
    Kyles v. Ford.
    
    November, 1823.
    Bail — Scire Facias — Rule-Da3'—Appearance-Day.  — It seems, that where a scire facias against "bail is returnable to a rule-flay, the flay of return and of appearance are the same. If the writ is returnable to the first day of a Court, and that happens to be a rule-day, that day is also the appearance-day.
    Same — Same—Return of. — But, if a scire facias is made returnable to a rule-day, and the same day is the first day of the Court, the writ is merely yoid; for, in that case, it can only be properly returnable to the first day of the Court.
    Process-Return of. — Process made returnable to a day which is not a return-day, is void; and a scire facias cannot be amended.
    This was an appeal from the Superior Court of Law for Cumberland County, where H. & R. Kyle sued out a writ of scire facias against H. Ford, as special bail for T. Haskins, against whom a judgment had been obtained, and a capias ad satis-faciendum returned “not found.”
    *The scire facias was dated on the 36th day of April, 3 830. The appearance-day was the first Monday of May following “before the Judge of our Superior Court of Law of Cumberland, at the courthouse, that being the rule-day, to be holden in the Clerk’s office of said county, &c.”
    The writ was executed on the 39th day of April, 1830.
    On the first day of May, the defendant not appearing, a conditional judgment was entered up against him, at the rules, unless he should appear at the next rule-day.
    On the 4th day of May, Ford, the defendant, came into Court, and surrendered Has-kins, his principal; whereupon, the Court discharged Ford from his recognizance of bail, and gave judgment against him for the costs of the scire facias.
    To this judgment the plaintiff filed a bill of exceptions, setting forth the foregoing facts, and stating, that it was proved, that the scire facias was returned executed on Monday, the 1st of May, 1830, which was the first day of the term of the Superior Court of Law.
    The plaintiffs appealed.
    W. Hay, Jr. and Call, for the appellants.
    No Counsel, for the appellee.
    November 7.
    
      
      For monographic note on Scire Facias, see end of case.
    
    
      
      Baii — Scire Facias — Rule-Day—Appearance-Day.— When a scire facias against special ball is returnable at rules on the first Monflay of the month, the return day is the appearance day, and the process being returned executed, a surrender of the principal on the return day is not in ttme to discharge the bail under the statute 1 Rey. Code, ch. 128, sec. 54. Branch v. Webb, 7 Leigh 371, 378, 382, citing principal case.
    
    
      
      Process — Return of, — Process returnable to a day which is not a return day is void. Coda v. Thompson, 39 W. Va. 68, 19 S. E. Rep. 548, citing the principal case as authority. A process merely irregular may be, under some circumstances, amended, but one wholly void is incapable of amendment. Coda v. Thompson. 39 W. Va. 76, 19 S. E. Rep. 550, citing principal case as authority. The principal easels also cited with approval in Raub v. Otterback, 89 Va. 649, 16 S. E. Rep. 933; McAllister v. Guggenheimer, 91 Va. 321, 21 S. E. Rep. 475.
      Personal Judgment — Want of Notice — Effect.—A judgment against a person who has not been served with notice is a void judgment, and is ex vi termini, a nullity. Ferguson v. Teel, 82 Va. 696, citing principal case. To the same effect the principal case is cited in Lavell v. M’Curdy, 77 Va. 771.
    
    
      
      Jtoge Cábele absent from indisposition.
    
   JUDGE GREEN.

The act of 1S19, 1 Rev. Code, p. 503, relating to the proceedings in civil cases, provides, that special bail shall be discharged by the surrender of the principal, in Court, or to the Sheriff, at any time before the appearance-day of the first scire facias returned “executed,” or of the second returned “nihil.” The laws in force before this statute took effect, prescribed, that the appearance-day should, in all cases, be the day after the Court to which the process was returnable, and that was also the rule-day. The statute of 1819 does not, in terms, appoint any appearance-day; but, it may be inferred from various provisions of the statute, and indeed results from the terms of the writ, in the absence of any ’¡’express provision on the subject, that the appearance-day is the return-day of the writ, if, according to law; an appearance can then be entered; or if not, then the first day thereafter on which an appearance can be entered. Thus, when the writ is returnable to the rules, the return-day is the appearance-day, as an appearance can be then entered at the rules. If the writ be returnable to the first day of the Court, and the same day be the. rule-day, it is also the appearance-day; since an appearance may then be entered at the rules. But, if it be not also rule-day, then the next rule-day succeeding, is the appearance-day; for, that is the earliest day at which an appearance can be entered, and a rule given or received by the defendant. If, therefore, the scire facias in the case under consideration was, as is contended by the appellant’s counsel, returnable to the first day of the Court, it would follow, that the surrender of the principal by the bail in this case, was not within the time prescribed by the act; and, consequently, the order exonerating the bail, erroneous. These are my impressions. But I give no decisive opinion on these points, as they are not involved in this case.

The act of 1819 required, that the forms of writs should be assimilated as nearly as may be, to the forms theretofore used in the General Court. The writs used in the General Court, were uniformly returnable in terms, “to the first day of the June Court, or November Court next,” as the case might be, without specifying the time when the Court would sit, which would have been entirely superfluous. When a writ issued in a Superior Court, returnable to the first day of the next Court, there was no necessity for departing, in any degree, from the terms of the writ used in the General Court. But, if it were returnable to a rule-day, it was necessary to' vary the terms of the writ, so as to make it returnable to a certain day specified to be the rule-day. This is the form of the scire facias in question. It is made returnable to “the first Monday in May, that being the rule-day,”' and it is not stated that the first Monday in *May was the first day of the Court. The requisition to appear before the Judge is, I presume, common to writs returnable to the first day of the Court, and to the rule-day. In the latter case, there is no occasion to drop this mandate from the form of writs used in the General Court. By law, the Superior Court of Cumberland is to be holden on the first Monday after the fourth Monday in April and September. If the Clerk, in adopting a form for writs returnable to the first day of the next Court, had thought it necesary to specify the time at which the Court was to be holden, he would, of course, adopt some expression which would have been always correct, and probably have followed the terms of the law prescribing the time for holding the Court, and varied it only from necessity. As, if a writ were issued in April, he would have inserted “this month,” instead of “April next.” He.could not, with propriety, have made writs intended to be returnable to the first day of the Court, returnable to the first Monday in May and October, uniformly; for, the Court must frequently sit on the last Monday in April and September. But writs intended to be returnable to the rule-day, might be returnable to the first Monday in May, as that was always a rule-day. I have no doubt, that the Judge examined the forms of writs used in that Court, and ascertained that the scire facias in question, was intended to be returnable and was in fact returnable, to the rule-day, and not to the Court. The act of 1819, before cited, directs that all process shall be returnable either to the first day of the next Court, or to some previous rule-day. The process in this case was not returnable either to the Court, or to a, previous rule-day; the rule-day to which it was returnable, and the first day of the Court, being the saíne. The consequence is, that the scire facias was merely void. Process made returnable to a day which is not a legal return-day, is void; 3 Black. Rep. 846; and a scire facias cannot be amended; Strange, 411; although a fieri facias may be amended in the teste or return; Tidd’s Practice, 391. The surrender, *therefore, in this case, was in good time, and the order discharging the bail, proper. The error in giving a judgment against the defendant for the costs of the scire facias, was beneficial to the plaintiffs, and they cannot complain of it. The appellee does not complain. I think the judgment should be affirmed.

JUDGES COALTER and BROOKE concurred; and the judgment was accordingly affirmed.  