purports to be founded upon a judgment entered at the rules, but does not aver, or show, that that judgment was confirmed, by not being set aside at the ensuing quarterly Court, nor even that such Court had occurred prior to suing out the scire facias aforesaid: therefore, it is further considered, that the said judgment be also reversed and annulledthat the said scire facias be quashed;” and that the plaintiffs in error recover costs in both the Courts below. 
      
      Note. It appeared in evidence, that the sheriff refused to accept the surrender, notwithstanding he was fully apprized of the undertaking of the plaintiffs in error as hail, hut grounded his objection to holding Armstrong in custody, not on their -want of right to make the surrender, hut on motives of personal friendship and tenderness to the said Armstrong. — Note in Original Edition.
     